Originalism

Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Originalism consists of a family of different theories of constitutional interpretation and can refer to original intent or original meaning. Critics of originalism often turn to the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of current times. Originalism should not be confused with strict constructionism.

Contemporary originalism emerged during the 1980s and greatly influenced American legal culture, practice, and academia. Over time, originalism became more popular and gained mainstream acceptance by 2020.

Originalism was championed most prominently by Justice Antonin Scalia, whose opinion in District of Columbia v. Heller (2008) became a defining—and divisive—statement of originalist reasoning. Critics, including many professional historians, have argued that Heller relied on selective or flawed historical analysis. Despite such criticism, originalism has grown in prominence since Scalia’s tenure, especially with the appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett during the Trump administration. The philosophy played a central role in major rulings such as Dobbs v. Jackson Women's Health Organization (2022), which overturned Roe v. Wade. In response, some scholars and jurists, including Justice Ketanji Brown Jackson, have advanced ideas of “progressive originalism.” Meanwhile, critics contend that the Court’s reliance on history has become inconsistent and politically driven, with Justice Sonia Sotomayor remarking that “history matters to this Court only when it is convenient.”

Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.

Jurist Robert Bork is credited with proposing the first modern theory of originalism in his 1971 law review article, Neutral Principles and Some First Amendment Problems, published in The Yale Law Journal. He noted that without specification in a constitutional text, judges are free to input their own values while interpreting a constitution. Bork proposed one principled method to avoid this: for judges to "take from the document rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules." By following the original meaning, an originalist Supreme Court would therefore "need make no fundamental value choices," and its rulings would be restrained.

Law professor Raoul Berger expanded on the theory in Government by Judiciary (1977), positing that the rulings by the Warren and Burger Courts were illegitimate, as they deviated from the Constitution's original intent. In 1985, Edwin Meese, United States Attorney General under President Ronald Reagan, advanced a constitutional jurisprudence based on original intent in a speech before the American Bar Association, a jurisprudence that "would produce defensible principles of government that would not be tainted by ideological predilection." A few months after the speech, Justice William Brennan rejected Meese's view, claiming that the original intent of the Founding Fathers of the United States was indiscernible, and that text could only be understood in present terms. Later, in 1988 Ronald Reagan would advocate in favor of originalism during a speech at the Federalist Society for Law and Public Policy Studies.

During the 1980s, liberal members of the legal academy criticized the original intent formulated by Bork, Berger, and Meese. Serious opposition, beginning in law schools, evolved from debates in singular law review articles to books. In 1980, Paul Brest, who later became the dean of Stanford Law School, published "The Misconceived Quest for the Original Understanding," an article whose criticism of originalism proved formative and influential. Brest argued that a collective intent among the Founding Fathers of the United States was nonexistent and attempting to do so would be extremely difficult. He also posited that historical changes between the time of adoption to the present made originalism inapplicable in areas such as free speech, freedom of religion, federalism, and gender discrimination. Other scholars of the period adopted and expanded Brest's critiques, including H. Jefferson Powell and Ronald Dworkin. Brest and Powell suggested versions of originalism that sought higher purposes than a specific framer's intent, leading to a shift in the dominant form of originalism from original intent to the original public understanding.

The debate grew more heated with the failed Supreme Court nomination of Robert Bork in 1986 with the 1990s seeing originalism becoming a broadly endorsed view in the conservative legal movement. The Department of Justice under the Ronald Reagan administration played an important role in lending legitimacy to originalism in the 1980s.