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Constitutional Interpretation: Legal Realism, Originalism, and Living Constitutionalism

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Happy Supreme Court season, to those who celebrate! Oral arguments in the Court’s first case of the year commenced on October 2, and the 2023-2024 Supreme Court term is well underway. As the Justices hear cases, now is a perfect time to read up on some of the theories of constitutional interpretation that jurists use when analyzing statutory law and the Constitution. In this post, we’ll be diving into the history and principles of three theories of constitutional interpretation—originalism, legal realism, and living constitutionalism—and analyzing how these different theories have been put into practice in rulings of the Court. Keep reading as we use HeinOnline’s U.S. Supreme Court Library, Law Journal Library, and newly revamped collection, Judges and the Judiciary (formerly Congress and the Courts) to explore theories of constitutional interpretation.

And don’t forget, if audio works better for you, you can always listen to the full text of this post by clicking the headphones icon in the lower right corner of this page.

Originalism

When responding to a question at her 2010 Supreme Court confirmation hearing, Elena Kagan famously remarked, “[We] are all originalists.”[1]Tobe Liebert (compiler), Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-2010. Volume 23. Elena Kagan (2010). This document can be found in HeinOnline’s Judges … Continue reading This statement reflects a fact that has been frequently noted by commentators on the Supreme Court: originalism is currently the dominant interpretive methodology employed by Justices on the United States Supreme Court. But what is originalism?

The widely accepted definition of the theory, as articulated by scholar Bret Boyce, is that originalism is “the doctrine that the Constitution should be interpreted as originally understood at the time it was adopted.[2]Bret Boyce, Originalism and the Fourteenth Amendment, 33 WAKE Forest L. REV. 909 (1998). This article can be found in HeinOnline’s Law Journal Library. Despite its current dominance on the Supreme Court, it is a relatively recent theory of constitutional interpretation. Its formative principles were first articulated in the 1970s and 1980s by scholars who opposed the Court’s ruling in Brown v. Board of Education as well as other progressive rulings of the Warren Court.

The judge and scholar Robert Bork is typically credited with first articulating the principles of originalism in his 1971 article, Neutral Principles and Some First Amendment Problems.[3]Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). This article can be found in HeinOnline’s Law Journal Library. Bork was a staunch conservative, who vehemently opposed the 1964 Civil Rights Act, as well as the progressive rulings of the Supreme Court under Chief Justice Earl Warren, notably Brown v. Board of Education,[4]Brown et al. v. Board of Education of Topeka et al, 347 U.S. 483, 496 (1954).This document can be found in HeinOnline’s U.S. Supreme Court Library. which desegregated public schools; and Griswold v. Connecticut,[5]Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This document can be found in HeinOnline’s U.S. Supreme Court Library. which legalized the use of contraception. The originalism articulated by Bork is now referred to by legal scholars as “originalism of intent,” or Old Originalism. According to this theory of constitutional interpretation, when analyzing the Constitution or statutory law, jurists should concern themselves only with the original intention of the writers of the law.

Ronald Reagan’s nomination of Bork to the Supreme Court[6]Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1987. Volume 14. Robert Bork. This document can be found in … Continue reading in 1987 brought his views, and the theory of originalism, into the national spotlight. Within hours of the nomination, Senator Ted Kennedy excoriated Bork—who was already somewhat notorious for his actions as Solicitor General under President Richard Nixon—and his views in a speech broadcast from the floor of the Senate.

Bork’s nomination was defeated in the Senate by a bipartisan vote of 58-42, and Reagan ultimately filled the vacant seat on the Court with Anthony Kennedy,[7]Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1987. Volume 15. Douglas H. Ginsburg/Anthony Kennedy. This … Continue reading who was confirmed to the court in a unanimous vote. Although Bork’s nomination was a failure, it did serve as a galvanizing moment for the originalist movement, which became more organized and deliberate in its advocacy throughout the 1980s. A key moment took place in 1982, five years before the failed Bork nomination, with the founding of the Federalist Society for Law and Public Policy Studies. The Federalist Society, as it is typically referred to, is a conservative professional organization that was founded to encourage originalist interpretations of the Constitution amongst practitioners of law. The organization ballooned in influence in the aftermath of Bork’s failed nomination, and has come to dominate conservative legal activism. At present, at least five—and perhaps all six—of the conservative members of the Court are current or former members of the Federalist Society (John Roberts is listed as having been a member in the past, but asserts that he does not remember joining the organization).

