Originalism: What it is, what it isn’t and why it’s the most democratic option for the Supreme Court
A majority of Supreme Court justices follow originalism, the mode of constitutional interpretation championed by late Justice Antonin Scalia. A former Scalia law clerk explains what originalism means.
Originalism is a judicial philosophy that interprets the U.S. Constitution based on what the framers intended when it was written. This view is held by most current Supreme Court justices, including Justice Antonin Scalia, who considered originalism "the lesser evil." Originalism differs from "living constitutionalism," which allows judges to reinterpret the Constitution to suit changing societal needs.
The originalism movement gained traction in the late 20th century, particularly after Scalia's appointment. Scalia, a skilled advocate for originalism, helped change many minds and convinced several justices to follow this approach. Today, many Supreme Court justices, including Barrett, adhere to originalism to some extent.
Myths about originalism include the belief that it prevents constitutional changes or that it's merely a conservative tool to achieve desired outcomes. However, originalists argue that the Constitution can change, but only through the amendment process, while living constitutionalists believe judges can reinterpret existing laws. Some originalists have reached unfavorable conclusions, but they still believe in the democratic process.
Critics of originalism often point out its challenges, such as determining the framers' original intent and the vagueness of some constitutional provisions. They argue that relying on history can be ambiguous, but originalists respond that living constitutionalists rely on subjective outcomes. Another criticism is that originalism is undemocratic due to the unelected and life-tenured nature of justices.
However, originalists argue that the Constitution's democratic legitimacy lies in the fact that it has evolved over time, and its remaining provisions are widely accepted.
Originalists also contend that the alternative to originalism—letting nine unelected judges decide—is less democratic, as it grants them unchecked power. In summary, originalism is a philosophy that prioritizes the intent of the Constitution's framers and relies on the democratic process to change the Constitution, rather than allowing unelected judges to reinterpret it arbitrarily.
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