Guns, abortion, religious establishments, presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices themselves joined the fray. Their reflections might foreshadow the reasoning and outcomes of future cases, including on hot-button issues. So a close look should pay off for parties hunting for five votes on a methodologically self-conscious Court. It should interest citizens keen to know if the Court abides by its principles and wondering where those might lead. And a close look delivers theoretical insights. It makes vivid how easily the original meaning of the text runs out in Supreme Court cases, requiring “constitutional construction” to bridge the gap between vague meaning and specific outcomes. It reveals the divergent paths that originalists take when the method is pressed to its limits, casting light on originalism’s deepest motivations and challenges. It turns out that in such cases, the purer one’s originalism at the level of theory, the less it constrains judges in practice.
Part I of this Essay distinguishes originalism and traditionalism and describes the Court’s apparent turn to the latter.
Part II addresses traditionalism in separation of powers cases. While Justices Kavanaugh and Barrett disagreed this Term about traditionalism in rights cases, they both joined an opinion endorsing it in a separation of powers case: CFPB v. Community Financial Services Ass’n of America (CFSA). There, the Court had a cogent originalist theory for relying on some post-ratification practices as forms of what James Madison called “liquidation.” But the late practices actually cited in almost all its structural cases lack the essential features and authority of Madisonian liquidation. Originalism thus proves hard to apply consistently in structural cases that get to the Supreme Court; there, originalism restrains less than has been widely assumed.
Originalism faces a different and deeper challenge in rights cases, where the originalist Justices themselves are divided about traditionalism. Part III explores that divide using two cases from this Term (Vidal v. Elster and United States v. Rahimi) and one from last Term (Samia v. United States). Two approaches emerge. Justice Barrett would consult only ratification-era history and precedent. That approach is easier to square with originalism but less often capable of resolving cases, so it requires more supplementation with judicially developed tests. The second approach, embraced by the other conservatives and spelled out in Justice Thomas’s Vidal and Samia opinions and Justice Kavanaugh’s Rahimi concurrence, would give long-post-ratification practices, too, dispositive weight. So it finds useful history in more cases but is harder to square with originalism. Ultimately, I suggest Justice Barrett follows a more theoretically cogent originalism in rejecting the added restraints of post-ratification history. But I think her view is too optimistic about finding sources of restraint elsewhere. She looks to Founding-era history and precedent for determinate principles to guide judges. Yet for systematic reasons rooted in original meaning and function, determinate principles will often be unavailable for open-ended rights like free speech, as I argue at length elsewhere and will suggest here.
The resulting dilemma for some structural and rights cases — that stringency about originalist theory might reduce restraint in adjudication — reflects an irony for a modern movement born to rein in judges. Still, irony is not incoherence or even error. As Part IV briefly suggests, the developments discussed here are predictable results of a legal theory’s transition to a “governing” philosophy on an apex court. Nor will the need for judges to supplement text and own up to the burden of decision scandalize contemporary originalist scholars. They have independently come to see originalism more as a theory of law than as a means of tying judges’ hands — as an account of our original law, rooted in nontextual and textual sources, not a bare command to read the Constitution’s words.
I. The Originalist Court’s Turn to Tradition
The originalist-identifying Court relies not only on text and meaning but also on “history and tradition,” especially political practices. And not just “original”-era practices but ones coming long after ratification, too.
Originalism holds that constitutional law should comport with, and be rooted in, the constitutional text’s original meaning, or the law that its adoption was originally understood to produce, except as lawfully amended. Obviously, a text’s original meaning is one thing, and officials’ practice another. Yet not every invocation of practice departs from originalism. The method easily justifies four kinds of reliance on practice.
First, pre-ratification practices matter when original meaning gives them legal relevance. If the Second Amendment “codified a pre-existing right,” practices predating ratification would reveal its contours. Second, early practices, as Justice Barrett stressed in Rahimi, “elucidate[] how contemporaries understood the text — for example, the meaning of the phrase ‘bear [a]rms.’” Third, originalist Justices give stare decisis a role, so the “practice” of past courts addressing a legal question counts. One originalist rationale for this, as Justice Kavanaugh noted in his Rahimi concurrence, is that the original meaning of “judicial [p]ower” itself “incorporates the principle of stare decisis.”
