“The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.”
–Edwin Meese (1)
“Conservative justices use originalism when it justifies conservative decisions, but they become non-originalist when doing so serves their ideological agenda. This undermines any claim that originalism actually constrains judging and suggests instead that it is not a theory of judging at all but only a rhetorical ploy to make it appear that decisions are based on something other than political ideology.”
–Erwin Chemerinsky (2)
The Supreme Court sits at the apex of the U.S. judicial system. As we’ve mentioned before, it rarely acts as a fact finder. That role typically belongs to the first court to hear a case. Instead, the Supreme Court is an appellate court; it hears lower-court cases on appeal. The issues that reach the Court require the justices to interpret the meaning of laws and governmental actions. This interpretive function falls into two broad categories: Statutory interpretation and constitutional interpretation. (3) Each justice approaches their interpretive work in their own unique way, but it’s rather easy to see broad patterns emerge if one steps back and asks, “Of what is this particular case an example?” Thus, the first distinction we make is between those instances when the Court interprets the meaning of words in federal laws and those instances when it interprets the meaning of constitutional passages.
When Congress passes a bill and the president signs it into law, it enters into the U.S. Code as either a free-standing statute or an update to an existing statute. Often, disputes arise as to the meaning of words or phrases in federal statutes, and the Supreme Court has the ultimate say in how such words and phrases are to be interpreted. As American public law specialist Larry Eig wrote for the Congressional Research Service, “The exercise of the judicial power of the United States often requires that courts construe statutes so enacted to apply them in concrete cases and controversies.” (4) This is what we mean by statutory interpretation: when the Supreme Court authoritatively defines ambiguous words and phrases in federal laws as they apply to specific controversies between litigants. Once the Court has defined such a word or phrase, that interpretation becomes binding on all lower courts should future disputes arise.
How do justices go about interpreting federal statutes? There are several rules or conventions that justices apply as they interpret federal statutes, but we’ll focus on just two. They compete with as well as complement each other. One of them is called textualism. Justice Oliver Wendell Holmes once famously wrote that “We do not inquire what the legislature meant; we ask only what the statute means.” (5) Textualism refers to the desire to rely on the plain meaning of words when interpreting federal law. Textualism puts a burden on the legislature to be clear when writing bills so that there will be no ambiguity when that statute is actually applied by the executive branch. Textualism is attractive to a justice, for it allows them to say that they are just acting like a baseball umpire, calling balls and strikes, using the statute’s plain language. The justices apply what is known as the plain meaning rule, which is simply to say that if the statutory language is plain and unambiguous, it must be followed and applied to the case at hand. (6)
Another convention of statutory interpretation is intentionalism, which attempts to take into consideration the broad intent of the legislation. Justice Billings Learned Hand once wrote: “There is no surer way to misread any document than to read it literally . . . As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive of what they would have done, they are by no means final.” (7) Intentionalism can be used as an alternative to textualism but is primarily employed as a supplement when the plain meaning rule doesn’t apply. A justice wanting to rely on intentionalism would want to consider the congressional deliberations that occurred when the bill was debated, its legislative history, and the broad goal or goals that Congress was trying to achieve.
How does statutory interpretation operate in the real world? Let’s look at two examples.
When Congress passed the Clean Air Act in 1970, it empowered the brand-new Environmental Protection Agency (EPA) to regulate air “pollutants,” by which it meant things like particulates and sulfur dioxide coming out of tail pipes and smokestacks. What is a pollutant? Something that pollutes. And what does that mean? According to the Cambridge English Dictionary, to pollute means “to make air, water, or earth dirty or harmful to people, animals, and plants, especially by adding harmful chemicals or waste.” (8) In 1970, congressional members were not thinking about the climate emergency, so the statute did not have carbon dioxide, methane, and other greenhouse gasses in mind when it charged the EPA with regulating pollutants. Under the Obama administration, the EPA began to regulate greenhouse gases as part of the United States response to the climate emergency. Now, imagine yourself as a Supreme Court justice, and litigants like the Chamber of Commerce, the state of Texas, and the American Chemistry Council are challenging the EPA’s ability to regulate carbon dioxide. What was the legislative intent? What is the plain meaning of the word pollutant? In a series of complicated decisions along ideological lines, the Court has ruled that the EPA does, indeed, have authority to regulate greenhouse gases under the Clean Air Act provisions, but the Court does not agree that the EPA has unlimited freedom to act. (9)
Title 7 of the Civil Rights Act forbids an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Originally passed in 1964, the Civil Rights Act’s reference to “sex” was limited to differences between men and women, particularly with respect to women’s ability to become pregnant and deliver children. Nevertheless, the Court interpreted the meaning of ‘sex’ broadly enough to encompass sexual harassment. Thus, both broad categories of sexual harassment—quid pro quo and hostile workplace environment—are violations of the victim’s civil rights, regardless of whether the victim is male or female. More recently, the Court was called upon once again to interpret the meaning of “sex” in cases involving gay and transgender individuals. Gerald Bostock came out as gay and was fired from his child welfare coordinator job with Clayton County, Georgia. Aimee Stephens, after working for six years as a male funeral director, informed her employer that she was transgender and would thenceforth be coming to work as a woman. She was fired. In 2019, Bostock and Stephens both sued, hanging their cases on a broad interpretation of sex discrimination. During the case’s oral argument, conservative justices fell back on textualism and expressed their concern that in 1964, congressional members did not intend to protect gay and transgender employees. Progressive justices, on the other hand, asked questions in oral argument that indicated their comfort with a broad interpretation because the intent of the Civil Rights Act was to prevent invidious discrimination. (10) In the end, the Trump administration reversed the Obama administration’s position and argued against the LGBTQ employees in the Supreme Court, but the Court ruled 6-3 in Bostock v. Clayton County (2020) that the Civil Rights Act’s reference to “sex” protected gay and transgendered employees.
