Those who reject originalism as a judicial philosophy generally say that the Constitution is a "living document" which changes in meaning as society changes. Further, they believe that the Supreme Court, a small unelected body with life-long terms, has the final say in what that dynamic meaning is.

One critique of a Living Constitution is that "allowing judges to determine an ever-changing meaning of the constitution undermines democracy." Judges are much less accountable to the people than congress or the president. Thus, many argue that allowing judges discretion to interpret the Constitution in new and creative ways gives them power to thwart the will of the more democratic governmental bodies and undermine the power of the public to change policy.

Many advocates of a Living Constitution see democracy and the power of people to change government as a great good. For example, President Barack Obama supports a living constitution:

I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

But President Obama also very much believes in the will of the people and democracy, saying things like:

Nothing can stand in the way of the power of millions of voices calling for change.

President Obama is just one example; many politicians and political/legal thinkers share this belief. What arguments or justifications do people with a strong belief in the democratic process make to reconcile that belief with their support for a "living" or loose interpretation of the Constitution by judges?

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    if you can properly cite the quote, that may help narrow this question but it's mostly a broad opinion question. Not ideal for this site. But to give you some sort of answer: my response would be that I don't see the connection at all.
    – user1530
    May 13, 2016 at 4:03
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    Even as an avid originalist, I know this question can't be answered in the character limit provided by SE. There are likely mounds of text books dripping in legalese that would fail to answer this question for all parties involved. May 13, 2016 at 5:10
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    @blip Judges are unelected and serve for life. If they are able to make decisions that do not depend on the will of the people or on the text of existing law, then in effect they're able to make their own law with no accountability. That is my premise, and I've not heard counterarguments other than the semantic one that they're not actually "making" but "interpreting" law (which assumes what they're trying to prove) so I'm looking for a more thorough argument. Does that help? (Perhaps we should bring it to chat if it gets more voluminous.) May 13, 2016 at 15:50
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    To summarize (and just my opinion): While it could be argued the SC undermines democracy, it needs to be put into the context of the US model of democracy...which is a representative democracy. This was explicitly designed per said constitution. The constitution never wanted a pure 'majority rules' democracy in the first place and it was purposefully designed to indeed balance (some would say undermine) majority rule democracy
    – user1530
    May 13, 2016 at 20:01
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    By design, the Supreme Court, Congress, and Executive branch undermine democracy, because these United States were established by the Constitution as a Representative Republic, where the whims of the majority are thwarted by an absolute application of the Rule of Law. Has it been perfectly executed? No. The difference between Originalist and Living Constitution views is best defined by how the Justices interpret the wording of the Constitution in making their decisions. They are elected for life to protect unpopular, but lawfully accurate, decisions. May 14, 2016 at 0:04

5 Answers 5


Even the strictest originalist would not contend that the constitution can be taken completely literally in all contemporary cases to which it must be applied.1

The two main obstacles preventing an entirely literal application are:

  1. The wording is, probably intentionally, vague and hence necessarily requires interpretation.
  2. New circumstances arise which were not foreseen by the founders, like telephone and messaging instead of letters.

If we accept this premise we are suddenly facing a gradual, not a qualitative difference: Both parties agree that some interpretation is necessary — the differences concern which circumstances justify an interpretation, and how far the interpretation can go; and neither party contends that the judges can arbitrarily rewrite the constitution. They have different opinions about what one could call the "unchangeable core", and, unsurprisingly, tend to be open to interpretation where it fits their convictions.

A discussion of the difficulties inherent in the originalist stance can be found in this article from the Brookings Institution. It mentions a few cases where supposedly originalist judges interpreted the constitution in a fairly broad fashion (Citizens United and the Voting rights act).

Therefore the theoretical differences may not be as large as they seem. No originalist can in practice avoid interpretation, and the "living constitution" proponents don't suggest to rewrite the constitution without democratic oversight.

1 On public request: "Consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside." (Neil Gorsuch in Time, emphasis by me.) That is clearly an interpretation, a widening of the original meaning of "search" as understood by the founding fathers in the light of new technology. That Gorsuch is using this as an example to support his originalism notwithstanding ;-). It is a fairly narrow interpretation — but an interpretation it is.

