Garrett Coleman '25
Managing Editor
Meghan Flatley '25
Guest Writer
When I first agreed to report on the Originalism 101 event hosted by The Federalist Society, I thought to myself: What law student needs a primer on the defining interpretive methodology of our era? *Perhaps* there are some 1Ls less nerdy than myself. But that certainly does not include Meghan Flatley ’25, who had the privilege–or torment–of sitting next to me in Con Law. There, in the spirit of collegiality, I called her constitutional ideas “laughable,” “absurd,” and “preposterous.” Being the (much more) diligent student that she is, Meghan would often correct my understanding of the record, while probably reporting me as a Papal extremist to the FBI. But we are not here to let facts get in the way of abstract reasoning. The best primer on originalism is a public cage match between two friendly adversaries, one boisterous, the other prepared.
Pictured: Ruth Bader Ginsburg and Antonin Scalia in Rajasthan, India (1994)
Photo Credit: Collection of the Supreme Court of the United States, via As- sociated Press, https://www.nytimes.com/2020/09/22/opinion/ruth-bader- ginsburg-antonin-scalia.html
Garrett: Meghan, welcome to the Virginia Law Weekly. I think our conversation should begin by asking what a constitution is for. And, as any self-respecting originalist would, I lob my first volley with a quote from Justice Antonin Scalia: “It is plainly unhistorical . . . to regard the Constitution as simply a shorthand embodiment of all that is perfect–to think that whatever element of perfection does not appear there explicitly must be contained within more vague guarantees.”[1] In short, I think that the purpose of a written constitution is to preserve a structure of government that puts some fundamental guarantees beyond the reach of fleeting majorities. It is the judicial preservation of that structure that I am concerned with, not the insertion of all conceivable values into our constitutional order.
Meghan: Garrett, thank you for the warm welcome. I look forward to solving all issues of constitutional interpretation. I’m sure we’ll be able to resolve an issue that has been debated for hundreds of years.
Anyway, I have no issue with judicial preservation. But I am not melodramatic enough to think that the country falls apart when we move beyond 1791 or 1868 (you take your pick, since originalism, and its manyiterations, leaves you with more wiggle room than you are willing to admit). So, with that in mind, what are we preserving? What year are we in? Whose perspective are we considering? Or should we do a little bit of both, depending on the persuasion of the justice, to get to the result we actually, personally want? You know, the lovely new test in Bruen[2] that has us in the past and present all at the same time, weaponizing a cherry-picked history to neuter the legislature. So true to the Framers, don’t you think?
Garrett: Pretty simple: We should preserve the law based on its public meaning in the year enacted (let’s leave statutes aside for now, since there are plenty of other considerations at play there). For example, the Fourteenth Amendment meant something to the people who wrote it and the citizens that ratified it through their state legislatures. That democratic choice should be honored by jurists today, as best they can.
To address your Bruen comment, though, I don’t think that it is inconsistent to say that a law can have a fixed meaning with some flexibility for later applications. When the Fourth Amendment guaranteed an individual’s security in her “papers,” it had a public meaning that likely protected private letters. Knowing that, a good judge should be open to applying that liberty to an age in which everyone communicates via cellphone. So, the past gives us the democratically agreed upon meaning, but a judge does not need to hide his head in the sands of 1789.
Meghan: I don’t think we can really describe any constitutional theory as “pretty simple,” especially here when there are plenty of debates about how to even apply originalism. My concern is that this method of interpretation can be—and is—widely abused. Judges are not nearly as good at being historians as they would have to be under such a method. Of course, there are cases where interpretation is easy, but in many other instances the door is left wide open to error and cherry-picking. Moreover, history itself is complicated. Often there is not one easy answer written down hundreds of years ago. Historians frequently disagree on public meaning, but judges frequently select the meaning best molded to their arguments, disregarding competing interpretations and creating a jurisprudence far more subjective than originalists would like to admit.
