Being an originalist sometimes seems like being stuck in a game of whack-a-mole. Whenever you talk about the theory, the same old objections keep popping up. We need a “living” Constitution in a modern society; the Constitution’s too old and cryptic to be able to know its original meaning; originalism leads to awful results that society can’t abide. Whack down one of these challenges and the next is sure to appear. In this piece, I seek to address the usual objections and explain why I believe originalism is the theory of interpretation that fits best with our Constitution.
Imagine you’re hauled into court, falsely accused of murder in a classic case of mistaken identity. The prosecution’s case hinges on an eyewitness’s written statement given to the police only minutes after the crime. But the witness’s story has holes in it. For starters, the statement says he was present at the time of the crime. But you find out he only stumbled onto the scene after the fact. You also discover that the officer who took the statement seemed to threaten the witness—telling him “it would be good for him to talk” about your alleged involvement in the crime because the police “would be taking a hard look at everyone at the scene.”
At trial, the prosecution seeks to introduce the witness’s written statement and your lawyer immediately objects. Now, your lawyer is no slouch. She quickly directs the court’s attention to the Sixth Amendment’s Confrontation Clause, which guarantees a criminal defendant the right to “confront[]…the witnesses against him.” That clause, your lawyer argues, requires live testimony from the witness, not just a piece of paper. After all, she says, there’s no substitute for cross-examination to uncover the flaws in a witness’s story and to assess a witness’s credibility. In reply, the prosecutor argues that testimony isn’t necessary. He says the written statement bears plenty of hallmarks of reliability. He adds, too, that it would be burdensome and inefficient to require the witness to testify on the stand. Ultimately, the judge sides with the prosecution and, without an opportunity to undermine the key piece of evidence, you’re out of luck; the jury quickly convicts.
Something like this unfortunate saga unfurled regularly in courtrooms in America during Ohio v. Roberts’s twenty-four-year reign. In Roberts, the Court disregarded the Sixth Amendment’s plain and firm language that guarantees defendants the right to confront their accusers. In its place, the Court invented a wobbly new balancing test. Under its terms, the so-called “competing interests” of “effective law enforcement” could justify “dispensing with” the defendant’s right to confront a witness at trial so long as a witness’s prior written statement bore “adequate ‘indicia of reliability.’ ” Now, if you’re puzzled by what the term “adequate indicia of reliability” means or how a standard like that might be applied in a principled manner, you are not alone. Under Roberts’s rule, identical cases were often treated very differently. Some judges found indicia of reliability only in detailed statements; others found even brief ones just fine too. Some judges found indicia of reliability because the witness was in custody; others because the witness was out of custody. Some judges found indicia of reliability where a statement was given immediately after the events; others because years had intervened.
Happily, this particular story took a turn for the better when the Supreme Court finally overruled Roberts in Crawford v. Washington. After carefully reviewing historical sources, the Court in Crawford concluded that, as originally understood, the Confrontation Clause prohibited the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford also reminded us that judges are not supposed to substitute a conditional guarantee they prefer for an absolute one found in the Constitution’s text.
The story of Roberts and Crawford is instructive. It shows just how profoundly a judge’s approach to the job of interpreting the Constitution can affect the lives of ordinary Americans. It reveals, too, the central divide in constitutional theory today. On one side, Roberts exemplifies what is often called “living constitutionalism.” Now, living Constitution theories come in more varieties than ice cream flavors at Baskin-Robbins. Every day, more and more aspiring constitutional law professors churn out more and more “paradigm-shifting” theories of constitutional law. Often they bear sonorous-sounding names like Pragmatic Constitutionalism, Progressive Constitutionalism, even Postmodern Constitutionalism. I’m not making this up. While differing in their particulars, many of these theories share the conviction that the Constitution’s meaning changes over time and that judges should determine what changes should be made based on external policy considerations. Just like the Court did in Roberts.