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    "Even the strictest originalist would not contend" - citation needed. Especially considering throwing quotes from the document without their original context around is a common part of US political theatre.
    – Jontia
    Jan 25, 2021 at 16:21
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    @Jontia Citation provided. Jan 25, 2021 at 17:06
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    A small quibble: Gorsuch is more of a textualist than an originalist. The Kyllo v. United States thermal imaging case still works though because originalist Scalia was in the majority ruling that the thermal imaging was a 'search' that required a warrant.
    – Readin
    Jan 31, 2021 at 2:21
  • Regarding the thermal imaging, surely there is a difference between an interpretation being required by changing technology, and an interpretation being desired by changing morals. Is thermal imaging a "search"? That's a question posed by technology. "Is legal recognition of gay marriage required by the Constitution?" Neither marriage nor homosexuality are new. Both existed 150 years ago. It's not inconsistent for an originalist to make a new interpretation for thermal imaging but not for gay marriage.
    – Readin
    Aug 21, 2021 at 5:51
  • @Readin That is an interesting point. Both new questions also have something in common though: They are new questions that are asked the constitution. Why they have come up may be less relevant than the fact that both were inconceivable at the time the constitution was written. Aug 22, 2021 at 8:13

Let's be clear about the separation of powers under the US Constitution:

  • The Legislative branch writes law: it's the only branch of government that can write law.
  • The Executive branch implements law written by the legislative branch. The act of implementing law often calls for a certain amount of interpretation: e.g., legislatures might allocate a budget to a department tasked with implementing the law, but not specify precisely how the budget should be used. The executive branch establishes priorities, creates structures, and copes with practical details that implementing the law might entail.
  • The Judicial branch adjudicates law, meaning that it determines how law should be applied in particular circumstances: in other words, whether the implementation of law by the executive brach is consistent with the text of law written by the Legislative branch, and whether the text as written by the Legislative branch is consistent with the Constitution.

A quick glance at this list should make it clear that the Supreme Court's power of interpretation is intrinsically limited. both by the text of laws as written and by the text of the Constitution. The Court plays a hermeneutic role of maintaining the internal consistency of the body of law in the US, but not much more.

The friction between 'originalist' an 'living document' constitutionalists plays out within these constraints, and within these constraints it should be clear that originalism is also an interpretation of the Constitution. There's nothing written in the Constitution itself that says "These words should be taken exactly as written in a pedantically literal manner", and the Founders were quite clear that it was an imperfect document filled with hand-waving and compromises. Originalism as it stands is more-or-less synonymous with anti-federalism. It is the assertion that the Court overstepped when it determined that there was a 'penumbra of rights' that citizens could use to challenge state law within the federal court system: a determination that became important in abortion, civil rights, gay marriage, and other 'liberal' contexts where private citizens sought to use federal law to break oppressive state laws. Originalists want to limit constitutional interpretation to those rights expressly laid out in the document, and roll back the expansion of rights we've seen since the middle of last century. But the 'originalist' view is no more and no less an interpretation of how the document should be read than the 'living document' view.

The notion that either of these viewpoints undermines democracy is vapid. The right to democratic participation is enshrined in the constitution and its amendments, which the Court has no power to change. The court may find itself ruling on laws that impact democratic participation — gerrymandering, mail-in voting, voter suppression, etc — but only the legislative and executive branches can actively disenfranchise citizens. Originalists might be more inclined to rule against citizens in such cases, and thus might be less inclined to promote and support democratic principles, but that's as may be. The real work of improving (or degrading) US democracy happens in Legislatures and Executive branch offices, place where citizens can exercise the democratic power of the vote.

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    At the end of your third bullet point shouldn't it be "as written by the legislative branch"? Jan 26, 2021 at 15:17
  • @JürgenKrämer: Oops! yes, thanks for pointing it out. Jan 26, 2021 at 17:07
  • The executive branch writes law when the legislative branch delegates that responsibility to it.
    – phoog
    Jan 31, 2021 at 9:02
  • @phoog: Well, no... nothing the executive branch does is 'law'. The executive branch can set policy, and can issue orders for the execution of law, but 'law' is only written by the legislative branch. Jan 31, 2021 at 9:41

No major political group in America, whether right wing, left wing, liberal, conservative, or whatever you want to call it, believes in completely unrestrained democracy. Certain topics are believed to be off limits regardless of what the voters may say. Nearly all Americans would say that if 51% of the voters decided that we should execute everyone who has red hair, we still shouldn't do it. One reason they would give is that we have a Constitution that prevents the deprivation of life liberty or property without due process of law.

So proponents of a "living Constitution" and proponents of a reliable Constitution (such as originalists and textualists) agree that there are certain issues, certain freedoms, certain rights, that are too important to be left to voters. The dispute is over how we should recognize issues that are too important for democracy and how those issues should be decided.

