Andrew Allard '25
Editor-in-Chief
Last Thursday, September 5, the Federalist Society at UVA Law hosted a talk, dubbed “Originalism 101,” with Professors Lawrence Solum and Charles Barzun ’05. The pair discussed the origins of originalism, its variations, its merits and flaws, and its impact on judicial decision-making.
Professor Solum began by tracing the emergence of contemporary originalism to the rise of administrative agencies and the expansion of federal power during the New Deal era and under the Warren Court. “There were decisions that many judges, scholars, and lawyers felt were inconsistent with the text of the Constitution. That gave rise to a conservative backlash,” Solum explained.
As part of that backlash, conservative legal scholarship emerged criticizing living constitutionalism, including by Robert Bork and William Rehnquist. But, ironically, it was a critic at Stanford, Paul Brest, who coined the term “originalism” in his article The Misconceived Quest for the Original Understanding. “Brest, by naming the theory, created originalism as a movement . . . people reacted to Brest’s critique with defenses of originalism,” said Professor Solum.
But defenders of originalism did not always agree with each other. “Originalism is a family of theories. It’s not a single theory that all originalists agree on,” Solum explained. While nearly all originalists share two foundational ideas—that constitutional meaning is fixed when a provision is enacted and that fixed meanings should bind constitutional actors—there is no single view on how to conduct originalist legal analysis.
For example, original intent originalists argue that the Constitution means whatever the Framers intended for it to mean. Original public meaning originalists, on the other hand, argue that the Constitution was a public document and should be understood as it would have been understood by the public at the time of ratification.
The latter view gained momentum in the 1980s when then-Judge Antonin Scalia advanced the theory in discussions with President Ronald Reagan’s Justice Department, which was developing a constitutional theory for the administration. “That caused a major shift in originalism and the emergence in the 1990s of what’s now called new originalism.” Around that same time, originalists such as Scalia and later Clarence Thomas were elevated to the Supreme Court.
“In the 20-teens, many more originalists were appointed to the federal bench . . . There are now dozens of judges on the United States Courts of Appeals and District Courts who identify as originalists, and some of the Supreme Court justices are originalists to some degree,” said Solum. The Court is not “consistently originalist,” Solum continued, citing the Dobbs majority opinion as “thoroughly non-originalist.” Nonetheless, Solum acknowledged that the Court is “dramatically more sympathetic to originalism than [it] was in the ’50s and ’60s.”
Professor Solum lastly touched on living constitutionalism, one of the principal rivals to originalism. Solum noted that there are several varieties of living constitutionalism, ranging from legislative supremacy—making Congress, rather than the judiciary, the primary authority on constitutional meaning—to common law constitutionalism, allowing the Supreme Court to amend constitutional law through the common law process.
In response, Professor Barzun explored some of the common criticisms of originalism. Firstly, critics often object that meaning cannot be fixed in the way the originalists claim. “These kinds of skeptical objects are oftentimes hard to respond to. It’s fairly easy if you’re philosophically sophisticated enough to show the difficulty with any coherent account of meaning.” While such arguments can be philosophically persuasive, Barzun said, it ultimately proves too much. “If you don’t think that we can fix meaning in any way . . . then what’s the point of being here?”
A stronger criticism, says Barzun, is that originalism doesn’t accurately reflect the views of the founding generation. “If you look at the founding, they weren’t originalists . . . The idea of a constitution itself was fundamentally different than what we think of today. When they talked about the Constitution, they weren’t talking about a document . . . It is the entire tradition, it’s a culture, it’s a set of practices that hold the country together . . . If our whole point is to do what was original, then that seems to be a big problem.”
Originalists have responded to this criticism on normative grounds—even if the Founders didn’t think of constitutions that way, we should now. For example, Justice Scalia argued this position on rule-of-law grounds—people need predictability to organize life and defend freedom. Others advance an argument based on democratic theory: The Constitution is an expression of popular will, so we should obey it.
But Barzun expressed skepticism toward both of these responses. He argued that the U.S. Constitution may not really provide predictability and structure. Instead, courts create constitutional structure through their decisions.
The democratic theory justification can also be criticized because the polity at the time of the founding was unrepresentative. Most of those voting on the ratification of the Constitution were white, propertied men. “It doesn’t seem all that democratic today, right? . . . That’s probably the most stock of stock objections to originalism. But one reason why it’s a stock objection is because it’s, in a sense, a powerful one.”
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