Original Intent vs. Textualism: How Judges Read the Constitution

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The U.S. Constitution isn’t always clear. Written over 230 years ago, its language requires interpretation to apply to today’s issues. This necessity has created different philosophies on how to understand the Constitution. Two of the most significant are Original Intent and Textualism.

These aren’t just academic theories. They profoundly influence how judges, especially Supreme Court Justices, decide cases that shape our laws and rights. The method used to interpret the Constitution can be as important as the words on the page.

What is Original Intent?

Original Intent is a judicial philosophy that says the Constitution should be interpreted according to the intentions of those who wrote and ratified it at the time of its creation.

Core Concept

At its heart, Original Intent believes the Constitution’s meaning was fixed when it was created and doesn’t change with evolving societal values unless formally amended through the process outlined in Article V.

Within this approach, there are important variations:

• Framers’ Intent focuses on what individuals like James Madison or Alexander Hamilton specifically meant to achieve through the constitutional text
• Original Public Meaning (New Originalism) looks at how the constitutional text would have been understood by a well-informed member of the public at the time it was ratified

The evolution from focusing on “Framers’ Intent” to “Original Public Meaning” was significant. Early originalism concentrated on the subjective intentions of the Constitution’s drafters, but this approach faced criticism. How can we determine a unified “intent” from a diverse group with sometimes conflicting views? And why should the unexpressed intentions of people from over two centuries ago bind contemporary society?

“Original Public Meaning” emerged as a response, shifting focus from what the Framers privately thought to what the words they chose meant to the public. This approach uses historical evidence like period dictionaries, contemporary writings, and debate records to establish an “objective” meaning.

Historical Roots

While the formal theory gained prominence later, early Supreme Court decisions occasionally referenced the Framers’ intentions. In Hylton v. United States (1796), the Court noted “it was obviously the intention of the framers of the Constitution, that Congress should possess full power over every species of taxable property, except exports.”

The landmark case of Marbury v. Madison (1803), which established judicial review, is also cited as a point where discerning the Constitution’s meaning as understood by its creators gained early traction.

Originalism experienced a significant resurgence in the latter half of the 20th century, often as a conservative response to what proponents viewed as judicial activism by the Supreme Court under Chief Justice Earl Warren.

Key Figures

• Robert Bork: A leading intellectual force behind originalism’s revival, Bork argued judges must adhere to the Framers’ intentions to avoid imposing their own values on the law. His book, “The Tempting of America,” remains significant in originalist thought.
• Edwin Meese III: As Attorney General under Reagan, Meese actively championed original intent as the correct interpretation method, bringing the theory into national legal and political discourse.
• The Federalist Society: Founded in 1982, this influential American legal organization advocates for originalist interpretation and has played a substantial role in shaping legal debate, academic discourse, and judicial appointments.

The rise of originalism wasn’t just an academic debate; it was a significant political and ideological movement challenging what its advocates saw as “living constitutionalism”—the view that the Constitution’s meaning should evolve with societal changes. The Warren Court (1953-1969) delivered numerous landmark rulings expanding civil rights and liberties, such as Brown v. Board of Education (1954) and Miranda v. Arizona (1966), often relying on interpretations reflecting evolving values.

These decisions were criticized by some as “judicial activism,” where judges were seen as creating new law rather than interpreting existing law. Originalism offered a counter-philosophy arguing judges must be bound by the Constitution’s original understanding.

How Originalists Find Meaning

Originalists draw upon various historical sources to discern the Constitution’s original intent or meaning:

• The Constitutional text itself as the foundation
• Framers’ writings and debates (like Madison’s detailed Constitutional Convention notes)
• The Federalist Papers: 85 essays written by Madison, Hamilton, and Jay to persuade New Yorkers to ratify the Constitution
• Ratifying convention debates from individual states
• Dictionaries from that era to understand contemporary definitions
• Early Congressional actions and statutes
• English common law precedents (like Blackstone’s Commentaries)
• Structural reasoning about the Constitution’s overall design

The choice of evidence can significantly influence the outcome. Should Madison’s personal notes carry more weight than the public debates in state ratifying conventions? Different originalists might legitimately prioritize different sources.

Moreover, the interpretation of historical documents isn’t always straightforward. Critics sometimes accuse originalists of “law office history”—selectively using evidence to support predetermined conclusions rather than conducting neutral historical inquiry.

Arguments For Original Intent

Proponents offer several reasons for adhering to the Constitution’s original meaning:

• Limits Judicial Power: By binding judges to historical meaning, originalism prevents them from imposing personal policy preferences or political ideologies. It ensures they interpret law as created, rather than making new law.
• Democratic Legitimacy: The Constitution derives authority from ratification by “We the People.” Adhering to original understanding respects the democratic will that enacted it and the terms people agreed to be governed by.
• Stability: A fixed, stable meaning promotes predictable law. If the Constitution’s meaning changed with every new set of judges or societal trend, law would become uncertain and arbitrary.
• Preserves Constitutional Bargain: The Constitution represents carefully crafted compromises and principles agreed upon during creation and ratification. Originalism upholds this original bargain.
• Proper Change Process: If the Constitution needs updating for changing times or values, the amendment process in Article V is the appropriate mechanism. Judicial reinterpretation usurps this democratic process.