As with statutory interpretation, each individual justice has their own way to approach interpreting constitutional passages. The issues of constitutional interpretation mirror those of statutory interpretation. Some text in the Constitution is easy to understand and apply, while other passages are ambiguous. Therefore, justices have developed conventions that they employ when the passage’s meaning is unclear.
One interpretive convention is called originalism, and it tends to be loudly trumpeted by conservative media figures, politicians, and justices. Originalism is the interpretive convention that the Constitution should mean now what it meant to the people who wrote it. Writing for the Court in South Carolina v. United States (1905), justice David Brewer wrote that “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when adopted, it means now.” (11) Before his death in 2016, Justice Antonin Scalia was probably the Court’s strongest advocate for originalism. He argued that originalism ought to be “the normal, natural approach to understanding anything that has been said or written in the past.” (12) With Scalia’s passing, other conservative justices such as Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett took up the Court’s mantle of originalism.
What are the purported advantages of originalism as an interpretive framework? For one thing—and this is a big appeal for conservatives—originalism fixes the meaning of constitutional language in the eighteenth century, unless there are subsequent constitutional amendments passed specifically to update that language. Conservatives argue that originalism provides stability to the structure of the legal system. Another argument made in favor of originalism is that it keeps the judicial branch out of the business of legislating from the bench. According to this view, the Court’s role is simply to interpret current laws in light of constitutional meanings that were fixed in 1787, not to legislate from the bench. Finally, originalism’s advocates say that it keeps current judges from imposing their values on the law.
Originalism’s critics point to numerous flaws. First, the Constitution’s language is often unclear, calling into question the entire project of following the founders’ “original intent.” In fact, many phrases in the Constitution were intentionally broadly written, because a narrowly written document would not serve any republic for long. As Chief Justice Marshall wrote in McCulloch v. Maryland (1819), “We must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” The founders themselves disagreed on many small and large matters before, during, and immediately after the Philadelphia Convention. Consider George Mason, who stayed for the entire convention and became a fierce opponent of the Constitution–because of its lack of a bill of rights, of the way the executive branch was constituted, of the pardon power, of the elastic clause, of the supremacy clause, and other provisions. (13)
We might add that important words used in the Constitution have dramatically changed their meaning in the intervening centuries. Are we locked into the meaning of “cruel and unusual punishment” from 1787? What about “equality?” What would the founders have thought about “unreasonable” searches if they had known about GPS trackers, infrared cameras, and other enhanced means of gathering information about a person? Given what we know about how tremendously difficult it is to formally amend the Constitution, an originalist’s approach to constitutional interpretation effectively ties the political system’s hands as it tries to adapt to ever-changing social norms and economic conditions.
An additional argument against originalism is that even its advocates only apply it selectively. Originalist justices have turned the Second Amendment into an almost unfettered individual right for anyone to own massively destructive weapons, when most jurists and historians believe it was intended to be a collective right to preserve state militias from federal encroachment. Originalist justices have also granted corporations—which aren’t even mentioned in the Constitution—the right to free speech, and they have defined free speech such that it allows corporations to support political candidates. There is no support in the text of the Constitution or the historical record that the founders wanted huge corporations funding our politicians. Originalism, then, has become a convenient fiction that conservative justices employ when it is useful, but disregard when it is not.
