Originalism or pragmatism? Is there a better way?
Determining the best approach to constitutional interpretation is no easy task.
How many Supreme Court cases are decided 6-3 with Republican and Democratic appointees on opposite sides? Ninety percent? Fifty percent? A quarter of the time? When Sarah Isgur and Dean Jens analyzed the 57 cases decided in 2023 in an article for Politico Magazine, they found five such cases.[1] That’s 8% of the total. Half of the cases that year were unanimous and most (90%) of the majority opinions were supported by one of the three liberal justices. Over 90% of the time, Justices Kavanaugh, Roberts, and Barrett were in the majority. Justices Jackson, Sotomayor, and Kagan were actually more likely to join them than Justices Alito or Thomas, the analysis found. In the non-unanimous cases, the six conservative justices only stayed together 17% of the time while their liberal peers were together only a quarter of the time.
Looking at just the non-unanimous cases, Isgur and Jens noted a pattern; groups of justices tended to vote together: Barrett, Kavanaugh, and Roberts, Jackson, Kagan, and Sotomayor, and Alito, Gorsuch, and Thomas. Their analysis discerned something beyond the left-right ideological spectrum. Alito, Gorsuch, and Thomas are not just more conservative than the other Republican appointed justices; they are also more “consequentialist,” a quality they share with the three liberal justices. Barrett, Kavanaugh, and Roberts, by contrast, are the most “institutionalist” in their jurisprudence. By consequentialist and institutionalist, the authors mean “how much a justice considers questions outside the facts and the law of a specific case in reaching their positions. This might include things like how much weight to give the court’s previous decisions, how easy it will be for lower courts to apply the new rule, or whether to decide a case more narrowly or more broadly.”[2] Thus justices vary in terms of ends—the decisions they make—and means—how they get there.
How a justice goes about reaching his or her conclusions is guided by a philosophy of legal interpretation or jurisprudence. All justices consider the facts of the case, the text of the law, the law’s purpose, precedent, history, various traditions, cannons and doctrines of interpretation, and the possible impact of their decisions, but some approaches give primacy to one or two factors over others particularly when the law in question is ambiguous.
The large percentage of cases unanimously decided each Supreme Court session suggests that the law is clear much of the time. When it is not, differences in jurisprudence become more obvious. There are many approaches to judicial interpretation; Harvard professor Cass Sunstein has identified at least 12 of them.[3] Of these, two stand out: originalism and “living constitution” jurisprudence or pragmatism.
Which is the better approach? Answering that question is not simple. Better at what? Upholding the Constitution? Respecting separation of powers? Producing sound rulings? Better is in the eye of the beholder. Americans on the right are told originalism yields the best possible interpretation and Americans on the left, pragmatism. Judging by the fiery titles of recently published books on the subject, one might think the answer is clear cut. One side is right, the other wrong. The more one wades into these legal philosophies, however, the muddier the answer seems at least to a layman like me.
The fact that justices who consider themselves originalists and those who call themselves pragmatists often join each other’s opinions without penning a concurrence (concurrences can agree with the judgement but offer a different approach) and justices do not often vote as a bloc, suggests that, like consequentialist and institutionalist or left leaning and right leaning, these approaches exist along a continuum and are not strict categories.
Let’s start with originalism. Originalism experienced a revival in the 1980s in part over frustration with far reaching decisions critics believed departed significantly from the text of the Constitution during the Warren Court (1953-1969) and Burger Court (1969-1986). Today originalism influences law schools, legal commentary, and court opinions to the praise of some and the consternation of others.
As the word suggests, originalists believe the meaning of the original law should be the main focus. Some originalists look for “original intent,” that is, what the drafters intended when they wrote the Constitution or law in question. Other originalists—textualists—focus on the “original meaning” of the text as understood by the public at the time it was written. Textualists sometimes criticize original intent jurisprudence because they believe intent is not always discernable and may be manufactured by a judge looking for one.
Discerning the original meaning of the text, however, is no easy task. No originalist ever claimed it was but critics of originalism and especially of textualism, emphasize the difficulty of truly understanding text written decades or centuries ago. Historian Jonathan Gienapp, author of Against Constitutional Originalism: A Historical Critique, is concerned that originalists could project their own modern understanding onto the text. He points out that when Americans think about liberty they often define it in terms of noninterference by authority. Liberty to 18th Century Americans, however, was less about noninterference and more about who was interfering, whether it was a legitimate authority acting with consent or a foreign authority acting without representation.[4] He points out, for example, that colonialists would likely accept restrictions on rights passed by a duly elected council but would have balked at the same coming from Great Britain.