The rise of the Federalist Society corresponded to a transformation in the theory of originalism, as the Old Originalism—which focused on questions of original intent—was supplanted by what scholars refer to as “New Originalism.” Adherents to New Originalism focus on questions of “original public meaning.”[8]S. L. Whitesell, The Church of Originalism, 16 U. PA. J. Const. L. 1531 (2014). This article can be found in HeinOnline’s Law Journal Library. When interpreting the Constitution or statutory law, they ask, how would the average person at the time of the document’s drafting have understood the concept in question? This approach to the law, which makes extensive use of etymological history and formal textual analysis, rose to prominence with the appointment of Antonin Scalia[9]Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1986. Volume 13. Antonin Scalia. This document can be found in … Continue reading to the Court in 1986.

Scalia, by all accounts, did not think this was funny.

Scalia’s fixation on original meaning was at times the target of jokes from his fellow Justices, as in the excerpt above from oral arguments in Brown v. Entertainment Merchants Association,[10]Brown, Governor of California, et al. v. Entertainment Merchants Association et al, 564 U.S. 786, 872 (2011). This document can be found in HeinOnline’s U.S. Supreme Court Library. a case revolving around the legality of censoring violent content from video games. Despite the frequent caricatures of originalism, and numerous persuasive critiques of its practitioners, it is at present the predominant theory of constitutional interpretation in the Untied States Supreme Court.

Originalism in Practice

Although originalism as a legal movement did not cohere until the 1980s, originalist approaches to the law can be seen in the earlier legal history of the United States. Arguably the first major originalist argument is Dred Scott v. Sandford, in which Chief Justice Roger Taney writes in his majority opinion[11]Dred Scott, Plaintiff in Error, v. John F. A. Sandford, 60 U.S. 393, 634 (1856). This document can be found in HeinOnline’s U.S. Supreme Court Library. that Black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” As scholar Christopher Einsgruber puts it,[12]Christopher L. Eisgruber, Dred Again: Originalism’s Forgotten Past, 10 Const. COMMENT. 37 (1993). This article can be found in HeinOnline’s Law Journal Library. Scott v. Sandford is a “riot of originalism….a lengthy description of racist behavior at the time the Constitution was drafted, all of which [Taney] uses to argue that African-Americans are neither ‘people’ nor ‘citizens’ under the Constitution.”

The Scott decision was so infamous that originalist approaches to the law largely faded away until the backlash against the progressive rulings of the Warren Court in the 1970s and 1980s. The theory has seen a resurgence in recent years, with a series of majority rulings that are articulated in line with putative originalist principles. Samuel Alito, despite his teasing of Scalia, employs the theory extensively to justify his own rulings in his recent majority opinion in Dobbs v. Jackson,[13]19-1392 U.S. Reports 1 (2021). Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al. This document can be found in HeinOnline’s U.S. Supreme Court Library. which abolished the federal right to choose to have an abortion. In his opinion, Alito writes that “the right to abortion is not deeply rooted in the Nation’s history and tradition.”

This appeal to tradition echoes the language employed by Clarence Thomas in an earlier ruling from the same 2021-2022 term, New York State Rifle and Pistol Association v. Bruen,[14]20-843 U.S. Reports 1 (2022). New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent of New York State Police, et al. This document can be found in HeinOnline’s U.S. Supreme Court Library. which resulted in the Supreme Court abolishing a New York State law that regulated applications for concealed carry permits for handguns. In his majority opinion for Bruen, Thomas invokes history and tradition, and seeks to establish a new guideline for assessing the validity of firearms regulations. In his opinion, Thomas claims that in the future, when assessing laws regulating firearms, courts should not consider questions of safety and the public good, but should only consider the “historical tradition of firearm regulation” as understood and articulated by the framers of the Constitution.

Critics of originalism contend that jurists like Alito and Thomas cynically misrepresent history, ignoring facts that are inconvenient to their ideological predispositions, such as the fact that abortion was legal in every state in the United States up until the 19th century, or that statutory laws regulating certain classes of firearms existed prior to the drafting of the Constitution. These critiques are often expressed in terms of two differing theories of constitutional interpretation: legal realism and living constitutionalism.

Legal Realism and Living Constitutionalism

There is a joke scholars like to repeat about legal realism: according to the legal realist, the law is nothing more than what a judge had for breakfast.[15]Dan Priel, Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea, 68 BUFF. L. REV. 899 (2020). This article can be found in HeinOnline’s Law Journal Library. This is a exaggeration but, as with many jokes, there is a kernel of truth at its center. Legal realists view judges as fallible, imperfect human beings, whose moods—and judgement—are influenced by their interactions with the material world. This includes, but is not limited to, what a judge may (or may not) have eaten for breakfast, and how the judge’s choice of breakfast may (or may not) influence their predisposition to the cases they oversee on a particular day. In a more important sense, this also includes a judge’s lived life experience and the personal prejudices and political biases that they bring to their work.