Finally, originalists rely on some political practices that post-date ratification — those that qualify as what James Madison called “liquidat[ion].” We defer to the readings of vague texts reached by prior courts following adversarial testing. By the same token, Madison thought, we should defer to political actors’ interpretations as captured in settled practices that followed debates between them over the meaning of vague texts. Chief Justice Marshall did so in McCulloch v. Maryland, upholding the national bank as a lawful exercise of Congress’s powers after Presidents and Congresses had debated and resolved the constitutional question and acted accordingly. Madison’s treatment of liquidation has been cited with approval by Justices Thomas, Gorsuch, Kavanaugh, and Barrett.
Here, then, I will reserve “traditionalism” for reliance on practice that falls into none of these four categories. Traditionalist cases cite practices that come too late to shed special light on original meaning; the practices also have not been shown to reflect political or judicial discussions and resolutions of a constitutional-interpretive question. Such “traditions” have included entrenched actions (or inaction) by Presidents, Congresses, and state courts and officials. Thus, the Court has concluded that Congress violates Article II when it insulates from presidential removal the sole director of a federal agency, partly because there is no deep tradition of such insulation. The Second Amendment does not protect conduct if states have long regulated it. And so on. How to square these with originalism?
II. Traditionalism About Separation of Powers
Separation of powers cases have long invoked post-ratification practices. And while Justices Kavanaugh and Barrett dispute the role of such practices in rights cases, as seen below, both joined an opinion last Term whose sole grounding was reliance on late practices in a separation of powers case. The Court has a cogent originalist defense of relying on certain structural practices, but it has departed from that theory in most cases invoking it. What this reveals, I think, is not opportunism but the difficulty of sticking closely to originalist-approved methods in the structural cases that reach the Supreme Court.
A. The Limits of Liquidation
In CFSA, the Court reviewed Congress’s decision to let the CFPB draw funds from the Federal Reserve without having to ask Congress for an appropriation each year. The Court found this compatible with the Constitution’s demand that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Justice Thomas’s majority opinion cited “[p]re-founding history” and “[t]he practice of the First Congress” as “contemporaneous” evidence of meaning. Justice Kagan wrote separately to cite further support in much later “19th-century practice, which became the 20th-century practice, which became today’s.” She was joined not only by Justice Kavanaugh, who elsewhere championed reliance on such late practices, but also by Justice Barrett, who wrote in other cases to oppose it. What originalist theory could justify their decisions to join?
In Vidal v. Elster, Justice Barrett cited Justice Kagan’s CFSA concurrence as illustrating that “the longstanding practice of the political branches” could “reinforce our understanding of the Constitution’s original meaning.” But again, the only point of Justice Kagan’s opinion was to cite late-19th and early 20th-century practices — yet Justice Barrett’s Vidal opinion immediately went on to deny that “late-19th and early-20th century” practices could be “evidence of the original meaning of the Free Speech Clause.” Thus, Justice Barrett must think political-branch practice different from the state actions cited in Vidal.
The natural explanation is that the branches’ practices are liquidation, reliance on which has Founding-era pedigree and stare decisis support. Indeed, Justice Kagan cited the Federalist Paper in which Madison explains liquidation. Of course, this basis for contrasting CFSA with Vidal, a rights case, assumes that liquidation could not clarify rights, too, which is disputed. But at least the originalists could cite a Founding-era rationale for relying on late practices in CFSA.
Yet the rationale does not fit CFSA. That’s because Justice Kagan’s concurrence did not show that the Congresses adopting the nineteenth- and twentieth-century funding mechanisms had ever considered and discussed their constitutionality. And without such discussions, political practices lack the force of Madisonian liquidation. Discussion of the underlying legal issue is crucial not just because Madison said so, but because it is essential to the arguments for giving liquidation the force of precedent. Judicial precedent gets its force from legal deliberation. That’s why we do not treat a case as authority on issues never addressed by the parties and the court — even issues the court was constitutionally duty-bound to settle in a certain direction, like whether it had jurisdiction. (And with good reason: If stare decisis is meant to balance having the law settled and getting it right, precedent must reflect someone’s effort to get the law right.) Likewise, we should not treat political practices as authoritative without confirming that the officials had hashed out the constitutional question. Justice Kagan’s CFSA concurrence did not confirm that. (And if the practices were never questioned because their permissibility was clear, liquidation — whose point is to clarify ambiguity — would be superfluous.) While some might think undiscussed traditions an independent source of constitutional law, that would undercut originalist Justices’ defining view that constitutional change requires amendment.
