Some Misconceptions About Originalism

By Bryan A. Garner

Thursday, May 15, 2025

 

Given the moniker that accompanies this column, I deal more with the English language generally than with legal interpretation. But I did spend the better part of a decade collaborating closely with Justice Antonin Scalia on Reading Law: The Interpretation of Legal Texts, a 608-page textbook on legal interpretation. So let’s flesh out the subject introduced last time: the difference between textualism (an approach to legal interpretation generally) and originalism (a subset of textualism dealing with an important aspect of understanding historical texts). Originalism simply posits that words and provisions in a legal document should be interpreted as they would have been understood at the time of adoption.

 

Both in the popular press and in legal commentary, one constantly encounters misconceptions about originalism — misconceptions that need to be dispelled. The views here expressed are those I developed with my late co-author in our collaborative work.

 

1.     The false notion that originalism is new.

 

Some observers confuse the concept of originalism with the word originalism — fallaciously concluding that the concept, like the word, dates from the 1980s. Professor Garrett Epps, for example, writes in The Atlantic that originalism was born “in 1985 [when] Ronald Reagan’s attorney general at the time, Edwin Meese, elevated originalism to a legal and political movement.” It’s true that the word originalism didn’t come around until the 1980s, but that’s akin to saying that natural turf didn’t exist until the 1920s.

 

Both terms are “retronyms,” devised to denote what used to be an entire genus but has since become merely one species of the genus. Natural turf wasn’t needed until the invention of artificial turf in the late 1920s, and originalism wasn’t needed until “dynamic interpretation” and “living constitutionalism” emerged, inviting judges to update texts through newfangled readings instead of applying the text as written and traditionally understood.

 

The idea behind originalism is as old as interpretation itself. In fact, the earliest statute on legal interpretation, from Scotland in 1427, made it a crime punishable at the king’s will to “interpreit . . . statutes wrangeouslie” or “utherwaies than the statute beares, and to the intent and effect, that they were maid for, and as the maker of them understoode.”

 

2.     The false notion that originalism isn’t what the authors of the Constitution intended.

 

Those who dislike originalism sometimes say that the Constitution itself doesn’t specify that its provisions are to be understood as they were at the time of the Founding. That’s true. Nor do Shakespeare’s plays come with an admonition to read them through the lens of Elizabethan English. How odd if they did!

 

Fortunately, some 18th- and early 19th-century legal theorists did think to state what is essentially a truism. The influential Emmerich de Vattel, the Swiss author of The Law of Nations (1758), a book that greatly influenced the Founding Fathers, wrote: “Languages vary incessantly, and the signification and force of words change with time. When an antient act is to be interpreted, we should then know the common use of the terms at the time when it was written.”

 

William Blackstone, in his Commentaries on the Laws of England (1765–1768), wrote to the same effect. So did Justice James Iredell, Chief Justice John Marshall, and James Madison. Madison wrote that if “the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for . . . a faithful exercise of its powers.”

 

3.     The false notion that originalism is exclusively about constitutional interpretation, not other types of legal documents.

 

Those who denigrate originalism tend to equate it exclusively with constitutional interpretation. For example, Justice Stephen Breyer recently published a book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, that amounts to a response to our Reading Law. Breyer confuses originalism by suggesting that it’s unique to constitutional interpretation. This assertion ignores the idea that the language of all texts must be understood according to what it meant when it was written.

 

As we’ve already seen, historical understanding has always been thought to apply to statutes as well as to the Constitution. That’s why the Court frequently refers to the meaning that statutes had at the time of their enactment. In Helvering v. Janney (1940), Chief Justice Charles Evans Hughes referred to “the meaning of the provision of the Revenue Act of 1934 when it was enacted,” adding that this meaning “was subject to change only by Congress.”

 

The idea has been variously phrased. In Perrin v. U.S. (1979), Chief Justice Warren Burger wrote: “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.”

 

That’s originalism, plain and simple. It also applies to contracts, wills, and other documents from generations ago.

 

4.     The false notion that a historical text like the Constitution can’t be meaningfully applied to modern-day life.

 

Polemicists seeking to diminish the importance of the Constitution like to say that it’s an 18th-century document written by dead white men (they were geniuses, by the way) who had never heard of nuclear weapons or the internet. They ignore that it’s a foundational document setting forth some broad requirements for our polity — not least of which is the all-important separation of powers, as crucial today as it ever was.

 

The Constitution’s wide-ranging phrases such as unreasonable searches and seizures and cruel and unusual punishments can be and have been applied to technology unknown when the operative words took effect. The federal courts apply these types of phrases every day to things previously unknown. There’s nothing extraordinary about that.

 

5.     The false notion that the Constitution should be “living” (that is, changing year by year).

 

The basic idea has always been that a legal text should have a stable, enduring meaning — not a meaning that morphs unpredictably through time. Daniel Webster, the greatest American lawyer of the 19th century, said that “we must take the meaning of the Constitution as it has been solemnly fixed.” That was not just the prevalent notion in his day, but the only notion of which any contemporaneous trace can be found.

 

This idea has been seriously undermined over time. Destabilizers like the theorist Hans-Georg Gadamer did what they could to chip away at tradition. In 1960, he wrote: “A law does not exist in order to be understood historically,” but instead “if it is to be understood properly — i.e., according to the claim it makes — it must be understood at every moment, in every concrete situation, in a new and different way.” What fun.

 

That view aligns with Justice Breyer’s “pragmatism.” Seeing legal texts as relatively fluid and pliable, the pragmatic judge maintains an unstructured interpretive philosophy, relying on desirable consequences, values, abstract purpose, and ultimately (Breyer’s words) “judicial instinct.” That, in the end, is how new constitutional rights can be found in a text where no hint of them exists. And as we’ll see next time, it can lead to distortions on both the left and the right.