Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen

Picture a baseball umpire who announces, in the seventh inning, that he has studied the rulebook and concluded that the rulebook has evolved. Three strikes, he explains, now means four for the visiting team, because the modern game has outgrown the old arithmetic. The home crowd cheers, the visitors protest, and everyone in the park realizes the same thing at once: the game has stopped being a game. It is now a mood, and the man in the mask owns it.

That, in a sentence, is the problem with a Constitution whose meaning moves. Nobody objects to a judge who is wrong. Judges are human, and wrong is part of the job description. The trouble is a judge who is unaccountably wrong, who can be corrected by nobody because the standard he is applying is, by his own account, whatever the present moment requires. This post makes one argument: fixing the Constitution's meaning at the time of ratification is the only method of interpretation that binds the judge as tightly as it binds the citizen.

The claim, stated plainly

Let me define terms, because most fights about judges are really fights about words.

Originalism is the view that the Constitution's words carry the public meaning they had when they were adopted, and that this meaning is law until the people change it by the means the document provides. It is a theory about what the text means, and about who may change that meaning. It is not a theory about what outcomes are good.

Living constitutionalism, its rival, holds that the meaning of broad clauses evolves with changing values, and that judges are properly the agents of that evolution.

The claim I am defending has three parts.

1. A law that binds citizens must be knowable in advance and fixed enough to be applied the same way tomorrow as today.
2. The people who enforce that law, the judges, are themselves officers of the government and must be bound by it for the same reasons the rest of the government is.
3. Only a theory that locates meaning outside the judge's own present judgment can do the binding. Fixed original meaning does. Evolving meaning does not, because the person who decides when and how the meaning evolves is the judge.

Everything else in this post is the evidence for those three sentences.

What the Constitution says about judges

Start where every constitutional argument should start: with the text. Article III, Section 1 says that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Read what that grants and what it implies. It grants a remarkable privilege: life tenure, and a salary Congress cannot cut. The Framers gave judges that privilege for a stated reason, which I will come to in Federalist 78. But a privilege this large invites a question. If the judge cannot be fired for a ruling and cannot be starved by the legislature, what keeps him honest? Elections will not do it, and neither will the budget. The answer the Constitution gives is the law itself: the judge is bound by an oath to a text.

Article VI says that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." The oath is to this Constitution, not to the best available version of it. A judge who swears to support a document and then reads it as a living instrument has, whatever his motives, swapped the thing he swore to for something he finds more congenial. The oath only means something if the thing sworn to stays put long enough to be sworn to.

Here is the structure, then. Life tenure removes every outside check on a judge except impeachment for serious misconduct. The oath substitutes an inside check: fidelity to a written text. Take away the fixed text and you have given a man a job for life, removed every outside restraint, and told him the inside one is a matter of conscience. We have a name for governments built that way, and it is not "republic."

Hamilton's bargain

Federalist 78 is the best explanation of why the Framers made that trade. Hamilton argues that the judiciary is "the least dangerous" branch because it has no influence over the sword or the purse. It "may truly be said to have neither FORCE nor WILL, but merely judgment." That sentence is a promise as well as a description. Judges are to be trusted with enormous independence because they exercise only judgment, the application of existing law to a case, and never will, the creation of law from preference.

Hamilton knew what would happen if the promise failed. He warned that if the courts ever exercised will instead of judgment, the consequence would be the substitution of their pleasure for that of the legislative body. He also wrote that, to avoid an arbitrary discretion in the courts, judges must be bound down by strict rules and precedents. That is a Founding-era statement of the whole argument. Independence is safe only for an officer who is bound.

Now the test for a theory of interpretation becomes simple. Does it keep the judge in the role of "judgment," or does it make him the author of "will"? A theory that lets the judge ask what the Constitution should mean today has, by definition, invited will. A theory that asks what the words meant to the public that ratified them has put a fact between the judge and his preferences. It may be a hard fact to find. It is still a fact, and a brief, a historian or an opposing judge can say he got it wrong.

Marbury and the written Constitution

Chief Justice Marshall made the same argument in Marbury v. Madison (1803), the case every law student learns as the origin of judicial review. Read the reasoning, not the headline. Marshall did not claim that judges are wiser than legislatures. He claimed that the Constitution is written, and that a written constitution is the thing that distinguishes limited government from unlimited government.

