We Are All Originalists Now, Sort of

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We Are All Originalists Now, Sort of
AP Photo/Susan Walsh
We Are All Originalists Now, Sort of
AP Photo/Susan Walsh
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During her 2010 Supreme Court confirmation hearings, Elena Kagan, fresh off a stint as Barack Obama’s solicitor general, created a minor stir in legal circles by stating, “We are all originalists.” While clearly an exaggeration, this statement spoke to a subtle but increasingly apparent truth: Since the 1980s, constitutional text and history have become ever more central to Supreme Court jurisprudence. 

We are witnessing a quiet judicial revolution. Slowly but surely, and often in fits and starts, judges across the country are paying more and more attention to what the Constitution meant when it was ratified. If you know where to look, the trend is unmistakable.

Take, for instance, the Supreme Court’s June decision in American Legion v. American Humanist Association. The case asks whether a 40-foot-tall cross-shaped war memorial in Prince George’s County, Md., violates the First Amendment’s command that “Congress shall make no law respecting an establishment of religion.” Ultimately, the court ruled 7-2 that the cross does not violate the First Amendment.

At first glance, the opinions handed down look much like the high court’s other Establishment Clause cases from the past half-century. With no justice capable of assembling a majority coalition, this case has nearly as many separate opinions as the court has members. It appeared that, once again, the court succeeded only in further muddying the waters with competing tests and conflicting theories, with none gaining a majority. 

Or maybe not. Hidden underneath a pile of concurring and dissenting opinions, a careful observer might detect the outlines of a consensus. For all its seeming divisiveness, a clear majority of the court now endorses something akin to what Justice Brett Kavanaugh referred to as a “history and tradition” test, wherein the historical context of the challenged government action, and how it fits into the tradition of religious liberty in America, takes center stage. 

Kagan and Stephen Breyer, generally considered members of the court’s left wing, at least tepidly acknowledge the importance of tradition and historical context in analyzing challenges made to government action under the Establishment Clause. Both justices joined the majority in the Prince George’s cross case, remarking in the process that they agree that courts should “look to history for guidance” in these types of cases, while writing separately to express concern about Samuel Alito’s meticulous originalist approach.

While significant disagreements remain among the justices, history and tradition are now central to the discussion in a way that would have been unthinkable only 20 years ago.

Much of this generational shift can be attributed to Antonin Scalia who, upon his elevation to the Supreme Court, quickly made his mark on the nation’s legal discourse. Previously a legal theory that had all but been abandoned by judges and legal thinkers seeking to “modernize” and “rationalize” the law, originalism was brought into the mainstream by Scalia’s famously readable and bombastic writing style. 

At the same time, organizations like the Federalist Society have been pushing the theory from the ground up through law schools and lower courts. Eventually, the passion of these individuals and organizations, bolstered by the clarity of the originalist argument, made it impossible to ignore.

This “history and tradition” approach represents a clear departure from the era of complicated and subjective tests concerning government “endorsement” of or “entanglement” in religion, which have no basis in constitutional text or history, but which were long in vogue on the Supreme Court bench. It’s a welcome development. Justices who are forced to ground their decisions in text, history, and tradition tend to find it much more difficult to read their personal preferences into the Constitution, whatever they may be.

That does not mean that the justices all share the same level of devotion to the originalist ideal. Clarence Thomas’s calls to return to pre-New Deal limits on the government’s regulatory powers, for example, are unlikely to gain majority support anytime soon. Meanwhile, lower courts will argue intensely about how to apply the court’s fractured opinion. But we are moving in the right direction. 

Maybe Justice Kagan was right: We are all originalists now -- most of us, anyway. 

David McDonald is an attorney with Mountain States Legal Foundation and author of an amicus brief filed with the Supreme Court in American Legion v. American Humanist Association.



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