Originalism: Can Theory and Supreme Court Practice Be Reconciled?

NOTES

Originalism: Can Theory and Supreme Court

Practice be Reconciled?

MEGAN CAIRNS*

ABSTRACT

After originalism was dealt a series of seemingly devastating blows in the ’80s,

originalist scholarship evolved in signif‌icant ways. One of the most noteworthy

changes is the evolution from intentionalism to original public meaning original-

ism. Now, most modern originalists agree the appropriate inquiry for interpreting

the Constitution is the original public meaning of the text. Nonetheless, origina-

lists on the Supreme Court have continued invoking Framers’ intentions, interpre-

tations, and expectations in their constitutional interpretations. This Note explores

how recent self-proclaimed originalist Supreme Court Justices—Justices Scalia,

Thomas, and Gorsuch—have appealed to the views of the Framers, and whether

or not these practices can be grounded in public meaning originalist theory.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

I. THE MOVE FROM ORIGINAL INTENT TO ORIGINAL MEANING. . . . . . 265

A. A Basic Def‌inition of Originalism. . . . . . . . . . . . . . . . . . . . . . 265

B. The Development of Modern Originalism. . . . . . . . . . . . . . . . 265

II. ORIGINALIST JUSTICES AND ORIGINAL INTENT . . . . . . . . . . . . . . . . 268

III. THEORETICAL JUSTIFICATIONS FOR INVOKING THE VIEWS OF THE

FRAMERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

A. Contextual Enrichment as a Justif‌ication for Invoking

Framers’ Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

B. Invoking Framers’ Intent in the Exercise of Construction. . . . 277

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

* Georgetown University Law Center, J.D. 2021. © 2021, Megan Cairns.

263

INTRODUCTION

In 1986, speaking before the Off‌ice of Legal Policy at the United States

Department of Justice, future-Supreme Court Justice Antonin Scalia famously

proclaimed that when interpreting the Constitution, the Court should seek to

uncover “the most plausible meaning of the words of the Constitution to the soci-

ety that adopted it—regardless of what the Framers might secretly have

intended.”

1

More than three decades later, most originalist scholars have widely

accepted Justice Scalia’s sentiment. Gone are the days of trying to ascertain what

James Madison or Alexander Hamilton would have thought about modern legal

issues that they never could have foreseen.

2

Now most modern originalists agree

the appropriate inquiry for interpreting the Constitution is the original public

meaning of the text.

3

Nonetheless, originalists on the Supreme Court—including

Justice Scalia himself—have continued invoking Framers’ intentions, interpreta-

tions, and expectations in their constitutional interpretations. This Note explores

how the recent self-proclaimed originalists on the Supreme Court—Justices

Scalia, Thomas, and Gorsuch—have appealed to the views of the Framers and

whether or not these practices can be grounded in public meaning originalist

theory.

Section I provides a brief overview of originalism’s evolution from original

intent to original public meaning. Section II examines the ways that originalist

Justices have used the Framers’ intent in their opinions. Section III explores two

possible theoretical justif‌ications from within original public meaning originalism

for how originalist Justices have invoked the views of the Framers. This Section

ultimately concludes that from a public meaning perspective, relying in a disposi-

tive manner on the views of the Framers for interpretation is justif‌ied only when

there are no conf‌licting viewpoints from educated, informed members of the pub-

lic at the time of framing and ratif‌ication.

This Note contributes to the literature in two ways. First, while many scholars

have pointed out the inconsistency between public meaning originalism and the

way originalist Justices invoke the views of the Framers, fewer have examined

exactly how the Justices use these views and which Framers the Justices regularly

cite. Second, this Note is novel because in order to justify certain usages of

Framers’ intent in judicial opinions, it relies upon recent originalist scholarship

that implements philosophy of language concepts into originalist theory.

1. Jamal Greene, The Case for Original Intent, 80 GEO. WASH. L. R. 1683, 1684 (2012) (quoting

Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in

Washington, D.C. (June 14, 1986), in OFF. OF LEGAL POLICY, U.S. DEP’T OF JUST., ORIGINAL MEANING

JURISPRUDENCE: A SOURCEBOOK 101, 103 (1987)).

2. See Lawrence B. Solum, Surprising Originalism: The Regula Lecture, CONLAWNOW (2018)

(“More than thirty years ago, the mainstream of originalist constitutional theory turned away from

intentionalism toward textualism.”).

3. See Thomas B. Colby, The Sacrif‌ice of New Originalism, 99 GEO. L. R. 713, 719 (“It is the New

Originalism that has won over converts in the scholarly community.”).

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