Originalism is the dominant interpretive theory of the current Supreme Court. What it is, what it does, and what it cannot do are all worth examining clearly.
What Originalism Claims
Originalism — the interpretive theory that the Constitution should be interpreted according to the original public meaning of its text at the time of ratification — claims to provide a constraint on judicial discretion that its alternative (living constitutionalism) does not: if the Constitution means what it meant when it was written, judges cannot expand constitutional rights or government authority beyond what the original text specified, and the political process must be used to address constitutional gaps rather than judicial interpretation. The theory's appeal is its claim to judicial modesty: originalist judges apply the law as written rather than making the law as they think it should be.
The practice of originalism is more complex than the theory suggests. The historical record about original public meaning is often incomplete, contested, and interpreted differently by historians with different perspectives. The application of eighteenth and nineteenth century meaning to twenty-first century circumstances requires analogical reasoning that the theory does not specify — and that different originalist judges perform differently, reaching different conclusions from the same historical record. And the specific outcomes that originalist interpretation produces — the expansion of Second Amendment rights, the contraction of administrative authority, the limitation of voting rights protections — consistently align with the political preferences of the conservative movement that has championed the theory, raising the question of whether originalism is a constraint on judicial discretion or a sophisticated methodology for reaching preferred outcomes.
Originalism is a governance theory for a judicial institution whose legitimacy depends on the claim that it applies law rather than makes it. Its value is real if it actually constrains judicial discretion toward the constitutional meaning rather than toward the preferred outcomes of the judges applying it. Its danger is that it provides a sophisticated methodology for reaching preferred outcomes while maintaining the appearance of legal constraint. Which it is in practice is the central question of contemporary constitutional governance.
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