This point has import beyond CFSA. As it turns out, the vast majority of structural cases citing practice never show that those engaged in it had discussed the underlying legal issue. And quite often, I’ve argued, we have reason to expect they had not, as the Court has sometimes conceded. In those cases, reliance on tradition goes beyond what the liquidation theory can justify. That many cases rely on it anyway might suggest that originalism often simply runs out in the Court’s structural cases.
B. The Limits of Alternative Rationales
Originalists might have other grounds to defer to undiscussed practices in structural cases, but not as often as the Court assumes.
First, under some conditions, late practices offer some evidence of others’ view of original meaning, which is some evidence of what the meaning really was (albeit weaker evidence than early practice or practice reflecting debate). But practice is likely to reflect legal judgments only when the actors are likely to have (1) acted with diligence and good faith, so that their choosing a practice shows they thought it lawful, and (2) prioritized original meaning, so that their thinking a practice lawful should matter to originalists. Justice Barrett apparently doubted that these conditions were met in a recent rights case, where she refused to treat a practice as evidence of its compatibility with a right without signs that officials had addressed the issue.
Nor is it clear that departmentalism — respect for the coordinate branches — requires a different result when the actors are Congress and the President. Departmentalism is mainly about deference to other branches’ “interpretation,” not undeliberated action (to which, again, the Court does not defer even when the action was its own). Certainly the conservative Justices have repeatedly denied that the Court should (in justiciable cases) “defer to the other branches[]” on “questions involving the Constitution’s government-structuring provisions.” Besides all this, a late practice may add little evidentiary value regarding original meaning. Compared to today, how much better were Anglophones in, say, the 1920s at discerning a word’s meaning to speakers in the 1790s? The evidentiary rationale is weaker still when the Court cites a lack of a practice to show it impermissible. There are many reasons not to take an action besides the belief that it would be unlawful. The evidence-of-original-meaning rationale does not go very far.
Second, one might think that in many cases there are adequate substitutes for interpretive debate. In turf wars between the President and Congress, each branch might seem to have the incentives and means to fight perceived encroachments. For example, Congress could deny salaries to officials it thinks the President appointed unlawfully. In those cases, one might argue, one branch’s silence should be construed as considered agreement with the other’s actions, endowing them with the force of liquidation after all.
But this suggestion assumes that Congress jealously guards its prerogatives and puts constitutional fidelity above all else, which is dubious empirically (and must seem dubious to Justices keen to stop Congress from unlawfully delegating power to the Executive, for example). This rationale also assumes that the main question in inter-branch disputes is “whether or not the encroached-upon branch approves [an] encroachment,” when what really matters is whether “one branch invades the territory of another.” Perhaps that is why no Justice used this rationale in CFSA, even though it would have made that an open-and-shut case. After all, the Appropriations Clause grants Congress a check on the Executive, and here, of course, it was Congress that chose to give the CFPB free rein.
Thus, originalists will sometimes have a basis for relying on post-ratification practices in structural cases, but not always and not with ease. Originalism’s guidance runs out in structural cases more often than the Court’s invocations of liquidation suggest.
III. Traditionalism About Rights
Both the pull of traditionalism and its friction with originalism are more intense in some rights cases. The divide among the Justices here is pronounced, exposing rifts in their reasons for being originalist and in the degrees to which their approaches would constrain judges.
A. The Lack of an Originalist Defense
The originalist Justices are split on whether traditions that came long after ratification may ever be dispositive in rights cases — whether they may be necessary or, as the case may be, sufficient, for constitutionality. Justice Barrett thought not; the other originalists disagreed. As this section shows, Justice Barrett powerfully argued that such traditionalism has no affirmative originalist support. The next two sections explore whether originalists should embrace traditionalism as the least bad option.