With a "living Constitution", 9 people appointed for life by a democratically elected president and confirmed by a democratically elected Senate decide based on their own personal preferences at the time a ruling is made.

With a reliable constitution, decisions are to be made by the amendment process which is also democratic but requires super-majorities which can be difficult to achieve. The 9 judges are constrained by the text of the Constitution, and when that is unclear they are constrained by precedent and existing custom.

Both views support democracy, and both limit democracy, so although their opponents may say that 9 judges making unrestrained decisions are a danger to democracy the proponents of a Living Constitution feel no greater burden for defending how their ideas are compatible with democracy because certain issues need to be protected from democracy.


Because the constitution is very hard to change and was last updated in 1992 and it isn't hard to argue with all the changes in the information age it has room for updates to match modern technology.

Take the 4th amendment

AMENDMENT IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This was written well before the information age and could use some updating. In todays age what is to prevent the government from buying the information they are looking for instead of doing a search of some type? They want to find out where you have been? Buy your phone tracking data. They want to find out what you have been researching? Buy your search/purchase history? There is lots of information that they can find out simply by legally purchasing information from various sources that collect information from people with no choice for them to opt out even if they know it is happening and there is a lot of info collected without that knowledge. I am sure that the 4th amendment wasn't intended for private entities to collect and sell information to the government to get around the search and seizure part of it.

The problem is that society is changing faster and faster and it is hard for the constitution to keep up and adapt to those changes.

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    Applying the document to new technology isn't generally considered "living constitution". Pretty much all the judicial philosophies do that. Originalists do it too. Scalia and Thomas for example in Kyllo v. United States ruled that using thermal imaging on a house was a search that required a warrant.
    – Readin
    Jan 31, 2021 at 2:17
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    Reasonable minds can disagree on whether thermal imaging is a search or whether it is just old-fashioned looking from the outside. The living constitutionalists were even split on the issue. The point is that originalist Scalia considered it a search even though it clearly wasn't what the writers of the 4th amendment had in mind because those writers had never heard of or imagined thermal imaging.
    – Readin
    Jan 31, 2021 at 2:38
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    @Fizz "the loophole in Kyllo is that the device must not be widely available to the public" I'm not sure why that matters to the point about originalists applying old laws to new technology.
    – Readin
    Jan 31, 2021 at 2:49
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    @Fizz Thomas, also not considered a living Constitutionalist (though I'm not sure whether he's considered an originalist) also joined Scalia. But let's take another example - freedom of speech. What originalist can you cite who believes that because the founders had never heard of the internet, that "freedom of speech or the press" does not include the internet, or radio, or TV, or any other communication unheard of in the 18th century?
    – Readin
    Jan 31, 2021 at 3:02
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    @Readin: you've provided another example for my point that there's no hard distinction between "living constitution" and so-called originalism. It's a matter of degree of interpretation... which really varies from case to case. Jan 31, 2021 at 3:31

The real defense of the "living constitution" is that its so-called alternative, which user Readin calls "reliable constitution" and which in reality is called originalism, is anything but free of interpretations. E.g.

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists-the "framers" of originalism, if you will-as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated-and continue to articulate-a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation.

When scholars like Raoul Berger and Robert Bork, and political and judicial figures like Attorney General Edwin Meese III and then-Justice Rehnquist, began to compose scholarly monographs articulating an intellectual defense of originalism in the 1970s and 1980s, they repeated and developed the notion that the proper meaning of the Constitution is the meaning originally intended by the Framers. [...]

Even in the early days of “original intent” originalism, there was internal disagreement about the proper focus of the inquiry. The “intent of the Framers” was a misleading abstraction that implied a degree of agreement that was not really there. Just who were the “Framers” whose intentions mattered: the men who drafted the text of the Constitution and agreed upon it at the Philadelphia convention, or the men whose ratification votes at the subsequent state conventions gave it the force of law? The early originalists could not agree on the answer to that question. Meese focused on the intent of the drafters; Berger initially concurred, but later shifted his focus to the intent of the ratifiers.

The move from original intent to original meaning exponentially multiplied that sort of internal disagreement among originalists. [...] as the focus shifted from original intent to original meaning, many originalists began to speak in terms of the “public understanding” of the meaning of the Constitution. [...] the move to original understanding did not obviate the disagreement over whose intentions matter; it simply replaced that debate with a new one among originalists—at least, that is, among those originalists who abandoned the quest for original intent—as to whose understanding matters. [...]