The democratic legitimacy argument faces a significant challenge when considering who constituted “the people” during ratification. The political community participating in the drafting and ratification was highly exclusionary. Women, enslaved Africans, Native Americans, and men without sufficient property were largely excluded from formal political processes. Their “understanding” wasn’t generally considered part of the “original public meaning” originalists seek to reconstruct.

Criticisms and Challenges

Despite its appeal to some, originalism faces numerous criticisms:

• Impossible Task: Determining a single “intent” or “meaning” from numerous Framers and Ratifiers with diverse and sometimes conflicting views is exceedingly difficult. Whose intent or understanding should prevail? What if they disagreed or their views weren’t clearly recorded?
• The “Dead Hand” Problem: It ties modern society to the values, beliefs, and social understandings of the 18th century, which may be outdated or ill-suited for addressing modern problems and evolving moral standards.
• Incomplete Records: Historical evidence is often ambiguous, incomplete, or entirely silent on many issues that arise in modern constitutional law. The Framers couldn’t have foreseen issues like the internet, genetic engineering, or modern surveillance technologies.
• Exclusion Problem: The “public” whose understanding originalists seek wasn’t inclusive. Women, enslaved people, Native Americans, and many non-propertied individuals were excluded from the political process, and their understandings aren’t typically considered.
• Translation Issues: Applying 18th-century concepts and understandings directly to complex 21st-century situations can be problematic and may not yield sensible or just results.
• Amateur Historians: Critics suggest judges aren’t trained historians and may selectively interpret or misuse historical evidence to support pre-existing ideological views or desired outcomes.
• Impact on Rights: Strict adherence to original meanings from an era with vastly different social norms and limited understanding of equality may fail to protect minority rights or promote contemporary welfare.

A particularly compelling challenge comes from historical evidence suggesting many Framers themselves didn’t expect their specific views to rigidly control all future interpretations. Historical research indicates many understood the Constitution as embodying broad principles applicable to unforeseen circumstances.

Some influential Framers, like James Madison, expressed reservations about fixing interpretation solely on drafters’ subjective intentions. Furthermore, the Constitution contains broad phrases like “necessary and proper,” “due process of law,” and “equal protection of the laws” that seem to invite ongoing interpretation rather than being confined to a single, fixed meaning.

What is Textualism?

Textualism is a theory of legal interpretation that asserts the primacy of the text itself. When applied to the Constitution, textualists derive meaning primarily from the ordinary meaning of the words as they were commonly understood at the time they were written and ratified.

Core Concept

Textualists focus on the plain language, grammar, and structure of the constitutional text itself. A key characteristic is their general rejection of, or significant skepticism towards, extra-textual sources for determining meaning, particularly the subjective intentions of drafters or legislative history.

For a textualist, the law is what the text says, not what lawmakers might have secretly intended or hoped to achieve. Proponents argue textualism provides a more objective basis for interpretation because it focuses on the discoverable public meaning of the words themselves.

While textualism champions objectivity by concentrating on “the text,” determining “plain meaning” or “ordinary meaning” isn’t without challenges and potential subjectivity. Words can possess multiple dictionary meanings, and grammatical rules can be ambiguous or applied differently. The choice of which historical dictionary to consult or which definition is most appropriate inevitably involves judgment.

As legal scholars acknowledge, language isn’t always perfectly precise, and context is paramount. Critics argue textualists may still inadvertently or consciously import their own assumptions or biases into their reading of the text.

Historical Roots

While focusing on a law’s text has ancient roots in legal interpretation, modern textualism as a defined school gained significant traction in the late 20th century. Similar to originalism, its rise was partly a reaction against interpretive methods that textualists believed gave judges too much leeway, particularly approaches that relied on divining legislative purpose or intent from sources outside the enacted text.

Key Figures

• Justice Antonin Scalia: Undeniably the most influential champion of textualism in American jurisprudence. Through his many Supreme Court opinions, articles, and his book “Reading Law: The Interpretation of Legal Texts,” Scalia tirelessly advocated for textualism, arguing for its objectivity, its role in constraining judicial discretion, and its foundation in democratic accountability.
• Justice Clarence Thomas and Judge Frank Easterbrook: Other notable figures associated with textualism.
• Justice Neil Gorsuch: A more recent significant textualist voice on the Supreme Court.
• The Federalist Society: As with originalism, this organization has been instrumental in promoting textualist ideas within the legal community.

The ascent of textualism, particularly driven by Scalia’s advocacy, marked a significant paradigm shift in accepted interpretation methods. Before this “textualist revolution,” approaches focusing on a law’s overall purpose or intent (often termed “purposivism”) were more prevalent, frequently involving examination of legislative history.