Justice Barrett’s distinctive view was clear in Vidal, which upheld a federal law barring registration of trademarks featuring others’ names without their consent. Justice Thomas’s majority opinion regarded state court cases applying state trademark law as support for the federal statute’s “compatib[ility] with the First Amendment.” Justice Barrett thought those practices came too late to cast light on the original meaning of the Free Speech Clause or its incorporation against the states. She inferred that Justice Thomas “present[ed] tradition itself as the constitutional argument,” making “late-19th and early-20th century” practices “dispositive of the First Amendment issue.” Perhaps she meant he was treating historical practice as constituting (and thus possibly altering) the contours of a right over time — much as the Court treats “evolving standards of decency” as determining the scope of the bar on cruel and unusual punishments. She saw no “theoretical justification for using tradition that way” here.
Likewise in Samia. There, the Court held that if two defendants, call them Jones and Smith, are tried together, prosecutors may admit a confession from Jones that might have implicated Smith as long as the confession is modified to avoid reference to Smith and the jury is instructed not to treat it as evidence against him. The Court held this would not violate Smith’s constitutional right to confront the witnesses against him. For support, Justice Thomas, joined in relevant part by all of the conservatives but Justice Barrett, cited cases admitting similar confessions, including cases arising long after ratification or incorporation of the Confrontation Clause. Justice Barrett replied that cases from the 1890s shed no more light on original meaning than “cases from, say, the 1940s.”
Finally, Rahimi upheld a law disarming people subject to domestic violence restraining orders against a Second Amendment challenge. The Court’s test required the government to point to a historical tradition of analogous regulations. Justice Barrett wrote that in this inquiry, long-post-ratification regulations should have no dispositive role. Early ones could shed light on original meaning. And regulations from before or around ratification could illumine the borders of the “pre-existing right.” But according to Justice Barrett, neither the latter, “original contours” rationale nor the evidence-of-original-meaning rationale would justify relying on long-post-ratification gun laws.
Thus, Justice Barrett sees no affirmative originalist case for the other five conservative Justices’ willingness to begin and end a rights analysis with traditions. That argument is prima facie compelling. Against it, Justice Kavanaugh pleads a necessity defense: Traditionalism must be permissible because it is better than the available alternative approaches.
B. The Limits of a Popular Sovereignty-and-Restraint Defense
In Rahimi, Justice Kavanaugh defended reliance on traditions that long postdate ratification as good for the rule of law and popular sovereignty. This section shows that on the latter score, traditionalism ultimately falls short; the next section asks if Justice Barrett’s alternative method fares better.
When original meaning and case law run out, as they sometimes do for broad or vague provisions, Justice Kavanaugh thinks traditionalism wins by default for the following reasons:
- Absent clear original meaning or precedent, the alternatives are history or policy — political traditions or judicial balancing.
- Consulting history is more constraining of judges, leading to more predictable outcomes.
- Relying on history also better serves popular sovereignty.
I will return to the first premise in the next sections, when discussing Justice Barrett’s doubts that even history will always be available.
Contrary to the second premise, Justice Sotomayor argued that traditionalism is less constraining because traditions are mixed, allowing judges to cherry-pick based on unvoiced policy preferences. But Justices Gorsuch and Kavanaugh think something is better than nothing: Judicial reasoning that has to cite or distinguish the history is more constrained than reasoning that does not. While Justice Jackson contested that view, noting that gun cases decided under balancing tests converged more than those reached under historical tests, Justices Gorsuch and Kavanaugh would retort that they converged at the price of gutting the Second Amendment.
Finally, as to whether relying on political traditions better respects popular sovereignty, Justice Barrett thought the opposite. At least when courts require a close historical analogue for new regulations to survive rights challenges, she wrote, they wrongly “assume[] that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority” that shrinks the people’s power to make law over time. In other words, a judge does not honor the people’s will by constitutionalizing what the people did through ordinary lawmaking. Rather, a judge does so by letting them make whatever laws the people have not themselves rendered off-limits through higher lawmaking. And for Justice Barrett, higher law is made and undone by one means alone: “Ratification” of a “text.” Thus, she wrote, while “[r]elying exclusively on history and tradition [might] seem like a way [to] avoid[] judge-made tests,” “a rule rendering tradition dispositive is itself” not binding law but just another “judge-made test.” Tying judges’ hands will not serve popular sovereignty if the rope is not one the people have spun into higher law. (Ruling based on coin-flips would bring judicial policy reasoning to zero without honoring the people’s will at all.)
