American Law Feels Utterly Broken. We Can Actually Do Something About It, Though.
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
As a branding exercise, originalism has been a wild success. The concept, once fodder for obscure law review articles no one read, went mainstream in the 1980s, after the Supreme Court dealt the conservative legal movement a series of high-profile losses on issues like affirmative action and abortion rights. In 1985 Edwin Meese III, then the attorney general under President Ronald Reagan, outlined his grand vision of a “jurisprudence of original intention” in a speech before the American Bar Association. “Those who framed the Constitution chose their words carefully,” he said. “The language they chose meant something. It is incumbent upon the court to determine what that meaning was.”
The idea quickly captured hearts and minds on the right by appealing at once to their obedience to authority, their distaste for the Warren court’s “activist” pro–civil rights decisions, and their nostalgia for bygone eras during which, coincidentally, civil rights did not really exist for people who were not white men. Today a loudly professed passion for originalism is table stakes for any ambitious conservative lawyer who hopes to warm a seat on the bench, and among members of the court’s six-justice conservative supermajority, it is basically the only acceptable method to divine the Constitution’s meaning.
Perhaps the most consistent features of originalist decisions are their density and verbosity: To determine whether a purported right is sufficiently “deeply rooted” in “history and tradition,” justices and judges conduct meandering surveys of English common law, quote the dusty treatises of mononymic philosophers, and parse the hastily scribbled notes of founding-era legislators who wrote the letter S, for some godforsaken reason, as F. The majority opinion in Dobbs v. Jackson Women’s Health Organization, in which the court voted to take away a fundamental right it had recognized five decades earlier, spans 79 pages, not including two appendixes of state-level antichoice laws. New York State Rifle & Pistol Association v. Bruen, in which the court invented an individual right to gun possession some two centuries after the Second Amendment’s passage, includes lengthy analyses of the 1328 Statute of Northampton, the roots of King Henry VIII’s skepticism of 16th-century handguns, and the relevance (?) to modern gun safety laws of the “launcegay,” a Chaucer-era weapon akin to a 10-to-12-foot lance.
As a result, originalism’s ascendance has made the Constitution feel even less accessible than it was before, which was “not very.” Supreme Court opinions are famously laden with intimidating jargon, inscrutable shorthand, and italicized case names, all deployed in an effort to decipher a 250-year-old collection of aspirational vagaries and morally repugnant compromises. Understanding the Constitution now also requires familiarity with, to take an example from Dobbs, 19th-century translations of 13th-century treatises that were originally written in Latin. By design, originalism makes normal people—by which I mean those who had the good sense not to blow a quarter of a million dollars on law school—feel like insecure, conspicuous interlopers in a conversation that is plainly Not for Them.
But regular people are not actually alone here. Even some federal judges have started to voice frustration with the fact that originalism obligates them to tackle questions they are not trained to answer. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791,” wrote Carlton Reeves, a Black federal district court judge in Mississippi, after SCOTUS decided Bruen in 2022. “Yet we are now expected to play historian in the name of constitutional adjudication.”
This gatekeeping effect is, I think, the most pernicious lie of originalism because treating constitutional interpretation as the sole domain of judges running haphazard Wikipedia searches cuts everyone else out of the process. This is wrong. The Constitution was written not to be understood by think-tank gremlins writing dueling amicus briefs, or Supreme Court justices with the unreviewable authority to cherry-pick their preferred narrative. The Constitution was written for the people whose rights its language protects and who suffer the consequences if a judge decides otherwise. You simply do not need a medieval studies Ph.D. to be able to read what the law says and form a valid opinion about what it means. And you are not wrong to be skeptical of unelected, unaccountable judges who insist that the record, thin and ambiguous and contradictory though it may be, nonetheless compels but one objectively correct result.
There was a period when normal people, through their elected representatives, were much more active participants in the work of constitutional governance. We, as in We the People, used to regularly clarify the Constitution and fix the broken parts, often quickly. You are probably familiar with the first 10 amendments, which were approved as a package deal shortly after the Constitution’s ratification. Known as the Bill of Rights, these amendments collectively established a set of individual liberties on which the big, bad federal government, which had many of the Framers feeling understandably skittish, may not infringe. For example, the “right to remain silent” speech that cops (are supposed to) read to people under arrest is a mashup of the Fifth and Sixth amendment rights against self-incrimination and to be represented by counsel. A cop’s (ostensible) obligation to get a warrant before turning your house inside out is derived from the Fourth Amendment, which protects against “unreasonable searches and seizures.”
