In The Originalism Trap, author Madiba Dennie, formerly of the Brennan Center for Justice, sets out to lay waste to originalism, the dominant method of constitutional interpretation that has captured the Supreme Court of the United States. Boosted by the late Justice Antonin Scalia, its patron saint, originalism, at its most basic, commands judges to divine the “original public meaning” of the Constitution. That is, to interpret the document how the Founding generation, flaws and all, understood it at or near ratification.
Because strains of originalism are responsible for the end of Roe v. Wade and for the current, turbocharged understanding of the Second Amendment right to bear arms—two goals that are in lockstep with Republican policy priorities—one of Dennie’s goals is to expose it as little more than judges acting like unelected legislators toeing the party line. Another goal is to nudge readers away from what could be described as “originalism from the left”—the idea that progressive advocates and scholars should look to the ways of Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, today’s standard-bearers.
In those justices’ vision, text, history, and tradition rule the day, and every manner of law and policy must yield to it. In this reality, could progressive originalism, as it were, be a tool for justice? Could wielding it before the very justices who looked to the founding text to usher in a new era of criminalization for women and doctors be a desirable goal? Should the search for original meaning, which can lead to the separation of immigrant families and other harms, be in the toolbox of an advocate who wishes instead to keep those families together?
Such questions, Dennie might say, answer themselves. “There may be little to nothing for liberals to gain as a matter of law from playing by originalists’ rules,” she writes.
For many liberals, some version of this realization has led to a kind of retreat: rather than pursuing affirmative litigation, they now work to keep things out of the courts if at all possible. The current Founding-era fervor among the justices, the thinking goes, could only set things back, since originalist rulings—on abortion, guns, the death penalty, and so much else—have reliably favored unpopular policy positions that conservatives welcome. One former public defender turned seasoned advocate told me that, at this time, getting issues he cares about in front of the Court is simply a nonstarter: “My job is to keep cases away from the Supreme Court.”
But not everyone is on the same page. Some advocates simply don’t have the luxury of not pursuing every available legal recourse for clients facing the loss of liberty or worse. If that means a long-shot Supreme Court appeal parsing what words meant nearly 250 years ago, they’ll go for it. And they’re not the only ones on the broad progressive spectrum willing to engage with originalism on its own terms. A school of progressive legal thought constitutional scholar Jack Balkin calls “living originalism” maintains that the slaveholding Framers purposely left room in the written Constitution for newfangled protections for civil rights, the environment, and other causes that progressives hold dear. Justice Ketanji Brown Jackson has been known to embrace arguments along these lines, leaving many to wonder if her appointment to the Supreme Court means some version of progressive originalism is here to stay.
Does this mean we all have to become “cafeteria originalists” now, if we don’t wish for our causes to be shut out of the Supreme Court for an entire generation (or more)?
Buried within this concern about the rise of originalism is the decades-old idea that the Supreme Court can be a tool for adopting progressive visions of justice. Aside from critical legal scholars, more mainstream liberals seldom interrogate this belief.
The rationale for this received wisdom—that progress is within reach at the Supreme Court—varies depending on who you talk to. Different people will point to different moments when asked to identify a Supreme Court that, even for all the suffering it has inflicted on ordinary people, has from time to time bent the arc toward justice. For many gay and lesbian Americans, for example, this view was reinforced by the 2015 Obergefell v. Hodges decision in favor of gay marriage. During the Bush years, people revulsed by the War on Terror rallied behind a Supreme Court that curbed some of its excesses. And yet others may point to the line of cases that placed limits on states imposing death or life-without-parole sentences for children.
Further back in time, many progressives look fondly on the Court that Chief Justice Earl Warren led in the 1950s and ’60s—the one that furthered the promise of equal protection for Black Americans, made our nation more representative and democratic, and otherwise extended many of the guarantees of the Bill of Rights to people facing the threat of prosecution and incarceration.
For decarceral advocates in particular, this idealized vision of the Supreme Court as a once-and-future progressive champion requires a very selective act of seeing. The same Warren Court that delivered key civil rights victories, after all, also expanded carceral power in appreciable ways.
By way of arguing that the lower courts are where real change happens these days, legal scholar Amna Akbar expressed no love lost for the rose-colored version of the Supreme Court that gave us Miranda rights, the suppression of lawlessly obtained evidence, and other features of the modern criminal system. “The Warren Court’s anointment of the rights revolution in criminal procedure — extending greater rights to those accused of crime throughout the criminal process — was met with an exponential growth of prisons, police, and jails,” she wrote in n+1 last fall. To Akbar’s observations, we might add Paul Butler’s critique that Gideon v. Wainwright, which gave rise to the modern public defender, plays an outsize role in supplying mass incarceration with the veneer of justice.
