What is Originalism?

On Oct 26, the Senate confirmed President Trump’s nominee to the Supreme Court, Judge Amy Coney Barrett. During the Senate hearings, she professed to be an originalist, the same judicial philosophy as the late Justice Antonin Scalia, who Barrett formerly clerked for. Her jurisprudential beliefs led to an outcry from many who opposed her nomination. Hillary Clinton, for example, tweeted in response: “At the time the Constitution was ratified, women couldn't vote, much less be judges.” Former CBS News anchor Dan Rather tweeted: “If you want to be an “originalist” in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes.” Both of these comments caricature originalism and inaccurately explain what it really is.

So, what is originalism? Dare to know! As Scalia explained in a speech at Catholic University of America: “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated.” In essence, what did the words mean at the time they were written? When the Eighth Amendment prohibits “cruel and unusual punishments,” what is a cruel and unusual punishment? To interpret those words, an originalist would look to their definitions when the Bill of Rights was ratified in 1791, not which punishments today are considered “cruel and unusual.” This clause in particular was a pet-peeve of Scalia who vehemently disagreed with those who contended the death penalty violated this clause. Scalia thought this notion was “absurd.” He firmly believed that the death penalty did not constitute a “cruel and unusual” punishment since it was given for every felony at the time the Bill of Rights was adopted. Since it was not unconstitutional then, “it isn't now.”        

This should not be construed to mean that we are forever stuck in 1787 or 1791. Originalists recognize that laws can and do change. Should an amendment that changes the text of the Constitution be ratified, that amendment shall reign supreme to what the text said previously. No originalist will tell you that slavery is legal because it was allowed when America was founded. The Thirteenth Amendment changed the law to clearly prohibit slavery. Additionally, no originalist will tell you that women can’t vote since they did not have that right at the time the Bill of Rights was ratified; that too is absurd. The Nineteenth Amendment clearly states that the right to vote shall “not be denied or abridged by the United States or by any State on account of sex.” Both of these amendments, ratified through the amendments process, changed the law of the land and are currently binding upon all citizens. 

Still, some may wonder: could people writing in 1787 have really accounted for everything? Is it possible to properly interpret the Constitution in the modern day with an originalist interpretation? Here too, originalism recognizes that new technologies come into being, and must be properly adjudicated according to the original meaning. 

A good example of applying original meaning to new technologies is found in the case Kyllo v. United States. The Department of the Interior used a thermal imaging device outside Danny Lee Kyllo’s home in Oregon. The device detected an unusually high amount of heat emitting from his garage roof. The assumption was that there was marijuana being grown since the plant requires such high heat to photosynthesize. As such, a warrant was obtained to search Kyllo’s garage where marijauna was found; he was subsequently arrested. The Supreme Court ruled that the use of thermal imaging devices against a home violated the Fourth Amendment’s clause prohibiting “unreasonable searches and seizures.” The Court’s opinion, delivered by none other than Justice Scalia, explicitly stated that new technologies are not outside the realm of the Fourth Amendment merely because they did not exist at the time it was adopted: “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” The advent of new technologies poses no difficulty to originalism.   

It is important to note that not all originalists reach the same conclusions in every case, nor do they necessarily all think alike. The differences between Scalia and fellow originalist Justice Clarence Thomas illustrate how originalists can differ in their jurisprudence. Scalia was an adherent of stare decisis, the doctrine that precedent commands that a new case with similar circumstances to a previous case be decided the same way. This often led to Scalia refusing to overrule cases he believed were decided incorrectly. Justice Thomas takes a very different approach to this matter. The fact that a case is precedent fails to have any sway on Thomas’ judgement so long as it was incorrect. He has also pushed his fellow Justices to overrule cases: “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” 

The divide between Scalia and Thomas over the application of stare decisis is apparent in their views on the Slaughter-House Cases. The cases were a consolidation of many cases challenging a Louisiana law that granted slaughterhouse operations to a single company, thus giving that company a monopoly. The plaintiffs challenged that by granting a monopoly to one company and preventing others from engaging in the operations, the law violated the Privileges or Immunities Cause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Supreme Court decided, among other things, that the Privileges or Immunities Clause did not apply to the states, but rather only to the federal government. This decision has been severely criticized in legal academia. Harvard law professor Laurence Tribe has said: “the Slaughter‐​House Cases incorrectly gutted the Privileges or Immunities Clause.” Despite the criticism that the decision was incorrect, Scalia refused to overrule the cases and apply the Bill of Rights to the states through the Privileges or Immunities Clause. 

