Originalism, Constructivism, Historicism and American First Amendment Law

This paper was originally written for Ronald Thiemann’s course, “Religion and American Public Life” in the fall of 2009.

Every judge on the United States Supreme Court has a method of interpreting our Constitution.  Broadly categorized, the primary schools of though are originalism, constructivism, and historicism.  These three approaches describe the most prevalent methods of jurisprudence within the United States.  Each method seeks to interpret the American law according to what the individual judge believes is “most right.”  Differences in interpretation may be related to outside influences, including religious belief, political affiliation, or upbringing.  In many ways, originalism can be seen as regressivist, attempting to return to previous morals and values while ignoring the evolution of societal norms.  Constructivism, conversely, is often referred to as judicial activism because judges who adhere to this method of interpretation are more concerned with the current social context than the intent behind laws already in place.  Historicism takes a middle path between the two extremes, arguing for an understanding of the historical context in which past laws and decisions were made.  Each method of judicial interpretation has its adherents and detractors.

Originalism seeks to capture and emulate either the original intent or meaning of the founders in writing the Constitution¹.  Intent in this instance refers to the spirit of the law and necessitates an understanding of the individuals who drafted it, while meaning refers to how a reasonable person, alive at the time of the law’s writing but not a writer himself, would have interpreted it.  Original meaning does not require a specific knowledge of the drafters of a law, but rather a more general understanding of the social and cultural context in which it was written.  On the current Supreme Court, the justice most closely associated with originalism is Justice Antonin Scalia, but originalism can be seen in cases from before Justice Scalia was appointed in 1986.  In Marsh v. Chambers (1983), Chief Justice Burger states that

[T]he use of prayer is embedded in the nation’s history and tradition.  That the practice of the Nebraska legislature is consistent with the framers’ intent is proven by their use of chaplains […] Because of the principles upon which the nation has developed, religion has become part of the fabric of society [and] [t]he public payment of the chaplain is historically allowable because it was done by the Continental Congress years earlier².

Burger repeatedly refers back to the “framers’ intent” as well as social convention at the time of the Continental Congress without acknowledging social changes that have occurred in the intervening 300 years.

The disconnect between the past and present demonstrated by Burger’s 1983 majority decision illustrates one of the major problems with originalism: its inability to adapt to changing social norms.  Originalist judges live within contemporary American religious and social landscapes but interpret the constitution within the context of the Revolutionary War era.  This has worrisome implications for religious minorities who were persecuted or nonexistent at the time of the Constitution’s writing.  Although there was diversity within American Christianity at the time of the Constitutional Convention, there was only a small Jewish population³ (smaller than that of today, which is still just 3% of the American population) and few, if any, Hindus, Buddhists, or Muslims.  While a Christian chaplain might not be problematic or offensive to people of different denominations within one tradition, it may create the appearance of preference for one religion over others and certainly promotes religion over non-religion.  In addition to the problem of appearing to prefer one religious tradition over others, or none at all, is the problem of presuming to know the original intent of the founders, given diverse beliefs among the writers of the Constitution.  Although James Madison and Thomas Jefferson left letters and personal writings that give some clarity as to their views, there were 39 signers of the Constitution, and even more involved in its drafting who ultimately refused to sign the final version.  Presuming to know their intentions without knowledge of the intent of each writer seems presumptuous, while applying the  reasonable interpretation of someone from 300 years in the past denies cultural and social progress.

In contrast to originalism, constructivism seeks to interpret law based only on current social norms, without fully considering the context in which the law was written or to past judicial precedence.  Because of this detachment from history and context, constructivist judges are often described as judicial activists, and accused of using personal bias in their rulings.  Few judges, especially on the Supreme Court, openly refer to themselves as activist judges, but many have been accused of being a member of this school of thought, including moderates such as justices Sandra Day O’Connor and Stephen Breyer, as well as recent appointee Sonia Sotomayor.  Interestingly, while originalist judges are rarely accused of injecting their personal opinions and biases into their court decisions (an accusation regularly leveled at constructivist or activist judges), the same truly could be said of these judges, especially with further knowledge of what shaped their jurisprudence.  It is difficult to divorce personal beliefs from public decisions fully, especially those beliefs that are held subconsciously. Because constructivism interprets the law only within the current social context, it fails to account for tradition in any way.  Constructivism is unable to maintain judicial integrity because it often diverges from precedence and lacks deference to the historical context during which the Constitution was developed.

Historicism is the middle ground between originalism and constructivism.  It seeks to understand the historical context of the Constitution and past legal decisions related to constitutional interpretation.  Concurrently, historicist judges try to balance historical context with contemporary social norms and cultural shifts.  In many ways, historicism, while the most moderate option of jurisprudence, is also the hardest to implement.  It requires a keen understanding of legal history as well as the multitude of social conventions and changing norms within American society.  It is just this balance, however, that makes historicism the best method of judicial interpretation: it acknowledges the past while allowing for progress and change.

Judicial interpretation has a direct effect on religious and social freedoms within the United States.  If the purpose of the Bill of Rights is to protect the rights and liberties of American citizens, then it is the responsibility of the Supreme Court to ensure that these freedoms continue to be upheld.  Adhering too closely to outdated cultural norms threatens the freedom of religious believers who belong to non-mainstream religious traditions.  This is evident in Employment Division, Department of Human Resources of Oregon v. Smith (1990), in which the Supreme Court found that the state of Oregon was not required to pay benefits to two Native American men who had been terminated from their jobs at a private drug rehabilitation center due to their participation in a religious ceremony that included the ingestion of peyote⁴.  The decision came in the middle of the federal government’s “War on Drugs” and it is important to note that the men were not suing for their jobs, but rather for the right to unemployment benefits available only to employees who had been laid off, rather than terminated.  Unlike previous decisions with similar circumstances, the court decided that the state was justified in denying the men benefits because they were terminated for having broken the law.  In previous decisions, the Supreme Court had decided that states “could not condition the availability of unemployment  insurance on an individual’s willingness to forego conduct required by his religion.”  It seems clear that the difference in this case was that the conduct in question, while part of a religious ceremony, is also considered illegal within the United States.  The state may have a compelling interest in reducing drug dependence among its citizens, but including infrequent religious usage, which seems less likely to lead to addiction, in the “War on Drugs” does in fact put a burden on how that religion is practiced.

Both originalism and constructivism, as defined and utilized in this paper, are likely to cause disagreement and conflict.  Originalism creates a situation in which nontraditional views become the “other” because they were not present or not heard at the time of the drafting of the Constitution.  Constructivism dismisses the past in favor of decisions based solely on contemporary cultural and societal contexts.  However, many current norms do have roots in the past and ignoring where they came from creates inconsistent rulings.  Of the three, only historicism acknowledges the past and strives to maintain continuity, while also interpreting the law within the context of today’s culture and society.

1. Hon. Antonin Scalia, remarks at the Catholic University of America, Washington D.C. 21 Oct. 1996.
2. The Oyez Project, Marsh v. Chambers , 463 U.S. 783 (1983)
3. “History of the Jews in the United States” Wapedia
4. The Oyez Project, Employment Division v. Smith , 494 U.S. 872 (1990)