Originalism Explained for People Who Skipped Law School

Quick quiz. You sign a lease. Two years later, you and your landlord disagree about what the word "reasonable" in clause nine was supposed to cover. Do you go to a judge and ask, "What did these words mean to ordinary people on the day we signed?" Or do you ask, "What do you, Your Honor, think the lease should say in light of how the world has changed since then?" I'll wait. Everybody in America knows which of those two questions is the honest one, and nobody wants a landlord's lawyer, or a tenant's, answering the second.

That is originalism in one paragraph, and I say it because you will hear the word thrown around on cable and in confirmation hearings as if it were a secret code, a cult, or a polite way of saying "horse and buggy." It is none of those. It is a plain theory about how to read a legal document, and it is easier to understand than the people attacking it want you to believe. So here it is, for people who skipped law school, with the best objections included and answered.

The core idea in two sentences

Originalism is the view that the words of the Constitution have the meaning they had to the public when they were adopted, and that this meaning stays fixed until the people change it through the amendment process in Article V. When a judge decides a constitutional case, the job is to find that meaning and apply it to the facts in front of him, not to update the text to fit his own sense of what would be good for the country.

There are two parts to that. The first is a claim about what the Constitution is: a law, and a law that binds because it was enacted by We the People. The second is a claim about who may change it. The answer is the people, through Article V, which requires two-thirds of both houses of Congress (or a convention called by two-thirds of the states) to propose an amendment, and ratification by three-fourths of the states, which today means 38 of 50. (Three-fourths of 50 is 37.5, and states come in whole numbers, so the answer is 38.) Our explainer, Article V Explained, and the Amendment That Took More Than 200 Years, walks through how that works. Judges do not appear in that list.

Original intent versus original public meaning

Here is the first distinction that separates people who know the subject from people who yell about it. Early versions of the theory spoke of "original intent": what the framers meant to accomplish. When Attorney General Edwin Meese gave his well-known speech in 1985 calling for a "jurisprudence of original intention," that was the language of the day. (We tell that story in How a Handful of Law Students in 1982 Changed the Federal Courts.)

The trouble with original intent is obvious as soon as you think about it. Whose intent? The delegates in Philadelphia met in secret, and their private notes were not published for decades. Madison's notes of the convention appeared only after his death. The people who ratified the Constitution were the delegates to state conventions, who never saw those debates. And in any large group, people want different things and compromise on words that let each side hope for a different result. Hunting for the "intent" of a committee is like hunting for the single favorite color of a crowd.

So the leading originalists, and Justice Antonin Scalia above all, moved the target to original public meaning: what the words would have meant to a reasonable, informed citizen at the time they were adopted. That is the lease question from the opening. You read the words the parties signed, in the sense ordinary readers would have given them, and you do not hunt for the lawyer's private hopes. Public meaning has a practical advantage, too: it is the thing everybody could actually read.

How you find the meaning

Critics sometimes talk as if this were a séance, where a judge claims to commune with George Washington. It is the opposite. It is ordinary research, the kind historians and lawyers do all the time. The sources include:

• Dictionaries from the period. In District of Columbia v. Heller (2008), for example, the Court turned to founding-era dictionaries, including Samuel Johnson's 1755 Dictionary of the English Language, to see what "arms" and "keep and bear" meant to people in 1791.
• The structure and context of the text. A word in the Constitution has to make sense next to the words around it and elsewhere in the document.
• Founding-era writing and debate. The Federalist Papers, the arguments at the state ratifying conventions, and the pamphlets of the day show how citizens understood the proposal they were being asked to approve.
• Earlier law. English common law, colonial statutes and state constitutions supplied the legal vocabulary the framers inherited.
• Early practice. How the first Congresses and courts applied a provision shortly after adoption is strong evidence of what it was understood to mean.

None of these is perfect, and historians sometimes disagree. But this is a real, checkable inquiry. A judge who relies on it has to show his work in a written opinion, and the other side can show theirs. Compare that with a method that asks what the best outcome would be: there is nothing in a ruling like that you can check, because the test is the judge's own conscience.

The hard case: new technology

Here is the objection you've heard a hundred times. "The Constitution was written with muskets and quill pens. How can a theory that freezes it in 1789 handle cell phones, thermal cameras and the internet?"

The answer is that originalism fixes the meaning of the words, not the list of things those words apply to. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Its principle is privacy in your home against government intrusion. The principle doesn't expire when the technology changes. A new gadget is just a new way to do the old thing.

A perfect illustration comes from a case Scalia himself wrote, Kyllo v. United States (2001). Federal agents, suspecting that a man in Florence, Oregon, was growing marijuana in his home with high-intensity lamps, parked on the street and aimed a thermal imager at the house to measure the heat coming off its walls. They never stepped on the property. The government argued it wasn't a search because the device only picked up heat radiating off the outside. Scalia, writing for a 5-4 Court, held that using sense-enhancing technology that is not in general public use to learn details about the inside of a home that could not otherwise be learned without going in is a search, and needs a warrant. A principle written in 1791, protecting the home, applied correctly to a technology invented two centuries later. The justices who joined him included some who are not usually thought of as originalists, and the dissent came from other quarters. The result had nothing to do with partisan taste. For more on the long story of that amendment, see From Writs of Assistance to Your Cell Phone, the Fourth Amendment's Long Fight.