Historian Jack Rakove, author of the 1996 book Original Meanings, believes that a focus on the text alone, devoid of understanding of the concerns and debates that underlay its adoption is insufficient. One must examine not only original meaning and original public understanding but also original intent.[5] One must be immersed in the ratification documents, founders’ notes, and even the writings that influenced the founders such as John Locke, Montesquieu, and William Blackstone. One must know the context, purpose, background, and history to truly understand the meaning of text. This forces justices to be historians, Rakove believes, a task for which they may not have the background.
Indeed, one cannot isolate the meaning of a word or phrase without understanding history, context, and purpose. Words were chosen for a specific reason to accomplish a specific end. One cannot know what the word “right” meant to the founders without a familiarity with Locke and other Enlightenment thinkers. A textualist may start with the text but in discerning its meaning look beyond the words to history and to the purposes the legislator or founder may have had in selecting them. Text and intent are intertwined. Justice Breyer once remarked to his sparring partner Justice Scalia in a debate that the difference between originalism and pragmatism was a difference of degree not kind.[6]
Originalists believe the meaning of the text is not only discernable but can be applied without changing its meaning even after much time has passed. “In their full context, words [of the law/Constitution] mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations,” wrote Justice Antonin Scalia, an avowed textualist.[7] A static reading of the text can adequately be applied to new technologies and circumstances through a deductive process. In his majority opinion in Kyllo v. United States (2001), which struck down the use of thermal imaging to detect criminal behavior in a home (high intensity halide lamps used in the cultivation of marijuana), for example, he reasoned that using technology to see into a home what could not be seen from the outside was comparable to entering a home without a warrant in the 18th Century. The contemporary practice was struck down as unconstitutional under the Fourth Amendment.
While the court can apply old text to modern technology, it must not attempt to update the text to contemporary values and norms, say originalists. That is the job of legislatures or the people through the constitutional amendment process.
For example, in his dissent in Roper v. Simmon (2005), Scalia criticized the court’s use of changing consensus as determined by other state laws and laws in other countries rather than the actual text of the Eighth Amendment as it was understood at the time of adoption. The case concerned a 17 year old sentenced to death for premeditated murder. The 6-3 majority ruled that because of evolving standards of decency, the Eighth Amendment’s prohibition on “cruel and unusual punishment” forbade the execution of minors due to their immaturity and other factors. Since it was not considered cruel and unusual to execute someone at that age at the time of the amendment’s adoption, the minority faulted the majority for imposing their own definition upon the constitution and improperly obstructing the will of the people of Missouri (and similar states) as expressed through their legislature and the judge and jury in the case.
In a 2009 debate with Justice Stephen Breyer, Scalia said that it is easy to assume that the standards of decency will always be evolving for the better but that might not be case.[8] When the court takes it upon itself to update the law to contemporary norms it could bring about less not more humane outcomes. Either way it is not the job of the court to update societal norms. “If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with,” Justice Scalia told NPR in 2008 interview.[9]
Originalists believe that their judicial philosophy reduces the probability that judges will consciously or unconsciously insert their own policy preferences or norms into judgements. Originalists contend that their approach is less likely to enable legislating from the bench and is therefore more faithful to Constitutional separation of powers. Judges apply the law as written and leave to legislators and the people through the Constitutional amendment process the task of updating, correcting, altering, clarifying, reauthorizing, and repealing laws. It is also more democratic, they say, because it focuses on the words of the law as passed by the people’s elected representatives not what judges think they should mean today.
Originalists believe “living constitution” judges read into the Constitution or other laws what they think ought to be there rather than what actually is there. Georgetown Professor of Constitutional Law Randy Barnett accuses living constitution jurisprudence of starting with the desired result and looking to the text, history, practicality, and precedent to build a case justifying the preconceived answer.”[10] He says originalism works the other way around: “First is method, then comes the results.”[11]
Is it that simple? Is the opposite of originalism a kind of judicial free-for-all in which justices, constrained by nothing, loose their will upon the Constitution and other laws? Rightwing pundits regularly make such accusations. Ironically, leftwing pundits lob the same indictment against originalists. Certainly there are judges who consciously manipulate logic to justify a preconceived conclusion, but it would be cynical to conclude they all do and cynically partisan to believe only judges with whom one disagrees do so. No one can read a Supreme Court decision without appreciating the careful reasoning, the earnest attempt to reach a proper conclusion, and respect for the law.