On the other side of the debate lies originalism. Originalists believe that the Constitution should be read in our time the same way it was read when adopted. Like the Crawford Court, originalists believe that a defendant’s right to confrontation today can mean no less than it did at the founding. In an originalist’s view, it is not for judges to decide how to balance the competing interests of efficient law enforcement on the one hand and accurate criminal convictions on the other. The people themselves decided the appropriate balance when they adopted the Sixth Amendment and agreed on an unequivocal right to confrontation. That right, an originalist believes, must be honored always and never rewritten by judges who happen to see things differently. Naturally, originalists sometimes disagree on methods and results. But just like living constitutionalism has a core, so does originalism: that the Constitution’s meaning was fixed at its ratification and the judge’s job is to discern and apply that meaning to the people’s cases and controversies.
Tonight, I want to explain how I came to conclude that originalism is the method of interpretation most consonant with the Constitution—why Crawford is right and Roberts and all those living Constitution theories are wrong. I confess I hope I will manage to persuade you too. But I do not come before you without a backup plan. If I cannot convince you that originalism is the proper interpretive theory for our Constitution, I hope to convince you (to borrow from Churchill) that originalism is the worst form of constitutional interpretation, except for all the others.
BEFORE I GET TO the real case for originalism, though, let’s clear out some underbrush. No discussion of originalism gets very far these days before someone interjects “We need a living Constitution to govern a modern society.” Originalism, they say, is a terrible thing because it will haul us back to the horse-and-buggy days and is hopelessly impractical for our shiny modern world. But when someone tells you this, hold on to your wallet; you’re about to be swindled. Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.
Well, if that canard doesn’t work, living constitutionalists often reply with another quick objection. They complain we can’t know the original understanding because the document’s too old and cryptic. Hardly. We figure out the original meaning of old and difficult texts all the time. Just ask any English professor who teaches Shakespeare or Beowulf. Does anyone seriously suggest that it’s useless to discuss the original meaning of “to be, or not to be”; “to thine own self be true”; or “[a]ll that glisters is not gold”? The fact is, we have even deciphered the Rosetta Stone. Note, too, the sleight of hand here. If the Constitution is too old to understand, what about old precedents? Surely (hopefully) living constitutionalists don’t mean to suggest we should throw out Marbury v. Madison just because it’s almost as old and cryptic as the Constitution itself.
Backing away slightly at this point, living constitutionalists often pursue their indeterminacy argument this way. They point to cases where originalist justices on the Supreme Court have disagreed about the Constitution’s original meaning. They say, “Aha! See, the promise of being able to figure out the original meaning of the Constitution is such a sham even they can’t agree.” But what does the occasional disagreement between originalists really prove? We all know that the cases that land in the Supreme Court are the hardest ones in our legal system. So why should it surprise anyone that faithful originalists on the Court sometimes disagree on the original meaning of some of its provisions? And why should that be an indictment against the methodology?
After all, if there’s one piece of terrain that living constitutionalists do not want to pitch their battle upon, it’s determinacy. Originalism makes many of the living constitutionalists’ hard cases quite easy. Is the death penalty constitutional? Yes, the Constitution expressly mentions it multiple times. Does the Sixth Amendment require confrontation or are there a bunch of balancing tests and unenumerated exceptions we must devise? We know the answer because the text tells us. And while originalists may sometimes disagree on outcomes, they are at least constrained by the same value-neutral methodology and the same closed record of historical evidence. Come to us with arguments from text, structure, and history and we are bound to listen with care and do our best to reason through them. Allow me to reign over the country as a living constitutionalist and you have no idea how I will exercise that fickle power.
Fine, the living constitutionalist usually says. Maybe we could make originalism work reasonably well, but why should we be ruled by the dead hand of the past? But beware: This argument proves too much. This isn’t an attack against originalism so much as it is an attack on written law. After all, as soon as the people ratify a constitutional provision or the legislature passes a new statute, it becomes a law written by a past rather than a present majority. And at exactly what point does continued adherence to that law become the dreaded rule of the dead hand? When a majority of those who voted to ratify it have died? When everyone who voted to ratify it has died? Lives in being plus twenty-one years? If laws enacted by the dead hand are presumptively problematic, then what about the Civil Rights Act of 1964 and the Voting Rights Act of 1965? Or the Equal Protection, the Due Process, and the Cruel and Unusual Punishments Clauses?
