Originalism: Its Problems and Its Promise
In 2016 federal prosecutors charged Terance Gamble with violating the federal law prohibiting felons from possessing firearms. Gamble’s case could hardly have been more run-of-the-mill; federal prosecutors bring thousands of these felon-in-possession cases each year. Yet Gamble argued that because he had already pleaded guilty in Alabama to a felon-in-possession charge arising from the same incident, the Fifth Amendment’s Double Jeopardy Clause (which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”) barred the subsequent federal prosecution. Supreme Court decisions going back to the mid-nineteenth century, however, have held that criminal statutes adopted by different sovereign authorities necessarily constitute different offenses and that the Constitution therefore permits consecutive state-federal or federal-state prosecutions. Gamble’s case, which the Supreme Court decided last June, asked the Court to reconsider this “separate sovereigns” doctrine.
Putting aside precedent (a crucial issue we’ll return to below), how should a judge approach such a question? One method—commended by Ilan Wurman’s A Debt Against the Living: An Introduction to Originalism—would ask whether the Double Jeopardy Clause was originally understood to prohibit a prosecution under federal law when the defendant has already been prosecuted for the same conduct under an otherwise-identical state law. Other options include asking, a la Richard Posner, whether the Double Jeopardy Clause could be interpreted to bar such prosecutions and whether it would be good policy to do so. Or a judge might channel Ronald Dworkin and ask whether prohibiting subsequent prosecutions is more or less consistent with the Double Jeopardy Clause’s underlying principles.
Although these and other alternatives continue to have their proponents (especially in the legal academy), the originalism defended by Wurman and others is ascendant. Many of the Supreme Court’s decisions in the latter half of the twentieth century partake not so much in the structured discipline of a classical symphony as in the self-conscious improvisation of a free-style jazz session. Today, however, Republicans have elevated self-proclaimed originalists Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and scores of other originalist-minded jurists have joined the lower state and federal courts. Originalism can even claim bipartisan support: Elena Kagan, President Barack Obama’s second Supreme Court appointee, declared to the Senate Judiciary Committee that “we are all originalists,” explaining that every judge seeks to “apply what they [the Framers] say, what they meant to do.”
Originalism is not without its detractors, of course. In his recent Liberal Currents review of Wurman’s book, Adam Rust reprises many of the common critiques. Notably, Rust declines to raise two of the most popular criticisms: he argues neither that originalism produces outcomes that are practically or morally unacceptable, nor that it improperly subjects modern Americans to rule by the dead hand of the past, as Thomas Jefferson once mused. Rust instead says originalism does not work even on its own terms: he argues originalism is (1) practically impossible, (2) too beset by internal disagreements to give judges concrete guidance, (3) unable to cabin judicial discretion, and (4) a cover for conservative policy preferences.
Some of these arguments point to genuine problems for originalism—and Rust does not even mention the problem of precedent, perhaps the single greatest difficulty confronting originalists today. Yet these problems simultaneously underscore one of the theory’s great virtues: the problems arise because originalist decisions can be wrong and can be shown to be so. Originalist decisions are, in other words, falsifiable. And they are so precisely because originalism obliges judges to ground their decisions in objective evidence regarding what the Constitution’s provisions were originally understood to mean. No theory of constitutional adjudication can make judges unbiased or omniscient. But originalism’s falsifiability gives it the resources to identify and correct decisions that are unsubstantiated, inconsistent, or unprincipled. The problems Rust has identified, far from undermining originalism, underscore its promise—that constitutional interpretation, like the Constitution itself, can slowly become “more perfect.”
Originalism: “Believe in it? I’ve seen it done.”
Take Rust’s first criticism, that the task of discerning the original understanding of constitutional provisions is well-nigh impossible. He observes that scholars such as Paul Brest criticized the early “original intent” version of originalism for asking judges to do the impossible: Brest noted that this sort of originalism (what he called “strict intentionalism”) required judges “to determine how the adopters would have applied a provision to a given situation, and to apply it accordingly.” That is, it required judges to imagine how a particular Framer would have resolved the case at hand and then aggregate this Framer’s “intent” together with the individual intents of dozens or hundreds of other Framers. Brest correctly noted that this was an exercise in futility. And later originalists, Justice Antonin Scalia most famously among them, properly pointed out that enforcing the Framers’ “original intent” would be illegitimate even if it were practicable: it’s the actual Constitution the Framers adopted, not their unenacted subjective intentions, that constitutes the law that judges are bound to enforce.
