Debate Desk
Is Originalism Just a Cover for Conservative Outcomes in Court?
Originalist judges have ruled against conservative preferences, and the method binds the judge to the text as it was understood when it was adopted.
The claim
Critics argue that originalists find in the founding era whatever supports their politics, that history is too ambiguous to constrain a judge and that the method disguises ideology as neutral rules.
The answer in three points
- The test of a method is whether it ever requires a result the judge dislikes. Justice Scalia voted to protect flag burning in Texas v. Johnson (1989) and the right of a criminal defendant to confront witnesses in Crawford v. Washington (2004). Justice Gorsuch wrote the Court's opinion in Bostock v. Clayton County (2020), reading the statute's text to protect gay and transgender employees, a result that many conservatives did not want.
- The alternative is not neutrality but a different set of values. A judge who reads the Constitution to mean what he thinks it should mean has no constraint beyond his own judgment. Originalism ties him to what was ratified and leaves changes to the people through amendment and legislation.
- History is hard but not empty. Judges deal with ambiguous evidence in every field of law, and the existence of hard cases does not mean the method has no content. Critics are right to demand rigor, and originalists should welcome it.
A judge who follows the text sometimes reaches results he dislikes, and that is the sign that the method is working.
The numbers
- The Supreme Court decided Texas v. Johnson in 1989 by a vote of 5 to 4, with Justice Scalia in the majority.
- Bostock v. Clayton County was decided in 2020 by a vote of 6 to 3, with an opinion by Justice Gorsuch.
- Article V of the Constitution provides for amendment, and 27 amendments have been ratified, according to the National Archives.
What they will say next
"Originalists disagree with each other." They do, as do judges of every school, and the disputes are about evidence and the level of generality. The point is that the argument is about the original meaning.
"The framers could not have imagined modern life." The principles apply to new facts. The Fourth Amendment applies to cell phones because it speaks of searches, as the Court held in Carpenter v. United States (2018).
"It ignores precedent." Originalists differ on how much weight precedent deserves. A method that honors stability and still corrects clear errors is possible.
"Living constitutionalism is more honest." It is more flexible, and flexibility is the problem when the judge decides what the text means today. The power to amend belongs to the people.
A written constitution only means something if it means the same thing on Tuesday as it did on Monday.
"Justices vote along party lines." In many cases they do not, and the Court decides a large share of its cases unanimously. Where they divide, the disagreement often concerns the text and history that each justice finds persuasive.