Scalia and fellow textualists mounted a vigorous critique of these methods, arguing that legislative history was often unreliable, selectively cited, and that pursuing a collective “legislative intent” was speculative and prone to judicial manipulation. Textualism offered what proponents viewed as a more constrained, rule-bound, and democratically legitimate alternative by anchoring interpretation in the enacted text—the words actually voted on and passed into law.

This movement had such impact that Justice Elena Kagan’s remark that “we are all textualists now” captures how textualism didn’t just become another option; it fundamentally altered the landscape of legal argument and judicial reasoning.

How Textualists Interpret

Textualists employ specific tools and principles to discern meaning:

• Text Primacy: The actual words of the Constitution are the primary, and for many textualists, the exclusive source of meaning.
• Ordinary Meaning: Constitutional terms are given their common meaning—how a reasonable person would have understood them at the time the provision was adopted and ratified.
• Dictionaries and Grammar: To ascertain ordinary meaning, textualists frequently consult dictionaries from the ratification era and apply established rules of grammar and syntax.
• Contextual Reading: Textualists don’t read words in isolation. They rely on established principles of interpretation, often called canons of construction:
  • Noscitur a sociis (“a word is known by the company it keeps”): The meaning of an ambiguous word can be clarified by surrounding words.
  • Ejusdem generis (“of the same kind”): When specific items are followed by general words, the general words include only items of the same type.
  • Whole Act Rule: Provisions are interpreted within the context of the entire Constitution, striving for internal consistency.
• Rejection of Legislative History: Textualists are typically highly skeptical of using legislative history—such as committee reports, floor debates, or statements by individual legislators—to determine meaning. They argue such materials are often unreliable, not formally enacted into law, and can obscure rather than clarify meaning.

While textualists emphasize “ordinary meaning” as understood by the public at ratification, their method often includes specific linguistic canons that represent sophisticated principles of legal analysis. These tools are employed to achieve precise understanding, but their application can be quite technical and may not always align with how an “ordinary” citizen would intuitively read a passage.

This creates a potential tension: the claim to rely on commonly understood language can seem at odds with a methodology that frequently involves complex, lawyerly rules of interpretation.

Arguments For Textualism

Proponents advance several key arguments in its favor:

• Objectivity and Predictability: Textualism is argued to be more objective because it focuses on publicly available and enacted text, rather than attempting to discern subjective intentions or broad “purpose.” This focus is believed to lead to more stable and predictable judicial decisions.
• Democratic Accountability: In a democracy, the law is what the legislature enacts and the executive signs (or what “We the People” ratify in the Constitution’s case). Judges should enforce the law as written, holding elected branches accountable for their precise words. Looking beyond the text to unstated intentions is seen as undermining this democratic process.
• Judicial Restraint: By tying interpretation to the text, textualism aims to limit judges’ ability to inject their own policy preferences or personal values into decisions. It seeks to ensure judges apply law, not create it.
• Rule of Law: Adherence to the text is seen as fundamental to the rule of law. Laws should be applied as written and publicly accessible, providing clear guidance to citizens and government officials.
• Fair Notice: Citizens and legislators are entitled to rely on the ordinary meaning of chosen words. Textualism upholds this principle by interpreting laws based on how a reasonable person would understand the text, providing “fair notice” of what the law requires or prohibits.

A key aspect of textualism’s appeal is its claim to uphold democratic accountability by focusing on enacted text as the embodiment of democratic will. However, the legislative process itself often involves intense negotiation and compromise. Ambiguous language might be intentionally employed to secure agreement among conflicting interests or allow future flexibility.

If the text itself is a product of such compromises and contains deliberate ambiguities, then the assertion that its “plain meaning” perfectly reflects a unified “democratic will” might be oversimplified. Critics argue that understanding these compromises—sometimes illuminated by legislative history, which textualists generally eschew—is necessary to grasp the full dimension of the democratic output.

Criticisms and Challenges

Textualism faces significant criticisms and challenges:

• Language Ambiguity: A fundamental challenge is that language itself is often ambiguous. Words can have multiple meanings, and what appears “plain” to one interpreter may not be to another. Context is crucial, but even the relevant context can be debated.
• Rigid Interpretations: Critics argue that an inflexible application of textualism can lead to absurd, unjust, or unintended results if it ignores a law’s broader purpose or the practical consequences of a particular interpretation. Even Justice Scalia cautioned against “hyperliteralism,” stating a text “should be construed reasonably, to contain all that it fairly means.”
• Ignoring Purpose: By strictly limiting or rejecting consideration of legislative history, framers’ intent, or overarching purposes of constitutional provisions, textualism might miss the actual problem Congress was trying to solve or the fundamental principles a clause was meant to embody.
• New Developments: A rigid focus on the meaning of words at ratification can make it challenging to apply constitutional principles to new technologies, societal changes, or scenarios the Framers couldn’t have envisioned.
• Hidden Subjectivity: Some critics contend that selecting which historical dictionaries to use or which grammatical rules to apply can still be influenced by a judge’s predispositions, reintroducing subjectivity.
• Complexity in Practice: Despite claims of simplicity, applying textualism, with its array of linguistic canons and detailed textual analysis, can be highly complex. This complexity can lead to significant disagreements even among textualist judges.