His words are worth knowing: "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

Notice the logic. A court may refuse to enforce a statute because the Constitution is superior law, fixed by the people and not changeable by ordinary legislation. Marshall adds the famous line that "It is emphatically the province and duty of the judicial department to say what the law is." The phrase is "what the law is," a statement about something that already exists. If the judge may reshape the superior law as he applies it, then the reasoning of Marbury collapses. The reason a court could void an act of Congress was that Congress cannot change the Constitution by passing a bill. The same reason forbids the judge from changing it by writing an opinion. You cannot defend judicial review on the ground that the Constitution binds the legislature and then deny that it binds the court. That is an argument with a hole in the middle.

For more on how this reasoning works, and how it differs from the modern claim that the Court alone gets the last word, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not. For the full story of how Marshall got there, see Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

The steelman: "Originalism is just conservative policy in a robe"

Now the strongest objection, and I want to state it the way its friends would. It goes like this.

Originalists say the method constrains judges. But look at the results. Time after time, the originalist judges reach the outcomes that conservative voters like: gun rights expanded, administrative power trimmed, racial preferences struck down, abortion returned to the states. Meanwhile, the historical record is vague, contested and selectively quoted. A method that always seems to land where the judge's politics already stood is not a constraint. It is a rationalization with footnotes. The critics add: if the method were genuinely binding, you would expect to see originalists regularly rule against the outcomes they would prefer.

That objection deserves a serious answer, and the answer is that you do see exactly that. Here is the record.

1. Flag burning. In Texas v. Johnson (1989), the Court held 5-4 that burning an American flag in political protest is protected speech. Justice Scalia, the best-known originalist of his generation, joined the majority. He did not like the result as a citizen. He thought the text protected it anyway.
2. Thermal imaging. In Kyllo v. United States (2001), Scalia wrote the opinion holding that police using a thermal imager aimed at a home, without a warrant, conduct a search under the Fourth Amendment. The defendant won.
3. Confrontation and jury rights. In Crawford v. Washington (2004), Scalia wrote for the Court that testimonial statements of an absent witness cannot be admitted against a criminal defendant unless the defendant had a chance to cross-examine, a reading drawn from the Sixth Amendment's text and the common-law history behind it. In Blakely v. Washington (2004) he wrote the opinion limiting judges' power to increase sentences on facts the jury never found. Prosecutors lost both.
4. Detention of citizens. In Hamdi v. Rumsfeld (2004), Scalia dissented from a decision allowing a citizen to be held as an enemy combatant without the criminal process the Constitution's text provides, writing that the government must either charge the citizen or release him unless Congress suspends habeas corpus. A conservative jurist, in wartime, siding with the detainee.
5. Unanimous juries. In Ramos v. Louisiana (2020), Justice Gorsuch wrote the majority opinion holding that the Sixth Amendment's jury-trial right requires a unanimous verdict to convict in state court. Plenty of prosecutors, and plenty of conservatives who favor law enforcement, wanted the other result.
6. Commerce power. Justice Thomas, in his Gonzales v. Raich (2005) dissent, argued that Congress could not reach marijuana grown at home for personal use under the Commerce Clause, a position that, if anything, cut against the federal drug laws conservatives usually defend.

One more point on the objection. The charge that the method "always" favors one side is itself checkable, and the answer is no. Originalists dissent from each other constantly: over the scope of the Commerce Clause, over the meaning of "cruel and unusual," over whether stare decisis should shield bad precedent. A method that sorted every case to the same political team would not produce so many fights among its own practitioners. Those fights are evidence that something other than preference is being argued about, namely, what the words meant.

None of this proves originalists never err or never let preference leak in. Judges are people. The point is narrower: the method creates a standard that can embarrass the user. When a judge says "this meant X in 1791," a lawyer can respond with the 1791 evidence. When a judge says "evolving standards of decency require X," the lawyer has no counter, because the standard is the judge. One method gives the loser an argument. The other gives him a verdict.

The other side's real strength, and the honest limit

I promised to be fair, so here is where the originalist case needs care.

