The Rise of Originalism

Originalism, the judicial philosophy of interpreting the Constitution as its drafters intended, emerged in America during the 1970s. Robert Bork's 1987 Supreme Court nomination brought originalism into the public spotlight. Bork argued that without this disciplined approach, judicial overreach could occur.

Antonin Scalia, often seen as originalism's torchbearer, emphasized interpreting the Constitution's original public meaning consistently. He reasoned that judges shouldn't stretch the Constitution beyond its original intent. This philosophy shaped landmark cases like District of Columbia v. Heller, which affirmed the individual right to bear arms.

Critics argue that strict adherence to the Founding Fathers' intent may not accommodate modern solutions. However, originalists believe this approach prevents judges from molding the law based on personal preferences, thus preserving liberty.

Key Debates in Originalism:

• Determining framers' intentions in modern contexts
• Representativeness of such interpretations today
• The role of constitutional amendments in reflecting societal consensus

Originalism's appeal lies partly in its appearance of neutrality. Even Justice Elena Kagan once remarked, "we are all originalists," acknowledging its influence across the political spectrum. The shift towards originalism over living constitutionalism suggests a judiciary increasingly cautious of judicial activism.

This ongoing debate underscores a fundamental question: Should the Constitution adhere strictly to its original meanings, or evolve alongside society? With originalism deeply embedded in present judicial decisions, this conversation continues to shape the American legal landscape.

Judicial Review and the Framers' Intent

The Constitution's Article III, which establishes the judiciary, does not explicitly mention judicial review. This has led to debates about whether the Framers intended for courts to have the power to declare laws unconstitutional.

Examining the Constitutional Convention records, the Federalist Papers, and early state practices provides insight into this question. While explicit references to judicial review were sparse during the 1787 Convention, Alexander Hamilton's "Federalist No. 78" argued for the judiciary's role as a guardian against legislative overreach.

Early state practices also suggest a foundation for judicial review. Several state courts exercised forms of judicial review before the Constitution's drafting, nullifying legislative acts that conflicted with their state constitutions.

"It is emphatically the province and duty of the judicial department to say what the law is." – Chief Justice John Marshall, Marbury v. Madison (1803)

The landmark case Marbury v. Madison in 1803 solidified judicial review in practice. Chief Justice John Marshall's assertion cemented the Court's role in interpreting the Constitution.

Arguments Against Judicial Review:

• Lack of explicit provision in Article III
• Potential disruption of the balance sought by the Framers
• Risk of judicial overreach

Those skeptical of originalism argue that rigidly following an 18th-century blueprint may not account for America's dynamic, pluralistic society. However, originalists maintain that the Constitution's relevance depends on adherence to its original meaning.

This ongoing debate reflects the genius of the Framers in creating a document rich enough to sustain varied interpretations while remaining a foundational text for generations.

Challenges to Determining Original Intent

Ascertaining the Framers' true intentions presents several challenges. Incomplete records, conflicting views among the Framers, and evolving language and societal norms complicate efforts to determine a singular, authentic original intent.

Key Challenges:

1. Incomplete Constitutional Convention records
2. Conflicting accounts and personal biases
3. Language evolution over time
4. Societal transformations since the 18th century

The Constitutional Convention's proceedings were kept secret, and existing notes, such as James Madison's, cover only a fraction of the debates. These accounts often conflict, reflecting personal biases and differing opinions among the Framers.

Language evolution adds another layer of complexity. Terms like "militia" and "arms" in the Second Amendment have sparked debates about their historical context and modern interpretation. This shifting landscape of meanings makes historical interpretations challenging.

Scholars like H. Jefferson Powell and Boris Bittker have critiqued originalism based on these interpretative difficulties. Powell argued that the Framers didn't intend for their specific deliberations to control future interpretations, while Bittker highlighted the pitfalls of relying on incomplete historical records.^1,2

Societal transformations since the 18th century further complicate matters. Issues like civil rights, gender equality, and technological advancements were either nonexistent or vastly different when the Constitution was drafted. Applying the Framers' purported intentions rigidly to modern issues can sometimes seem anachronistic.

