The Fallacy of Originalism

November 29, 2021 Updated: November 30, 2021


On Nov. 3, the Supreme Court of the United States (SCOTUS) heard an important gun rights case—its most important such case in decades—and its ruling is now eagerly awaited by all sides. At issue is the meaning of the clear language of the Second Amendment, which insists that “the right of the people to keep and bear Arms shall not be infringed.”

My objective is to use this case to examine, not so much the issue of gun rights, but rather the philosophy of original intent jurisprudence that has governed the Republican and conservative approach to the courts for nearly half a century.

The case of New York State Rifle and Pistol Association Inc. v. Bruen involves a New York state law that requires anyone who wants a gun license to show “proper cause.” According to the SCOTUS blog, courts have typically required “applicants to show a special need to defend themselves, rather than a generic intention to protect themselves and their property.” Other Democratically controlled states have similar laws.

Two New Yorkers claim that since they have a constitutional right to bear arms, they shouldn’t have to show cause for why they need to have arms any more than they should have to show cause for why they’re exercising their free speech or practicing their religion. Rights, in other words, don’t require government approval in order to be exercised by citizens in a free society.

This alone would seem to settle the issue. The language of the Constitution couldn’t be more clear. “Shall not be infringed” can hardly mean “shall not be infringed unless the authorities decide you have no good reason to carry a firearm.” Even so, the liberal justices on the Supreme Court—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appealed to the history and context of the Second Amendment to suggest precisely such an interpretation.

Sotomayor appealed to English common law to suggest that while ownership of guns was generally permitted, there were many restrictions on carrying those guns into public places. Kagan noted that previous Supreme Court rulings, such as the Heller decision, affirmed gun rights while “basically [putting] a stamp of approval” on a variety of gun control measures, such as restricting gun ownership for people convicted of felonies or the mentally ill.

Let’s pay attention to what’s going on here. The progressive justices are using the context surrounding the Second Amendment to undermine the clear language of the text. Now, the conservative justices didn’t seem to be persuaded. Justice Brett Kavanaugh suggested that the constitutionality of the New York law could easily be resolved simply by consulting the clear language of the text, without having to go much further.

“We start [the analysis] with the text, which … grants a right to carry, and then historical practice can justify certain kinds of regulations, but the baseline is always the right established in the text,” he said.

Kavanaugh’s judicial philosophy, at least as articulated here, can be called textualism, in that it establishes the primacy of what’s written in the Constitution itself. But for several decades now, conservatives and Republicans have sworn to appoint justices committed to originalism, the philosophy that the meaning of a text is established through unearthing the original intentions of the framers who wrote that text. Judge Robert Bork’s classic work, “The Tempting of America,” articulated and ably defended the originalist approach more than 30 years ago.

Yet clearly, the progressive justices were trying to use originalism against the Republican appointees. In a sense, they were saying, “You right-wing justices aren’t being true to your own philosophy.” And this is precisely the critique made of the conservative wing of the court in a recent article in Slate by Saul Cornell. The title conveys the message, “The Supreme Court’s Latest Gun Case Made a Mockery of Originalism.”

Cornell argues that conservative justices typically wax lyrical about the history, context, and tradition of a constitutional provision, unless, as in this case, the history, context, and tradition cut against them. Then, they simply forget about originalism and take refuge in the simple language of the Second Amendment. What happened to a subtle investigation of the underlying framework of the constitutional provision, let alone of the intentions and motivations of those who drafted it, Cornell asked.

I believe Cornell has a point, and it’s one that persuades conservatives like me that we’ve made too much of a religion out of originalism. Sure, I believe that in some cases a constitutional provision is ambiguous and in some circumstances it’s helpful to review the surrounding milieu—for instance, the debates preceding the ratification of the Constitution—to illuminate what the framers might have been getting at. In general, however, I think Republicans and conservatives should stop worshiping at the altar of originalism.

Why? Partly it’s because originalism in its strongest or starkest form makes no sense. What’s the “original” meaning of “Hamlet”?  Or the Bible? Do these meanings reside in the original intentions of the authors of these texts? Let’s say that we could somehow figure out what Shakespeare was thinking when he wrote “Hamlet”—what his original objectives were. How would those, even if available, alter the meaning of the play? Or let’s say that we had a window into the minds of the Hebrew writers of the Old Testament. What relevance would their varied motivations have in the way that we read and understand the books of Jewish and Christian scriptures?

I submit that these original intentions, even if available, would make virtually no difference. The meaning of the text is contained in the text itself. The appeal to originalism as some sort of lamp that illuminates a text is based on a confusion between the source of an authoritative text and the content of that text. If the source differs from the content—if, for instance, the framers of the Second Amendment intended all kinds of qualifications to go with the Second Amendment—then why didn’t they insert those qualifications into the amendment itself?

A move away from originalism might seem troubling to some, because it can be seen as a rejection or abandonment of “principle.” But a mode of reading a text is hardly a principle. Rather, it’s simply a procedure for discovering the full meaning of a text. As conservatives and Republicans, our principles are the principles of free speech, freedom of conscience, the right to freely assemble, the right to keep the fruits of our labor, the right to self-government, equality of rights under the law, and so on.

These are our true principles—not an attachment to a particular hermeneutic of reading. These are the principles that should guide the way we pick our justices. And if we move from a procedural originalism to a substantive commitment to the principles conservatives actually cherish, we’re more likely to get justices who produce rulings that we’re happy with, rulings that affirm, as opposed to skirt, the clearly articulated provisions of the Second Amendment and the rest of the Constitution.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Dinesh D’Souza is an author, filmmaker, and daily host of the Dinesh D’Souza podcast.