By Nathalie Beauchamps

In the aftermath of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, legal scholars have wondered how far the Court’s text, history, and tradition test can extend. Could the Supreme Court use it to strip away all rights which did not exist during the Constitution’s ratification?

The Supreme Court’s decision in Bruen was a win for constitutional originalists. In an era of mass shootings (there is an average of two mass shootings in the United States per day), the Supreme Court took the opportunity to expand gun rights. Justice Thomas, writing for the majority, shirked the means-end scrutiny test that the Court had previously utilized to evaluate potential intrusions on Second Amendment rights, and instead adopted a “text, history, and tradition” test. As Justice Thomas explained, “it has always been widely understood” that the Second Amendment protects a “pre-existing right.” He argued that this right is “inherited from our English ancestors,” and that this right is so foundational to our nation’s history that the Court is not entitled to engage in “interest-balancing” by asking whether the right is really “worth insisting upon.” Rather, he argued, the Second Amendment is already a product of interest-balancing by the people who ratified the amendment. Thus, any government that chooses to stand in the way of this manifest history must show why its regulation is, instead, consistent with it.

What is striking about the Bruen opinion is that it represents one of the few ways that originalism is used to expand a right rather than to limit it. While most progressives view originalism as a rights-stripping doctrine, even conservative jurists have failed to take originalism to its logical extent by exercising the various ways it could be used to expand rights. Originalism could reflect a version of American history which is far more complex than the historically cursory opinions of conservative jurists. It is, thus, worth carefully considering both the merits and pitfalls of originalism.

Originalism arguably holds the greatest potential for expanding civil rights as it relates to rights created during the Reconstruction era. Legislative history leading up to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments tells a far more dynamic story of the government’s view of civil rights than many modern originalists have been willing to concede. For instance, the Reconstruction Congress adopted a number of social welfare programs in the years following the Civil War that were only accessible to black Americans. More telling is the legislative history behind the Freedman’s Bureau Act of 1866 which, in the aftermath of the Civil War, aimed to “provide food, shelter, clothing, medical services, and land to displaced Southerners, including newly freed African Americans.” Congress at the time debated whether the act justifiably focused on freedmen (who were all black Americans) or if the act was objectionable for giving “special treatment” to black Americans. After President Johnson vetoed multiple versions of the bill, it finally passed with a super-majority of Congress believing that “special treatment” of former slaves was authorized under the Thirteenth Amendment. In that same year, Congress passed the Civil Rights Act of 1866, which protected black Americans’ right to enforce contracts, sue in court, inherit, lease, and hold personal property, and more broadly enjoy the same fundamental privileges of citizenship as did white Americans. More compelling is that Congress planned to enforce this Act against private citizens. This would be inconceivable today, considering the Court has long established that the federal government can only enforce the Fourteenth Amendment (and the Fifteenth Amendment) against state actors. According to Nikolas Bowie in Federal Constitutional Law, legislative history shows that Congress proposed the Fourteenth Amendment in part to vindicate its right to enforce the Civil Rights Act of 1866 against private citizens, which is ironic considering the Supreme Court’s subsequent development of the state action doctrine. Thus, during the immediate years preceding and following the ratification of the Reconstruction Amendments, the Reconstruction Congress (essentially the “First Congress” of the Reconstruction Amendments) greenlit the enforcement of civil rights against private citizens and created an affirmative action program.

Reconstruction era history not only supports the expansion of equal protection and citizenship rights but also provides evidence for Congress’s support of reproductive rights. In 1866, Senator Howard of Michigan noted on the Senate floor that formerly enslaved people had lacked access to reproductive and familial rights as a result of their servitude. Enslaved women were known to have refused to bear children or to have frequently self-performed abortions. Underlying this practice was enslaved people’s strong aversion to bearing children born into servitude. The lawmakers of the Reconstruction era were aware of this history. As NYU Law Professor Peggy Cooper Davis put it, the Reconstruction Amendments were “designed to extend to all people the right to have autonomous life choices of the kind that slavery had so cruelly restricted.” Some congressmen were more explicit about this right to familial, reproductive, and bodily autonomy, including Representative John Creswell of Maryland, who lamented that enslaved people could not assert their rights to their own children or bodies.

Thus, originalism could be utilized to uphold or even expand the rights that progressives care about. Where, then, does originalism go wrong?

