Judicial Philosophy & Originalism

When the Supreme Court rules on a constitutional question, it does not merely apply law—it interprets what that law means. Different interpretive methods can lead to radically different results. Understanding judicial philosophy helps citizens evaluate court decisions and judge nominations.

The debate over how to interpret the Constitution is not merely academic. It determines whether the Second Amendment protects an individual right, whether states may ban abortion, whether the federal government can mandate health insurance, and countless other consequential questions.

Why Interpretation Matters

The Constitution's text does not interpret itself. When it protects "the freedom of speech," does that include campaign contributions? Flag burning? Commercial advertising? When it prohibits "cruel and unusual punishments," does that ban the death penalty? Life sentences for juveniles?

Judges must answer these questions, and their interpretive approach shapes their answers. A judge who looks to the original meaning will reach different conclusions than one who asks what the Constitution should mean today.

The stakes are high. Constitutional rulings are difficult to overturn—they require either the Court reversing itself or the arduous amendment process. An interpretive error can entrench bad policy for generations.

Originalism

Originalism holds that the Constitution should be interpreted according to its meaning at the time it was ratified. This approach comes in two main variants:

Original Intent: Focus on what the Framers intended the text to accomplish. Look to records of debates, correspondence, and other evidence of their purposes.

Original Public Meaning: Focus on how a reasonable person at the time of ratification would have understood the text. This is now the dominant form of originalism.

Originalists argue that their approach:

• Constrains judicial discretion—judges apply law rather than make it
• Preserves democratic accountability—changes should come through amendment, not judicial decree
• Maintains the rule of law—the Constitution means what it says, not whatever judges want
• Respects the constitutional bargain—we are bound by what was actually enacted

Critics argue originalism is difficult to apply (historical meaning is often unclear), can produce bad results (original meaning may conflict with modern values), and is selectively applied (even originalist judges sometimes depart from it).

Living Constitution

Living constitutionalism holds that the Constitution's meaning should evolve to address contemporary needs and values. The document must adapt to circumstances the Framers could not have anticipated.

Proponents argue this approach:

• Keeps the Constitution relevant to modern problems
• Allows adaptation without the difficult amendment process
• Reflects that language and values change over time
• Produces results more aligned with contemporary justice

Critics argue living constitutionalism:

• Gives judges too much discretion—they become policymakers rather than interpreters
• Undermines democratic self-governance—unelected judges impose their values
• Provides no principled limits—any result can be justified as "evolution"
• Destabilizes the law—constitutional meaning becomes unpredictable

Textualism

Textualism focuses on the plain meaning of the text. While related to originalism, textualism emphasizes the enacted text over external evidence of intent or purpose.

Textualists argue that only the text was actually ratified—intentions that were not embodied in text never became law. They look first to the words themselves, understood in their ordinary sense.

Textualism applies to statutory interpretation as well as constitutional interpretation. Judges should interpret what Congress wrote, not what it might have meant to write.

Practical Implications

These different approaches lead to different outcomes:

Second Amendment: Originalists examined historical sources to conclude the amendment protects an individual right in Heller. A living constitution approach might ask whether individual gun ownership serves contemporary needs.

Equal Protection: Does the Fourteenth Amendment prohibit only racial discrimination (closer to original understanding) or extend to sex, sexual orientation, and other classifications (evolution)?

Cruel and Unusual Punishment: Originalists look to punishments accepted in 1791; living constitutionalists look to "evolving standards of decency."

Federalism: Originalists read enumerated powers narrowly; living constitutionalists allow expansion to meet modern needs.

The current Supreme Court majority leans originalist, which has produced significant shifts in constitutional law.

The Bottom Line

Judicial philosophy is not merely an academic debate among lawyers. It determines how the Constitution is applied to real disputes affecting real people. Citizens should understand these approaches to evaluate both court decisions and judicial nominations.

At America's Overwatch, we believe the Constitution means what it says—that its meaning was fixed at ratification and can only legitimately be changed through amendment. This approach constrains government power and protects individual liberty, which are the Constitution's core purposes.

But we recognize this is a contested position. Citizens should understand the arguments on all sides and form their own views about how the Constitution should be interpreted.