This disagreement goes to Justices Kavanaugh and Barrett’s different understandings of originalism, which Rahimi laid bare. Justice Kavanaugh cited work by then-Professor Bork and Justice Scalia touting originalism as a means of confining judges. Justice Barrett cited a formalist defense of originalism as the best account of our higher law. This tracks an old cleavage in legal conservatism between “those who saw originalism as a means to achieving some other substantive end” like “judicial restraint” and those who thought it “logically entailed by the Constitution and the principles on which it rested.”
But suppose (as I do) that some sort of formalist case is stronger, so late practices never elevated to higher law should not be treated as dispositive simply as a means of tying judges’ hands. Still, Justice Kavanaugh might ask: Does any alternative criterion, when original meaning and precedent run out, better respect popular sovereignty?
Justice Barrett’s concern to respect the people’s ordinary lawmaking might suggest an answer: deference to ordinary laws that higher law does not clearly forbid. This “Thayerian” norm has its own Founding-era support. And it might seem to deliver all the results Justice Kavanaugh favored in Samia, Vidal, Rahimi, and CFSA. Does it offer an out from the dilemma he sees when original meaning runs out? Could judges use original meaning to identify a right’s determinate core, and in all cases falling outside the core defer without further appeal to history or policy?
I think this path justified whenever available, as in Confrontation Clause cases like Samia, where Justice Barrett upheld state practices faced with “inconclusive” Founding-era history. But I will argue that this path was unavailable in Vidal where, as it happens, she did not pursue it. Of course, that Thayerism was no use in Vidal does not prove Justice Barrett’s own approach there superior to Justice Kavanaugh’s — unless hers is inevitable.
C. The Limits of Other Sources of Restraint in Liberties Cases
If Justice Kavanaugh thinks either historical or policy reasoning may be inevitable, Justice Barrett thinks something resembling policy (judicial application of principles about what’s reasonable) inevitable for interpreting broad rights like free speech. Yet she, too, seeks to avoid principles so general that they would leave judges very broad discretion. For restraint she would pull narrow principles, not from post-ratification history, but from the ratification era or judicial precedent. I agree with her point that clinging to historical analogues “delays the inevitable” move toward general principles. But I have the same concern about her proposal to stick to low-level (determinate) principles culled from early history or precedent. We have good reason to think reliance on even more open-ended principles is inevitable — and more consistent with original understandings. Originalism may thus restrain less than she supposes.
1. Justice Barrett’s Proposal. — In Vidal, Justice Thomas reasoned that since trademark limitations akin to the one under review had a long history, the challenged rule did not violate free speech. In Justice Barrett’s view, Justice Thomas’s insistence on judging by historical analogues just “delays the inevitable” because the Court is sure to face laws that lack historical analogues when “applying broadly worded text like the Free Speech Clause.” She would cut to the chase and have judges develop more flexible tests requiring assessments of “reasonable[ness] in light of” certain “historical purpose[s].” Justice Kavanaugh in Rahimi wrote that all such tests collapse into a freeform balancing that empowers judges at the right’s expense. But Justice Barrett proved sensitive to this concern herself, warning that “a court must . . . not . . . read a principle at such a high level of generality that it waters down the right.” What then should guide a court’s design of implementing principles?
Her next sentence in Rahimi gave two answers: “case law or history.” First, by “history,” she meant practices leading up to ratification that constituted the “pre-existing right” enshrined by the text; she called that “‘original contours’ history.” In Rahimi, she thought the majority had drawn from early regulations a principle of “just the right level of generality,” allowing laws “preventing individuals who threaten physical harm to others from misusing firearms.” Second, as to drawing principles from precedent, Justice Barrett’s own Vidal analysis is an example. There she devised a standard (trademark restrictions should be “reasonable in light of the trademark system’s purpose of facilitating source identification”) by analogy to one found in earlier speech cases (restrictions on “limited public forums” should be “reasonable in light of the [forum’s] purpose”).