Despite these challenges, originalism advocates maintain that understanding the Framers' intent remains crucial. They argue that interpreting the Constitution without historical grounding risks it becoming a vessel for transient political agendas.

This ongoing debate underscores the Constitution's enduring strength and the Framers' ingenuity in creating a document that continues to provide a foundation for meaningful discourse on governance and liberty.

Originalism vs. Living Constitutionalism

Originalism and living constitutionalism represent two distinct approaches to constitutional interpretation. Originalism, advocated by figures like Robert Bork and Antonin Scalia, adheres to the original public meaning of the Constitution's text at the time of ratification. Living constitutionalism argues that interpretation should evolve with societal changes.

The Brown v. Board of Education case illustrates this divide:

• Originalists contend that the Fourteenth Amendment, even in 1868, opposed racial segregation, viewing Brown as a correction of earlier judicial errors.
• Living constitutionalists see Brown as a necessary evolution reflecting mid-20th century equality standards.

The Second Amendment offers another example. In District of Columbia v. Heller, Justice Scalia's originalist interpretation found an individual right to bear arms, independent of militia service. Living constitutionalists argue for considering modern issues like gun violence and public safety.

The role of judges is another point of contention. Originalists view judges as neutral arbiters applying the Constitution as originally understood, while living constitutionalists see the judiciary as active participants in societal evolution.

Critics of originalism point to its potential rigidity in addressing modern issues, such as digital privacy rights. Supporters argue this rigidity preserves the rule of law and prevents erosion of constitutional liberties by transient political trends.

Each philosophy presents compelling arguments. Originalism emphasizes historical fidelity and aims to curb judicial overreach, while living constitutionalism advocates for adaptability to present-day demands.

The Practical Implications of Originalism

Originalism's practical implications shape judicial decisions, minority rights, and the balance of power among government branches. In cases like Citizens United v. FEC, originalist interpretation has redefined the political landscape based on perceived original meaning of the First Amendment.

Regarding minority rights, critics argue that originalism may inadequately protect minorities, given the historical context of the Framers' era. Proponents contend that originalism applies the Constitution's original guarantees of liberty and equal protection consistently.

Originalism constrains judicial overreach, theoretically preserving legislative and executive prerogatives. However, critics warn that rigid adherence may stymie necessary judicial checks on other branches.

"Originalism fosters legal predictability and consistency."

This view is championed by supporters. Critics, however, argue it unrealistically demands historical precision and may overlook the complexity of Framers' opinions.

As originalist principles continue to shape constitutional adjudication, the debate reflects the ongoing challenge of balancing historical reverence with societal progression.

State Courts and Judicial Philosophy

State courts have become arenas where judicial philosophies, including originalism, clash. Recent efforts by Democrats to appoint more liberal judges at the state level aim to counterbalance conservative federal appointments. These appointments can significantly affect interpretations of state constitutions and laws.¹

Liberal judicial appointments may lead to more flexible interpretations of state constitutions, potentially:

• Expanding voting rights
• Enhancing anti-discrimination protections
• Enforcing stricter environmental regulations

Conversely, originalist judges may adhere strictly to the letter of state constitutions as understood at adoption.

The debate over judicial activism complicates this dynamic. Critics argue judges should not act as policymakers, while proponents assert courts must evolve with society. Recent cases, such as gerrymandering debates in Wisconsin, highlight the tangible effects of differing judicial philosophies on political landscapes.²

The push to appoint ideologically aligned judges at the state level represents efforts to guide courts towards certain judicial philosophies:

• For conservatives, reinforcing originalism aims to preserve traditional interpretations and limit judicial discretion.
• For liberals, appointing adaptable judges seeks to ensure state constitutions serve evolving societal demands.

As this judicial balancing act continues, state courts' decisions will shape the trajectory of American legal and democratic principles for generations to come.