Noah Feldman

Supreme Court ‘Originalists’ Are Flying a False Flag

Something surprising is missing from the conservative opinions the Supreme Court issued at the end of its recent term on abortion, religion and gun rights: originalism.

The court’s new majority did not decide these era-defining cases using the idea, associated with the late Justice Antonin Scalia and invoked by many of the current justices in confirmation hearings, articles and other forums, that it should apply the Constitution by asking what its words meant to the people who ratified it. Instead, the conservative majority applied what it described in several key opinions as a series of “historical” tests concerning the way the American and English legal traditions approached the issues under review.

In explaining why it overturned its 1973 abortion-rights precedent in the abortion case, Dobbs v. Jackson Women’s Health Organization, the court asked whether the right to abortion established in Roe v. Wade was “rooted in the Nation’s history and tradition.”

In abandoning a three-pronged balancing test that the court has used since 1971 in religious freedom cases, the court ruled in Kennedy v. Bremerton School District that a high school football coach could pray on the field without violating the constitutional prohibition against government establishment of religion. It said the correct way to determine whether government action violates the establishment clause is “reference to historical practices and understandings.”

In the gun-rights case, New York State Rifle and Pistol Association v. Bruen, the court said that just as “we use history to determine which modern ‘arms’ are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding.”

None of these historical tests asks what the people who ratified the Constitution thought it meant, the question at the heart of originalism. At the moment of its greatest triumph, the would-be originalist majority betrayed originalism, turning instead to an analytic method with roots in Germany that is far from the mainstream of American jurisprudence.

Historicism Triumphant

The difference between originalism and the court’s new historicism may seem subtle, but it is all-important both in theory and practice.

Originalism arose to limit and constrain judges interpreting the Constitution by making sure they would apply only the law as it was originally intended. Using originalism is meant to curb judicial overreach by making judges into neutral, objective decision-makers who only have to answer the question of what the words of the Constitution originally meant.

Historicism, in contrast, makes judges into historians. The historicist tests devised and applied by the conservative majority require, first, sifting through conflicting and complex historical material dating back centuries before constitutional ratification and, sometimes, centuries after. Then, from these materials, the judges are supposed to derive conclusions about abstractions like “tradition,” “practices and understandings,” and the application of analogy to “unimaginable” present realities.

The upshot is an activity familiar to historians: the interpretation of the historical record. But historians don’t consider themselves neutral. Historical interpretation is opinionated and subjective. The facts of history may be true or false; the interpretation of those facts is neither.

In theory, judicial historicism does not achieve the goal of originalism. In practice, it requires judges to pick and choose the facts they like to support the interpretation they prefer. Seen both ways, the court’s historicism betrays originalism.

Dobbs provides the simplest example.

The question before the court was whether the due process clause of the 14th Amendment protects abortion rights, as Roe v. Wade held. That clause says that no state shall deprive any person of life, liberty or property without due process of law.

Yet the Dobbs opinion, written by Justice Samuel Alito, did not ask whether the people who ratified the 14th Amendment intended its words to include or exclude abortion rights — which is what the originalist question would have been. Had it done so, it would have had to question the doctrine under which the due process clause has been held to incorporate rights not found expressly in the Bill of Rights — a doctrine that underpins rights like educating children as parents see fit and access to contraception, as well as many more.

Instead, Alito accepted the judge-made doctrine, not grounded in the original meaning of the 14th Amendment, according to which the due process clause contains rights “rooted” in American “history and tradition.” Then it went on to peer far into the mists of time to ascertain whether abortion rights were so rooted.

By way of comparison, Justice Clarence Thomas wrote a separate, concurring opinion explaining his view that the due process clause does not incorporate any of the Bill of Rights. That is why he went on to say that the court should revisit other due process rights like contraception and the right to gay sex. His concurrence, joined by no other justice, took a genuinely originalist position.

The search for historical tradition did not lead the Dobbs majority to look directly at what people meant by liberty or due process of law when they ratified the 14th Amendment, as originalism would have dictated. It led the court back to the history of the English common law — all the way back to the 1200s. The sources and authorities that the court followed forward from there were discussing whether abortion was a crime under the common law. As it turns out, it was — provided it occurred after “quickening,” which the court defined as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.”

Two-Way Street

Now the fact that abortion was once a common-law crime after quickening also demonstrates that abortion was not a common-law crime before quickening. So if the goal is to ascertain the existence of a tradition, the common-law materials could be interpreted to mean that there was a long-standing tradition that abortion was permitted by the common law until the 16th or 18th weeks of pregnancy. The conservative justices did not want to interpret the tradition that way, so they said that the common-law materials did not prove that the common law thought of pre-quickening abortion as a “right.”