If living constitutionalists can’t really believe the dead hand critique, what are they trying to get at here? I suspect their real complaint isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Others argue that originalism fails to afford sufficient respect to precedent. They suggest, for example, that originalism is incompatible with important judicial decisions like Brown v. Board of Education. Note here, again, that on this view (some) dead hands are just fine. But even more important, note that this critique contains at least two errors. First, it assumes that the precedents in question cannot be squared with the original understanding. But that’s not always so. Take a look, for example, at Michael McConnell’s, Steven Calabresi’s, and Michael Perl’s originalist defenses of Brown itself and count me convinced. Second, this argument overlooks the fact that adopting a theory of interpretation for unsettled questions and adopting a theory of precedent for settled questions are two different things. A living constitutionalist, no less than an originalist, must decide when to abide and when to discard judicial precedents with which he may disagree. And, of course, getting your theory of precedent right is important (and I deal with that question elsewhere, including in a very long book with several judicial colleagues). But it also runs orthogonal to our current discussion.
A final, frequent, and related objection to originalism goes something like this. Originalism should be rejected because it leads to bad results. I can’t help but notice, though, that many of the supposedly “bad” results critics cite often just reflect their own erroneous and sometimes even farcical understandings of originalism. Take one example I hear often these days: Some critics assert that originalism should be rejected because it means a woman cannot be president. After all, they note, the Constitution refers to the chief executive as “he.” But this is nonsense. When the Constitution was ratified, “he” served as a standard pronoun of indefinite gender—it covered women too. (As it often does today.) Plainly, a woman can be elected president under the written terms of the Constitution.
Beyond that, let me pose this question. Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it. I could go on and on. So could any originalist judge.
Besides, if we’re going to measure an interpretive theory by its results, consider this. Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency. After all, passing majorities will applaud judicial efforts to follow their wishes. But as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?
WITH SOME OF THE sillier objections against originalism cleared out of the way, let’s turn to the real business. Any serious discussion of constitutional interpretation must begin with the Constitution itself. After all, a judge’s oath and most important job is to preserve that document and its guarantees. And while the Constitution doesn’t speak directly to the proper mode of its interpretation, a careful inspection of its terms and structure shows that originalism is anticipated and fairly commanded by its terms.
Start with what the Constitution says about itself: “This Constitution…[is] the supreme Law of the Land.” Underscoring its status as “supreme Law,” the Constitution requires “all…judicial Officers…[to] be bound by Oath or Affirmation, to support” it. In England, of course, the constitution was largely a set of unwritten customs. Our founders deliberately rejected that model when they decided to adopt a written Constitution. And the Constitution’s self-conscious language emphasizing its written-ness, its status as a law, and the judge’s duty to abide its terms tell us some important things about the judge’s job. It tells us that the Constitution’s express limitations on the scope of governmental action are not merely aspirational or customary or advisory. Or at least that they are not supposed to be. It tells us that the Constitution is itself a law, the supreme law. It tells us, too, that only the terms of this written document and nothing else, not any unreferenced norm or custom, constitutes that supreme law. And it tells us that judges are bound to enforce this law before any other. As Chief Justice John Marshall explained, “The powers of the [government] are defined, and limited; and [so] that those limits may not be mistaken, or forgotten, the constitution is written.” In Marshall’s view, it would be “immoral” for a judge to take an oath to support the Constitution only then to serve later as “the knowing instrument[], for violating what [he has sworn] to support!”
For a judge bound to respect and not violate the terms of a written law he has sworn to support, the natural starting point for resolving any dispute over its meaning must be the ordinary meaning of that term at the time of its enactment. After all, that’s how we interpret most every text. When Hamlet threatens to “make a ghost of him that lets me,” the reference may seem unclear to a modern reader. But when you look at a contemporaneous dictionary you quickly discover that “let” meant “hinder” (as the term is still used in tennis today, when the ball is hindered by the net). So, most everyone today would agree that Hamlet was not threatening to kill someone who wanted to be killed; it’s clear that Hamlet was threatening to kill anyone who got in his way. Confusion solved by the original public meaning.
