What Is Originalism? Scalia, Thomas, Dobbs, and the Debate Over How to Read the Constitution

The Constitution was written in 1787-1789, with key amendments following — the Bill of Rights in 1791, the post-Civil War Reconstruction amendments (13th, 14th, 15th) between 1865-1870. The document uses broad, sometimes vague language: "due process," "equal protection," "unreasonable searches and seizures," "cruel and unusual punishment," "privileges or immunities of citizens."

Originalist view: These words had specific meanings when they were written and ratified. Judges should determine those original meanings and apply them — even when the results seem outdated, harsh, or inconsistent with modern values. If the original meaning is inadequate for modern problems, the answer is to amend the Constitution (through Article V), not to have judges reinterpret it. This prevents courts from becoming unelected super-legislatures that impose policy preferences disguised as constitutional interpretation.

Living constitutionalist view: The Constitution was written with deliberately broad language to endure changing circumstances. The Framers themselves expected the document to adapt — Justice William Brennan often noted that the Framers could not have anticipated nuclear weapons, the internet, or the administrative state. Constitutional meaning evolves through judicial interpretation in light of accumulated experience, changed moral understanding, and new social conditions. The landmark cases of the 20th century — Brown v. Board of Education (school desegregation), Griswold v. Connecticut (contraception), Lawrence v. Texas (same-sex intimacy) — rested on evolving interpretations that no strict originalist reading of 1791 or 1868 would clearly support.

Before Justice Antonin Scalia joined the Supreme Court in 1986, originalism was a fringe position. Scalia made it intellectually respectable and politically powerful. His writing — acerbic, erudite, and designed to sting — argued that the alternative to originalism was "living constitutionalism," which he characterized as judges simply doing what they want and calling it constitutional law.

Scalia's version was original public meaning originalism. He was not interested in what the Founders privately intended; he was interested in what the constitutional text would have meant to a reasonable, educated reader at the time of ratification. He applied this method most famously in District of Columbia v. Heller (2008), in which he wrote the 5-4 majority opinion holding that the Second Amendment protects an individual right to keep and bear arms for self-defense — not only in connection with militia service. This was a landmark originalist application: Scalia traced the historical meaning of "keep and bear Arms" and the militia clause through 18th century legal texts to reach a conclusion that reversed decades of lower court precedent.

Paradoxically, Scalia's originalism led him to some positions that seemed politically uncomfortable for conservatives: he consistently voted to protect flag burning as protected speech, opposed warrantless GPS tracking (which he viewed as a Fourth Amendment violation based on traditional property concepts), and wrote broad protections for criminal defendants under the Confrontation Clause.

Dobbs v. Jackson Women's Health Organization (2022): Justice Alito's majority opinion overruling Roe and Casey is the most consequential application of originalism in decades. The opinion's method: because abortion is not mentioned in the Constitution, a claimed right to abortion must be "deeply rooted in this Nation's history and tradition" to qualify as a substantive due process right under the 14th Amendment. Alito surveyed the history of abortion regulation at the time of the 14th Amendment's ratification (1868) and found that most states then criminalized abortion. Conclusion: no such deeply rooted tradition exists; therefore no constitutional right to abortion; therefore Roe was wrongly decided from the start.

Critics — including the three dissenters — argued the analysis was circular (it used 1868 laws that themselves reflected anti-abortion views to conclude there was no tradition of protection), selectively applied (other unenumerated rights like contraception access also lacked explicit 1868 tradition), and that Justice Thomas's concurrence explicitly invited future cases challenging Griswold (contraception), Lawrence (same-sex intimacy), and Obergefell (same-sex marriage).

New York State Rifle and Pistol Association v. Bruen (2022): Justice Thomas's majority opinion set a new test for Second Amendment cases: gun regulations are constitutional only if they are "consistent with the Nation's historical tradition of firearm regulation" at the time of the founding. Lower courts must look at historical analogues from 1791 (or possibly 1868) to evaluate modern gun laws. This effectively replaced the two-part test most lower courts had been using (which included balancing government interests) with a purely historical inquiry. Federal courts have since applied Bruen to strike down restrictions on gun possession by people under domestic violence restraining orders, by those with felony convictions, and by non-citizens — before many of those rulings were reversed at the appellate level or by the Supreme Court itself.