First, the historical record is sometimes thin or divided, and good-faith scholars read it differently. The honest originalist answer is that when the text and history run out, the judge should say so and defer to the political branches, instead of filling the gap with his own values. A method that sometimes says "the Constitution does not answer this one" is more constraining, not less, than one that always finds an answer.

Second, the living-constitutionalist will say that fixing meaning in 1788 or 1868 locks in the failures of those eras. This is the "dead hand" objection, and the answer is in Article V. The Constitution provides its own method of change: amendment, proposed by two-thirds of both houses of Congress or by a convention called on the application of two-thirds of the states, and ratified by three-fourths of the states. The Fourteenth Amendment changed the meaning of citizenship and equality that way. The Nineteenth changed who votes. The method is slow on purpose. A people who want a different Constitution have a door to walk through, and the door is not a courtroom. For the longer version of this exchange, see Five Serious Objections to Originalism and the Answers That Hold Up.

Third, and here the rebuttal is blunt: living constitutionalism does not escape politics. It relocates it. Under a living Constitution, the decisive political battle is not over who wins the next election but over who sits on the Court, because whoever sits there will decide what the document means this decade. That is why confirmation fights have grown so ferocious. When judges are understood to be adjusting the law, the appointment of judges becomes a prize worth any amount of ugliness. When judges are understood to be finding the law, an appointment is a hiring decision. We should want the second world.

Who is bound, and by what

Return to the three-part claim from the start.

A citizen is bound by a statute he can read, passed by legislators he can vote out, in language that means the same thing next year. Judges, by contrast, hold their jobs for life and cannot have their pay reduced. Short of impeachment, neither voters nor Congress can remove them, and Congress cannot cut their pay to punish a decision. So the Constitution's only reliable restraint on them is the text they swore to support, and the text can only restrain a judge if its meaning does not depend on the judge.

There is a reason the Framers thought written constitutions were a technology. The point of writing something down is to take it out of the memory, mood and interest of whoever happens to be in charge. A written Constitution whose meaning evolves at the pleasure of its interpreters is like a contract whose terms the other party may revise. Every lawyer knows what to call a contract like that, and he does not call it a contract.

Consider also how ordinary law treats the same problem. When a court construes a will, it asks what the testator meant by the words he used, not what a sensible person would want done with the estate today. When a court reads a contract, it asks what the parties agreed to. Nobody calls that "dead hand" jurisprudence or accuses the judge of letting the deceased rule the living. We understand that the alternative, a judge who rewrites the will to suit the present, would destroy the point of having wills. The Constitution is a more important document than any will, and no one thinks a more important document should be easier to rewrite from the bench.

What this does not claim

Let me close a few doors so that no one mistakes the argument.

• It does not claim that originalism yields conservative policy. Several of the cases above show it does not.
• It does not claim that the history is always easy. It claims that the question is the right one and that the answer can be tested.
• It does not claim that judges are wicked. It claims that an unbound judge, however decent, is a ruler, and rulers are what the Constitution was written to avoid.
• It does not ask anyone to love the Founders. The Founders wrote a Constitution that tolerated slavery for decades and the people amended it. That is the method working: written law, changed by the people, enforced as written by the judges.

Judges are rightly respected. The robe, the oath, the marble courtroom: all of it signals that the person in the chair is not a politician. The signal is only honest if he really is not one, and the only way to guarantee that is to give him no power to set the standard. Hamilton wanted judgment without will. An interpretive theory that hands the judge the power to update meaning gives him will and calls it judgment.

The case in brief

1. A law that binds citizens must be fixed and knowable, and the officers who enforce it must be bound by the same fixed text.
2. The Constitution gives judges life tenure and protected pay, removing every outside check but impeachment, and relies on the oath in Article VI to a written text as the inside check.
3. Hamilton's Federalist 78 and Marshall's reasoning in Marbury both rest on the same premise: judges exercise judgment about existing law, never will about what the law should be.
4. The charge that originalism is conservative policy in a robe fails against the record: originalist judges ruled for flag burners, criminal defendants, detainees and defendants facing non-unanimous juries, and they argue with each other in public.
5. Where the people want a different Constitution, Article V gives them the way to change it, and that door belongs to the voters, not to the bench.

What you can do: read Article III and Article VI aloud to someone this week, then read the oath your own state's judges take and ask which version of the Constitution they promised to support.