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A forthcoming book from legal scholar Rachel Barkow, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, explores in even greater detail how the Supreme Court played a central role in turning the United States into the leading incarcerator in the world.
One Warren-era landmark in Barkow’s sights is Terry v. Ohio (1968), which blessed intrusive street searches and seizures based on mere “reasonable suspicion.” The ruling underwrote stop-and-frisk policing and the mass harassment of Black and otherwise marginalized people in already heavily policed communities. Other cases she targets from later periods include Bordenkircher v. Hayes (1978), which allowed prosecutors to leverage the plea bargaining system to eviscerate the right to a jury trial; Rhodes v. Chapman (1981), which all but gave carte blanche to prisons to ignore deplorable conditions of confinement; Harmelin v. Michigan (1991), under which virtually no prison sentence, no matter how extreme, can ever be found to be unconstitutional; and McCleskey v. Kemp (1987), which shut the door to any attempts at challenging the systemic racism that pervades the criminal system.
If so many non-originalist Supreme Court rulings set the stage for mass incarceration, or at least let it flourish, why aren’t advocates doing more to bring them to the present Court’s attention?
Barkow includes near the top of her hit list United States v. Salerno (1987), which set up “dangerousness” as a valid justification for pretrial detention. That case, which no one has truly challenged in nearly forty years, is “a hundred percent not permitted under any originalist view of the Constitution,” she said. As Barkow observes, Salerno and the other rulings in her survey have little to do with the text of the Constitution, and more to do with the justices’ feelings and policy preferences around crime and punishment at the time they were decided. (In 1968, the year Terry came down, the Supreme Court had more than enough reason to fret about the social unrest burning in its own backyard and elsewhere.)
As Barkow sees it, such cases are ripe for being revisited by today’s Supreme Court, and advocates can and should be thinking about how to present them in a way that is persuasive to its originalist justices. “I don’t think the Supreme Court is a lost cause,” she told me, adding, “Liberals need a long-term strategy for some of these cases, and it should start now.”
Federal public defenders are among those thinking most seriously about how to craft arguments suited to the Supreme Court we have now. In the wake of New York State Rifle & Pistol Association v. Bruen, which in 2022 ruled that judges must in effect use originalism to assess firearm restrictions under the Second Amendment, federal defenders have been at the forefront of challenging a broad array of criminal prohibitions on gun possession. And they’ve been doing so by arguing, like Bruen itself, that gun laws must be “consistent with this Nation’s historical tradition of firearm regulation.”
“Many of us are digging up our notes from AP U.S. History and college courses on the Founding,” Adeel Bashir, a longtime assistant federal public defender and current attorney with the Sentencing Resource Counsel, told me. “That’s because, on top of being textualists, we’re all originalists now, too. We have to be able to frame issues in the best light for our clients.”
To be clear, Bruen at its core is not a decarceral ruling; it’s agnostic on the problem of mass criminalization and incarceration. Nonetheless the potential decarceral impact is significant, if public defenders can argue in a way that courts find persuasive under Bruen’s new guidance. According to the U.S. Sentencing Commission, one of these prohibitions alone—for people previously convicted of felony offenses—resulted in more than 7,000 new convictions in fiscal year 2023.
Bashir’s team at the Sentencing Resource Counsel supports federal and community defenders across the country with training, and also liaises with policymakers on sentencing issues. The team’s members have been kept busy assisting defenders as they navigate the chaotic, uncharted post-Bruen waters. Together with experts and scholars, they’ve been marshaling the historical evidence to challenge prohibitions routinely invoked by federal prosecutors, including the so-called felon-in-possession ban.
Their results have been mixed at best—with many judges across the spectrum rejecting their efforts, and others throwing up their arms in frustration at Bruen’s unworkable standard.
U.S. District Judge Carlton Reeves, who chairs the federal commission overseeing sentencing policy, has emerged as one of the harshest critics not only of Bruen, but of originalism writ large. And he has done so while siding with defenders. In a lengthy order granting a motion to dismiss an indictment charging a person with violating the felon-in-possession ban, one of Reeves’s central critiques was that adhering too closely to history and tradition could well constrain broader visions of justice and freedom in other cases. “The next generation will have its own conceptions of liberty,” Reeves wrote last year. “It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.”
Reeves is not alone. There is no shortage of historians and commentators who remain skeptical, if not altogether wary, that the justices can be trusted to apply originalism evenhandedly. Or in a way that won’t have negative downstream consequences for other people and communities, even if the ruling appears to offer an in-the-moment win.