In a broader sense, legal realism examines the context and environment of legal decisions. In so doing, it centers the human element of jurisprudence, and takes into account the material impact of legal decisions on humans. Legal scholars tend to view the body of theories that make up legal realism as cohering in the early decades of the twentieth century, as a critical response to the ideas of legal formalism[16]Brian Leiter, Legal formalism and legal realism: what is the issue, 16 LEG 111 (2010). This article can be found in HeinOnline’s Law Journal Library. and their supposedly “mechanical” view of a logical method of constitutional interpretation.

One of the earliest forerunners of legal realism was Oliver Wendell Holmes Jr., whose 1881 The Common Law[17]Oliver Wendell Holmes. Common Law, The (1881). This book can be found in HeinOnline’s Legal Classics collection. criticizes mechanical views of interpretation and articulates a philosophy of law based on the lived reality of human beings.

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Oliver Wendell Holmes Jr., in The Common Law

A jurist who employs legal realism in constitutional interpretation takes into account the ideological and political motivations of those who practice law, and pays particular attention to the “policy preferences and political affiliation of judges as an often-unspoken factor in high profile and difficult cases.”[18]Patrick J. Borchers, Legal Philosophy for Lawyers in the Age of a Political Supreme Court, 90 TENN. L. REV. 223 (2023). This article can be found in HeinOnline’s Law Journal Library. Closely associated with legal realism is the philosophy of living constitutionalism. Whereas originalism is concerned with the intent and meaning of a legal document, as it was understood at the time of its composition, living constitutionalism considers the ways in which interpretation of documents can change over time, according to the prevailing ideas and values of a given era.

Similar to legal realism, living constitutionalism takes into account the lived realities of people whose lives are shaped by constitutional law, and the power differentials between citizens. Scholar Alex Tobin asserts that a central tenet of this approach to the law, as exemplified in the jurisprudence of the Warren Court, is that “the Founding Fathers were flawed, not everyone was at the table during the original ratification process, and that citizens ratify the Constitution today in their own image. This ratification is constantly occurring.”[19]Alex Tobin, The Warren Court and Living Constitutionalism, 10 IND. J.L. & Soc. EQUAL. 221 (2022). This article can be found in HeinOnline’s Law Journal Library.

Critics of legal realism and living constitutionalism contend that legal realists and living constitutionalists advocate ruling based upon personal opinion and preference over the text of the law itself. However, as scholar Patrick J. Borchers points out, realism makes very little claim as to how judges should decide their cases.[20]Patrick J. Borchers, Legal Philosophy for Lawyers in the Age of a Political Supreme Court, 90 TENN. L. REV. 223 (2023). This article can be found in HeinOnline’s Law Journal Library. Proponents of realism will contend that the theory merely acknowledges that judges do have personal and ideological biases, and that the material reality of the law’s impact on citizens ought to be considered in decision making. This approach to the law is, at least in theory, equally compatible with progressive and conservative approaches to jurisprudence.

Legal Realism and Living Constitutionalism in Practice

Perhaps the most famous example of these legal approaches in practice is Brown v Board of Education, the ruling that, along with Roe v. Wade,[21]Roe et al. v. Wade, District Attorney of Dallas County, 410 U.S. 113, 178 (1973). This document can be found in HeinOnline’s U.S. Supreme Court Library. fueled the modern conservative legal movement which gave rise to originalism. In Brown v. Board of Education, the court ruled in a unanimous decision that the segregation of public schools on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment. It is striking how Warren’s language in the majority opinion reads like a preemptive critique of originalism, even before originalism was fully articulated as a legal doctrine in the 1970s and 1980s.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the lights of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

In Brown, the Court firmly grounds its decision in the concerns of the present, and in the lives of the people who will be most impacted by its rulings. This is particularly noteworthy in passages where Warren discusses not only the educational and economic impact of school segregation, but also the deleterious psychological impact[22]Brown et al. v. Board of Education of Topeka et al, 347 U.S. 483, 496 (1954).This document can be found in HeinOnline’s U.S. Supreme Court Library. that being forced into separate facilities has on developing children. This is a quintessentially realist approach to constitutional interpretation, focusing on the lived reality of citizens, and making the argument that regardless of historical intent, segregation in practice inflicts undue harm upon Black schoolchildren.

In terms of more contemporary jurisprudence, legal realism and living constitutionalism have fallen somewhat out of favor in the Supreme Court in recent years. The best place to find expressions of these theories of constitutional interpretation in the Roberts Court is often in dissents to rulings. The dissent to Dobbs v. Jackson,[23]19-1392 U.S. Reports 1 (2021). Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al. This document can be found in HeinOnline’s U.S. Supreme Court Library. co-authored by Stephen Breyer, Elena Kagan, and Sonia Sotomayor, is one such example. In their dissent, the Justices do not focus on the original meaning or intent of the framers in omitting a direct mention of abortion from the Constitution, but instead emphasize the momentous impact of five decades of abortion access upon people who can get pregnant, and the material consequences of removing that right upon their health.