But these amendments are not the only amendments—or, I would argue, the most important ones. After the Civil War, Congress moved quickly to pass the Reconstruction amendments, which in sweeping terms guaranteed to people of color (and all Americans) their freedom, their citizenship, their right to vote, and their right to equal protection under the law. (In theory, at least.) The ratification of the 13th, 14th, and 15th amendments meant that for the first time, the Constitution contained the tools necessary to build a thriving multiracial democracy. (Again, in theory.) As the historian Eric Foner writes in The Second Founding, the Reconstruction amendments “should be seen not simply as an alteration of an existing structure” but as creating “a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.”
Between 1909 and 1971, the Constitution was amended 11 more times—on average, about twice per decade—to do things like guarantee women’s suffrage, bar poll taxes, and include the District of Columbia in the Electoral College. Congress even adopted one amendment, the 21st, that undid a prior one, the 18th, which is why you can legally enjoy a cocktail while reading this sentence.
Alas, the pace of this work tapered off in the mid-20th century. The amendments that did make it through the process were more incremental than revolutionary. Courts had hollowed out key provisions of the Reconstruction amendments, which never fully delivered on their lofty promises. The Equal Rights Amendment, which would have constitutionalized prohibitions on sex discrimination, died on the vine after failing to acquire ratification by three-quarters of state legislatures. This is how we ended up in a situation where, despite 50 years of dizzying technological, cultural, and social change, the only successful effort to amend the Constitution—the document at the heart of American democracy—during that period is a tweak to the effective date of congressional pay increases.
The reasons for this trend are too complex to detail here. (I will note that in a hyperpolarized political climate in which passing simple legislation counts as a monumental accomplishment, getting 38 state legislatures to agree on anything is borderline impossible.) But the result is a Constitution that is frozen in time unless life-tenured judges muster the votes to amend it by judicial fiat. By casting themselves as the only legitimate arbiters of constitutional meaning, originalist judges have transformed representative democracy into conservative oligarchy, in the name of fidelity to whichever version of “history and tradition” sounds most appealing to the likes of Justice Neil Gorsuch. Foner characterized originalism as “misconceived,” “ridiculous,” and “intellectually indefensible” in a 2022 interview published by Balls and Strikes and the Emancipator. “There’s nothing wrong with figuring out what people were trying to do,” he said. “But to think that there’s one original meaning is just foolish, in my opinion.”
One of the benefits originalism’s evangelists often tout is its putative infallibility: By considering only evidence from the time of a provision’s enactment, adherents are uniquely able to set aside their personal beliefs when tackling even the hardest legal questions that come before them. Or as Meese put it, originalism is superior to the alternatives because its application yields “defensible principles of government” that are not “tainted by ideological predilection.”
This has always been the sort of incoherent fairy tale that only lawyers could believe about themselves. But the Supreme Court’s handiwork over the past few years highlights just how riddled with policy choices the process actually is—not only in deciding which version of history is most persuasive but also in deciding which parts of the Constitution are worthy of this revisionist history treatment in the first place. Clarence Thomas could be taking the guarantees of the Reconstruction amendments as seriously as he takes, for example, the second half (and just the second half) of the Second Amendment. The reason he doesn’t is because he cares about using his power to protect merely some rights, for some people, some of the time.
I am not suggesting that historical context is irrelevant to the task of deciding what law means. I am simply saying that historical context is not dispositive either. Even if it were possible to determine a single meaning of a particularly obscure turn of phrase, judges in 2024 are applying the Constitution to facts that people in 1789 (or 1865, or whenever the relevant clause was written) could not have imagined: whether domestic abusers have an inviolate right to possess guns, which are now capable of firing dozens or hundreds of rounds a minute. Whether lawmakers can force pregnant people to get airlifted out of state to avoid dying of sepsis. Whether a president who tried to overturn the results of an election he lost can hold the same office again. No one who wrote the Constitution did so with the benefit of knowledge about our current world, and none of them are alive today to deal with the consequences.
You are. And for this reason, you can and should participate in discussions about what your Constitution means—not only what it (may have) meant once upon a time but what it ought to mean, today, in a country with more guns than people, where doctors are afraid to provide lifesaving care to pregnant patients, and an oath-breaking insurrectionist is a coin flip to win the next election. Your opinion about how the Constitution applies to crises like these is just as legitimate and worthy of consideration as James Wilson’s or Benjamin Franklin’s—or, for that matter, Sam Alito’s. If the practice of constitutional law is largely amateur-hour history, it’s not as if he is any better at “reading books” than you are.
The purpose of a legal philosophy that tells you that your perspective doesn’t matter—that you aren’t smart or credentialed enough to be part of the conversation—is to insulate its believers’ policy decisions from well-deserved criticism. When a judge’s selective retelling of “history” yields answers that are anathema to the maintenance of a safe, inclusive, modern society, it is good and correct, actually, to reject the premise of originalism and do the reading yourself.