Given the difficulty of knowing what certain phrases meant in 1787, the changing meaning of words over time, and the justices’ tendency to cherry pick language and historical conditions they like while ignoring those they don’t, originalism does not prevent justices from imposing their values. Indeed, originalism is largely a ruse whereby conservative justices legislate their values from the bench and pretend that they are not doing so. The implications of this are profound, as the Supreme Court and lower federal courts follow the rabbit hole of conservative originalism, which results in loss of bodily autonomy for women, the intertwining of religion and government, the inability of government to effectively protect people from environmental dangers, and the proliferation of guns throughout society. Indeed, speaking of the originalist argument on the Second Amendment, attorney and professor Madiba Dennie argues that “by its very nature, originalism threatens women and other minority groups who were disempowered at the time of the Constitution’s adoption.” (14)
A final argument against originalism comes from legal realism, which is a political science and legal school-of-thought, arguing that justices use contrivances such as originalism, textualism, intentionalism, and other interpretive methods to support their own policy preferences. As law professor and author Eric Segall put it, “justices’ decisions are driven primarily by their personal values.” (15) Originalists do not have some special power that allows them to divine the founders’ “original intent” or the “plain textual meaning” of the Constitution’s words.
If we take legal realism seriously, we have to conclude that the justices’ interpretive work is highly shaped by their political values. Value choices are inevitable when cases get to the Supreme Court. The obvious next question becomes: What values should guide a justice when interpreting the Constitution? Conveniently—and this is one of the geniuses of the document—the Constitution does a wonderful job of articulating its values. Legal scholar Erwin Chemerinsky argues that the Constitution articulates five important core values. Four of these are right in the Constitution’s preamble:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Chemerinsky argues that we should rely on the preamble to guide us toward four important values:
- Democratic government—The document rests on “we the people” who have come together to establish government in the wake of our separation from Great Britain and our failed experiment in a confederation of states.
- Effective governance—We the people seek to establish “a more perfect union” and “insure domestic tranquility, provide for the common defense, [and] promote the general welfare.”
- Justice—We the people seek to “establish justice,” in contrast to the unjust ways the British king and parliament were treating the American colonists.
- Liberty—We the people seek to “secure the blessings of liberty to ourselves and our posterity.”
Chemerinsky’s fifth value was not in the preamble to the Constitution, although it was certainly articulated in the Declaration of Independence. Instead, the fifth value was added by the Fourteenth Amendment in 1868:
- Equality—We the people chose to add the Fourteenth Amendment to the Constitution, which contains the equal protection clause: No state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Court then chose to apply that principle to the federal government as well as the states, for it makes no sense to hold the states to a standard not applicable to the federal government. (16)
By keeping these values in mind, a progressive reading of the Constitution errs on the side of expanding liberty and equality whenever disputes arise over the meaning of words like sex, race, equal, and discrimination. Similarly, when disputes arise over things like access to the ballot, gerrymandering, and suppressive voter I.D. laws, a progressive reading of the Constitution errs on the side of allowing citizens to vote and to have voters select their politicians rather than the other way around. When disputes arise as to whether the EPA can regulate carbon dioxide as a pollutant even though that was not on senators and representatives’ minds when they passed the Clean Air Act, a progressive reading of the Constitution errs on the side of effectively regulating pollutants, which serves the general welfare.
- Speech by Attorney General Edwin Meese III before the American Bar Association on July 9, 1985.
- Erwin Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of Originalism. New Haven: Yale University Press, 2022. Page 139.
- The rules and conventions of statutory interpretation are similar to those used when the Court interprets regulations issued by executive branch agencies, but we’ll focus here only on statutory and constitutional interpretation.
- Larry M. Eig, Statutory Interpretation: General Principles and Recent Trends. Congressional Research Service. September 24, 2014. Page 1.
- Quoted in Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts. Saint Paul: Thomson/West, 2012. Page 29. Original source is Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harvard Law Review. 417, 419 (1899).
- Larry M. Eig, Statutory Interpretation: General Principles and Recent Trends. Congressional Research Service. September 24, 2014. Page 3.
- Quoted in James D. Zirin, Supremely Partisan. How Raw Politics Tips the Scales in the United States Supreme Court. Lanham, MD: Rowman & Littlefield. Page 233. Original source is Giuseppi. V. Walling, 144 F2d 608, 624 (2ndCir. 1944).
- Cambridge English Dictionary online.
- Erica Martinson, “SCOTUS Nibbles at EPA Powers,” Politico.com. June 23, 2014.
- Nina Totenberg, “Supreme Court Hears Arguments on LGBTQ Employment Rights Case,” National Public Radio All Things Considered. October 8, 2019.
- Quoted in Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts. Saint Paul: Thomson/West, 2012. Page 81.
- Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts. Saint Paul: Thomson/West, 2012. Page 82.
- See George Mason, Objections to the Constitution of Government Formed by the Convention. September, 1787.
- Madiba Dennie, “Originalism is Going to Get Women Killed,” The Atlantic. February 9, 2023.
- Eric J. Segall, Originalism as Faith. Cambridge: Cambridge University Press, 2018. Page 4.
- Erwin Chemerinsky, We the People. A Progressive Reading of the Constitution for the Twenty-First Century. New York: Picador, 2018. Pages 53-81.