Textualism’s characteristic rejection of legislative history, while intended to prevent reliance on what textualists view as unreliable sources, can sometimes lead to an incomplete understanding of context. Legislative history, though not part of formally enacted law, can provide valuable insights into the specific problem a law was designed to address, the debated meanings of particular terms, or the compromises essential to its passage.

By systematically excluding such contextual information, textualists risk interpreting words in a vacuum. This can potentially lead to outcomes that the enacting legislature or constitutional framers didn’t foresee or intend for certain applications.

The Supreme Court’s decision in Garland v. Cargill (2024), concerning whether bump stocks qualify as machineguns, illustrates this tension: the textualist majority focused on the mechanics of the trigger function, while the dissent emphasized the broader purpose of regulating rapid-fire weapons.

How They Compare

Understanding the nuances between Original Intent and Textualism is crucial, as they represent distinct, though sometimes overlapping, approaches to deciphering the Constitution.

Core Distinctions

The primary distinction lies in their central focus and the types of evidence they prioritize:

• Original Intent (specifically “Framers’ Intent”): This approach seeks to uncover the subjective intentions of the individuals who drafted and ratified the Constitution. The core question is: What did the Framers want to achieve or what specific ideas did they mean to convey with the words they chose? Evidence includes the Framers’ personal writings, Constitutional Convention notes, records of debates, and The Federalist Papers (viewed as expressing the Framers’ rationale).
• Textualism: This approach focuses on the objective meaning of the constitutional text itself, as those words would have been commonly understood by the public at ratification. The emphasis is on what the text actually says and how it would have been popularly received, rather than unexpressed intentions. Key evidence includes the constitutional text, period dictionaries, rules of grammar, and established canons of construction.

As one source clarifies: “Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding.” Further, “Textualism commands adherence to the text…Originalism, in contrast, commands adherence to history” (though this “history” for original public meaning originalists is primarily the history of the text’s public meaning).

Where They Overlap

A significant area of overlap, and a dominant strain in modern conservative jurisprudence, is “Original Public Meaning” originalism. This approach is often, and accurately, described as a form of textualism applied to the Constitution.

Many modern originalists, most famously Justice Scalia, identified as both textualists and originalists. For them, the “original meaning” that originalism seeks is the meaning that the constitutional text conveyed to the public at ratification. This meaning is found in the text itself, understood through historical language, grammar, and context. Textualist methods are precisely the tools used to uncover this original public meaning.

Justice Scalia articulated this connection clearly: “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I am a textualist, I am an originalist. If you are a textualist, you don’t care about the intent… The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated.”

Can a Judge Be Both?

Yes, a judge can be both a textualist and an originalist, especially if “originalism” is defined as seeking the “original public meaning” of the Constitution. In this framework, textualism serves as the methodology for discerning that original public meaning. The focus remains on the text, but it is the text as it would have been understood in its historical linguistic context.

However, a potential conflict arises if “original intent” is interpreted as a quest for the subjective, unexpressed intentions of the drafters, or what they might have privately hoped a provision would achieve, even if that intent isn’t clearly reflected in the enacted words. Pure textualism would reject such an inquiry into unstated legislative or framer psychology as irrelevant and unreliable.

As the Pacific Legal Foundation explains, “If you were to understand originalism as looking at drafters’ original intent, then originalism is not compatible with textualism—because textualism by definition rejects extra-textual considerations like intent. But the original intent version of originalism has mostly fallen out of favor.”

Comparative Analysis Table

The practical difference between “original public meaning” originalism and pure constitutional “textualism” can often appear subtle to a non-expert, as both methodologies rely heavily on the constitutional text and its historical linguistic context. Both approaches would consult period dictionaries, analyze contemporary usage of terms, and consider grammatical norms prevalent at ratification.

The primary divergence becomes clearer when contrasting these text-focused approaches with the older form of “original intent” originalism, which prioritized the subjective intentions of the Framers—what they privately thought or aimed for, even if those thoughts weren’t explicitly embedded in the text they produced. Textualists, including those who subscribe to original public meaning, explicitly reject this reliance on unexpressed or “secret” intent.

How These Theories Affect You

These theories aren’t confined to academic debate; they have profound real-world consequences for your rights and liberties. The interpretive approach adopted by Supreme Court Justices directly shapes how the Constitution is applied to contemporary issues, influencing the scope of governmental power and the extent of individual rights enjoyed by all Americans.

Landmark Cases

Examining how these theories have been used in Supreme Court cases shows their practical impact:

Marbury v. Madison (1803): Chief Justice John Marshall didn’t explicitly use modern labels of “original intent” or “textualism.” However, his reasoning involved careful interpretation of Article III to determine the Supreme Court’s original jurisdiction. He concluded that the Judiciary Act of 1789, which purported to grant the Court original jurisdiction to issue writs of mandamus, was unconstitutional because it conflicted with Article III.