The federal ban on undocumented noncitizens possessing firearms offers a real-life illustration of the perils. The cases pose definitional problems: Are noncitizens part of “the people” the Second Amendment grants the right to bear arms? Federal defenders think so and are actively pursuing this argument in court. But others, myself included, aren’t so sure the Supreme Court is principled enough to answer the question correctly, given its own record of antipathy toward immigrants’ claims for relief and our nation’s history of odious mistreatment, and disarmament, of disadvantaged groups. And a bad ruling has the potential to make an already tenuous situation even worse.
Ahilan Arulanantham, a longtime immigrants’ rights advocate, told me that “the people” appears in other parts of the Constitution—such as the First and Fourth Amendments—and a pronouncement that undocumented noncitizens somehow aren’t covered by the phrase could erode their already weakened rights in those areas. Indeed, a few years ago, while documenting the limited speech rights of noncitizens and immigrants’ rights advocates, I learned of so many undocumented advocates and organizers whom the government had detained, retaliated against, surveilled, and placed in deportation proceedings solely on account of who they were or their work. “Legal protections against such conduct are already limited, but a ruling diminishing them even further would enhance the government’s repressive power in that context,” Arulanantham said in an email.
This danger is not academic. Over the summer, the U.S. Court of Appeals for the Fifth Circuit, by far the most Republican-friendly in the nation, delved into this very issue by skirting Bruen altogether and doing its own thing: relying on its own past precedent, it decreed that undocumented noncitizens “are not members of the political community” entitled to Second Amendment protections. So, sooner or later, the Supreme Court can once again be expected to have the last word.
During this post-Bruen turn to history and tradition, judges are often encountering the novel complication of having to rule not only on the cases before them, but on history and tradition themselves. Should judges scour the Founding era for historical analogues, or look to Reconstruction—our second founding, to borrow from historian Eric Foner—which recalibrated our constitutional order and expanded our conception of citizenship? That this history itself remains a site of contestation, even among professional historians, is a fact originalists rarely will admit. The complex historical debates that courts must now adjudicate might feel quite remote had Bruen not made the stakes so high.
In a scathing assessment of the Supreme Court’s new methodology in gun cases, Pratheepan Gulasekaram, a leading scholar of the Second Amendment rights of noncitizens, observed that enslaved people, Native Americans, and other racialized peoples were seen as de facto dangerous and were subject to disarmament. Yet other regulations from the same period also allowed for the disarmament of British loyalists and religious groups that refused to take an oath to the new republic. “This is one of the problems with using a purely historical approach,” Brooklyn Law School professor William Araiza told Law360, which surveyed the state of the law in this area earlier this year. “There’s a lot of historically grounded distinctions that the law drew that today we would completely reject as racist or sexist or religiously biased.”
Judge Reeves, once again, has taken notice of these critiques. Granting another motion to dismiss an indictment shortly after the Supreme Court attempted (unsuccessfully) to clarify Bruen this summer, he chastised the government for failing to demonstrate “that immigrant disarmament is a principle consistent with American history and tradition at the founding.” The very idea that immigration status, which wasn’t a thing when the Constitution was adopted, could be a litmus test of some kind was “laughable” to him. “The land was forcibly appropriated from Native Americans by immigrants, and early American society encouraged more immigration so it could settle that land,” the judge explained.
This very deference to the original meaning of the founding text, or the era around its enactment, has opened the door to challenges advocates could not have foreseen. In July, two judges on the Tenth Circuit all but invited advocates to challenge the petty-offense exception to the Sixth Amendment—which, as Andrea Roth and J.D. King have pointed out, grants people a right to a jury trial in “all” prosecutions, not just those arbitrarily called felonies. The only thing standing in the way of such a challenge is precedent. And respect for precedent, as some advocates like to remind themselves, thanks to language in Dobbs, “is not an inexorable command.” (A longtime defender told me that he’s aware of colleagues who have the phrase taped to their work computers.)
And in areas where neither originalism nor any other sensible mode of constitutional interpretation guided the justices’ work in decades past, as in those cases Barkow has identified, the sky may well be the limit. “I think there’s space for advocates to push the court, and I think they should,” Barkow said.
Yet as Dennie reminds us, maybe originalism isn’t the lodestar, and people should be careful not to turn the clock back on constitutional meaning if the goal is to look forward to a truly free and democratic society that works for everyone: “Both laypeople and lawpeople should refuse to accept originalism as a legitimate means of interpreting the Constitution, and instead interpret the Constitution in alignment with democratic values.”
Image: Molly Hutson/Unsplash/Inquest