Accordingly, most originalists today do not ask judges to conjure tricorn-hat-wearing apparitions to determine whether, for example, police need a search warrant before thermal imaging a house. Today’s originalists do not attempt to resolve cases by asking “What Would James Madison Do?” They instead ask how contemporary readers would have understood the provision at issue (which readers matter—the provision’s ratifiers, the broader legal community, adult Americans generally—is a contested question, and one that extends beyond originalism to the broader jurisprudential issue regarding whose views determine what counts as “law”).
Rust argues, however, that shifting the focus to the original public understanding only makes things worse: “To believe that the original public understanding position has addressed Brest’s criticism, you would be forced to defend the notion that it is easier to understand the intent of the roughly 800,000 white males who voted on ratification than to understand the intent of the 55 white males who participated in the Constitutional Convention.” But Rust’s criticism misunderstands both the point of Brest’s original critique and modern originalists’ response: the problem with “original intent” originalism is not that it requires considering the views of too many individuals, but that it requires speculating how any eighteenth- or nineteenth-century American would resolve specific twenty-first century cases. Brest himself recognized that reading “the language of provisions in their social and linguistic contexts” is eminently practicable. His only criticism of this approach was to claim that it cannot justify some of the Supreme Court’s modern constitutional doctrines, and if this criticism counts against originalism at all, it relates to the problem of precedent, not practicability.
As for Rust, it’s not clear why he thinks it impossible to discern how large numbers of people will understand a particular text; that ability, after all, is why we can expect readers we’ll never meet to understand our essays. Take Terance Gamble’s invocation of the Double Jeopardy Clause. Even beyond the separate sovereigns issue, such a defense only works if he was “in jeopardy of life or limb.” But what does this mean? Fortunately for Gamble, a pile of contemporary legal treatises indicate that, at the time of the Fifth Amendment’s ratification, “to be . . . put in jeopardy of life or limb” was understood as a legal term of art meaning “to be subject to a felony prosecution.” This evidence gives us confidence that the Clause applies to felonies such as Gamble’s and helps us avoid anachronistically reading the Clause to apply only to crimes that impose a risk of death or dismemberment (though this phrase may in fact have been understood literally when it was initially coined in medieval England).
The Supreme Court often relies on historical and textual evidence of original understanding to resolve disputed constitutional questions. In Crawford v. Washington, for example, the Court relied heavily on historical evidence to interpret the Sixth Amendment’s guarantee of a criminal defendant’s “right … to be confronted with the witnesses against him.” The Court concluded that this language was understood to mean that the prosecution cannot introduce a witness’s “testimonial” statement to the jury unless that witness is subject to cross-examination—no matter how “reliable” the witness’s statement might appear. Such originalist decisions are far from unusual, particularly where the original understanding provides a determinate answer to the question before the Court.
That’s not to say that the original understanding will always be plain to see. The evidence may sometimes be too sparse to draw firm conclusions, or there may not have been a consensus understanding in the first place. James Madison’s notes on the constitutional convention provide a humorous illustration of this problem: in the midst of the debate over the requirement (ultimately placed in Article I, section 2) that any “direct taxes” collected by the federal government be raised on a proportionate, state-by-state basis, Massachusetts delegate Rufus King (an accomplished lawyer and jurist) “asked what was the precise meaning of direct taxation.” Madison tells us “No one answered.” Poor King (not to mention the other delegates or the many non-lawyers present at the state ratifying conventions) apparently voted without knowing precisely what this provision meant.
The difficulty of discerning how contemporaries understood the term “direct taxation”—not to mention more frequently contested constitutional terms, such as “due process of law” and “equal protection of the laws”—points to a real problem for originalism: the method does not produce ready-made answers to every constitutional controversy. But this problem simply means that there remains work to be done. It is no reason to discard the approach altogether. The uncertainty regarding the original public understanding of some constitutional provisions is no justification for ignoring the original understanding of those provisions that are clear.
Originalism: Good enough for government work
But what should judges do when the historical and textual evidence does not by itself resolve the case? This brings us to Rust’s second criticism. He points to the varied answers originalists give to this question and argues that this disagreement undermines originalism. “If the goal of Originalism is to stop ‘unelected judges’ from ‘imposing their will on the people,’ then it must surely give judges some answers on this point.” Here again Rust rightly identifies an issue that originalists ought to be—and are—working on, but he wrongly concludes that the problem renders originalism pointless. There are at least two ways in which originalism remains relevant even when it fails to conclusively resolve a case: even in uncertain cases, originalism channels the judge’s inquiry and limits the range of possible answers.