Unfortunately, the doctrine of originalism is too manipulable to be a principled approach for either expanding or for limiting rights. The conservative justices on the Supreme Court have frequently chosen to use originalism to limit rights, but they are inconsistent in how they deploy the doctrine. Originalism as a sophisticated approach to the Constitution did not develop until recently. The appeal of originalism, however, reaches deep into the American psyche. As Yale Law School Professor Jack Balkin described, originalism reflects the “popular imagination [of] the American nation [which] was created by Americans themselves through a self-conscious act of political revolution.” Moreover, this “story” developed “Americans’ special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.”

Professor Balkin’s use of the word “story” is particularly accurate within the modern context of originalism because judges and justices use originalism to quite literally craft stories from the history of our nation. Judges are no historians, yet they often take bold stances on their preferred versions of history and what this history should tell us about ourselves. For instance, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court crafted a story of abortion rights in the United States to suggest that the framers and ratifiers of the Constitution never intended to protect a right to abortion. As Justice Alito explained, “over three-quarters of the States had adopted statutes criminalizing abortion” when the Fourteenth Amendment was ratified. This evidence supported the assertion that voters at the time valued human life over a right to abortion. In doing so, Justice Alito ignored a part of history, rejecting the contention that this anti-abortion sentiment more likely reflected a Protestant movement against Catholic women who were, at the time, giving birth at higher rates in the United States. The Court, further, refused to consider the views of legislators at the time because “inquiries into legislative motives are a hazardous matter.”

Furthermore, originalism can often lead to undesirable outcomes even when a historical analysis, albeit cursory, is generally accurate. Justice Alito entertained a similar originalist argument in his dissent in Bostock v. Clayton County, in which he rejected the majority’s assertion that Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation. He stipulated that it is simply not reasonable to think that Congress in 1964 meant to protect the LGBTQ+ community because “the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.” Alito’s argument is reminiscent of Justice Taney’s argument in Dred Scott v. Sanford, one of the most loathsome Supreme Court decisions in United States history. In determining whether the Constitution viewed black people as citizens, Justice Taney argued that it was simply not reasonable to think that the Framers meant to encompass black people into the citizenry because “they were at that time considered as a subordinate and inferior class of beings who . . . had no rights or privileges but such as . . . the Government might choose to grant them.” Perhaps Justices Alito and Taney had a point, which suggests the more obvious shortfall of originalism: the United States often had a far narrower sense of justice and equality in the eighteenth and nineteenth centuries than it does today, and originalism cannot expand beyond those historical limits.

Overall, it appears that originalism could serve as a vehicle for progress or for restraint, and reckoning with the truly nuanced aspects of American history could support either use. Regardless, however, a central issue with originalism is that judges are no experts on history. Rather, judges have frequently demonstrated that they are unable to reckon with the complexity of American history and choose time and again to cherry pick the parts of history that best serve their goals. I would posit that originalism should not be abandoned simply because it does not promote the “right” rights (for instance, gun rights instead of abortion rights), but because it relieves courts from doing the work to consider which rights we care about today. Thomas Jefferson himself wrote that the Constitution should be re-written every nineteen years such that each generation should have the “solemn opportunity” to update it. The Constitution matters not because of what the Framers thought about it, but because of what Americans today think about it.

Living constitutionalism is not so difficult a task as some make it out to be, nor is it any more unmoored from the text of the Constitution than is originalism. As with Bruen, the Supreme Court in Obergefell v. Hodges looked beyond the text of the Constitution to determine whether it should enforce a right. While the Bruen court surveyed American history to find the principles that would moor its opinion, the Obergefell Court evaluated principles reflective of contemporary American society to conclude that same-sex couples have a fundamental right to marriage. These principles were 1) marriage is inherent in the concept of “individual autonomy,” 2) marriage is a two-person union that is more fundamental than other relationships, 3) marriage protects children and families, and 4) marriage is a “keystone of our social order.” From this, the Court found irrefutably that laws restricting same-sex marriage “impose stigma and injury of the kind prohibited by our basic charter.” While the Court recognized that same-sex marriages had been denounced as immoral throughout much of this nation’s history, this history did not limit or supersede the principles of the day.

Ultimately, the Court should be more transparent about which principles it adopts rather than couching them within the doctrine of originalism. As Yale Law School Professor Reva Siegel argued, originalism is in fact a “living constitutionalism” that is simply “not forthright about its values, aims, and commitments.” Furthermore, to the extent that originalists hold the bona fide belief that there is merit in evaluating current-day rights through a historical lens, they should consider consulting with historians who will likely provide a more nuanced version of history than the version that originalists usually espouse.