Originalism

Stephen E. Sachs | 12.4.2023 2:26 PM

At last month's Federalist Society National Lawyers' Convention, which had the theme of "Originalism on the Ground," I got to speak on a panel addressing the question "How Originalist Is the Supreme Court?" My answer was an optimistic one: "more than you might think—and it's getting better all the time." As I argued,

Despite occasional denunciations from its perceived critics on the bench, originalism remains still the coin of the realm of legal argument. As Judge Posner (no friend to originalism) wrote decades ago, originalism was and is the orthodox mode of legal justification.

And despite occasional betrayals from the perceived friends of originalism on the bench, they too are doing better than one might think. But to see this we need to recognize three distinctions:

When we draw these distinctions, we can see that originalism is in fact central to the practice of American courts, including the Supreme Court—and that they're no worse at it than at anything else they do.

Like the person who's a vegetarian not because they love animals, but because they hate plants, I take this view not because I'm an optimist about originalism, but because I'm a pessimist about everything else done by our courts.

For the rest (and a video of the event), see below!

So, let's start with the perceived critics of originalism.

I'm thinking here especially of the joint dissent in Dobbs, which strenuously criticized both the majority's history and its use of history to give content to current rights. Consider its surprise at the majority's focus on the status of abortion in the 1800s, even looking "back as far as the 13th (the 13th!) century."

But even the Dobbs dissenters gave originalism its due. In a crucial passage, they argued:

The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.

Note the claim being made here: not that we define rights in general terms, but that they did. That is a historical claim! If, as a historical matter, the due process clause wasn't defined to permit future evolution in its scope and meaning, then the argument of the Dobbs dissent is wrong. In other words, the dissenting Justices made themselves vulnerable to history, to refutation on historical grounds.

And this, in fact, is absolutely standard for arguments on both sides of the judicial "aisle." Consider the claim in........

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