Sonia Sotomayor likewise takes an approach that could be characterized as legal realism in her dissent to Kennedy v. Bremerton School District,[24]21-418 U.S. Reports 1 (2022). Kennedy v. Bremerton School District. This document can be found in HeinOnline’s U.S. Supreme Court Library. a case that centered on a public school employee who led students in Christian prayers at school events. Her critique of the Court’s privileging of the Free Exercise Clause of the First Amendment over the Establishment Clause draws attention to the ways in which ideological preferences influence jurisprudence on the Court. Likewise, her attention throughout the dissent to the power differential between students and the school employees entrusted with their wellbeing is likewise in keeping with realist approaches to the law.

Further Reading

Before wrapping up, it is important to make one final point—theories of constitutional interpretation are by no means mutually exclusive. In fact, throughout most of the history of the Court, Justices have employed multiple different approaches to the law, sometimes even in the same ruling. There are also many, many more schools of thought than the three mentioned in this post. You can read more about them in the journals contained in HeinOnline’s flagship Law Journal Library. You can also keep up with the current term as arguments unfold by subscribing to Preview of U.S. Supreme Court Cases.

HeinOnline Sources

HeinOnline Sources
1 Tobe Liebert (compiler), Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-2010. Volume 23. Elena Kagan (2010). This document can be found in HeinOnline’s Judges and the Judiciary (formerly Congress and the Courts).
2 Bret Boyce, Originalism and the Fourteenth Amendment, 33 WAKE Forest L. REV. 909 (1998). This article can be found in HeinOnline’s Law Journal Library.
3 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). This article can be found in HeinOnline’s Law Journal Library.
4, 22 Brown et al. v. Board of Education of Topeka et al, 347 U.S. 483, 496 (1954).This document can be found in HeinOnline’s U.S. Supreme Court Library.
5 Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This document can be found in HeinOnline’s U.S. Supreme Court Library.
6 Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1987. Volume 14. Robert Bork. This document can be found in HeinOnline’s Judges and the Judiciary (formerly Congress and the Courts).
7 Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1987. Volume 15. Douglas H. Ginsburg/Anthony Kennedy. This document can be found in HeinOnline’s Judges and the Judiciary (formerly Congress and the Courts).
8 S. L. Whitesell, The Church of Originalism, 16 U. PA. J. Const. L. 1531 (2014). This article can be found in HeinOnline’s Law Journal Library.
9 Roy Mersky, et al. (compilers), Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1986. Volume 13. Antonin Scalia. This document can be found in HeinOnline’s Judges and the Judiciary (formerly Congress and the Courts).
10 Brown, Governor of California, et al. v. Entertainment Merchants Association et al, 564 U.S. 786, 872 (2011). This document can be found in HeinOnline’s U.S. Supreme Court Library.
11 Dred Scott, Plaintiff in Error, v. John F. A. Sandford, 60 U.S. 393, 634 (1856). This document can be found in HeinOnline’s U.S. Supreme Court Library.
12 Christopher L. Eisgruber, Dred Again: Originalism’s Forgotten Past, 10 Const. COMMENT. 37 (1993). This article can be found in HeinOnline’s Law Journal Library.
13, 23 19-1392 U.S. Reports 1 (2021). Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al. This document can be found in HeinOnline’s U.S. Supreme Court Library.
14 20-843 U.S. Reports 1 (2022). New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent of New York State Police, et al. This document can be found in HeinOnline’s U.S. Supreme Court Library.
15 Dan Priel, Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea, 68 BUFF. L. REV. 899 (2020). This article can be found in HeinOnline’s Law Journal Library.
16 Brian Leiter, Legal formalism and legal realism: what is the issue, 16 LEG 111 (2010). This article can be found in HeinOnline’s Law Journal Library.
17 Oliver Wendell Holmes. Common Law, The (1881). This book can be found in HeinOnline’s Legal Classics collection.
18, 20 Patrick J. Borchers, Legal Philosophy for Lawyers in the Age of a Political Supreme Court, 90 TENN. L. REV. 223 (2023). This article can be found in HeinOnline’s Law Journal Library.
19 Alex Tobin, The Warren Court and Living Constitutionalism, 10 IND. J.L. & Soc. EQUAL. 221 (2022). This article can be found in HeinOnline’s Law Journal Library.
21 Roe et al. v. Wade, District Attorney of Dallas County, 410 U.S. 113, 178 (1973). This document can be found in HeinOnline’s U.S. Supreme Court Library.
24 21-418 U.S. Reports 1 (2022). Kennedy v. Bremerton School District. This document can be found in HeinOnline’s U.S. Supreme Court Library.
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