The First Amendment works the same way. "Speech" and "press" did not stop at the printing press. In Brown v. Entertainment Merchants Association (2011), Scalia wrote for the Court that video games are protected expression, striking down a California law restricting their sale to minors. A man who is supposed to be stuck in the eighteenth century ended up protecting the video-game aisle.

What happens when the text is vague?

Now the honest part. Some constitutional phrases are broad on purpose: "unreasonable" searches, "due process of law," "equal protection of the laws," "cruel and unusual punishments." What does an originalist do with those?

Careful originalists make a distinction between interpretation and construction. Interpretation is discovering what the text meant. Sometimes the answer is clear. Sometimes the answer is that the text sets a standard and leaves details open. When the original meaning runs out, the originalist says, the judge should not fill the gap with his own values. The decision belongs to the political branches, to legislatures and elected officials, who can pass laws that fit the standard. That is a restraint, not a power. A judge who says "the Constitution is silent here, so the people may decide" is giving up authority, not grabbing it.

Scalia himself called himself, in a 1989 law-review essay, a "faint-hearted originalist," admitting that he would flinch if the original meaning produced an outcome that seemed monstrous. Some of his admirers say that is an honest concession of human weakness, and others say it is a crack in the wall. Either way, the admission shows how serious the theory is about its own limits.

A worked example you can try at home

Take a phrase from the Second Amendment, "the right of the people." Suppose a judge has to decide whether it refers to a right belonging to individuals or only to a collective body like the militia. The originalist does not start by asking which answer he prefers. He asks what the same phrase means in the other places it appears in the Bill of Rights. The First Amendment protects "the right of the people peaceably to assemble," and the Fourth protects "the right of the people to be secure in their persons, houses, papers, and effects." Nobody argues that the right to assemble belongs only to the government or that the Fourth Amendment protects a collective rather than you in your own house. Reading the same words the same way across the document is a plain, checkable argument from the text, the kind a layperson can follow. You may disagree with where it leads, but you can see how it got there. That visibility is the whole value of the method. It makes the judge's reasoning something a citizen can inspect, challenge and answer in a way no appeal to "evolving standards" or private conscience ever could.

Does originalism just give conservatives the answers they want?

This is the objection I most want to take head on, because it is the one that annoys me and the one worth answering. The critic says: it's a trick. Judges pick the history that gets them where they already wanted to go.

Here is the test of a theory like that: does it ever produce results its own followers hate? Originalism does.

1. Flag burning. In Texas v. Johnson (1989), the Court held that burning an American flag in protest is protected speech. Scalia joined the majority. The reasoning was that the First Amendment protects expressive conduct as well as spoken words, and the text does not carve out an exception for symbols that offend us most. We tell the story in Antonin Scalia Sided With Flag Burners and Defendants, and That Is the Point.
2. Defendants' rights. In Crawford v. Washington (2004), Scalia wrote the opinion holding that the Confrontation Clause forbids the use of certain out-of-court statements against a criminal defendant who had no chance to cross-examine the witness. Prosecutors were not pleased.
3. Originalists disagree with each other. In Gonzales v. Raich (2005), Scalia concurred in upholding Congress's power to ban homegrown marijuana even for medical use under state law, while Justice Clarence Thomas dissented, arguing that the original meaning of the Commerce Clause did not reach it. Two committed originalists, opposite results. The farm-country version of that fight is in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause.

A method that sometimes gives you the answer you hate is a method that is constraining you. That is the best evidence that it works as advertised.

The strongest objection: the dead hand

Let me give the other side its best shot, with no cheap shots. Critics of originalism, some of them thoughtful, say the Constitution was written by a small group of men, many of whom owned slaves, and that it left out women and most Black Americans from the political community. Why should that group's understanding of words bind us? Our society has changed, and a theory that treats the past as law is the dead hand of history.

Here is my answer.

1. The dead-hand charge applies to every written law. A statute from last year binds people who did not vote for it. That's what it means for law to be law and not advice.
2. The people retained a way to change it. Slavery ended by constitutional amendment, the 13th (1865), and equal protection and citizenship came with the 14th (1868), the vote regardless of race with the 15th (1870). The amendment route is not a legal fiction. It is how the worst parts of the original arrangement were repaired, which we examine in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It.
3. The alternative gives the dead hand to a living one. If judges update the text, then what binds you is the opinion of the nine people on the bench this year. That isn't consent. It is the rule of the robe.
4. Difficulty is not an argument for abandoning the effort. Historians argue about meaning, but at least they have evidence to argue over. A method based on what a judge feels is right has no evidence to argue over at all.

The bottom line

• Originalism asks what the words meant to the public when the Constitution was adopted, and holds that meaning fixed until the people amend it under Article V (38 of 50 states).
• It does not freeze the world in 1789. It applies old principles to new facts, as in Kyllo, where a 1791 amendment covered a thermal camera.
• Judges applying it sometimes reach results conservatives dislike, as in the flag-burning and confrontation cases, which is evidence it constrains the judge.
• When the text runs out, the originalist says the decision belongs to voters and legislators, not to judges.
• Next time someone says originalism is a trick, ask them to name the method they'd use instead, and ask who checks the judge when he uses it.