To be sure, the law sometimes assigns specialized meanings to words and terms and we must ask what the ordinary reader familiar with the law’s specialized meanings would have understood of the word or term’s usage at the time of the law’s adoption. After all, to know what “let” meant in Shakespeare’s time we must ask what a person familiar with the word and its usages would make of it, and exactly the same holds here. Some of the Constitution’s terms had long-established and very particular meanings in the common law familiar to lawyers and judges.
But the notion that the same rules of interpretation that apply to other written laws should apply to the written law of our Constitution is an ancient one and exactly what the framers expected. As Hamilton put it, the Constitution should be interpreted “according to the usual and established rules of construction.” It’s an idea, too, that the Supreme Court and many other courts have reaffirmed repeatedly over the course of our history. In 1790, for example, the General Court of Maryland explained that “[i]n expounding the Federal Constitution, the same rules will be observed which are attended to in the exposition of a statute.” After all, a group full of lawyers wrote a legal document. Should it be any surprise that they expected the document to be interpreted in accord with long-accepted principles of legal interpretation?
In fact, while the founders and early justices disagreed on much else, many agreed on this. Chief Justice Marshall explained that the Constitution’s “words are to be understood in that sense in which they are generally used.” James Madison “entirely concur[red] in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” Justice Joseph Story said that “the Constitution must be expounded…as it stands” and should not “be subject to…fluctuations” but should mean the same thing “forever.” Thomas Jefferson argued that the Constitution should not be interpreted by “what meaning may be squeezed out of the text, or invented against it” but instead by “the probable one in which it was passed.” Even George Washington, no lawyer himself, explained that “the Constitution, which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all….[L]et there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Living constitutionalists reject this by asking us, admittedly and frankly, to allow judges to bend the Constitution in new and evolving ways. After all, living constitutionalism only has purchase and purpose when it departs from the original understanding.
Notice, too, this inconsistency in the living constitutionalist’s argument. Sometimes even they will admit the original public meaning should control. For example, when the Constitution speaks of allowing the government to raise the militia in cases of “domestic Violence,” no one thinks the government can call forth the troops in response to an instance of spousal abuse; everyone accepts that the phrase “domestic Violence” should be understood according to its original meaning as referring to an insurrection. Take another example. The Constitution says that the president must be thirty-five. That provision was written in a time when the average life expectancy was thirty-six. But you’d be committed if you argued that we should adjust for inflation, and only those (say) seventy-five or older could be president. So the truth is that everyone—even the living constitutionalists—agrees that we must interpret the Constitution according to its original meaning at least sometimes. But what persuasive explanation is there for the living constitutionalists’ suggestion that we should only sometimes adhere to the original public meaning of the Constitution’s written text? For my part, I can think of none.
LET’S TURN NEXT TO the Constitution’s ratification and amendment procedures. The Constitution leaves to democratic processes, Hamilton explained, the job of “prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated.” So before the Constitution could take effect, the founders called on the states to convene special conventions of the people’s representatives. And they insisted on a supermajority of those conventions to ratify the original Constitution. Later, to amend the Constitution’s terms, the founders required a supermajority of states agree. None of this was an accident. All of it was part of a self-conscious design, as Madison said, aimed at “secur[ing] the public good and private rights against the danger of such a [majority] faction, and at the same time…preserv[ing] the spirit and the form of popular government.”
Originalism honors this design by respecting both whom the Constitution entrusts with its adoption and amendment and how those things are supposed to be accomplished. Originalism seeks to enforce the Constitution and its amendments consistent with the understandings of the people who were alone legally authorized to adopt them. And it seeks to prevent any alterations to the meaning of those terms through other legally unauthorized means. When we interpret a legal text, we usually follow the ancient principle of expressio unius—recognizing that when the law prescribes a particular way of accomplishing something, it means to exclude other possible and unmentioned alternatives. So when the Constitution tells us how to ratify and amend its terms through carefully calibrated democratic processes calculated to respect minority interests, an originalist knows that it necessarily means to exclude other potential methods of altering its content—whether by means of a bare majority of states, by Congress alone, or (worse yet) by a handful of willful judges.