Let’s turn now to pragmatism. In his 2024 book, Reading the Constitution: The Constitution and the Problem of Interpretation, Stephen Breyer, a former Associate Justice of the U.S. Supreme Court, differentiates his process for adjudicating the law, what he calls pragmatism or purpose-based jurisprudence, from originalism this way: “First, purpose-based approaches are often closely entwined with the “common law” mode of judging, which proceeds case by case, often resolving new questions.”[12] Indeed, throughout history lawmaking has never been confined to the text of laws written by rulers and representative bodies; common law, created by judicial rulings, is just as important.
This sort of purpose-based interpretation, Breyer believes, is consistent with the Founder’s desire to a have a flexible constitution that can last through the ages. He quotes James Madison in Federalist 37 that laws are “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”
Indeed, the nuances of a written law are defined through common law as courts and legislatures deliberate. For example, the First Amendment clause “Congress shall make no law…abridging the freedom of speech” evolved to allow regulation of speech (perjury, libel, fraud, obscenity, and copyright infringement) through legislative discussions and court adjudications.
Madison expected this refinement of meaning to take place but he was no “living constitution” advocate. As Adam J. White points out in his Wall Street Journal review of Breyer’s book, Madison also penned these words, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”[13] In another letter he insisted that “the legitimate meaning of the Instrument must be derived from the text itself.”[14]
When interpreting the law, Breyer, like all justices, considers a variety of sources: the text of the law (or Constitution), details of the case at hand, lower court rulings, legal commentary, legal precedents, legislative history, workability, and potential consequences. The original text of the law in question is not his primary focus, however. Breyers writes, “Without ignoring the text, I normally put more weight on the statute’s purposes and the consequences to which a particular interpretation will likely lead.”[15]
He might consider how a hypothetical reasonable legislator would think of the text in light of the statute’s (or Constitutional provision’s) purpose. “By considering purposes, consequences, and values, I place less weight on the co-called plain meaning of the statute or the Constitution than do many of my textualist colleagues. And I do so to arrive at an interpretation that is more faithful to the desire of the Constitution’s Framers to establish a workable framework for long-lasting government.”[16]
For example, when examining two Establishment Clause cases in 2005, Stephens considered not only the purpose of the two religious displays on public property at the center of the cases but also the purpose of the Establishment Clause. In McCreary County v. ACLU of Kentucky, he joined the majority striking down a Ten Commandments display. He believed the display held no educational or secular purpose and merely communicated a religious message.
On the same day, he joined the majority in upholding another Ten Commandments monument case in Van Orden v. Perry. Here, Breyer reasoned that unlike the Kentucky courthouse displays, the Texas monument had educational and social purposes. He also looked to the Founders’ purposes in writing the Establishment Clause; they wanted to prevent the kind of social conflict Europe had experienced in the 16th and 17th Centuries. Although the First Amendment discourages government endorsement of religion, it does not require government be hostile to religious expression even on government grounds, Breyer reasoned. Requiring the removal of the monument might have encouraged other Americans to attempt to remove long-standing monuments. “Such a result would have tended to create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid…In short, the values underlying the Religion Clauses reflect an effort to prevent social hostility based upon religion. In borderline cases [like these] judges can often find a workable way to implement the value over time by referring back to the constitutional provision’s basic purpose…”[17]
Focusing on purpose can produce thoughtful jurisprudence when the text is unclear, Breyer believes. Lawmakers try to be clear but can make drafting errors. When the text departs from the context and purpose of the legislation or causes what appears to be significant unintentional consequences, justices should defer to purpose and rule accordingly.
Ali v Federal Bureau of Prisons (2008) provides one such example. The ruling concerned the Federal Tort Claims Act which gives the federal government sovereign immunity against tort claims when “any officer of customs or excise or any other law enforcement officer is sued” for wrongfully losing a person’s property.[18] The 5-4 majority opinion penned by Justice Thomas determined “The phrase ‘any other law enforcement officer’ suggests a broad meaning” therefore it applied to all law enforcement officers wherever they serve not merely those who work for customs.[19]
Justice Anthony Kennedy chastised the majority for its “wooden reliance” on a single word without consideration of the context, “If Congress had intended to give sweeping immunity to all federal law enforcement officials from liability for the detention of property, it would not have dropped this phrase onto the end of the statutory clause so as to appear there as something of an afterthought.”[20]
When the text is ambiguous or oddly worded, is it better for the court to hang its interpretation on a single word or to rule according to the purpose of the text? Which is more faithful to the law? Which is more deferential to the legislature’s will?