Marshall famously asserted the supremacy of the Constitution over ordinary legislative acts and the judiciary’s role in interpreting the law: “It is emphatically the province and duty of the Judicial Department to say what the law is.” This can be seen as an early application of textual analysis (of Article III) and structural reasoning (the Constitution’s supremacy).

This landmark case established judicial review—the power of courts to invalidate laws or executive actions that conflict with the Constitution—a cornerstone of American constitutional law.

Hylton v. United States (1796): This early case concerned a federal tax on carriages and whether it constituted a “direct tax” under the Constitution, which would require apportionment among states according to population.

The Supreme Court, in a series of seriatim opinions (individual opinions by each justice), concluded that the carriage tax wasn’t a direct tax. Justice Samuel Chase’s opinion included the statement: “it was obviously the intention of the framers of the Constitution, that Congress should possess full power over every species of taxable property, except exports.” This is one of the earliest explicit judicial references to the “intention of the framers” in interpreting a constitutional provision.

District of Columbia v. Heller (2008): The Supreme Court struck down a District of Columbia law that banned handgun possession in the home and required other firearms to be kept disassembled or trigger-locked. The Court affirmed an individual’s right to possess firearms for traditionally lawful purposes, such as self-defense in the home.

Justice Scalia’s majority opinion is a landmark application of original public meaning textualism. He conducted a detailed analysis of the Second Amendment’s text (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”). He argued that phrases like “the right of the people” and “keep and bear Arms” were understood in the 18th century to refer to an individual right, not one solely connected to militia service.

This textual interpretation was supported by an extensive review of historical sources, including dictionaries, legal commentaries, and practices from the Founding era. The prefatory clause regarding the militia was interpreted as stating a purpose for the right, not a limitation on its scope.

Heller dramatically reshaped Second Amendment jurisprudence, grounding the individual right to bear arms in an explicitly originalist and textualist framework.

Crawford v. Washington (2004): This case concerned the Sixth Amendment’s Confrontation Clause, which guarantees a criminal defendant the right “to be confronted with the witnesses against him.” The Court considered the admissibility of out-of-court statements made by a witness unavailable for trial.

Justice Scalia, writing for the Court, overruled the previous standard which had allowed admission of such statements if they bore “adequate ‘indicia of reliability.'” Instead, Scalia’s opinion rooted the Confrontation Clause in its original meaning, focusing on the historical understanding of the right to confront one’s accusers, particularly regarding “testimonial” statements. The Court looked to English common law and colonial practices to determine that the primary evil the Confrontation Clause sought to prevent was using ex parte examinations as evidence against the accused.

Crawford significantly altered the legal landscape for admitting hearsay evidence in criminal trials, revitalizing the Confrontation Clause based on an originalist understanding of its historical purpose and scope.

Bostock v. Clayton County (2020): The Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of…sex,” extends protection to gay and transgender employees.

Justice Gorsuch, writing for the 6-3 majority, employed a textualist analysis. He focused on the ordinary meaning of “because of sex” at the time Title VII was enacted in 1964. He reasoned that discriminating against an individual for being homosexual or transgender inherently involves taking that individual’s sex into account. For example, if an employer fires a male employee for being attracted to men, but wouldn’t fire a female employee for being attracted to men, sex is a “but-for” cause of the termination.

Dissenting Justices, also claiming to apply textualist and originalist principles, argued that the 1964 Congress didn’t intend “sex” to include sexual orientation or gender identity.

Bostock is a landmark textualist decision with major implications for civil rights law. It also prominently displayed how different judges, ostensibly applying the same textualist methodology, can arrive at sharply conflicting conclusions, underscoring the interpretive choices involved even within this framework.

New York State Rifle & Pistol Association Inc. v. Bruen (2022): The Court invalidated New York’s “proper cause” requirement for obtaining a license to carry a concealed firearm in public, finding it violated the Second and Fourteenth Amendments.

Justice Clarence Thomas, writing for the majority, explicitly mandated a “text, history, and tradition” test for evaluating Second Amendment challenges. This test requires the government to demonstrate that a firearm regulation is consistent with the nation’s historical tradition of firearm regulation. The Court rejected interest-balancing tests that had been used by many lower courts.

Bruen firmly entrenched an originalist methodology, specifically the “text, history, and tradition” framework, as the dominant approach for Second Amendment cases. This decision has had far-reaching implications for gun control laws across the country and signals a strong originalist direction for interpreting this right.

Fischer v. United States (2024) and Garland v. Cargill (2024): In Fischer, the Court narrowed the scope of a federal obstruction of justice statute as applied to conduct related to the January 6th Capitol riot. In Cargill, the Court ruled that a bump stock doesn’t convert a semiautomatic rifle into a “machinegun” as defined by federal law.

Both majority opinions heavily relied on textualist analysis. They focused on the ordinary meaning of the statutory text, its context within the broader statute, and canons of construction, while largely avoiding reliance on legislative history or policy considerations.