Living constitutionalism seems far harder to square with the Constitution’s design on these scores. Ask yourself: What is the point of the promise that the people and their representatives alone may make and amend the Constitution’s written terms if judges feel free to “evolve” the meaning of those terms to include whatever content they think appropriate? In the living constitutionalist’s world, it seems that the promise of self-rule risks becoming little more than a ruse and the amendment process a remnant. The Constitution’s ratification and amendment procedures assure that before any change to our foundational law can be made everyone will have the chance to be heard. It is a process that deliberately engages the collective wisdom and judgment of the nation. It is also one that commands deliberation and caution, guarding against overeasy changes by passing political factions in response to the latest fads. All these promises of self-government and safeguards for minority interests go out the window when the job is assumed by a committee of nine lawyers who feel free to do as they wish. And if constitutional amendment can be accomplished so easily now through judges, why bother with the real amendment process? Is it any wonder that, as living constitutionalism has risen, the more democratic amendment process has atrophied? From 1789 to 1971 the people amended the Constitution twenty-six times, an average of one amendment every seven years. Even if you discount this number for the Bill of Rights, which adopted ten amendments at once, from 1792 to 1971 the average is still one amendment about every eleven years. Meanwhile, in the past forty-seven years, a period more or less coinciding with the reign of living constitutionalism, the Constitution has been amended just once.
Notice, too, another incongruity in the living constitutionalists’ position. Once again, they will concede that sometimes the only proper mode for lawmaking is through the processes prescribed by the original understanding of the Constitution. Article I, for example, provides that a bill cannot become law until it passes both houses of Congress and is signed by the president (or passed over his veto). No one seriously argues that the legislature can make a new law except through bicameralism and presentment. So why argue that the judiciary should be able to effectively rewrite the ordinary and original public meaning of the Constitution and its amendments outside the prescribed amendment processes? What justification is there for abiding only some constitutionally prescribed formalities for new lawmaking? Again, I struggle to imagine a persuasive reply.
BEYOND ALL THIS LIES another set of clues our Constitution offers about its proper interpretation. The Constitution vests only the “judicial Power” to resolve “cases” and “controversies” in the federal judiciary. It then goes on to insulate the judicial branch from political control through life tenure and salary protection. These terms and protections, it seems to me, also point firmly in originalism’s direction.
Start with the term the “judicial Power.” In our Constitution, the framers took pains to divide the legislative from the judicial powers—to divide the power to make law and the power to interpret it. Our Constitution reserves all lawmaking power (statutory and constitutional) to the people and their representatives. The framers understood the lawmaking power as the authority to make rules of conduct governing our society. Often enough, that power involves little more than choosing between competing and incommensurable goods. Should we prioritize improving our Internet or transportation infrastructure? There is no right decision here, just choice, and it is a choice properly left to a self-governing people and their representatives to make. Because of the immense power of legislation to affect the people’s lives, liberty, and property, the framers not only created a deliberately difficult process for adopting new laws but also usually required new laws to apply only prospectively and generally to all persons, the better to safeguard fair notice of the law’s demands and equality in its application.
Meanwhile, when the framers spoke of the judicial power, they understood it to be entirely distinct and involve none of these things. To them the judicial power wasn’t to be used for making new rules of general applicability for society that often require raw choices between competing goods, but a neutral authority for resolving disputes over the application of existing laws to completed events. While the business of making new laws calls for value judgments and self-governance, the business of ensuring that existing laws are fairly applied to everyone calls for a dispassionate arbiter who is not responsive to majoritarian pressures.
That the legislative and judicial powers are distinct in these ways finds confirmation in the Constitutional Convention, where the framers considered four proposals to mix the two sorts of powers. Yet time and time again, these proposals went down to defeat. Elbridge Gerry said that it “was quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures.” Rufus King added that judges should “expound the law as it should come before them, free from the bias of having participated in its formation.” And Caleb Strong said that “the power of making ought to be kept distinct from that of expounding, the laws. No maxim [is] better established.” In fact, I am aware of no evidence that anyone at the framing or during the ratification debates thought that the Constitution permitted judges to update its meaning over time. To the contrary, when the Anti-Federalists raised fears that judges might improperly treat the Constitution as a living document, the Federalists defending the Constitution responded not by arguing that judicial updating was proper but by asserting that impeachment would be an available and adequate remedy.
