Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
For many decades, the Supreme Court has assumed that the Constitution must change with the times. In the words of Justice William Brennan, “current Justices read the Constitution in the only way [they] can: as twentieth [now twenty-first] century Americans.” This notion of “living constitutionalism”—the idea that we aren’t strictly bound by the meaning a constitutional provision might have had when it was enacted—has resulted in landmark Supreme Court decisions in many areas of law. The Miranda rights made popular by television and the right to a government-paid criminal defense lawyer; the expansion of federal power under the Commerce Clause since the New Deal; the creation of independent administrative agencies; and the Supreme Court’s reasoning in Roe v. Wade and Obergefell v. Hodges—all arguably depend on living constitutionalism.
In response to some of these “liberal” decisions, conservatives articulated and advanced an alternative theory of constitutional interpretation in the 1970s and 80s: originalism, the commonsense notion that we are bound by the original meaning of the Constitution’s text, and that judges shouldn’t update that text’s meaning. But it would be a mistake to associate originalism only with its modern-day political defenders and abandon it to the extent to which it does not serve the interests of modern-day conservatives.
For one thing, originalism is not an invention of the 1970s; it was with us from the beginning, at least until living constitutionalism began to take root in the progressive era. Here is John Marshall in Gibbons v. Ogden: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense . . . .” And here is James Madison in an 1824 letter to Henry Lee: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”
More significantly, the theoretical defenses of originalism have never depended on its political results although, to be sure, there is some connection between conservatism and originalism that is worth defending (as I shall explain shortly).
Rather, the argument for originalism can be established in two steps, or by answering two questions, both of which are largely apolitical. First: What is the role of legal texts in our legal system, especially public legal texts like statutes, treaties, and constitutions? The answer is obvious: they are instructions—public instructions—either to us, to our legal officials, or both.
As such, they’re interpreted the same way any communication intended as a public instruction is interpreted, namely, with their original public meaning. Put another way, statutes, treaties, and constitutions aren’t Socratic dialogues; we don’t interpret them esoterically. They aren’t poems or novels either. And they aren’t secret instructions, conveyed by military code-talkers. They’re public instructions, and so we interpret them with their public meanings.
We interpret these instructions with their original meanings because those are the meanings their authors intended to convey. The contemporary meaning might diverge from the original meaning because of linguistic drift, of accidental shifts in language. No political theory, however, would justify letting linguistic drift determine legal content. If it did, to borrow the words of Alexander Hamilton, we would be living in a system of accident and force rather than reflection and choice.
Perhaps the contemporary meaning diverges from original meaning because judges have convinced us that the text plausibly means something other than what it really does. To the modern ear, for example, requiring the government to pay for your lawyer in a criminal case sounds quite plausible under the language of the Sixth Amendment, which guarantees the right to have “assistance of counsel.” But of course, it’s actually totally implausible. The New York Times does not have a right to a government-supplied printing press. Private citizens don’t have a right to government-supplied firearms. We only interpret the Sixth Amendment differently—it sounds different to our ears—because intervening political actors (judges) who are supposed to be controlled by the Constitution decided at some point to change the Constitution instead.
That all leaves the much bigger, second question: Are we bound to the particular legal instructions in our legal system? We would certainly interpret baking instructions or a French statute with their original public meanings. But doing so has no legal consequences because we aren’t bound by the baking instructions, and we aren’t ruled by French law. Only being bound explains why we follow or abide by a particular legal instrument that is then given its original public meaning. Hence we’re bound by Congress’s statutes, even the bad ones, because we consider the democratic process through which they’re enacted to be legitimate, and the resulting statutes therefore binding.
What about the Constitution? What makes a constitution legitimate and therefore binding, such that its text supplies the public instructions that we must follow? Something must make it so. It can’t possibly be that no constitution is ever binding. But it also can’t be that a constitution is binding only if it says exactly what any particular individuals want it to say. There must be a middle ground, something that makes a constitution legitimate even in the face of disagreement over its particulars.
As I argue in my recent book, A Debt Against the Living: An Introduction to Originalism, that middle ground, which makes a constitution legitimate and therefore binding even in the face of disagreement over its particulars, is a threshold success in balancing self-government on the one hand—allowing people to band together to legislate for the common good—and liberty on the other.
These two objectives, however, are in tension. Popular majorities often infringe on the rights of minorities. The Framers were very cognizant of history, including numerous attempts at promoting a common good that had ultimately ended in tyranny. So they sought to frame a constitution that successfully balanced self-government and liberty. That balance is extraordinarily difficult to achieve.
The Framers were remarkably successful for their time at balancing these competing objectives through ingenious mechanisms: the separation of powers, checks and balances, the enumeration of power, the bill of rights, the representative mechanism itself. But they also wrote the Constitution in such a way that it would continue to strike a successful balance long into the future. The rights-protecting provisions of the Constitution are written in sufficiently broad terms so that their fixed meanings can and do apply to new and changing circumstances. And by leaving most questions to the democratic process, the Constitution ensures that we can evolve and progress over time.
So what, exactly, is the connection between originalism and conservatism? Originalism allows us to conserve this balance among the principles of our Founding: self-government, ordered liberty, and (at least since the ratification of the Fourteenth Amendment) equality under law. This balance will not always lead to modern-day politically conservative results, nor should it. Originalism conserves the fundamental principles of the founding, and not necessarily the agenda of any single political party.