Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text. From Restraint to Intent to Meaning From roughly the s through the s, liberals criticized the Supreme Court on the ground that the conservative majority used the broadly worded text of the Constitution as a pretext for imposing its values on the nation and the states by striking down progressive legislation regulating child labor, worker hours, and the economy more broadly.
Then the Court reversed itself. The post-New Deal Court gave Congress and state legislatures substantial leeway. By the middle of the twentieth century, the justices were once again being criticized for substituting their values for those of elected officials. This time, however, it was conservatives doing the complaining. They criticized Warren Court and early Burger Court constitutional rulings requiring racial desegregation, rights for criminal defendants, legal abortion, and more.
Although the issues and ideological valence had shifted, the core argument had not. Liberals in the first third of the twentieth century and conservatives in the second half of the twentieth century both complained about judicial activism—a somewhat ill-defined know-it-when-I-see-it term for judges, in the guise of construing the Constitution, substituting their values and policy choices for those of elected officials.
At some point right around the beginning of the Reagan administration, however, legal conservatives began to supplement their charges of judicial activism with another complaint: Liberal court rulings, they argued, were illegitimate because not grounded in the original intent of the framers and ratifiers of the Constitution. By making original intent their constitutional touchstone, conservatives could continue to criticize liberal rulings, but, in addition, as Republican presidents appointed a growing proportion of the federal judiciary, they could now defend conservative decisions striking down liberal laws without opening themselves up to charges of judicial activism.
The problem, in this view, was not judicial activism per se, but the wrong sort of judicial activism. Original intent was subject to withering criticism. How can we reliably discern what the fractious framers thought even about the issues they thought about, much less about the kinds of questions they could barely anticipate—like whether the police must obtain a warrant based on probable cause before attaching a GPS tracking device to a car?
And what to do about the embarrassment that sometimes we do know what the framers intended but cannot stomach it? By the time President Reagan nominated Judge Robert Bork to a Supreme Court seat, that question was most acute with respect to the desegregation ruling in Brown v.
Board of Education , which conservatives had come to accept or at least to realize that they could no longer publicly denounce. Yet once one allows that a constitutional provision can have profoundly unexpected implications, it is hard to see how originalism differs from its supposed rival, living Constitutionalism. And indeed, not long ago Yale Law Professor Jack Balkin wrote a book provocatively titled Living Originalism , in which he argued—without intended irony—that public-meaning originalism and living Constitutionalism are merely opposite sides of the same coin.
If so, however, then originalism would seem to invite the old critique of judicial activism. To be sure, some originalists have tried to keep the likes of Professor Balkin out of their club, but it is hardly clear that their own versions of originalism are any more determinate than his. He is a libertarian who generally albeit not always sees libertarianism in the original meaning of the Constitution. Yet that looks more like projection than history or lexicography.
As I pointed out in our debate, and as scholars have explored in depth, the original meaning of freedom of speech in the First Amendment and the limitations on the power of eminent domain in the Fifth Amendment were much narrower than their contemporary meanings, because libertarianism as we know it today developed after the Founding period, which was better characterized by what we would now call civic republicanism.
Melin provides a brand new illustration of this kind of bait and switch. The Sveen case involved a Minnesota law that changed the default rule governing life insurance beneficiaries following divorce. Prior to , when a couple divorced, an ex-spouse listed as the principal beneficiary on a life insurance policy retained that designation, unless the insured ex-spouse or the court issuing the divorce changed it. Under the new law, when a couple divorces, the ex-spouse is passed over as the beneficiary, unless the divorce agreement or order specifies otherwise or the insured notifies the insurance company that he or she wishes to retain the ex as beneficiary notwithstanding the breakup.
Sveen posed the question whether Minnesota could apply its new law to a life insurance policy that went into effect before the law was enacted. Justice Gorsuch cited a statement made by James Madison at the Constitutional Convention as well as the response Madison gave in public debate to the charge by Antifederalists that the Contracts Clause would forbid valuable legislation; on the contrary, Madison claimed, it would give valuable protection to liberty and property.
Notably, Justice Gorsuch did not say anything specifically about what any of the words of the Contracts Clause meant in ; his argument was entirely about what the framers and ratifiers intended and expected. Admittedly Justice Gorsuch also made a linguistic argument, but it was not a distinctively historical one. He observed that the Contracts Clause on its face forbids any impairment of contracts, not just substantial impairments.
Whatever the merits of the textual argument offered by Justice Gorsuch, note, crucially, that nothing about it relies on any distinctively original meaning. Justice Gorsuch might have as accurately said that the substantial-impairment test is hard to square with the text of the Contracts Clause as with its original public meaning.
That elision points to one further bit of legerdemain employed by originalists. Yet self-styled originalists often write as though a vast linguistic gulf separates us from the Founding generation. Once again, we should do so to prevent the originalist bait and switch.
That resolves these cases. Ironically, the practical meaning of original-public-meaning originalism is intentions-and-expectations-based originalism.