Thus, for broadly worded texts like the First or Second Amendment, Justice Barrett would have judges develop tests. But they would be pitched at a low level of generality dictated by original history or judicial-precedent analogues. A test limited to the disarmament of dangerous persons, in Rahimi; or to trademark rules, in Vidal.
2. Delaying the Inevitable. — Like Justice Kavanaugh’s, this proposal is an attractive effort to achieve objectivity and predictability using established tools. But much as Justice Barrett feared that a historical-analogue approach just “delays the inevitable” move to principles, I think that trying to stick to low-level or determinate principles from the ratification era or precedent only delays an inevitable move to broader principles (tacit or explicit). This is true not for discrete rights with fairly fixed costs (like the right to confront witnesses addressed in Samia), but for open-ended rights with more varying and unpredictable costs, like free speech and gun rights, as in Vidal and Rahimi.
Open-ended liberties like free speech protect against unforeseeable regulations that cannot be captured — in “original contours” history or a finite stock of precedents — with enough concreteness to obviate the need to apply highly general principles later on. Not only do the vague terms enshrining these liberties require reasoning from close analogies at the semantic margins, but the function of these liberties also requires looser balancing (stated or unstated) at their core. And the history of these rights’ doctrinal development — a saga of repeated failures to break away from balancing — confirms as much. While I lack space to defend those claims here, I do so in an article concluding that while something like balancing is not inevitable for the enforcement of all constitutional rights, it is for liberties like guns, religion, and speech.
For now, as a small case study close to home, take Vidal itself. As noted, Justice Barrett proposed a narrow test of constitutionality: assessing trademark restrictions’ reasonableness in light of the purposes of trademark law. This assumed that trademark law and its purposes are constitutional. Her narrow test did not deliver that conclusion but (sensibly!) took it as a premise. Nor could she have treated the long history of trademark law as evidence of the original meaning of free speech, or as self-justifying, for reasons she herself cited against Justice Thomas. She was able to cite a precedent clearing trademark law of any general free speech infirmity, but the Court that set that precedent itself could not rely on original meaning or close analogical reasoning. That Court relied instead on a freer balancing of trademark rules’ benefits against free speech values. Who could blame it?
In fact, reliance on broad principles has support in original meaning. According to Professor Jud Campbell, religion, gun, and speech rights were originally understood as broad natural rights that could nonetheless be regulated for weighty enough public benefits. So while they grounded some determinate rules, their full scope could not be specified in advance except in highly general terms, leading to interest-balancing over time. This means that these rights did not have determinate “original contours” for us to uncover. The contours were not just fuzzy because of vague terms (like “arms”) requiring judgement calls in edge cases. “The contours simply [we]ren’t settled — not in terms one could read off without balancing.”
Justice Barrett made a related point about the Second Amendment: that it extends not only to “the catalogue of arms that existed in the eighteenth century, but rather to all weapons satisfying the ‘general definition’ of ‘bearable arms.’” As she noted, that flexibility about the right’s coverage called for flexibility about its limits. Perhaps similar intuitions drove her preference in Vidal for using “generally applicable” standards rather than “hunting for historical forebears.” The inevitability of applying flexible principles would also explain why the proposal floated above — achieving judicial restraint through Thayerian deference without balancing — is unavailable here. One cannot avoid balancing by identifying a right’s core and upholding all regulations falling outside it if there is no fixed core to be identified without balancing.
If so, Justice Barrett’s position on traditionalism is right as far as it goes but does not go far enough: Yes, post-ratification history is inapt for fleshing out open-ended rights like free speech, but so are the low-level principles that Justice Barrett would draw from “original contours” history and precedent. Broader principles may be inevitable.
3. Popular Sovereignty Without Restraint. — Though less restraining, Justice Barrett’s proposal arguably respects popular sovereignty enough. At first the opposite seems true. Recall that she opposed shrinking future legislatures’ authority by treating as higher law a single generation’s ordinary lawmaking. Is she not making such a restraint out of something even less democratic — a few judges’ principle-making?