At first, this notion of “objective” meaning was seemingly tied to the actual understanding of the people. In insisting on objective constitutional meaning, for example, the Reagan Justice Department explained that “[o]ur fundamental law is the text of the Constitution as understood by the ratifying society, not the subjective views of any group or individual.” In other words, the objective meaning is the one actually shared by the ratifying society as a whole: “The common understanding of the text is what counts . . . .” As Justice Scalia explained it, the originalist should seek the “meaning of the words of the Constitution to the society that adopted it—regardless of what the Framers might secretly have intended.”

Indeed, some originalists who seek the original, objective meaning have in fact gone so far in the direction of reliance on the actual public understanding as dispositive proof of original meaning that they determine original meaning by reference to the concrete [...]

Justice Scalia has frequently decided cases on the basis of the proposition that if the first Congresses and presidents engaged in a practice, then the Framing generation must have expected and thus understood the practice to be constitutional—in which case it “necessarily remains constitutional today.”

Most originalists who seek the original, objective meaning of the Constitution, however, have explicitly rejected this practice. Indeed, originalists have found themselves disagreeing with Justice Scalia on matters of constitutional theory with increasing frequency. [...] This newer generation of originalists has developed a theory that some of its proponents have labeled “original, objective-public-meaning textualism.” This theory disavows not only original intent, but also original understanding. Its proponents do not concern themselves with how the words of the Constitution were actually understood by the Framers, the ratifiers, the public, or anyone else, but rather with how a hypothetical, reasonable person should have understood them. [...]

What is more, even among those originalists who claim to rely on the original, objective public meaning of the constitutional text, there is profound disagreement about the nature and effect of originalism. [...]

To take just one example of the polarizing debates currently raging in the originalist community, consider the role of precedent in originalist theory. Justice Scalia has famously declared himself to be a “fainthearted originalist,” insofar as he would sometimes allow judicial precedent or societal custom to trump the original meaning of the Constitution. Justice Scalia insists that “almost every originalist would adulterate [originalism] with the doctrine of stare decisis.” But a growing number of originalists would not. Gary Lawson, for instance, has argued that it is unconstitutional for the Supreme Court to follow a precedent that deviates from the Constitution’s original, objective meaning. And Michael Stokes Paulsen concurs that “stare decisis . . . is completely irreconcilable with originalism.” Indeed, Randy Barnett has argued that, because Justice Scalia sometimes is willing to allow stare decisis to trump original meaning, “Justice Scalia is simply not an originalist.” Even Justice Scalia admits that “stare decisis is not part of [his] originalist philosophy; it is a pragmatic exception to it.”

One conclusion that could be drawn from this conceptual diversity and disagreement is that “originalism” is not a constitutional theory at all, but rather is simply rhetorical code for a commitment to a series of particular judicial outcomes favored by political conservatives. [...]

But making sense of the evolution and dissonance of originalist theory does not necessitate that degree of cynicism. Originalism might better be understood by reference to its archnemesis, living constitutionalism. Modern originalism’s genesis, of course, was as a response to the perceived excesses of the theory of the living constitution. But originalism is a jurisprudential theory undergoing its own endless evolution, with its own living constitution. That is to say, originalists’ understanding of the relationship among originalism’s current meaning, its original meaning, and its underlying principles is similar to living constitutionalists’ understanding of the relationship among the Constitution’s current meaning, its original meaning, and its underlying principles. Just as the theory of living constitutionalism permits the meaning of the Constitution’s provisions to evolve to reflect current societal values, the theory of originalism permits the meaning of originalism to evolve to reflect current interpretive values. [...]

Agreement on the proposition that the Constitution must have a fixed meaning leaves plenty of room for disagreement about what that meaning is, and how and at what level of generality it is to be ascertained. [...] The project of actualizing these capacious principles into a working theory is a task that each generation of originalists has undertaken anew, occasionally drawing upon, but occasionally rejecting, the work of its predecessors. This, of course, sounds very much like the living constitutionalists’ view of the manner in which constitutional meaning evolves.

In one respect, this story of evolution reflects well on originalists. The proponents of any rigorous theory should, after all, constantly strive to improve it, to smooth out the bumps of incoherence. For most theories, this development is a virtue, a sign that its proponents are sufficiently humble to respond to criticism and to recognize the room for theoretical maturation while still holding on to their core principles. But for originalists, there is a twist: the central claims of their faith are to a substantial degree belied by the very existence of this evolution and discord. Originalists have consistently insisted that they have discovered the one, true faith—the one approach that is self-evidently correct. Yet the faith, it seems, keeps changing.