Insulating judges from democratic accountability also reveals the founders’ assumption that judges would resolve ambiguity using neutral and well-known rules of interpretation, not their own “living” and “evolving” values. Life tenure makes little sense if judges are supposed to be nothing more than politicians wearing robes. Insulating the federal judiciary from the political process—and exempting judges from the procedural safeguards placed on the exercise of legislative power—cannot be easily explained if you expect them to make value judgments on policy grounds. Only because he understood judging to be a distinct discipline guided by neutral interpretive principles could Hamilton credibly argue that the judiciary would be the “least dangerous” branch and would exercise merely “judgment” and not “will.”
Originalism fits with the framers’ design. It respects the line between making new law and the far more modest judicial power of interpreting law according to neutral principles. Consider first the goal of originalism: to ascertain the ordinary and public meaning of the Constitution’s text at the time of ratification. Notice that originalism can describe a judge’s goal in interpretation without reference to any value judgments or subjective preferences. The goal is not to “do justice” as the judge personally may see it, but to enforce the Constitution as written. Consider, too, the originalist’s tools, each one value-neutral. Originalists often begin their inquiry by examining dictionary definitions and other contemporaneous written sources to determine the ordinary public meaning of a word at the time the constitutional provision at issue was enacted. Because the Constitution is a law and invokes legal terms of art, originalists will also consult how those terms were understood and used at the time of the founding. Even seemingly broad phrases take on more concrete meaning this way. So, for example, “due process” doesn’t mean free-floating notions of “fairness”; it isn’t a license for judges to inject their own value judgments. Rather, this phrase was long used in the common law and was understood to refer to specific, ancient, and traditional procedures afforded to free persons in England before the government could take their lives, liberty, or property. Considering an interpretation in light of the Constitution’s structure also helps to confirm or disprove a possible understanding of a term. So, for example, the relationship between the various vesting clauses (which grant different powers to legislative, executive, and judicial actors) helps us to understand what each of those clauses was understood to include and exclude. Finally, originalists will compare their interpretation against early practice. So, for example, if the First Congress unanimously hired a chaplain to say a prayer before conducting legislative business and no member of the public complained, that might be some evidence the practice didn’t violate the original meaning of the Establishment Clause. With a yardstick and tools of interpretation that are reasonably objective, you can criticize a judge’s handiwork in an objective manner.
By contrast, living constitutionalism cannot easily claim such consonance with the separation of powers and the limited nature of the judicial power. Why would the Constitution bother to distinguish so carefully between the legislative and judicial powers if judges were really just supposed to be superlegislators free to alter not just statutes but the Constitution according to their own evolving sensibilities? And on what account does it make sense to insulate judges from democratic processes if they do not seek to apply neutral principles to discern what the law is but feel free to enforce the law as they think it should be? Jefferson warned that “[t]o take a single step beyond the boundaries” established in the Constitution “is to take possession of a boundless field of power.” Exactly so.
HAVING SAID SO MUCH about particular constitutional clues, I should be careful not to overlook the forest for the trees. Each of the constitutional clues I’ve discussed so far was adopted as part of a broader project: to ensure the rule of law. At a minimum, the rule of law demands fair notice of the law and equality in its application. The government must be bound by fixed rules announced in advance; the people must be able to conform their conduct to these rules; and the government must be prevented from using retroactive or malleable rules to single out unpopular groups for disfavored treatment. “Freedom of men under government,” John Locke wrote, “is, to have a standing rule to live by, common to every one of that society…and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.” At the end of the day, that’s what our Constitution sought to achieve.
Originalism reinforces these rule-of-law values of notice and equality. Most obviously, by interpreting the text according to its ordinary public meaning, and accepting that it cannot be changed outside the amendment process, originalism ensures that citizens know with some predictability the content of their constitutional rights. And that, in turn, means the people know when their rights are violated, the better to hold the government to account. Originalism, too, helps to ensure equality in the law’s application. Everyone gets the benefit of the written law’s terms. The least powerful among us get the same treatment as the most powerful, and cannot have their rights balanced away by judges. It does not matter, say, whether the judge prefers law enforcement interests to criminal defendants.