Before getting to how originalism serves these functions, we need to distinguish two sorts of uncertainty an originalist judge might confront. First, as discussed above, the scarcity or inconsistency of evidence might make it impossible to confidently discern how contemporaries understood the provision at issue. Second, contemporaries may have understood the provision to create a constitutional standard (rather than a rule), the application of which will by definition be indeterminate in at least some cases. Following Larry Solum, we can refer to the first sort of uncertainty as ambiguity and the second as vagueness. The term “direct taxes,” for example might be ambiguous; the Fourth Amendment’s prohibition on “unreasonable searches or seizures,” on the other hand, is a prime example of a (potentially) vague constitutional standard.
Now, how does originalism help a judge deal with constitutional ambiguity? First, it organizes the judge’s inquiry: it says where to begin (by attempting to discern the original public understanding), indicates what evidence might be relevant (e.g., the surrounding constitutional text, the presence of similar terms elsewhere in the Constitution, contemporary uses of the term, common law practice, etc.), and suggests how to evaluate conflicting evidence (all else equal, practices beginning decades after a provision’s enactment are less probative than contemporary usage). Imagine the best sort of evidence an originalist could hope for: records (contemporaneously transcribed, thereby limiting the risk of self-interested post hoc alterations) of a ratification convention debate that describe how a delegate asks about the meaning of the provision at issue and how another delegate directly answers, both with an explanation of the provision’s meaning and a discussion of how the provision would apply to particular to cases, including cases that closely resemble the case under consideration (even better, the records note that the other delegates not only agree with the answer, but remark that it’s so obvious it’s remarkable the question was even asked in the first place). Of course, this sort of directly applicable, univocal evidence is rarely available—and if it were, there wouldn’t be much ambiguity for the judge to resolve. But considering such hypotheticals helps judges understand the precise question originalism asks and what sorts of evidence are more or less helpful in answering that question.
Second, originalism can help resolve residual ambiguity that might remain after considering this evidence. Unlike academics, judges are not free to throw up their hands and declare the question undecided; one way or another, they must come to some decision. For this reason, judges need not have absolute certainty that their reading of a constitutional provision corresponds to the original public understanding before adopting such a reading. Originalism endorses adopting the interpretation that the weight of the evidence favors; it rules out picking a more weakly supported interpretation simply on the basis of the judge’s own policy preferences or sense of justice. Ambiguity thus becomes a real problem only when the evidence is truly in equipoise, a situation that will rarely if ever arise. Indeed, originalism can help resolve cases even when the evidence is in equipoise, because the evidence will often exclude otherwise-plausible understandings of a constitutional provision even if it does not definitively identify a single consensus reading.
Originalism: No longer fixated on constraint
And what about the problem of constitutional vagueness? In addition to Rust’s complaint about originalism’s indeterminateness, this question also implicates his third criticism, that originalism cannot fulfill its promise to constrain judges’ discretion. He contends that Originalism can’t prevent judicial policymaking because the Constitution’s broadly worded provisions appear to grant judges wide-ranging authority to apply their moral and political beliefs in deciding cases. Rust notes that a recipe’s direction to “pepper to taste” is “an instruction with flexibility for the cook’s personal preferences regarding how much pepper they want in their fried chicken.” Thus far, he is surely right: a chef contemplating how much pepper to use will not struggle with discerning how the instruction was originally understood—it plainly means “add as much or as little pepper as you like”—but will instead exercise her discretion to determine the appropriate amount to add in light of her and her diners’ preferences.
Rust goes on to argue that many of the Constitution’s most important provisions similarly delegate broad authority to those tasked with their application: “When the constitution speaks of the protections of ‘due process’ or prohibits ‘cruel and unusual punishment,’ the very openness of these terms seems to allow for individual preference.” Rust’s argument seems to be that the Constitution’s vague standards confronts originalists with a dilemma: they can either apply the vague standards and sacrifice judicial constraint, or they can fetter judges at the cost of ignoring the Constitution’s text. This is an important point, and one that scholars have made for some time. But while this point might have troubled the theory’s Reagan-era proponents—who were indeed principally concerned with constraining judges—most originalists today, including its leading exponents, happily agree that if the weight of the evidence indicates that a constitutional provision was understood to articulate a broad standard, judges should faithfully apply that standard. Yet originalism is useful even here: even where a constitutional standard means that there won’t be a single correct answer, originalism will often narrow the range of appropriate applications. The Fourth Amendment’s use of “unreasonable,” for example, may articulate an open-ended standard, but the standard springs into action only where there has been a “search” or “seizure.” By discerning what these terms mean, originalism determines when the standard applies (the Court used just this approach in United States v. Jones).