Regarding your Fourth Amendment comment, how is that not inconsistent? You say we must look to the public meaning, but, suddenly, when originalism and public meaning become inconvenient, we can abstract to create opinions we feel match the results we want. Public meaning is suddenly out the window. What does originalism say about deciding when and where we can abstract, if at all? How do we know when to provide flexibility in some areas while providing fixed meanings in others—without letting personal views and vague reasoning get in the way? What is the source? Such abstraction starts moving us away from originalism and into waters typically disfavored by originalists. Originalism’s various methods of application are highly inconsistent, leaving plenty of room for manipulation. All in all, the more content an originalist is with abstraction, the further he can move away from originalism and “public meaning at the time” to inject his own views, while still trying to use the term to legitimize his opinion.
Garrett: Originalism is not perfect, but it is the best interpretive option out of many bad ones. So, I agree with you that there will always be judgment calls, like choosing a level of generality. What I am defending is the baseline orientation of the judge, that she is trying to preserve something akin to an original public meaning. The risk of cherry-picking certain evidence or abstracting too far is present in every case by every judge. Finding and appointing people who have good judgment is a legislative and executive function, not an originalist one.
To your point on knowing when abstraction is appropriate, we can also turn to contemporary texts like the Federalist Papers or notes from the Constitutional Convention. The Supreme Court recognized this history in Riley v. California,[3] in which Chief Justice Roberts, writing for the majority, stated that “[o]ur cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era.”[4] Understanding that history gives context to the privacy right that the people were enshrining. And it allows us to apply that right to an evolving technological reality while still being faithful to the democratic process that preserved it. When done correctly, the level of abstraction is determined by the historical evidence as well.
But I can acknowledge some truth to the claim that historical research will always be a bit unreliable. That is why, to some degree, originalism is going to be better at calling balls than strikes–the originalist argument is at its clearest when saying something like the Eighth Amendment did not protect against the death penalty because every felony in 1791 was punished by death. That is the sort of evidence that most clearly lends itself to the originalist methodology. But it should always be remembered that originalism is pushing back against the judges who offer no fixed point of reference for their analysis. At least originalists try something.
To wrap this up, I’ll give you the floor again to conclude.
Meghan: Arguing that originalism isn’t great, but at least it’s not like other theories is hardly a glowing endorsement.
My point is that, when public meaning proves unclear or inconvenient, you begin arguing in favor of a theory that looks less and less like originalism. When you abstract that much (especially regarding your Fourth Amendment argument, where you seem to favor analyzing the purpose of the amendment), it’s less like the originalism we know and love (or hate). If you are unsure of this, I am more than happy to lend you my notes from our Con Law class where we discussed this very issue. Perhaps you aren’t as big of a fan of originalism as you let on. Understandable!
It is incumbent upon originalism, as an analytical framework, to account and compensate for the risks and issues it creates; to say this is instead the job of other branches of government is a non sequitur. That “baseline orientation” of the judge is necessarily affected by any problems with interpretation. Why wouldn’t these risks be necessary when analyzing the quality of a theory? If originalism is not up for the job, perhaps it is best to look elsewhere.
Also, I am not sure I understand your argument that, because historical research is unreliable, that makes originalism the best. Why? The example you provide concerning the Eighth Amendment I agree is cut and dry under originalism, but that means it isn’t responsive to the issue of historical ambiguity. If we want a good interpretive theory, we can’t solely examine its easy applications and pat ourselves on the back.
All in all, it seems your personal version of originalism twists with whatever argument you wish to bring forth, even though that’s what you criticize other theories for doing. When there’s clear history of the public meaning at whatever relevant year you choose, that’s the easy answer. But when it’s difficult, you abstract, speaking of baseline orientations that can perhaps illuminate the purpose of the law, twisting originalism into something it’s not to make the answer what you want, avoiding any criticisms by labeling them as irrelevant to the theory.
(Note: I am using “you” generally here. Don’t worry, Garrett, our friendship is intact, but if you think our perspectives are irreconcilable, perhaps, to appease an originalist such as yourself, we should resort to how the Framers might have handled such a disagreement: a duel. Pistols at dawn?)
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