Some are turning away from a founding idea, originalism.
For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.
But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, are outdated.
After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”
And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.
But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.
When the court looks to fundamental principles, it looks to the text and history of the Constitution. For instance, in an important immigration case, Thuraissigiam v. Barr, the court upheld Congress’s power to cut off habeas review for attempted entrants to the United States. In doing so, the court relied extensively on the original meaning of the Constitution’s guarantee of habeas corpus, pointing to English precedents and passages from the founding-era authority William Blackstone, among others, to argue that the writ of habeas corpus was never meant to guarantee an immigrant’s entry into the country.
Originalism also drove an even more important case about the scope of executive power, Seila Law v. CFPB, a 5-to-4 decision written by Chief Justice Roberts. The court held that the head of the Consumer Financial Protection Bureau must be removable at will by the president, who is vested with the country’s “executive power.” Text and history were woven throughout the court’s decision.
To be sure, these readings of the Constitution’s text and history are sometimes contested.
