At the end of Ronald Reagan’s first term, the Justice Department began to study “originalism” as a method of constitutional interpretation. Attorney General Ed Meese made the move famous in 1985, giving a speech endorsing originalism as the method the administration would push in cases taken up by the Department of Justice. That push was already well underway in the department’s Office of Legal Policy before Meese’s speech. Shepherded by Assistant Attorney General Stephen Markman, as well as elites within the Reagan administration, including Pat Buchanan and future Chief Justice John Roberts, the DOJ tagged originalism as the preferred interpretive tool within the administration and for guiding its appointments. Almost 40 years later, their work is now the dominant method for interpreting the Constitution at the Supreme Court.
From the very start, conservatives framed originalism as principle, not politics. Though they plainly knew that the consequence of their methodology would favor many of their own political preferences, they understood that would not always be true. Justice Antonin Scalia, at least early in his career, famously followed originalism to non-conservative ends. So too has Justice Neil Gorsuch. The question for these justices is not what benefits the party, but what follows from the principle. Roe v. Wade, which the court overturned in this year’s Dobbs decision, was obviously wrong under originalism, at least as it is now understood. Dobbs followed originalism to its logical place.
But if Dobbs is correct from an originalist position, a wide range of Supreme Court doctrine is not. Critical modern interpretations of the Reconstruction Amendments — the 13th, 14th, and 15th Amendments — are wrong from an originalist perspective. The modern “state action” doctrine is just made up, as are the limits on Congress’s power under Section 5 of the 14th Amendment to pass laws to enforce the amendment, and limits on its power to define the “privileges or immunities” Americans enjoy under Section 1 of the amendment. Likewise, as Justice Ketanji Brown Jackson evinced in her fierce questioning during this month’s oral argument in the court’s most recent affirmative action case, so too are assumptions about race-conscious remedies wholly wrong. These doctrines yield enormous injustice within our society. Yet none of them were crafted by the framers of our (second) constitution; all of them are the product of activist judges.
And that’s true not just with the Reconstruction Amendments. The court’s radical campaign finance doctrine has no basis in the original meaning of the First or 14th Amendments. Likewise with its activist policing of congressional delegation powers, which last term gutted climate change regulations: These are conclusions not of the drafters of our Constitution’s text or amendments. They are the unreviewable decisions of judges. Yet cabining the political discretion of judges was said to be the most important original motivation for originalism — a motivation many in the modern originalist movement seem to have forgotten.
Lawyers and academics might well question whether originalism makes sense as a doctrine of constitutional law. But given its dominance on the United States Supreme Court for the next generation at least, it is simple malpractice not to take it seriously. And in particular, it is strategically obtuse for liberals to ignore the potential of the doctrine to address critical injustice within our society. The modern doctrine that has crippled the Reconstruction Amendments is a lie—from an originalist perspective. So if Dobbs is law thanks to originalism, why should we continue to accept that lie?
We should not. Instead, Attorney General Merrick Garland should follow Meese’s path and establish within the Justice Department a working group that develops a comprehensive public account of whether originalism, applied apolitically and consistently, would alter current Supreme Court jurisprudence. That analysis should become a regular report of the department, to Congress and the public. And it should become a staple in the briefing of the solicitor general to the Supreme Court.
Not because anyone need necessarily endorse the method, as an original matter, so to speak. But instead because, if the method is our law, then it should be applied neutrally. Originalism should not magically appear when it supports conservative results, and then hide when it would support liberal results. If the doctrine is our law, it should be our law regardless of politics.
And if it is not — if the court continues to apply the doctrine as it has, benefiting conservative positions but invisible when it might support non-conservative results—then we need a clear way to track this partisan truth and to use it to hold this court to account.
America desperately needs to believe that the Supreme Court is not just nine politicians in black robes. The court could show us if they are not. The Justice Department should show us if otherwise.
