Originalism—the idea that the meaning of each provision of the United States Constitution becomes fixed at the time of its enactment—in its contemporary form traces back to the advocacy of a few conservative judges, most prominently Antonin Scalia, in the mid-1980s. At the time, it was a rebel yell. The few self-styled originalists were railing against a long line of judicial precedents, particularly a set of Warren Court rulings that they viewed as mere expressions of liberal policy preferences.
Originalism is now well established, and most of the justices on today’s Supreme Court would express some fidelity to the basic concept. Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that “we are all originalists” these days. But the concept’s prominence has not provided the clarity some of its early proponents had hoped it would. In fact, fully conceived, originalism does not foreclose but requires the possibility that the provisions of the Constitution are best interpreted to produce “progressive” outcomes.
How is this? Superficially, originalism seems to call for the application of a term’s meaning, frozen from the time of enactment, to a present-day quandary. But this formulation requires an understanding of what, exactly, that meaning is. What is the original meaning of, say, cruel and unusual? Is it the principle those words captured at the time of their adoption, or is it the set of practices that the historical adopters would have considered to be cruel and unusual?
It is not at all clear that the conservative members of the Court today have taken stock of this elementary distinction between what we can call meaning and applications. Very likely, they, and other proud, card-carrying originalists, would reject it out of hand. They would see in the meaning-application distinction the smuggling in of a “living Constitution” that they have strived to bury.