Nonoriginalists, [Scalia] argues, “divide into as many camps as there are individual views of the good, the true, and the beautiful,” which makes theoretical coherence among nonoriginalists a virtual impossibility. [...]> These criticisms are nothing new. Robert Bork made the same case more than thirty-five years ago, arguing that nonoriginalism fails the test of legitimacy because “[w]here constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other.” And without the constraint of constitutional text or history, he argued, “the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute. That, by definition, is an inadequate basis for judicial supremacy.” Justice Scalia has elaborated on this theme, arguing that the “principal theoretical defect of nonoriginalism . . . is its incompatibility with the very principle that legitimizes judicial review of constitutionality.” [...]

Of course, the mere fact that originalists disagree among themselves does not necessarily mean that they are all wrong—or that at least one of them is not actually right. It is possible that among the many competing versions of originalism lies the one “correct” and uniquely legitimate method of constitutional interpretation, just as it is possible that there is a correct moral philosophy and a correct answer to the question, “which was the greatest baseball team of all time?” But if fifty people with fifty different approaches all insist that their particular approaches are not merely the best but are also correct, and that all other approaches are not merely less desirable but also illegitimate and wrong, then one can have only so much confidence in any one of their claims.

To take perhaps the most obvious example of originalists’ invoking divergent theories and reaching disparate results, consider the range of responses originalists have offered to Brown v. Board of Education. In the 1970s, Raoul Berger argued vigorously that, as a matter of original intent—which he claimed can easily be determined from the debates surrounding the drafting and ratification of the Fourteenth Amendment—Brown was incorrectly decided (although he also argued that this result obviously was undesirable as a political matter).

But Robert Bork relied on a different version of originalism to argue that Brown was correctly decided. Bork argued—first in 1971 and then again in 1990—that, although the Fourteenth Amendment originally was intended and understood to permit segregated schools, Brown nevertheless was correct because the “purpose that brought the fourteenth amendment into being” was “equality,” and “equality and segregation were mutually inconsistent,” even “though the ratifiers did not understand that.” Bork thus viewed the original meaning at a very high level of generality—so high, in fact, that many commentators have observed that his approach is starkly inconsistent with most standard versions of originalism. [...] Earl Maltz, however, has challenged the originalist propriety of Brown, relying on contemporaneous historical evidence of the “understanding” of “those who drafted and ratified the Fourteenth Amendment . . . during the earlier Reconstruction period” to conclude that Brown is incompatible with originalism. [...] And Justice Scalia has allegedly acknowledged that Brown cannot be defended on originalist grounds.

And in fact the paper gives a few more takes on Brown, all claiming to be originalist approaches, but this answer is already too long.

Original-expected-application originalism supports the constitutionality of legislative prayer, whereas other forms of originalism that seek to identify the principle embedded in the text do not. Justice Scalia’s particular version of expected-applications originalism supports the constitutionality of government-sponsored Ten Commandments monuments, whereas forms of originalism that seek to identify and vindicate the original purpose of the Establishment Clause do not. And so on. [...]

[...] originalism often fails to constrain judges because the process of applying the original meaning (or understanding or intent) to the particular problem at hand still leaves room for substantial discretion on the part of the judge to follow her personal preferences—especially when that meaning (or understanding or intent) is articulated at a broad level of generality. [...]

Indeed, that is precisely what originalist judges have done. Even those self-professed originalists on the bench who have claimed to endorse one particular brand of originalism, to the exclusion of all others, have in fact bounced around among originalist theories from case to case, each time choosing the version of originalism that allows them to reach their desired results. This point can be illustrated by reference to the jurisprudence of the three most influential originalist judges: Justices Scalia and Thomas and Judge Bork. [...]

Consider [Scalia's] approach to the Eleventh Amendment and the question of state sovereign immunity. The Court’s recent decisions in this area are, of course, all but impossible to square with either the text of the Amendment or (most commentators have concluded) its history. Justice Scalia has acknowledged that “[i]f this text were intended as a comprehensive description of state sovereign immunity in federal courts,” then many of the Court’s decisions in this area would be “unquestionably” wrong. But he nevertheless has endorsed the Court’s decisions on the ground that an unwritten “assumption” of state sovereign immunity “was implicit in the Eleventh Amendment.”

