An originalist's originalism

(Image credit: Stefani Reynolds-Pool/Getty Images)

published 16 October 2020

This is the editor's letter in the current issue of The Week magazine.

When the Founders wrote that a "well-regulated militia" must have the right to bear arms, did they mean every citizen has a right to own an AR-15 capable of killing 50 schoolchildren in a minute? Does prohibiting discrimination based on "sex" now include gay and transgender people? How should we apply today such vague, 18th-century language as "due process," "cruel and unusual," and even "liberty"? Most reasonable people would agree that applying the Constitution to current legal controversies is inherently a subjective process. But not judicial "originalists" like the late Justice Antonin Scalia and his protégé, Amy Coney Barrett. Originalists and textualists insist that justices must discern the meaning of the Constitution and laws when they were written and neutrally apply them, with no consideration of the consequences on people. The Constitution's meaning, Barrett said this week, "doesn't change over time, and it's not up to me to update it or infuse my own policy views into it."

This has a fine, reassuring ring of humility. Barrett clearly has a formidable mind. But originalism arose in reaction to the "living Constitution" views of liberal justices; its claim of neutrality is neither credible nor intellectually honest. Is it possible, or even desirable, for a judge to look at emotionally fraught issues such as abortion, gun rights, voting rights, health care, affirmative action, and privacy without the filter of values, beliefs, and perspectives shaped by a lifetime of real-world experience? Early in our history, Alexander Hamilton, Thomas Jefferson, and James Madison fought bitterly over the meaning of the Constitution they helped draft and ratify. Madison, among other Framers, specifically said future generations would need to adapt the Constitution's general principles to their own times. "In framing a system which we wish to last for the ages," Madison said, "we should not lose sight of the changes which ages will produce." You might call that an originalist's opinion.

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William Falk is editor-in-chief of The Week, and has held that role since the magazine's first issue in 2001. He has previously been a reporter, columnist, and editor at the Gannett Westchester Newspapers and at Newsday, where he was part of two reporting teams that won Pulitzer Prizes.