Determining Congress’s purpose is sometimes as difficult as determining original meaning of the text. Congress’s purposes are not always consistent. In FDA vs Brown & Williamson Tobacco Corp (2000), the majority ruled that the Food and Drug Administration could not regulate cigarettes because it was inconsistent with the will of Congress as measured by other legislative actions. The majority stated, “No matter how important, conspicuous, and controversial the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. Courts must take care not to extend a statute’s scope beyond the point where Congress indicated it would stop.”[21]
Breyer, in his dissent, argued that regulation of cigarettes fit well within the purpose and statutory language of the original Food, Drug, and Cosmetic Act of 1938. He notes in his book that both the majority and the minority opinions built arguments based on text and purpose. When there are multiple texts and multiple purposes, what should prevail?
For example, the text of the Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[22]
Those who assert the amendment refers to the individual right to bear arms stress parallel rights in English common law at the time and writing by the prevailing legal authority at the time, William Blackstone, in support of the natural right to self-defense and resistance against oppression. Those who believe amendment refers only to participation in the state militia, marshal to their side writings such as Federalist No. 46 written by James Madison about the importance of state militias as a check on federal power. Each side summons other evidence as well to support their conclusion about the meaning of the text and from the meaning, the purpose.
In the late 1930s, the Supreme Court interpreted the Second Amendment as addressing only participation in a state militia. In United States vs. Miller (1939), the court stated in a unanimous decision that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia and that Second Amendment “must be interpreted and applied with that end in view.”[23]
Seventy years later, the Supreme Court in District of Columbia v Heller (2008), which struck down a DC ban on handguns, stated that the Second Amendment protects the individual right to bear arms for self-defense. The dissent authored by Justice John Paul Stevens took issue with this personal right interpretation. Breyer penned a separate dissent suggesting that even if it were an individual right, the city would have the ability to regulate gun use since several 18th Century cities did just that.
Moreover, he believed that firearms laws should be reviewed using an interest-balancing approach that allows for governments to burden individual rights for a compelling government reason, in this case, public safety. While the majority did not state what level of scrutiny (strict, intermediate, or rational-basis) by which gun laws should be reviewed going forward, it did respond to Breyer’s point: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”[24]
The 2010 case McDonald v. City of Chicago, which struck down Chicago’s ban on handguns, the court went a step further and applied the individual right to bear arms interpretation of the Second Amendment to the states through the Fourteenth Amendment. Both Heller and McDonald also state that some regulations such as prohibition of felons owning firearms, conditions on sales, and prohibitions against carrying in sensitive places were still permissible.
Breyer’s dissent challenged both the incorporation through the Fourteenth Amendment and the personal right interpretation. He wrote, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, “fundamental.’”[25] Fundamental rights generally require courts use strict scrutiny when evaluating a government action. By contrast, intermediate scrutiny and rational-basis allow governments to burden rights to meet public interest goals. In the past, courts generally used intermediate scrutiny to evaluate gun laws.
Finally, the New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which invalidated New York’s concealed carry license requirements, answered the question left open in Heller regarding scrutiny. Instead of using tiers, courts should use “text and history” in Second Amendment cases. Courts should look to historical analogues to determine whether a law is consistent with the Second Amendment.
In Justice Breyer’s dissent, he wrote that courts should focus instead on potential consequences: “when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”[26] Does it follow, though, that allowing New Yorkers to attain a concealed carry license without having to prove proper cause will result in greater gun violence? One might just as easily conclude that when law abiding citizens carry, criminals may be less likely to attack them. Who can say which is more likely? Who should say?
Finally, in United States v. Rahimi (2023), which upheld a federal law restricting gun possession by an individual under a restraining order, refined the Bruen holding to make it easier for courts to make historical comparisons when determining the constitutionality of gun laws. Breyer, though no longer on the court, would likely have joined the majority or even more likely, written his own concurrence.
Heller, McDonald, Bruen, and Rahimi raise interesting questions about how to determine the meaning of the text when there is ambiguity due to the construction of the clause and inconsistent definitions in historical writings that support multiple interpretations. Opposing sides say their interpretation is the obvious one, but it isn’t.
The progression of these four cases also demonstrates how precedents change and are refined by subsequent rulings. In less than two decades, they substantially changed Second Amendment jurisprudence. Because judges must be appointed and confirmed by the other two democratically elected branches of government, they indirectly reflect the will of the majority. These decisions reflect a changing consensus about the Second Amendment since the 1930s.