To be sure, that approach is not inexorably inconsistent with an originalist jurisprudence, which Justice Scalia claimed to have employed in reaching his conclusion. It might well follow (assuming the correctness of the history upon which it is based) from an original intent or original understanding approach. But it certainly is in substantial tension with the particular version of original-meaning originalism that Justice Scalia generally professes to follow—a version that relies on the primacy of constitutional text in the quest for constitutional meaning, and that treats the objective, “original meaning of the text” as the touchstone of original meaning. In the abstract (and in other contexts), Justice Scalia has insisted that, when it comes to constitutional interpretation, “[w]ords do have a limited range of meaning, and no interpretation that goes beyond” the “limited range of meaning” that words carry is “permissible.” Indeed, he has condemned interpretations that the constitutional “language will not bear.” Yet when it comes to interpreting the Eleventh Amendment, he reaches a result (one generally preferred by political conservatives) that cannot be squared with, and is admittedly not limited by, the constitutional text.

Similarly, Justice Scalia has adamantly asserted that, because what should matter to originalists is the original objective meaning of the text, rather than the subjective understandings of the Framers, historical sources such as The Federalist should be used to determine the common, objective meaning of the words used in the Constitution, not to ascertain the actual, subjective understanding of the Framers. But he has not always been faithful to that assertion. In Printz v. United States, for example, Justice Scalia’s opinion for the Court concluded that the federal government lacks authority to compel state officials to implement federal law, even though he found “no constitutional text speaking to this precise question,” and even though the most relevant constitutional text—the Commerce Clause, the Necessary and Proper Clause, and the Supremacy Clause (and even perhaps the truistic Tenth Amendment)—appeared to cut against his conclusion.Justice Scalia’s opinion relied heavily on The Federalist not to determine the original meaning of the text, which he concluded was all but irrelevant, but rather to ascertain “the historical understanding and practice” of the Framers. Indeed, Justice Scalia was so focused on the actual understandings of the Framers that he went as far as to discount almost entirely the views that one Framer expressed in The Federalist—concluding that Hamilton was too nationalistic to be trusted—and to rely instead on another Framer’s— Madison’s—particular understanding of the Constitution.

There are several more inconsistencies in Scalia's approached discussed in the paper, followed by some of Bork's and Thomas'. To skip to the latter...

Finally, consider Justice Thomas, who has long declared himself to be an originalist. But of which variety? [...] For instance, in McIntyre v. Ohio Elections Commission, he articulates his constitutional jurisprudence as follows:

When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for “[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.” We have long recognized that the meaning of the Constitution “must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions . . . in the several states.” We should seek the original understanding when we interpret the Speech and Press Clauses . . . .

This conflation of distinct modes of originalism allows him to draw indiscriminately on sources that are of differing value to different versions of originalism—Anglo-American law and tradition, the drafting history of the Constitution, the ratification history, postenactment behavior and statements of government officials, and eighteenth-century dictionaries, among other evidence— which of course broadens his ability to find evidence to support what may really be a subconsciously predetermined meaning that yields his preferred outcome.

Indeed, after a thorough study of Justice Thomas’s jurisprudence, Scott Gerber has concluded that “Justice Thomas is a ‘liberal originalist’ on civil rights and a ‘conservative originalist’ on civil liberties and federalism.” Gerber uses the term “liberal originalism” to refer to the notion that the Constitution should be interpreted at a higher level of generality to reflect the natural-law inspired political philosophy of the Declaration of Independence, and the term “conservative originalism” to refer to the notion that the Constitution should be interpreted in the same manner in which the Framers would have interpreted it. Thus, explains Gerber, “Justice Thomas appeals to the ideal of equality at the heart of the Declaration of Independence when he decides questions involving race, but to the Framers’ specific intentions—as manifested in the text and historical context of the Constitution—when he decides questions involving civil liberties and federalism.” This allows him to reject segregation and affirmative action, even though the framers of the Fourteenth Amendment likely would have accepted them, while at the same time relying on the narrow understanding of the Framers to reach politically conservative results in cases involving other issues, such as the establishment of religion and abortion.

Basically, originalism (as the purported true meaning of the constitution) is really an evolving, living project which might use somewhat more historical means of understanding the Constitution, but it still requires plenty of interpretation and argument. More worrisome than this evolution is that originalism many methodological flavors (which can and do lead to conflicting conclusions) show up in the works of the same judge. Basically, there's no such thing as a "reliable constitution" that doesn't depend on whom is doing the interpretation, even if they profess to be originalists, simply because there are flavors of originalism one can pick to come to a conclusion that may be so desired for politically exterior motives or some other kinds of cognitive biases.

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