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Is the Court’s Originalist Jurisprudence Mostly Symbolic?

Lady Justice Statue

With the addition of Neil Gorsuch, the Supreme Court once again has two talented originalists. But two is not five, and the record so far has been that originalism’s influence on the Court has been more symbolic than consequential.  In other words, the opinions that have been most orthodox in their originalism have not made much difference to America’s political life. That is not of course to criticize these opinions. Originalists should focus on reasoning, not results. But the absence of more consequential opinions does suggest that Court is not yet an originalist Court.

Originalism can be symbolic in several ways.  First, a jurisprudence of a provision can become pervasively originalist and yet be largely symbolic if that provision is relatively unimportant. That is probably the case with the Confrontation Clause where Crawford v. Washington  and Giles v. California are quintessentially originalist opinions. But while the Confrontation Clause is of course important to some defendants, it does not change crime control or even criminal procedure except at the margin.  This kind of symbolism might be termed the “Originalism of Small Things.”

Another form of symbolic originalism is for the Court to make a thorough going originalist decision, but not to follow up on its important implications. The Second Amendment jurisprudence currently appears to be an example of this kind of symbolism. The right to own a gun in one’s home announced against the federal government in Heller and extended against the states in McDonald invalidated very few laws. (I recognize that McDonald itself is not originalist in reasoning although it extends an originalist result that could be extended on originalist grounds).  Almost all jurisdictions already provided such a positive legal right except for a few outliers like Chicago and the District of Columbia. So far the Court has consistently refused to take a variety of opportunities to extend “the right to . . .  bear arms” to the outdoors. This kind of symbolism might be termed “Originalism Against Outliers.”

Yet a third way to create symbolic originalism is to write an originalist opinion cutting back the scope of one federal enumerated power toward its original meaning while permitting Congress to continue to accomplish the same objectives under other enumerated powers. Lopez v. United States provides the paradigm example because the federal government can accomplish almost all of what it could previously have achieved under the Commerce Clause through the New Deal interpretations of the Necessary and Proper Clause the Spending Clause—interpretations that the Court has left intact.  This kind of symbolism  can be called the “The Originalism of Limited Limitation.”

Originalism in the academy has entered an almost golden age.  Careful scholarship offers better and better templates for interpreting provisions the Constitution as written. But the originalist revival on the Court, while valuable for its models of sound judicial reasoning, is still in its infancy. Originalism will be recognized as the dominant mode of constitutional interpretation when most Justices are ready to make originalist decisions that go beyond symbolism.

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