For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.
But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.
After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”
And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.
But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.
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