Meanwhile, what happens to the rule-of-law values of notice and equality before the law if we abandon originalism for living constitutionalism? Judges are endowed with the extraordinary power to rule retroactively with a full view of each party’s completed and unchangeable actions. That’s fine when judges are limited to applying value-neutral rules to enforce the original understanding of the Constitution’s written terms. But what happens when judges can “evolve” constitutional commands in light of their own values? Who can guess how they will rule? And who stands to benefit? Maybe the few will be able to speculate successfully about (and perhaps even influence) what judges will do in this unbounded world. The many, and certainly the least among us, cannot be expected to fare so well.
IN CASE YOU THINK I overstate the inconsistency of living constitutionalism with our written Constitution and the rule of law, consider the theory’s first serious manifestation in the Supreme Court’s case law: Dred Scott v. Sandford, a case I discussed earlier. There, the Court found a substantive due process right to own slaves in Territories of the United States that even Congress could not extirpate. Perhaps no decision before or since has sent such a lightning bolt through society. And for good reason. Where exactly in the Due Process Clause or anywhere else in the Constitution can you find such a right? The truth is, Dred Scott conjured it out of thin air and the only good thing to come of the decision was that it spurred an inspiring originalist dissent from Justice Benjamin Robbins Curtis, who, in my judgment, put the originalists’ case about as well as it has ever been put. He said that “when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Just so.
Nor is there any guessing where this boundless power the living constitutionalists claim will lead. If the Constitution isn’t to be interpreted by the same traditional rules that govern the interpretation of other written laws, by what rule is it to be interpreted? Living constitutionalists say we should depart from the original and ordinary meaning of the text in service of extraneous substantive values. But which values should guide us? Maybe it should come as little surprise that, as Professor Raoul Berger put it, as soon as we depart from the original meaning we wind up with “as many theories as writers.” Today, some living constitutionalists say judges should recalibrate the political processes to promote more democracy; others wish us to promote economic efficiency; and on and on the proposals parade. But the divergence of all these theories betrays a common truth: If we do not seek to enforce the law’s original public meaning, we must introduce some extraneous value to guide our work.
Don’t take my word for it; take it from some of the more prominent living constitutionalists. Professor Mark Tushnet has said: “I am invariably asked, ‘Well, yes, but how would you decide the X case?’…My answer, in brief, is to make an explicitly political judgment: which result is, in the circumstances now existing, likely to advance the cause of socialism? Having decided that, I would write an opinion in some currently favored version of Grand Theory.” Dean Erwin Chemerinsky has suggested that justices “inevitably” need to “make value judgments that come down to their own ideology and life experience.” And Judge Richard Posner has explained that he “tr[ies] to improve things within certain bounds”—“to figure out, what is a sensible solution to this problem” without worrying “about doctrine, precedent, and all that stuff” and then he adopts it, unless Supreme Court precedent blocks his path. Maybe originalism isn’t perfectly determinate or doesn’t always lead where you would like to go. But in a world of imperfect choices, which vision of the judge’s role do you think fits best with our written Constitution? And which vision of a judge’s role fits best with a republic premised on self-rule?
IN CLOSING, I’D LIKE to share one final thought with you. When these constitutional interpretation debates arise, often the first place my mind takes me is not to the Constitution or The Federalist Papers. Instead, I recall a scene from Robert Bolt’s play about Sir Thomas More, A Man for All Seasons. There, More’s family urged him to arrest a man they thought evil even though no law clearly forbade his conduct. More objected, asking: “What would you do? Cut a great road through the law to get after the Devil?” Without hesitation, his son-in-law replied, “I’d cut down every law in England to do that!” To which More answered, “Oh? And when the last law was down, and the Devil turned round on you—where would you hide…the laws all being flat?…[I]f you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
Sometimes, debates between living constitutionalists and originalists become mired in minutiae. But in the end constitutional theory is about who decides the most important questions in our society. Will it be unaccountable judges? Or will it be the people themselves? For my part, you can count me with those who would conserve the law’s forests, and with Jefferson, who reminds us that “[o]ur…security [lies in] the possession of a written constitution. Let us not make it a blank paper by construction.”