Rule of Law

Originalism Watch: Reclaiming the Constitution, Exposing “Fauxriginalism”

Originalism. It isn’t just for conservatives anymore. (Spoiler alert: It never was.) Progressives are reclaiming the Constitution’s text and history.

With a new year and a new administration in the White House, Constitutional Accountability Center is excited to announce a new blog series we call Originalism Watch.

This series will provide a channel for us at CAC, as progressive originalists, to continue to explain why the Constitution’s text, history, and values, in their most vital respects, lead to progressive outcomes across the array of causes we fight for. At the same time, it provides another venue for us to hold accountable prominent conservatives who wear the mantle of “originalist,” but whose work is “fauxriginalist” instead—whether it issues from the Supreme Court, the Senate, or elsewhere in the corridors of power.

Is originalism always bad? Not when it’s done correctly.

But wait, many progressives will wonder—isn’t originalism always bad? A mere cover for a conservative political agenda? A method of constitutional interpretation irrevocably steeped in white supremacist ideology and the pro-slavery origins of the Constitution?

These are legitimate questions. And completely understandable given the way most conservatives have wielded originalism to thwart meaningful equality, deny civil and human rights, marginalize communities, and undermine the ability of government to use its authority for the good of the people. But originalism—loosely defined as looking to the actual text of the Constitution and the meaning of those words at the time they were ratified in order to resolve constitutional disputes—is not an inherently conservative method and, in fact, points more often than not to progressive outcomes when applied rigorously and in good faith.

How is this possible? Because the Constitution has been amended over time to make its text—and our country—more equal, more inclusive, and more just. It has been amended time and again to ensure an inclusive, multi-racial democracy. It has been amended time and again to give the federal government more authority to enforce the broad promises of liberty and equality in its charter, protecting fundamental rights against state and federal infringement. We the People—especially the “we” that was excluded from our Constitution’s protections at the founding of our country—have persisted in pushing our Constitution along an unmistakable arc of progress and writing ourselves into our national story.

Why “Originalism Watch”?

Originalism, as a method of constitutional interpretation that takes the words of the Constitution as its starting point, should powerfully advocate for applying this constitutional arc of progress and the often sweeping understanding of the progressive amendments to the Constitution. But in the hands of conservatives, originalism often seems to embrace only the “original” Constitution of the 18th century. (To be clear, that is not what “originalism” refers to, although given how little conservative originalists seem to care about the amended Constitution, you’d be forgiven for thinking that is where the term comes from.) This is unquestionably wrong, and even conservative originalists will acknowledge this basic truth when you confront them with it, as I have done on many, many occasions. And yet somehow it gets lost when it comes to actually interpreting the Constitution.

Which brings us back to our “Originalism Watch” project.

The elevation of Justice Amy Coney Barrett to the Supreme Court last fall shone the national spotlight on her professed originalist approach to reading and applying the Constitution, one most closely associated with the late Justice Antonin Scalia. Justice Clarence Thomas, now the Court’s most senior advocate of this intellectual project, leads Barrett and Justice Neil Gorsuch in promoting from the bench the conservative version of originalism that Scalia pioneered.

What progressives really dislike: Scalia’s “fauxriginalism,” originalism done badly

As you may know, Scalia’s writing and speaking (both on and off the Court), from the late 1980s to his death in 2016, helped brand originalism as the exclusive province of conservatives. His methodology became a lodestar for conservative lawyers and judges, and his rhetoric (to varying degrees) became the default setting for Republican politicians and activists who have placed courts and the Constitution at the center of their politics.

It is no small irony, therefore, that Scalia’s success was aided by many progressives who opposed Scalia’s influence. “As part of the effort to discredit originalism,” Professor James Ryan (now President of the University of Virginia) has explained, “progressives have become accustomed to making two somewhat contradictory but equally counterproductive arguments: (1) that the Constitution’s text is so vague and open-ended that it answers no important constitutional questions, and (2) that originalism must be rejected because it does not support landmark progressive rulings such as Brown v. Board of Education. These arguments have allowed conservatives to claim the mantle of constitutional fidelity and paint progressives as constitutional apostates, without even a close examination of the conservative claims about the Constitution’s text and history.”