In a notable exchange during oral arguments in McDonald v. City of Chicago — a case deciding that the Second Amendment applies to the states — Scalia chided attorney Alan Gura for arguing that the amendment could be applied through the Privileges or Immunities Clause: “why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty[?]” The Court ultimately held that the Second Amendment applies to the states through the Fourteenth Amendment’s Due Process Clause. Justice Thomas, however, wrote a separate concurrence agreeing with the outcome, but argued that the Slaughterhouse Cases should be revisited: “the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause... With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.” 

Another point of difference between Scalia and Thomas is their views on the Fourth Amendment in criminal cases. Scalia tended to side with the defendants, while Thomas often sided with law enforcement. Two high profile cases display the differing views of the two originalists. 

One such case is Maryland v. King. In 2009, Alonzo Jay King Jr. was arrested on assault charges. Pursuant to the Maryland DNA Collection Act, a DNA sample was taken from King using a cheek swab. His DNA was matched to an unsolved rape case from 2003, and he was subsequently charged. King then moved to have the DNA evidence suppressed on the grounds that the DNA Collection Act violated the Fourth Amendment. The Supreme Court, with Thomas in the majority, upheld the act and the usage of the DNA since: “When officers make an arrest supported by probable cause… taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Conversely, Scalia penned a scathing dissent where he warned: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” He then concluded his dissent with a polemic: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” Scalia took the unusual step of delivering his dissent from the bench, a move that signaled deep disagreement.   

The other case that contrasts their views on the Fourth Amendment is Navarette v. California. The Court was asked to decide if there is enough reasonable suspicion for police to stop a vehicle after receiving a single anonymous tip. The driver in question was stopped by police after his vehicle matched a complaint for reckless driving, and was found to have marijuana in his vehicle. The Court answered in the affirmative, this time with Thomas writing for the majority: “the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” Once again, Scalia did not hold back his discontents with Thomas’ opinion, and delivered a fiery dissent that asserted the opinion “serves up a freedom-destroying cocktail.” Scalia further stated that the opinion evaded the essential meaning of the Fourth Amendment: “This is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.”

Likely the greatest misconception about originalism is that it is interchangeable and associated with conservatism. In actuality, nothing could be farther from the truth. Originalism is a judicial philosophy that can be practiced by all political stripes. As Yale legal scholar Akhil Reed Amar has observed: “Originalism is neither partisan nor outlandish. The most important originalist of the last century was a towering liberal Democratic Senator-turned-Justice, Hugo Black…” Black was the first appointment to the Supreme Court by President Franklin D. Roosevelt. Amar along with fellow Yale legal scholar Jack Balkin happen to be the most cited originalist scholars by the Supreme Court, and still, they are both “self-described liberals and registered Democrats.” Originalism is in no way confined to political ideology. 

The recent confirmation of Amy Coney Barrett to the Supreme Court has caused a stir around her professed adherence to originalism. Unfortunately, many of the criticisms of her judicial philosophy have been an inaccurate account of what originalism actually professes. I have attempted to explain the idea of originalism, demonstrate that not all originalists apply it the same way in all cases, and show that one can adhere to any political belief and still be an originalist. Although I have sought to clarify what originalism is, there are still many points that I have not addressed here. While honest people can disagree in good faith about the philosophy and application of originalism, I hope to have given the subject a reasonable overview.   

Photo Caption: Judge Bork and Justices Scalia, Barrett and Thomas (clockwise from top left), judges who are known for their originalist jurisprudence. 
Photo Credit: University of Notre Dame Law School, the United States Department of Justice and the Supreme Court of the United States