I wrote an op-ed for the New York Times discussing how originalism is doing at the Supreme Court these days and whether we should stick to it. It went online on Thursday and should be in the print edition today. Here is the opening:
For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.
But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.
After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”
And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.
But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.
And from the end:
Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.
But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.
Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.
Of course, this is a newspaper column, and covered a lot of ground, so there are a lot of details that I didn’t get into, some of which have surfaced in various critical emails and tweets. So for those who wish to engage further with the argument:
My basic case for originalism as our “publicly shared set of legal principles” is in my article Originalism Our Law?, as well as the follow-up Grounding Originalism, written with Steve Sachs. This argument also owes a great debt to Steve’s Originalism as a Theory of Legal Change. Taken together, these pieces argue for “original law” originalism — viz., that our law is the founders’ law, as lawfully changed.
The argument that we have defined originalism so capaciously that it lacks any meaning or “bite,” is refuted (I hope) in our quick six page article, Originalism’s Bite.
The argument that originalism is bad history, and/or should be done by historians rather than lawyers, is answered in our Originalism and the Law of the Past.
Finally, my thoughts so far on precedent, which I discuss in the piece as well, are in Constitutional Liquidation and Precedent and Discretion.