Moreover, Rust’s argument rests on his assumption that the Constitution’s seemingly open-ended provisions really do articulate vague standards (note his caution in claiming that “the very openness of these terms seems to allow for individual preference”). But do they? Here again originalism provides an objective (though, as discussed above, not always easy) approach to answering the question: whether these provisions were originally understood as vague standards is an empirical question answered by examining the relevant textual and historical evidence.
Indeed, some originalist scholars have argued that many of the Constitution’s terms are vague, while other originalists strongly disagree. This debate isn’t getting resolved here, but it does illustrate that important originalist questions are amenable to argument and evidence. Because the debate’s participants are operating from the same general methodological principles, the exchange of arguments and counter-arguments can make real progress. As historical accounts are questioned and refined, as the representativeness and probativeness of evidence is disputed and clarified, we get closer to accurately perceiving how contemporaries understood these provisions.
Originalism: No cover for conservatism
The empirical nature of originalist arguments also illustrates why Rust’s final criticism, that the theory is merely a mask for conservative policy preferences, is off the mark. Rust criticizes Wurman and other conservative originalists for reading their views into the Constitution. He claims, for example, that “Wurman offers no principled reason why ‘cruel and unusual punishment’ should be read in light of our more modern sensibilities, but the Commerce Clause must be constrained by the economic views of the pre-industrial Founders.” Rust is right to think that there ought to be some “principled reason” behind the distinctions courts draw in constitutional cases. But he fails to see that originalism provides such a principle (he also fails to note the growing ranks of progressive originalists, or the recent arguments of some on the right that originalism is insufficiently conservative).
Take the two provisions Rust mentions. To simplify greatly, some originalists think the prohibition on “cruel and unusual punishments” was originally understood to prohibit “barbarous” modes of punishment that fall outside the common-law tradition, while others believe contemporaries understood it to prohibit any punishment that is unjustly harsh in light of longstanding practice and the particular offense at issue. Similarly, some originalists think Congress’s power to “regulate Commerce . . . among the several States” was originally understood broadly to authorize regulation of any activities that produce spillover effects between states; others think the original public understanding was more narrow, merely allowing Congress to specify how Americans trade goods across state lines. Originalism gives the “principled reason” Rust is searching for: it claims that the degree to which “modern sensibilities” should affect Eighth Amendment decisions, and the scope of Congress’s power under the Commerce Clause, should turn on which of these positions are best supported by the historical and textual evidence—not on the policy preferences of whoever happens to be presiding over the case at hand.
There’s no doubt that some of these intra-originalist disputes present difficult questions on which people of good faith will disagree. And it’s because of this difficulty that Wurman exercises caution in discussing originalism’s practical consequences; he properly recognizes that discerning the original public understanding of the Constitution requires sifting through sometimes conflicting textual and historical evidence. There’s no reason to criticize his book for failing to offer firm answers on these issues; the volume is, after all, merely an “Introduction.”
Of course, the uncertainty surrounding some of these issues will sometimes make it tempting to view the evidence in light of our political beliefs—and this goes double for the judges whose conclusions will have real-world consequences. But this temptation is inherent to the high-stakes enterprise of constitutional adjudication. Neither originalism nor any other approach can prevent judges from allowing their politics to affect their decisions. But originalism does provide a way to correct and criticize judges, including conservatives, who succumb to this temptation.
To see how all this works in practice, let’s return to Terance Gamble’s challenge to the separate sovereigns doctrine, which aptly demonstrates both that originalism is not the exclusive province of any particular ideology and that originalism can resolve concrete cases.
First, though Gamble’s was a constitutional case involving an important issue of criminal law, the commentary leading up to the Court’s decision did not feature the familiar split between law-and-order conservatives and defendants’-rights liberals. The Atlantic, for example, noted that some liberals feared that a ruling in Gamble’s favor could count as a victory for the Trump administration (on the theory that it would expand the presidential pardon by allowing pardons for federal-law crimes to preclude states from prosecuting similar state-law crimes). And the non-ideological character of the case continued with the opinions it produced: Justice Alito’s majority opinion reaffirmed the separate sovereigns doctrine and was joined by Republican and Democratic appointees; the two dissenting justices, Justice Ginsburg and Justice Gorsuch, also constituted a bipartisan coalition.
Notably, all of these opinions predominately featured originalist arguments. Justice Alito’s begins by taking contemporary dictionaries to the text of the Double Jeopardy Clause. He pointed out that these dictionaries showed that the term “offence” was commonly understood to mean “the breaking of a law” and reasoned that different sovereigns will necessarily have different laws. Thus, according to Justice Alito, the crime for which the federal government prosecuted Gamble could not have been the “same offence” for which he had already been convicted under Alabama law.