The same could be said for Dobbs v Jackson (2022) overturning Roe and Casey and allowing states to determine their own abortion policies. The American people remain as deeply divided as they were on the subject in 1973 but if court composition and opinion is an indirect reflection of the majority, consensus on what political body (federal or state) should make policy has changed. In absence of Roe, states laws are now far more varied and reflect majority sentiment as expressed by popular initiatives or through elected representatives in each state. Some states have passed laws protecting human lives, others access to abortion. Most states attempt to do both to some degree.[27]
Dobbs and Bruen do not, however, represent the majority of cases that come before the Supreme Court each year. High profile cases determined by a divided court are infrequent. As Isgur and Jens’ study shows, most cases are decided by a combination of originalist and pragmatist justices. A majority of cases are decided unanimously or through a bipartisan consensus. As for the desirability of originalism and pragmatism, this short analysis shows both methods have strengths and weaknesses. Both attempt to determine the intent of the law’s authors. Both attempt to mitigate the temptation to judge first, justify second.
Ascertaining which approach is better is no easy matter. The difference between originalism and pragmatism is less clear in practice than on paper. Intent and text are interwoven and sometimes ambiguous, sometimes contradictory. Also, Americans have strong feelings about the outcome of a small number of cases where originalism and pragmatism appear to be in opposition. It is not easy to judge means without considering ends. In the end, better may be in the eye of the beholder.
Questions:
Which is better originalism or textualism? First, define what you mean by better.
Should we trust the courts to determine what is most workable?
Is textualism or pragmatism more or less vulnerable to judicial law making?
Is originalism or pragmatism more respectful of separation of powers?
Does looking to the text or to the purpose show more deference to the legislators that wrote it?
[1] Sarah Isgur and Dean Jens, Politico, Using Math to Analyze the Supreme Court Reveals an Intriguing Pattern, June 2, 2024 at https://www.politico.com/news/magazine/2024/06/02/supreme-court-justice-math-00152188
[2] Ibid.
[3] Cass Sunstein How to Interpret the Constitution, 2023.
[4] See For or Against Constitutional Originalism?: A Debate between Jonathan Gienapp and Stephen Sachs at the National Constitution Center at
[5] Jack Rakove, speech before the American Antiquarian Society, October 17, 2024 at www.americanantiquarian.org/node/9591
[6] U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009) at
[7] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 2011.
[8] U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009) at
[9] National Public Radio interview April 28, 2008 at https://www.npr.org/2008/04/28/90011526/scalia-vigorously-defends-a-dead-constitution
[10] The Federalist Society, “What is the Difference Between Originalism and Living Constitutionalism?” [No. 86] at
[11] Ibid.
[12] Reading the Constitution, p.5
[13] Letter from James Madison to Henry Lee, June 25, 1824. Adam J. White, ‘Reading the Constitution’ Review: The Pragmatic Stephen Breyer,’ Wall Street Journal, March 29, 2024. at https://www.wsj.com/arts-culture/books/reading-the-constitution-review-the-pragmatic-stephen-breyer-89c8bf95
[14] Letter from James Madison to Thomas Ritchie December 27, 1821.
[15] Ibid, p. xvi.
[16] Ibid, p. xvii.
[17] Ibid, p. 227.
[18] Ali v Federal Bureau of Prisons (2008).
[19]Ibid.
[20] Ibid.
[21] In FDA vs Brown & Williamson Tobacco Corp (2000).
[22] US Constitution.
[23] United States vs. Miller (1939).
[24] District of Columbia v Heller (2008).
[25] McDonald v. City of Chicago (2010).
[26] New York State Rifle & Pistol Association, Inc. v. Bruen (2022).
[27] Breyer was correct in his observation that: “In Dobbs, the majority’s reasoning boiled down to one basic proposition: Because the people who ratified the original Constitution and the Fourteen Amendment did not understand the document to protect reproductive rights, the document could not be read, now, as protecting those rights.” What he neglects to mentions is that founders could have addressed abortion if they wanted to do so. Various laws in Europe as far back as ancient Rome allowed or restricted abortion. Breyer erroneously states that there have been no factual changes since 1973 that would have allowed for reconsideration of a precedent. Thanks to medical science, there is far more known now about fetal development and fetal pain than in the early 1970s. Premature babies survive at 22 weeks, an impossibility 50 years ago, and the age of viability will continue to go down over time. Breyer also ignores why voters and their representatives would find protecting human lives as compelling a government interest as providing abortion access.