Originalism

Originalism, in U.S. law, is a theory of legal interpretation according to which historical laws and legal documents—the U.S. Constitution in particular—are best understood by considering the common meanings of words or phrases at the time the law or document went into effect. Originalism may also take into account, as needed, pertinent historical events, movements, controversies, or other documents from the same time period. A related interpretive theory is textualism, according to which laws and other legal documents are best understood by considering the common meanings of the words or phrases they contain rather than the goals or intentions of those who drafted them, even if such factors are clearly indicated. Textualism in practice also takes into account the semantic contexts in which words or phrases are used.

Justice Antonin Scalia, who had been nominated to the Supreme Court of the United States in 1986 by Pres. Ronald Reagan (1981–89), advocated for and presented originalist interpretations of the Constitution in his many conservative opinions. Scalia also developed and put into work textualist readings of legislation cited before the Court. Scalia and the jurist Robert H. Bork, another originalist, promoted and practiced their theories in reaction to groundbreaking decisions of the Supreme Court under Earl Warren (1891–1974), the Court’s liberal chief justice from 1953 to 1969. Among those rulings were Brown v. Board of Education (1954), which prohibited racial segregation in public schools, Loving v. Virginia (1967), which struck down state laws prohibiting interracial marriage, and Miranda v. Arizona (1966), which required police to inform criminal suspects of their rights to remain silent and to have an attorney present before and during their questioning. Warren’s Court effectively followed a third theory of legal interpretation, known as “living constitutionalism,” under which the meanings of important words and phrases in the Constitution are purposefully broad or wide-ranging and thus variable in meaning with changes in society itself.

Although originalism and textualism were initially appealing only to a small number of conservative judges, they gradually gained adherents among moderates and even liberals over the next 50 years, by which time both theories had become common modes of interpretation. At her Supreme Court confirmation hearing in 2010, Kagan famously remarked that “we are all originalists now.” And in a Harvard lecture in 2015 she proclaimed “We’re all textualists now.”

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Conservatives have long viewed originalism as well as textualism as important tools with which to identify and preserve the real content of major constitutional provisions and laws, thereby providing an objective basis for court rulings and preventing liberals from using their own interpretations as a means of “judicial activism.” Conservatives thus hold that the original meanings of relevant words and phrases reveal the “real” rights, powers, and protections afforded by the Constitution, thereby preventing what they consider fictional alternatives (such as the right to first- and second-trimester abortion) serving liberal interests. Although liberals and moderates have used both originalism and textualism to support their own readings, they have also accused conservatives of ignoring or clearly misusing the tools to support their preferred decisions. An early criticism in this vein was advanced in a 1985 lecture by liberal justice William Brennan, Jr., who insisted that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” In a similar vein, Kagan clarified her earlier observation that “we are all originalists now,” explaining in an interview in 2023 that originalism is actually consistent with living constitutionalism, given that modern interpretations of major constitutional provisions have naturally evolved from their original (and successive) meanings. And in a later comment, from her dissenting opinion in West Virginia v. Environmental Protection Agency (2022), Kagan acknowledged that “it seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons…magically appear as get-out-of-text-free cards.”