Both are defensible ways to interpret the materials, and that’s precisely the point. There is no objective, neutral method of deriving a “tradition” from the common-law history of abortion regulation. There are just different interpretations of how the historical materials should be understood to contribute to the presence or absence of a tradition.

The Supreme Court in Dobbs was not even pretending to follow originalism. It was using a different interpretive approach, historicism, first described systematically by the German legal theorist Friedrich Carl von Savigny in 1814. The point of historicism is to draw on historical legal materials to evolve the law in the “spirit of the nation,” or Volksgeist. This historicism does not constrain judges nor make them neutral or objective. It empowers them to interpret history to make law in line with their own ideas about tradition.

Now consider the two big religion cases the court just decided. In Bremerton, the case about the coach who prayed at the 50 yard line after games, the court rejected its long-standing “Lemon test” used to set the limits of permissible government interference with religious freedom by asking if government restrictions on public religious expression have a secular purpose and secular effects. It also rejected another test that asked if the government was endorsing religion. In their place, the court proffered a test of “historical practices and understandings.”

Yet in doing so, the court notably did not hold that the test of an establishment clause violation was whether those who ratified the First Amendment thought that the conduct would constitute an establishment of religion. The court acknowledged that, according to its case law, the government may not coerce anybody to participate in a religious exercise like prayer. But instead of saying that coercion is prohibited by the original meaning of the First Amendment, the court elliptically said that the ban on religious coercion was “consistent with a historically sensitive understanding of the Establishment Clause.”

The reason the court avoided originalism in interpreting the establishment clause can easily be guessed from the other blockbuster religion case the court decided last term, a case about whether Maine violated the free exercise clause by paying for private-school tuition for kids in far-flung areas, but not for private religious schooling. In that case, Carson v. Makin, the state refused to pay for religious schooling because it wanted to respect the values of the establishment clause.

A faithful originalist interpretation of the establishment clause would show that the people who ratified it understood its language to prohibit both direct religious coercion and the expenditure of tax dollars on religious purposes like teaching the Gospel. (I laid out the evidence for this in a book and articles some years ago. My summary was: no coercion and no money.)

But the conservative majority does not want to bar states from paying for teaching religion in school. To the contrary, in the Carson case the court held that the free exercise clause actually required Maine to pay for religious schooling provided it also paid for nonreligious private school. That clashes with the intent of the framers. So the court instead offered the historical practices and understandings test, which allows it to pick and choose among the historical materials and not be bound by what the people who ratified the First Amendment thought it meant. Once again, originalism was betrayed in favor of a malleable historicism.

Then there is the gun case, New York Rifle & Pistol Association v. Bruen. The court’s opinion, by Thomas, is the most originalist decision of the recent major cases. The court referred, in passing, to the “public understanding” of the Second Amendment at the time of its adoption. And it mentioned, though it did not resolve, a long-standing problem that faces originalists, namely whether the original meaning that matters for understanding the 14th amendment is the one held by the public in 1791, when the Bill of Rights was ratified, or in 1868, when 14th amendment was ratified, thus applying the Bill of Rights to states as well as the federal government.

Yet the Bruen opinion went back to, you guessed it, the 13th century and early English law to review the history of regulations on the carrying of dangerous weapons. It did not ask or answer what those who ratified the Second or 14th amendment thought about carrying concealed handguns — because that question would have been too hard to answer. As the court gamely acknowledged, “Applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.”

English Ancestors

The court engaged in its historicist analysis because, it pointed out, the Supreme Court had previously said that the Second Amendment right “was inherited from our English ancestors.” The majority had to go to great lengths to argue that old laws and customs did not mean that New York was allowed to require good cause for people seeking concealed carry of a handgun.

Ultimately, the court said, its analysis was based on analogy to older norms and practices, not on plain, original historical meaning. In dissent, Justice Stephen Breyer pointed out that judges are not trained as historians and that there is no reason to expect them to be good at interpreting history. The court replied, “We see no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims.”

The Bruen case, then, was an exercise in historicist analogy, not genuine originalism. Drawing analogies between historical materials produced over hundreds of years and a contemporary case does not limit or constrain judges. It empowers them to use their interpretive faculties. It demands of them that they deploy the subjective judgment required to interpret history and to make analogical comparisons.

There is nothing wrong with analogy from past practice: that’s what ordinary legal analysis based on precedent is. Judges who practice it acknowledge this and bow to established interpretive disciplines. New rights can be found and interpretations changed, but only by reasoning from past cases and decisions.

For justices like Scalia, who thought the conventional constraints of analogy too loose, originalism was supposed to impose stricter limits on the power of judges to interpret and reinterpret the Constitution.

Now that the conservative majority has won its greatest victories in many years, it emerges that the banner of originalism that the conservative legal movement has long carried was a false flag. The court’s latest decisions have failed to achieve the purposes that originalism was designed to fulfill.