Indeed, her approach to free speech seems close to originalism’s rivals. Professor Ronald Dworkin argued that the Free Speech Clause embodies a general principle that judges cannot avoid political-moral reasoning in applying. And Professor David Strauss defends common law constitutionalism, whose motive force is not original meaning but judge-made precedents shaped substantially by normative principles. Originalist scholars like Professor Michael McConnell critique Dworkin’s “moral philosophic” approach, and originalist jurists like Justice Scalia denounced the “common-law” model for “construing a democratically adopted text.” Yet Justice Barrett would elaborate free speech rights using value-laden principles in common law fashion.
I would read Justice Barrett’s inevitability claim as an answer to this objection, too. If the people enshrined rights using “broadly worded text[s],” and it is “inevitabl[e]” that judges applying those would “articulate principles to resolve individual cases,” then their doing so is traceable to the people after all. The people effectively delegated this work to judges. That this reading might be less constraining of judges may not trouble Justice Barrett, whose case for originalism is formalist, not instrumental. It is the standard the people enacted, confining or not, that she thinks authoritative.
Of course, that assumes these rights were originally understood to be enforceable mainly by judges, as Campbell thinks they were not. The balancing needed to implement them was mainly for lawmakers. But here Justice Barrett may plead stare decisis. Precedent overwhelmingly favors having judges apply these rights. She could argue that a departure from the original law as to who enforces a right cannot justify a second departure regarding what the right protects. So if the right’s original substance required application of general principles, now judges should use principles.
To be sure, in fashioning principles, courts could look to post-ratification history as well as anything else for guidance. Justice Barrett herself would use history as a “persuasive data point.” In Vidal, she cited trademark law’s history — that it had not been used for censorship — to justify setting a low standard of scrutiny. But her rights analysis would not begin and end with post-ratification history, as Justice Thomas’s did in Vidal.
Thus, Justice Barrett’s constraint at the level of theory — not making late history decisive absent an originalist rationale — yields less constraint in practice: quicker jumps to judicially fashioned tests. The greater irony is that she may be too restrained still for certain liberties. And maybe the greatest is that modern originalism — born to constrain judges — would by its increasingly rigorous application do so less and less.
Conclusion: Originalism’s Evolutions
Originalist Justices are grappling with the limits of original sources and the need to supplement them by something — traditions or judicially developed principles. That need has emerged as real but moderate as to separation of powers disputes and acute for cases dealing with open-ended liberties like free speech or gun rights. A final question is whether the rise of these non-textual criteria under an originalist Court should surprise or scandalize. It should not.
The trends described here are predictable developments in originalism’s ongoing elaboration under pressure. Originalists first urged appeal to the Founders’ intent. As that faced theoretical challenges, they championed original public meaning as something more definite and democratically legitimate. Now that originalism has become a governing philosophy, it is developing under the practical pressures of implementation on an apex court. Originalist Justices hear cases where their natural resources run out. Not only are broad rights and vague texts likelier to drive cases before a Court that resolves circuit splits; now that the Court identifies as originalist, it is likelier to get cases that are close according to originalism. If Professors George Priest and Benjamin Klein are right to predict “a ‘tendency toward 50 percent plaintiff victories’ among litigated cases,’” an originalist Court may see more cases where originalism is not conclusive (another irony). This is not to say original meaning does no work at the Court. The Court may even be advancing originalism by cases that never reach it because their originalist resolution would be predictable and expected. A method’s value is not exhausted by its footprint in the U.S. Reports. But the reach for non-textual criteria is no surprise.
Nor is it a betrayal of originalism, at least as the theory has developed under decades of intellectual pressure. Modern academic originalism is not just a theory of adjudication (much less Supreme Court adjudication), not just a means of tying judges’ hands, but a theory of our higher law’s content. The law created by adoption of a text depends on interpretive conventions at the time. So among scholars, originalism has of its own accord become attuned to non-textual criteria — constitutional “backdrops,” general law, customary norms of interpretation, “constitutional construction” — that both traditionalism and judicially developed doctrines may reflect efforts (sometimes fumbling efforts) to capture.
Perhaps the practical pressures of governance are causing “chambers” originalism to converge on the direction taken by the academic variety. The originalism so developed may prove less simple, less peremptory, less useful in polemic against rivals than Judge Bork’s, but not for all that less principled.
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