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I think Originalism can be summed up in two propositions. The first is that the words and phrases of the Constitution had a definite meaning at the time they were adopted. The second proposition is that, to the extent that meaning can be discerned today, it is binding upon judges and other governmental actors who apply the Constitution. When words and phrases are not clear on their face we examine the legal, the historical, the linguistic context at the time of
their adoption to discern their meaning.
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Professor Michael D. Ramsey:
To start us off, I’m going to say a few words about what Origi- nalism is in a hopefully neutral way, just to make sure we’re all talking about the same thing.
Professor Eric J. Segall:
I think Mike’s definition of Originalism is fine. I think there are harder core Originalists than Mike who might take issue with the idea of applications of text changing over time, but I’ll get to that in a minute.
At the Supreme Court of the United States, Originalism is nothing more and nothing less than a masquerade for sub- stantive values. There are no Originalist justices on the Su- preme Court of the United States if to be an Originalist you have to at least vote that way, pick a number, seventy percent, eighty percent of the time. Today’s justices almost never vote Originalist.
So first, I’m going to justify that. The First Amendment was originally meant to stop prior restraints and licensing of speech before the fact. This is not debatable. Yet Justices Thomas, Scalia, Kavanaugh, Gorsuch and Barrett, who are all self-identifying Originalists, have used the free speech clause to strike down all kinds of state and federal legislation that the Founding Fathers would never, for one second, have thought were unconstitutional.
Using the Free Exercise Clause of the First Amendment, the Supreme Court has said that if the state wants to as- sist secular schools, secular private schools, just to make kids get a better education, they also must extend the same benefits to religious schools. There is no chance the Founding Fathers, any Founding Father, would have had that idea in their heads about the Free Exercise Clause. Students for Fair Admissions v. Harvard is really the most
So two caveats from that. The first is that in applying Original- ism today, although the original meanings of the words don’t change, the applications of those words may change, may de- velop, as new circumstances arise. So this is why even under an Originalistic approach, the First Amendment applies to the Internet and the Fourth Amendment applies to electronic eavesdropping.
The second caveat, which is more complicated, is that Orig- inalism has a poorly defined relationship with precedent. I think most Originalists would actually agree with me on that. It’s not a criticism; it’s just a fact that for a long period of time, particularly in the late 20th century, a large number of deci- sions were made on Originalist grounds. And Originalism has no settled answer on what to do about precedent.