In this episode, a panel of libertarian and conservative scholars—J. Joel Alicea of the Catholic University of America Columbus School of Law, Anastasia Boden of the Cato Institute, and Sherif Girgis of Notre Dame Law School—conduct an in-depth comparative look at the different strands of originalism as a constitutional methodology. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was originally streamed live on June 28, 2023.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, Tanaya Tauber and John Guerra. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Tomas Vallejo, Connor Rust, Rosemary Li, and Yara Daraiseh.
Participants
Joel Alicea is an assistant professor of law at Catholic Law and co-director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition. He has also served as a visiting professor at Notre Dame Law School. Alicea is a fellow at the Columbus School of Law’s Center for Religious Liberty and a nonresident fellow at the American Enterprise Institute.
Sherif Girgis is an associate professor of law at Notre Dame Law School. He is coauthor of What Is Marriage? (2012) and Debating Religious Liberty and Discrimination (2017). Prior to joining Notre Dame, he practiced appellate and complex civil litigation at Jones Day.
Anastasia Boden is the director at the Robert A. Levy Center for Constitution Studies at the CATO Institute. Before joining the Cato Institute, Boden was a civil rights attorney at the Pacific Legal Foundation. She also co‐created the podcast Dissed, which tells the stories behind infamous Supreme Court dissents.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Excerpts from Interview
On defining originalism
J. Joel Alicea: At a very high level of generality you could come up with a definition that the vast majority of originalists would agree to. So it would probably be something to the effect of federal judges should interpret the Constitution in accordance with the meaning that the Constitution had at the time it was ratified. And that any other methods of constitutional adjudication are subordinate to that ultimate endeavor of figuring out what did the constitution mean when it was originally ratified. So that general definition then allows you to dive into some of these disagreements.
You have different ways of categorizing originalists—according to their justifications, according to the object of interpretation, according to how they regard various methodologies that are part of the adjudicatory process, but are subordinate to original meaning—but I think they all broadly agree on the definition that in adjudicating constitutional cases federal judges should apply the meaning of the Constitution as it was understood at the time of ratification.
On justifications for originalism
Anastasia Boden: While originalism cannot eliminate bias, but it seeks to minimize bias, and it gives us a neutral baseline to determine who's doing originalism correctly or who's who's letting their biases show through.
Sherif Girgis: The basic impulse behind it is the sense that to the extent possible—and it isn't always possible because sometimes the sources run out—but to the extent possible, the judge's job is to follow the say so of somebody else.
J. Joel Alicea: The best justification for originalism is that if judges do not adhere to the meaning of the constitutional provision as it was understood at the time that it was ratified, they undermine the authority of the people to govern themselves. And in doing so, they do great harm to the common good, because the common good requires that somebody be the authoritative lawmaker within a society.
Anastasia Boden: I don't think democracy is the guiding principle of our constitution—individual liberty is. And having been a civil rights attorney, I don't look favorably upon deference because I want judges to engage with the Constitution and to strike down laws. The whole point of the judiciary is to be counter-majoritarian.
Sherif Girgis: Our reasons for adopting a written constitution are also reasons for applying the original understanding of it…The main reason to adopt an unwritten constitution is that we face a bunch of crucial choices that we have to make as a community and that we are likely to disagree about if we just make them from moment to moment in some kind of free form way. So it's precisely our expectation of future disagreements about what's morally or politically justified that leads us to tie our hands by a text adopted in the past.
On changes in originalism
Anastasia Boden: I've seen a little bit of a shift in originalism since the Supreme Court's decision last term in Bruen where there is a focus on history and tradition in a way that I don't think conforms to its traditional use within original public meaning originalism That is usually the justices will look at historical practice, sure. But that's only to determine the original public meaning of the words. In Bruen, we saw the court say that a law will only be upheld if there's a historical analog. And I think that's something new and different, and it's showing up in various cases this term.
J. Joel Alicea: I think that the fact that originalists or textualists disagree on whether a text is clear isn't really that probative about whether the text is in fact clear. It could be clear and that one side of that debate is just wrong in its analysis. And originalists bring to bear, textualists bring to bear all sorts of traditional tools of interpretation to try to clarify the meaning of text. Canons of interpretation about how words used in one part of the document are also used in other parts of the document.
Anastasia Boden: All of the justices find textualism and originalism at the very least, to some extent persuasive, and are engaging in it more and more. It's not just a so-called conservative interpretive tool anymore.
Full Transcript
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Additional Resources:
- Moore v. Harper (2023)
- New York State Rifle & Pistol Association Inc. v. Bruen (2023)
- Grutter v. Bollinger (2002)
- District of Columbia v. Heller (2008)
- Bostock v. Clayton County (2020)
- Counterman v. Colorado (2023)
- J. Joel Alicea, “The Moral Authority of Original Meaning,” Notre Dame Law Review (2022)
- Joel Alicea, “Originalism and the Rule of the Dead,” National Affairs (2022)
- Sherif Girgis, “Living Traditionalism,” N.Y.U. L.Rev (2023)
- Sherif Gergis, “Dobb's History and the future of Abortion Laws,” SCOTUSblog (2022)
- Anastasia Boden, “Supreme Court's Sidestep Leaves Native Kids Without Answers,” Volokh Conspiracy (June 2023)
- Anastasia Boden, “Discourse: Irrational Basis,” Pacific Legal Foundation, (August 2022)
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