In Fischer, Justice Ketanji Brown Jackson’s concurring opinion illustrated how legislative history could be used to confirm a textualist reading. Conversely, Justice Sonia Sotomayor’s dissent in Cargill employed a purposivist approach, emphasizing the broader aim of the law to regulate dangerous weapons. Justice Amy Coney Barrett’s dissent in Fischer showed how textualists can differ on applying interpretive canons to the same text.

These recent cases, while interpreting statutes rather than the Constitution directly, showcase the current Supreme Court’s strong inclination towards textualist methodologies.

The application of originalism and textualism in these significant cases reveals that these interpretive theories aren’t monolithic in their results. Different justices, even those who identify with the same broad philosophical school, can arrive at different conclusions. This divergence often stems from how they weigh specific historical evidence, their interpretation of what constitutes “ordinary meaning” in a particular historical context, or which canons of construction they prioritize when faced with ambiguous text.

For example, Heller and Bruen demonstrate originalism and textualism leading to an expansion of individual gun rights, based on the majority’s reading of historical sources and textual meaning. In contrast, Bostock saw Justice Gorsuch’s textualist majority opinion lead to an expansion of LGBTQ+ rights under Title VII—an outcome that might not align with what some would consider the “original intent” of the 1964 Congress.

These examples highlight that the interpretive process, even when guided by theories aiming for objectivity and constraint, still involves significant judicial judgment. The choice of which historical evidence to emphasize, how to define “ordinary meaning,” or how to resolve conflicts between different interpretive tools can lead to varied outcomes.

Impact on Your Rights

The choice of interpretive theory significantly impacts how constitutional rights are understood and protected:

Free Speech (First Amendment):

• Original Intent: The general understanding is that the Framers intended broad protections for speech, though debates persist regarding original understanding of limitations on specific categories like seditious libel or obscenity. The English common law view, articulated by William Blackstone, that liberty of the press meant no prior restraints (pre-publication censorship) but allowed for punishment after publication for criminal content, was influential at the Founding.
• Textualism: A textualist approach focuses on the direct language: “Congress shall make no law…abridging the freedom of speech, or of the press.” Justice Hugo Black famously advocated for an almost absolutist interpretation of this text, arguing it meant no law whatsoever. However, the Supreme Court has historically recognized certain categories of speech as unprotected (e.g., incitement to violence, defamation). Reconciling a strict textualist reading with these traditional exceptions is complex.

As the First Amendment Encyclopedia notes, “Most scholars believe they [the Framers] were thinking rather broadly, with few restrictions on the rights enumerated [in the First Amendment].” However, another perspective cautions, “Courts should not apply originalism in freedom of expression cases…because the original meaning of the First Amendment is notoriously elusive, it enables judges to select an interpretation that yields their desired outcome.”

Right to Bear Arms (Second Amendment):

• Original Intent/Textualism: As seen in Heller and Bruen, the Supreme Court, under the influence of originalism and textualism, has interpreted the Second Amendment to protect an individual’s right to bear arms for self-defense, separate from militia service. Justice Scalia in Heller focused on the original public meaning of the operative clause “the right of the people to keep and bear Arms,” arguing it connoted an individual right. Justice Thomas in Bruen further solidified this by mandating the “text, history, and tradition” test, requiring that any gun regulation be consistent with historical analogues.

As Bricker Graydon notes, “Justice Scalia found in the Second Amendment not just a collective but an individual right to bear arms—the Supreme Court’s most important pronouncement on one of the most controversial issues of our times.”

Right to Privacy (Unenumerated Right):

• Original Intent: Originalists are generally skeptical of rights not explicitly enumerated in the Constitution’s text. The constitutional right to privacy, which formed the basis for landmark decisions like Griswold v. Connecticut (1965) (right to contraception) and Roe v. Wade (1973) (right to abortion, now overturned), is not expressly mentioned. Figures like Robert Bork were highly critical of the Court’s development of this right, viewing it as judicial invention.
• Textualism: Since “privacy” as a standalone right doesn’t appear in the constitutional text, a strict textualist approach would find it difficult to recognize such a right directly. While some textualists might attempt to ground aspects of privacy in the language of the First, Third, Fourth, Fifth, or Ninth Amendments (which states that the enumeration of specific rights doesn’t mean others retained by the people are denied), a broad, freestanding constitutional right to privacy is challenging to justify under a purely textualist framework.

Textualists “reject the idea of inferring broader implications or considering the legislative intent behind the text,” making the derivation of unenumerated rights particularly difficult.

Rights of Marginalized Groups:

• Originalism: This theory can be particularly problematic for the rights of marginalized groups because the “original meaning” or “original intent” often reflects the societal norms and prejudices of an era when women, racial minorities, and other groups possessed far fewer rights, or weren’t considered full members of the political community. Interpreting rights solely through an 18th or 19th-century lens can perpetuate or fail to address historical injustices.
• Textualism: The impact of textualism on marginalized groups’ rights depends heavily on the specific text being interpreted. As seen in Bostock v. Clayton County, a textualist reading of the statutory term “sex” was found to protect LGBTQ+ individuals from employment discrimination. However, applying textualism to constitutional provisions drafted in earlier, more exclusionary eras may yield different results, especially if combined with an originalist understanding of those terms.

The choice of interpretive theory can disproportionately affect rights not explicitly spelled out in the Constitution (often called “unenumerated rights,” such as privacy) and the rights of groups historically excluded from the political and legal mainstream when the Constitution was framed or key amendments like the Fourteenth were adopted.

Originalism, by its nature of anchoring interpretation to a specific historical point, tends to be more restrictive towards recognizing rights that weren’t clearly understood or intended at that historical moment.

The constitutional right to privacy, as developed in cases like Griswold and Roe, is not explicitly mentioned in the Constitution’s text. Its judicial recognition often relied on interpreting “liberty” interests within the Due Process Clauses or finding “penumbras, formed by emanations” from other specific guarantees in the Bill of Rights—interpretive moves that are generally disfavored by strict originalists and textualists.

The historical periods of the Founding and even the ratification of the Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth) were characterized by widespread, legally sanctioned discrimination and the exclusion of various groups from full citizenship and political participation. Consequently, an interpretive approach strictly limited to the “original understanding” prevalent in those eras might fail to recognize or adequately protect the rights of these groups as understood in contemporary society.

For instance, the original understanding of “equal protection of the laws” at the time the Fourteenth Amendment was ratified did not, in the view of many at the time, prohibit state-mandated racial segregation (as later affirmed in Plessy v. Ferguson (1896) and then rejected in Brown v. Board of Education (1954)).

Federal vs. State Power Balance

These theories also influence the perceived balance of power between the federal government and state governments, a core concept of American federalism:

• Originalism/Textualism and Federalism: These theories are often associated with a view of federalism that emphasizes strict adherence to the doctrine of enumerated powers (the federal government only has those powers explicitly granted in the Constitution) and robust protection of states’ rights, often drawing on the Tenth Amendment (which reserves powers not delegated to the federal government, nor prohibited to the states, to the states respectively, or to the people).

As Fiveable notes, “Different approaches to constitutional interpretation, such as strict constructionism [often linked to originalism/textualism] versus loose constructionism, greatly influence how power is allocated between state and federal governments. For example, strict constructionists may argue for limited federal authority, emphasizing states’ rights.”

Supreme Court cases like Printz v. United States (1997), where the Court limited Congress’s power under the Commerce Clause to “commandeer” state law enforcement officers to conduct background checks for federal gun laws, frequently rely on originalist arguments about the fundamental structure of federalism and the historical understanding of state sovereignty.

• Separation of Powers: These theories also affect the balance among the three branches of the federal government. Originalists and textualists often argue that their approaches ensure each branch stays within its constitutionally prescribed role. For example, textualism’s skepticism of legislative history can be seen as respecting the distinct role of Congress to enact clear textual laws, rather than having courts divine unstated intentions.

While originalism and textualism are frequently associated with outcomes that limit federal power and bolster state sovereignty, the application of these theories doesn’t inherently predetermine a pro-state or pro-federal result. Their impact depends on the specific constitutional provision being interpreted and the nature of the historical evidence or textual meaning found to be controlling.

The Constitution establishes a system of enumerated powers for the federal government, with powers not delegated to it (nor prohibited to the states) reserved to the states or the people, as articulated in the Tenth Amendment. An originalist interpretation of the scope of these enumerated federal powers—such as the Commerce Clause or the Necessary and Proper Clause—would necessitate an inquiry into how those powers were understood at the Founding.

If the historical understanding of a particular federal power was narrower than interpretations adopted in later eras (particularly during and after the New Deal), then an originalist approach would naturally tend to curtail federal authority and shift power towards the states. This tendency is often observed in what is sometimes termed “new federalism” jurisprudence, which seeks to restore earlier conceptions of state sovereignty.

However, the reverse could also be true. If a constitutional provision, when interpreted through an originalist lens, is found to have originally granted broad power to the federal government in a specific area (for instance, certain aspects of foreign policy, national defense, or the power over currency), then an originalist interpretation would affirm that federal authority.

Thus, the impact of originalism and textualism on the federal-state balance is contingent on the specific constitutional text and the conclusions drawn from the historical interpretive exercise, rather than being a uniform outcome predetermined by the theories themselves.

Key Voices in the Debate

The discourse surrounding original intent and textualism has been shaped by influential legal figures and organizations.

Justice Antonin Scalia

The late Justice Antonin Scalia was arguably the most influential modern proponent of both textualism (for statutory interpretation) and original public meaning originalism (for constitutional interpretation). His core arguments centered on the idea that the text of the law is the law, that judges shouldn’t look to legislative intent found outside the enacted text (like committee reports), and that the Constitution’s meaning was fixed at the time it was adopted.

He believed these approaches were essential for constraining judicial discretion and preserving democratic legitimacy. In his view, “the main danger in judicial interpretation of the Constitution…is that the judges will mistake their own predilections for the law. Faithful adherence to the text…or…to the traditional understanding of those who originally adopted it, reduces the danger…”

His book, “Reading Law: The Interpretation of Legal Texts,” co-authored with Bryan Garner, is considered a key manual for textualist interpretation.

Robert Bork

Judge Robert Bork was a highly influential conservative legal scholar and jurist who powerfully advocated for original intent as the guiding principle of constitutional interpretation. In his seminal work, “The Tempting of America,” he argued that the “framers’ intentions…are the sole legitimate premise from which constitutional analysis may proceed.”

Bork believed that adherence to original intent was necessary to prevent judges from imposing their own moral or political views, thereby “tempting” them away from their proper judicial role. His views significantly shaped conservative legal thought, although his nomination to the Supreme Court in 1987 was ultimately rejected by the Senate after a contentious confirmation process that brought these interpretive debates into the public spotlight.

The Federalist Society

Founded in 1982 by law students at Yale University and the University of Chicago, The Federalist Society for Law and Public Policy Studies has become a formidable force in American legal circles. It advocates for an interpretation of the Constitution based on originalism and textualism.

Its core principles include the idea that “the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” The organization hosts debates, publishes scholarship, and has been influential in selecting conservative judicial nominees, thereby playing a significant role in promoting these interpretive methodologies.

Alternative Perspectives

It’s crucial to understand that originalism and textualism are subjects of intense and ongoing debate. Many legal scholars, judges, and organizations offer critiques and alternative approaches:

• Living Constitutionalism: This broad competing theory posits that the Constitution’s meaning can and should evolve to meet contemporary society’s needs.
• American Constitution Society (ACS): Often seen as a progressive counterpart to The Federalist Society, the ACS promotes a vision of the Constitution as a living document and critically engages with originalist and textualist arguments. They explore how the Constitution’s commands can be understood facing challenges the Framers couldn’t have imagined and question the dangers of overly rigid approaches.
• American Civil Liberties Union (ACLU): While not solely focused on interpretive theory, the ACLU frequently litigates cases involving constitutional rights. Their work often highlights how different interpretations impact civil liberties. The ACLU has expressed concerns about originalism, particularly its impact on women’s rights, arguing that “Originalism dictates that present day readings of the Constitution should be dependent on the document’s ‘original public meaning,’…The problem is that only certain people at that time had civil rights at all: white, land-owning men…originalism is being used to threaten the safety of women and bodily autonomy at large.”
• Brennan Center for Justice: This organization offers critical perspectives on originalism, arguing that it “limits the constitutional rights and guarantees that we enjoy today to the views and values of the earliest generations of Americans” and that “Conservative movement lawyers unleashed it on the world in the 1980s as a way of advancing their policy goals under the guise of law.”

The prominence of certain “key voices” and organizations in advocating for or critiquing these interpretive theories underscores an important reality: constitutional interpretation is not merely a detached, neutral academic exercise. It is deeply intertwined with political ideologies and concerted efforts to shape the judiciary and, consequently, legal outcomes in the United States.

Figures like Justice Scalia and Robert Bork, along with organizations such as The Federalist Society, are strongly associated with promoting originalism and textualism. These theories are often, though not exclusively, advanced by individuals and groups with conservative or libertarian political leanings.

Conversely, organizations like the American Constitution Society, the ACLU, and the Brennan Center for Justice, which are generally viewed as progressive, actively critique originalism and textualism, highlighting their potential negative impacts on rights and democratic principles.

The very existence and vigorous engagement of these ideologically aligned groups in the debate over interpretive methods indicate that the choice of theory is widely perceived to have significant political and policy consequences. This is further evidenced by the intense scrutiny of judicial nominees’ interpretive philosophies during confirmation processes.

Therefore, a comprehensive understanding of original intent and textualism requires recognizing their role not just as abstract legal theories but as significant elements in broader ideological and political contests over the Constitution’s meaning and the future direction of American law.

Resources to Learn More

If you’re interested in exploring these concepts further, many reputable resources are available:

Legal Resources

• Cornell Law School’s Legal Information Institute (LII): This site offers clear explanations of a vast range of legal concepts, including constitutional law and summaries of Supreme Court cases.
• Stanford Encyclopedia of Philosophy: For a deeper dive into the philosophical underpinnings of these theories, the SEP provides scholarly articles on topics like constitutionalism, originalism, and legal interpretation.
• Constitution Annotated: Maintained by the Library of Congress and the Congressional Research Service, this website provides detailed essays on each constitutional provision, discussing its historical interpretation by the Supreme Court, including analyses of textualist and original meaning approaches.
• National Constitution Center: This organization offers educational materials, articles, podcasts, and interactive tools designed to explain constitutional topics to a general audience, including discussions on methods of interpretation.

Supreme Court Case Resources

• Oyez: A fantastic multimedia archive of the U.S. Supreme Court. It provides concise case summaries, oral argument audio recordings, and information about justices and decisions, making the Court’s work more accessible.
• SCOTUSblog: This blog offers comprehensive, real-time coverage and analysis of cases before the Supreme Court, written by legal experts in an accessible style.

Constitutional interpretation isn’t just for lawyers and judges. Understanding these approaches helps citizens better comprehend how courts reach decisions that affect their rights and liberties every day.

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