In response, Justice Ginsburg noted that “the Framers of the Bill of Rights voted down an amendment that would have permitted the Federal Government to re-prosecute a defendant initially tried by a State.” And Justice Gorsuch pointed out that by “1791 when the Fifth Amendment was adopted, an array of common law authorities suggested that a prosecution in any court, so long as the court had jurisdiction over the offense, was enough to bar future re-prosecution in another court.” He also noted that the “legal treatises an American lawyer practicing between the founding and the Civil War might have consulted uniformly recited” this rule.
Justice Alito countered that Congress’s rejection of the federal-reprosecution amendment was not probative, because “private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.” And, following a painstaking discussion of the cases and treatises on which Justice Gorsuch relied, Justice Alito argued that those sources were not quite as clear as Justice Gorsuch maintained.
The opinions proceed in this manner at considerable length, and interested readers should read the opinions and decide for themselves who has the better of the argument. It is enough to point out here that the justices clearly believed that there could be an argument. They did not settle for ipse dixit or subjective declarations of policy preferences; they engaged one another and the evidence. The opinions well illustrate how originalist arguments can make a difference—and how constitutional adjudication ought to work.
Originalism: Dealing with the dead hand of past judges
Ironically, the opinion from Gamble most likely to be remembered is the one that departs from the question the case presented—Justice Thomas’s. Although Justice Thomas had previously expressed skepticism of the separate sovereigns doctrine, he was ultimately persuaded by Justice Alito’s assessment of the historical evidence—yet another indication of the motive power of originalist arguments. But while Justice Alito’s decision emphasized the significance of the Court’s many previous decisions affirming the separate sovereigns doctrine, Justice Thomas wrote separately to express his rather more skeptical thoughts on the weight that ought to be given to the Court’s prior decisions. On the basis of what he argued was the original understanding of the “judicial power” Article III of the Constitution vests in federal courts, Justice Thomas maintained that the Court should not accord any weight to a prior decision it concludes is “demonstrably erroneous.” He contended that when faced with such a clearly mistaken decision, the Court should correct it, regardless of the other traditional factors for overruling precedent (e.g., the age and administrability of the prior decision and the extent to which the prior decision generated reliance interests).
Justice Thomas’s opinion has already attracted attention, and rightly so. The problem of precedent is a difficult one—for any theory of constitutional adjudication, but especially for originalism. As we saw above, originalism is not necessarily opposed to the exercise of judicial discretion—so long as the Constitution’s language authorizes such discretion. But in deciding whether to retain mistaken decisions, judges are presented with the opportunity to exercise what appears to be constitutionally unauthorized discretion. Many people, including originalism’s critics and defenders, are convinced that the approach produces results inconsistent with much of the Supreme Court’s current constitutional doctrine—though other prominent scholars are equally convinced it does not. If the former group are right, precedent poses a serious problem for originalists: without a consistent theory of precedent, originalist judges can accomplish their policy objectives, not by contorting the Constitution’s original public understanding but by simply deciding when to enforce that understanding in the face of contrary precedent.
Justice Thomas should thus be commended for offering a (relatively) clear and coherent approach. Of course, this approach—which is supported by some originalist scholars—could (depending on who has the better of the debate above) result in significant changes to the Court’s constitutional doctrines. Partially for this reason, other originalists (including recent Seventh Circuit appointee Amy Coney Barrett) have offered other, more precedent-friendly approaches.
Even if originalists were to entirely discard precedent for the sake of principle, however, the problem would not be entirely solved. The Supreme Court’s discretionary control over its docket would effectively allow the justices to choose which precedents to overturn. What’s more, because the Court does not usually explain why it declines to hear cases, these choices would be made without reasoned explanation, one of the few checks on judicial power.
Originalism’s Promise
Judges’ ability to mask policy choices—via precedent or anything else—is an intractable problem of constitutional law. Not even originalism can fully solve it. It cannot prevent even the most conscientious of judges from exercising policymaking discretion—not least because a proper application of originalism will interpret some constitutional provisions to require judges to account for policy considerations in applying the law to facts.
But that does not mean that we should discard originalism and embrace forthright judicial policymaking. There is a reason why courts generally do not announce that they are vindicating their personal policy preferences (at least unless the law authorizes them to do so). The occasional hypocritical opinion is, we might say, the compliment judicial vice pays to jurisprudential virtue.
Originalism’s promise is not that it will ensure judges will always reach the right answer. Its promise, rather, is that it leads judges to at least ask the same question. And, as Gamble (and United States v. Haymond, another recent criminal case with dueling originalist opinions) demonstrates, this—rather more limited—promise is already being borne out.
Featured image is Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy
