Why Originalism?

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With the confirmation battle over Sandra Day O’Connor’s replacement looming—and remember, no fair asking questions about the new nominee!—conservative commentators have taken to insisting that they just want someone who will interpret the Constitution as it was “meant” to be interpreted. As Sen. John Cornyn puts it, someone who “reveres the law.” And what, pray tell, does that mean? One popular view, originalism, takes it that potential Supreme Court nominees should figure out what the Founding Fathers meant by the Constitution and apply the law thusly.

No one, of course, with half a brain believes interpretation is that easy—especially in light of the fact that Supreme Court justices today need to figure out how to apply a 230-year-old document to clearly modern issues as diverse as Internet pornography, homosexual marriage, intellectual property, automobile searches, campaign financing, etc. The very idea that there’s one true “original” meaning of the Constitution is an odd fiction that has somehow persisted over time. But one question to consider is why originalism, even if it was possible, would be such a good thing. Why is it better to adhere to a 230-year-old document than to update it and revise it—in some fashion—over time? I’ve been clicking around the internet this morning, and as best I can tell, here’s a list of the most common justifications (in italics; my responses in plain):

1) Since the Constitution is approved by the authority of the people, originalism is required to maintain their sovereignty.

Obviously not. I, for one, was never allowed to approve or disapprove of our Constitution. Nor, for that matter, were most people, even in the 18th century. The theoretical debate on this issue actually gets sort of thorny, but suffice to say that reconciling Locke’s theory of the social contract with the idea of a constitution that’s inherited, and hence unratified by all current citizens, isn’t nearly as easy as it sounds.

2) If the Constitution no longer meets the exigencies of society’s “evolving standard of decency,” and the people people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the Framers.

That’s not an argument for originalism; at best it might lead to a debate over whether the threshold for amending the Constitution is too high. (Yes, it is.) But then the argument becomes circular: why is the threshold we have for amendment, the one set by the framers, so indisputably good in itself?

3) Originalism prevents judges from gaining unfettered discretion to inject their personal values into the written Constitution.

But it doesn’t! There have been conservative originalists, like Antonin Scalia, and liberal originalists like former Justice Hugo Black or Yale professor Akhil Reed Amar. As you’d expect, Scalia’s version of originalism somehow almost always lines up with Scalia’s pre-existing values, and those values are very different from those of Amar, whose conclusions in For the People are often quite radical (his originalist scholarship suggests that the Constitution can be amended on a simple majority vote, and that the Constitution may well contain the right to education and welfare.) Values cannot help but intrude, even among originalists.

4) Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of the Constitution.

As legal commentators such as Jeffrey Rosen and Mark Tushnet have noted, the Supreme Court’s interpretation of the Constitution generally tracks closely with the prevailing popular opinion—or, at the very least, the prevailing elite popular opinion. Now there may be reason to prefer the elite opinion of the Founders to the elite opinion of the modern day, but it’s hard to say that judicial doctrine has unfolded in an “unpredictable” way. Moreover, judges are bound by convention, to some extent. In Europe, where the courts have far stronger judicial review power, judges avoid overly heavy or arbitrary bouts of activism, for fear of losing their popular legitimacy.

The other point to make is that at this point in time, a Court filled with Clarence Thomas clones would likely strike down a good number of current laws, which, to say the least, would be exceedingly unpredictable. And presumably arbitrary too, since they would be struck down according to Thomas’ and friends’ values. Meanwhile, what if new documents were suddenly unearthed or new scholarship emerged that changed what we know about the framer’s intentions? (Hardly impossible.) Well, then originalist interpretations would have to change, and that could happen in a very haphazard and unpredictable fashion.

5) If the Constitution is to be interpreted in light of “the evolving standards of decency,” why should the Supreme Court – nine lawyers – be the ones to have the final say over its interpretation?

Now this is a question I like! But it has more to do with the validity of judicial review than the merits of originalism per se. If we think that nine lawyers should not have the final say over what “evolving standards of decency” truly are, then the answer isn’t to hand the Constitution over to nine other lawyers who think standards of decency must never be taken into account. The answer is to abolish judicial review—or give Congress veto power over the Court. This is in the realm of things that will never, ever happen, but liberal legal scholars have slowly been coming around to this case for years now.

Perhaps there are other principled reasons for nominating originalist judges, or strict constructionists, but I haven’t found any. (As it happens, I think that Bush will prefer to nominate a business-friendly justice rather than an “originalist,” but we’ll see.) Now obviously when Republicans go on TV and say they want a judge who “interprets the plain meaning of the Constitution” or what have you, it makes a lovely soundbite, and it sounds intuitively good, but there’s no reason this line should go unchallenged.


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