Some progressives persist in playing this losing hand, staking out the “originalism is bad” position—with the implication that they don’t strongly embrace the Constitution’s text and history—versus conservatives who are happy to say “originalism is good.” This ends up leaving the impression that progressives have no claim on the words of our Constitution—which is blatantly wrong and a betrayal of the hard work done by generations of advocates to positively change the Constitution—and allows conservatives to escape powerful criticism of their substantive positions.

Giving conservative originalists their own medicine

We saw the practical effects of this dynamic as recently as the Barrett confirmation hearings. Too often, Barrett was criticized simply for being an originalist, rather than for doing originalism badly—a judge who, in an effort to reach conservative outcomes, applied the Constitution’s text and history incorrectly or erratically. This approach helped let Barrett off the hook for explaining and defending her constitutional views, when a progressive originalist critique could have pressed her to explain her views about specific constitutional provisions that govern all our lives.

Since Constitutional Accountability Center’s founding in 2008, our approach has been to give conservative originalists their own medicine—through our scholarship, briefs filed in court, and in the news media—showing the many ways our amended Constitution’s text and history point to progressive, not conservative, outcomes. We are not alone in this, of course, and some of the most trenchant text and history critiques of conservatives have come from none other than Justice Ruth Bader Ginsburg, who said, “I count myself as an originalist too.”

The whole Constitution: The foundation of what we do at CAC

CAC’s affirmative view of the Constitution is the foundation of all we do. We believe our nation’s governing charter—from the first seven Articles through many of its 27 Amendments—was written by revolutionaries. The founding document was fatally flawed, however, with its protection of slavery and empowerment of states to keep Black people in bondage, and needed to be remade in our nation’s Second Founding. Confronting these and other injustices, We the People have prevailed in the most tumultuous social upheavals of our Nation’s history. The Reconstruction Republicans after the Civil War, the Progressives and the suffragists in the early 20th century, and the civil rights and student movements in the 1950s and 1960s, all successfully amended our Constitution to extend its rights and protections to more Americans, to make our nation more just, more inclusive, and more free.

In short, America’s full constitutional story is a progressive, not a conservative, one.

Rather than criticize conservatives for being “originalist,” therefore, CAC calls out the conservative brand of originalism that applies the text and history of the Constitution selectively or erratically, and in ways that mechanically churn out conservative policy outcomes. The conservative originalism of Justices Scalia, Thomas, Gorsuch, and Barrett has too often been a search for the original public meaning only of those portions of the Constitution conservatives like, while ignoring parts as critical as the Fourteenth and Fifteenth Amendments, for example, that might contradict their policy preferences. This is what we have called “fauxriginalism,” and it is the product of a decades-long process that has made “originalism” an epithet in progressive circles. But it is fauxriginalism, not originalism, that should be the target of progressive ire.

Facing conservative courts with originalism done right

In fact, if it weren’t for conservatives giving originalism a bad name, the work CAC does every day in the courts and the public square simply would be called “constitutional interpretation.” A focus on text and history is, literally, the first step for anyone—progressive or conservative—applying a constitutional provision. Only because conservative originalism too often is not done honestly, and has dominated the public debates over the Constitution, progressives see the label “originalist” and immediately reject it.

But in a moment where the federal courts, from the Supreme Court on down, are populated by hundreds of new conservative appointees, the battles over what the text and history of our amended Constitution mean are likely to be fought on originalist grounds—from racial and gender equality, to the right to vote free from discrimination, the rights of workers and consumers, and the power of the national government to solve national problems (whether access to health care, fighting a deadly pandemic, or combating climate change). Progressives should not cede another inch of this ground.

As Professor (and CAC Advisor) Jack Balkin has said, “[T]he folks at the Constitutional Accountability Center have been showing liberals and progressives why originalism is important to a progressive vision of the Constitution. In the world of ideas, winning people over takes time and persistence. It requires devotion to what you believe in and a determination to make the best arguments you can. Success is not guaranteed, but if you don’t make the effort, you will have no influence.”

Originalism Watch marks another step in this critically important work, and we hope you will follow the series as it develops in the weeks and months ahead.