Originalism: its Origin, Development, and How it Influenced the Supreme Court

Opinion/Analysis by Wen Xiao

In the past 50 years, originalism has grown from a fringe movement to the accepted mode of thinking amongst Supreme Court justices. Today, a majority of Supreme Court justices either identify as originalists or lean heavily towards originalism as a central part of their argument. So what is originalism, how did it develop, why might it be problematic, and how was originalism used in the context of recent Supreme court cases? 

Originalism is the theory that legal texts should be interpreted with the original understanding of the text as it was first adopted. When applied to the Supreme Court, this means that Supreme Court justices are bound to interpret the Constitution the same way it would have been understood in the historical time when it was written, and not interpret the text to their liking or in accordance with modern values. Often considered the founder of contemporary originalism, Robert Bork, in his 1971 book Neutral Principles and Some First Amendment Problems, describes originalism as taking from the document (such as the constitution) "rather specific values that text or history show the framers actually to have intended". 

So how can originalism, a theory which espouses for the original, untainted interpretation of the Constitution be problematic? A closer look at the theory reveals some issues. For instance, the 14th amendment prohibits the government from denying to any person within its jurisdiction equal protection of the laws. So would a law prohibiting gay marriages be in violation of the 14th amendment, since it does not give equal rights to gay couples? According to the originalists, it would not be, since gay marriages were considered a crime at that time. The various amendments made to the U.S. constitution over time also demonstrates a potential issue with the originalist theory. For example, the 19th amendment of the U.S. constitution gave universal suffrage to women. According to the originalists, the 19th amendment would be in direct violation to the 14th amendment to the constitution, which only gave the right to vote to men. Moreover, originalism paradoxically, is a quite modern concept, with the contemporary originalist concept only taking root in the 1970s. Scholars and justices such as Elena Kagen and Michael Waldam have argued that because of this modernity, the original founders of the constitution, such as James Madison and George Washington never intended the constitution to have a fixed interpretation. Since the constitution was meant to evolve with time, originalism may ironically run counter to the original intentions of the people who drafted the constitution in the first place. 

Nevertheless, originalism has developed from a fringe theory in the 1970s to the primary mode of thinking amongst Supreme court justices today. Originalism developed in large part, as a backlash against the decisions made by the liberal supreme court led by Earl Warren (1953 - 1969), which ended racial segregation for schools, ruled that a ban on interracial marriage is unconstitutional, protected voting rights, and significantly expanded First Amendment rights, such as by outlawing public school prayers. Unlike many other Supreme Court justices who judged mostly based on legal interpretation, Earl Warren believed that "common sense, decency, and elemental justice" should be decisive and take precedence over previous Court decisions, traditions, or even the Constitutional text itself. This prompted conservative legal scholars to advocate for a more "original" understanding of the Constitution, and hence the theory of originalism was proposed by Robert Bork in 1971 and developed further by Raoul Beger’s book Government by Judiciary. 

Originalism gained further legitimacy and power in the Supreme Court through the endorsement of conservative presidents. For example, Ronald Reagan  (1981 - 1989) appointed Edwin Meese as the United States Attorney General, who is a vocal supporter of originalism. He also appointed Antonia Scalia to the Supreme Court, who adheres strictly to originalism and is still on the Supreme Court today. In the following years, successive conservative presidents have continued to lend support to originalism through the appointment of originalist Supreme Court justices. Today, a majority of Supreme Court justices identify as originalists and originalism plays a large role in many court decisions. 

The influence of originalism on the Supreme Court today can be illustrated in the light of recent court cases. In United States v. Rahimi (2024), the Supreme Court is asked to decide whether section 18 U.S.C. 922 (g)(8) — a law preventing people under civil restraining order for domestic abuse from owning guns — violates the second Amendment. Proponents of the law suggest that such a law is pivotal to ensuring that domestic abusers are not given the weapons to threaten victims' safety. Eventually, the Supreme Court, by a vote of 8-1, found that the law did not violate the Second Amendment and the statute was upheld. In his one dissenting argument, long-avowed originalist Clarence Thomas argued that "a firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation" (Supreme Court, 72). In my opinion, his innocuous-seeming argument falls apart if we consider the historical background he so ardently talks about. When the Constitution was first drafted, women were not considered full citizens as free men are, and lost their legal rights upon marriage. Domestic abuse was not considered a crime in that era, as it was seen as normal in the patriarchal society. In fact, the first comprehensive set of laws to address and criminalize all aspects of domestic violence, the Violence Against Women Act, only came about in 1994. What historical precedent is there to speak of? 

In a more successful attempt, originalism was also used to overturn Roe v. Wade. In Dobbs v. Jackson Women's Health Organization (2022),  Justice Alito utilized a variety of originalist arguments in his claim against federally protected abortion rights. Firstly, he stated that the constitution "makes no express references to abortion" and that second, abortion remained largely illegal in the history of the U.S. up until the adoption of Roe v. Wade in 1973. Specifically, when the 14th Amendment was adopted in the U.S. in 1868, abortion was considered a crime, so the drafters of the 14th Amendment did not consider abortion rights as part of its stipulation on the implicit right to privacy.  Therefore, Alito argues that Roe v. Wade, whose legal basis relies upon the right of privacy as implicitly stipulated in the Fourteenth Amendment, does not enjoy constitutional protection and is therefore invalid. This line of reasoning encounters the same counter-argument as in the United States v. Rahimi case, that modern societal and cultural conditions have differed so dramatically from the historical conditions at the time that it makes little sense to make modern decisions based off of what the drafters of the constitution would have (probably) thought several centuries ago. Moreover, historians argue that the claim that abortion was illegal throughout most of U.S.'s history is actually false, and that abortion was mostly unregulated prior to the mid-19th century, making historical references by Alito potentially untrue. Despite this, 4 other justices agreed with Alito, and Roe v. Wade was overturned in a 5-4 vote, thus ending half a century of legal precedent in a effort to return to history. 

United States v. Rahimi and the overturning of Roe v. Wade are just two recent Supreme court cases heavily influenced by originalism. The theory of originalism has impacted the decision of many court cases across a wide variety of issues, such as New York State Rifle & Pistol Association v. Bruen (2022) on gun control, Kennedy v. Bremerton School District (2022) on religious expression in public schools, and Students for Fair Admissions v. Harvard (2023) on affirmative action in admissions. Perhaps it might be more interesting to look at cases where originalism does not seem to apply. In Trump v. United States (2024), the court decided in a 6-3 vote that presidents are given presidential immunity for official acts, where opponents argue that the decision is in direct contrast to the constitutional principle that no man is above the law. Nonetheless, all of the originalists voted in support of the ruling. 

Over 200 years ago, the Founding Fathers established the U.S. Constitution to enshrine the personal rights and liberties of all citizens. In my opinion, today, under the banner of originalism, the same constitution has become a tool for advancing political agenda, putting our rights and liberties at risk. I wonder if this could be further from the author's original intent?