When the Founding Fathers drafted the Constitution to replace the Articles of Confederation in 1787, they were utterly unaware how that document would evolve over the next two centuries and affect the rights of future citizens. Some, like Benjamin Franklin, were optimistic about the future, noting “I have often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President, without being able to tell whether it was rising or setting: but now at length, I have the happiness to know, that it is a rising and not a setting sun.” Franklin’s “rising sun” metaphor captures the enduring hope that the Constitution would stand the test of time. But enduring does not mean unchanging. 

In contrast to Franklin’s optimistic view of the Constitution and the “rising sun” that would be the future U.S, originalism highlights the unchanging nature of our nation’s principal document. The emergence of originalism reflects one side of a centuries-long debate over whether the Constitution’s meaning should remain tethered to the text’s original interpretation or evolve with contemporary society. Founding-era and modern constitutional legal jurisprudence, after all, differ profoundly. The genius of the Constitution, according to former Supreme Court Justice William Brennan, “rests not in any static meaning it might have in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs”. The Founders believed that the most essential rights were implied in the broad provisions and Bill of Rights of the Constitution, and the people themselves would extract those essential rights over time. 

Modern appropriation of classical liberal theory, according to advocate for classical liberal constitutional interpretation Richard Epstein. He argues that the Constitution embodies principles of limited government, strong private property rights, and federalism, and advocates the government’s role is to protect individual autonomy. As opposed to other constitutional ideologies like originalism or progressivism, classical liberal constitutionalism secures individual freedom and societal prosperity. Therefore, Richard Epstein’s conception of classical liberal constitutionalism, in line with the dominating classical liberal theory of the time the Framers wrote the Constitution, should reign as the most legitimate constitutional philosophy to this day.

Originalism

Originalism is a legal theory that calls for an understanding of the Constitution based on the “original public meaning” of the text at the time it was written. The advent of originalism was Justice Antonin Scalia’s conservative textualist response to the “Living Constitution” in the 1980s, which called for judges to interpret the Constitution based on evolving societal standards.  Justice Scalia’s opinions, alongside his speech “Originalism: The Lesser Evil,” propelled originalism into mainstream constitutional analysis. Critics of living constitutionalism regard the theory as a form of judicial activism, implying that judges make rulings based on their own views rather than on established precedent. Nevertheless, present-day originalists fail to take seriously the historical principles they swore to follow. According to Jonathan Gienapp’s book “Against Constitutional Originalism: A Historical Critique”, originalists fail to live up to the claim of producing objective legal rulings according to the Constitution—inventing rather than reinterpreting founding constitutional principles. 

Conservative justices have employed originalist thinking inconsistently and without principle, expanding some while limiting other pre-existing constitutional rights. Majority opinions in Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association v. Bruen, and Students for Fair Admissions v. Harvard College all ran counter to existing precedent under an inconsistently applied originalist rhetoric. In all three of these decisions, Justices looked towards the writing and language of the Constitution, using originalism at an inconsistent standard. The core inconsistency identified by critics lies in the selective application of historical tests. In Bruen, Justice Thomas, in particular, rejected the scrutiny test that the Court had used to evaluate intrusions on Second Amendment rights and instead adopted a “text, history, and tradition” test for gun rights that are fundamental to our nation’s history. While in Dobbs, the same form of analysis was used to curtail a right by finding it was not historically protected. Justices applied different originalist “rules” depending on whether the outcome aligned with a conservative ideological agenda or not.

The phrase “history and tradition” was not only at the center of Bruen, but also Dobbs, the case that eliminated the right to abortion. In some cases involving civil liberties, Justice Thomas embraces “identity originalism” – “a commitment to ‘fixation’ of the founding act as a stable identity constantly constraining constitutional interpretation even amid changes.” However, on questions of race, Justice Thomas sticks to a liberal originalist construction, emphasizing fundamental equality principles from the Declaration of Independence and evolving definitions of liberty notably in Grutter v. Bollinger. Saul Cornell highlights the egregious distortion of historical record to describe Thomas’s opinion of Bruen. He notes that “the originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them.” Ultimately, “the Thomas version of originalism might be summarized as follows: "No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims.” It’s clear that Thomas presents an arbitrary application of originalism and is being used inconsistently.

Many originalists have endorsed the unitary executive theory, implying that the current President should have virtually unlimited power. Ironically, it can be argued that Trumpism, particularly its emphasis on populist nationalism, is fundamentally at odds with originalism’s grounding in historical texts. For instance, it is debatable whether originalism lends much credence to the idea of a unitary executive. Some originalist scholars agree that originalism supports the unitary executive theory, based on the fact that the Constitution vests singular executive power to the President rather than a council. On the other hand, this claim might be challenged. Some interpretations emphasize the founders' intent to create a system of checks and balances, where Congress held significant power over the executive, such as the Senate's role in appointments, and that a strict unitary executive contradicts this balance. While Trump v. United States and the redefinition of presidential power play to Trump’s advantage, the Justice Department has imposed certain limitations on the current Administration. Particularly, after the Court of International Trade struck down Trump’s tariff policies, a primary pillar of the administration’s economic agenda, Trump leveled various insults toward Leonard Leo, who, paradoxically, helped shape Trump’s conservative Supreme Court. Originalist judges unilaterally disapprove of the President imposing tariffs since the Constitution explicitly grants the power to regulate foreign commerce and impose tariffs to Congress, not the executive branch. After the Court’s dismissal of tariff policies, it’s clear that originalism or close interpretations of the Constitution might not, after all, endorse a unitary executive. 

 Still, current originalist Justices, in some cases, uphold decisions progressive in nature. In Bostock v. Clayton County, Justice Gorsuch held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act, per his interpretation of the original meaning of the statute on the basis of sex to the disagreement of Justices Alito, Thomas, and Kavanaugh with their own originalist arguments. Bostock revealed the “conflict between the apparently plain meaning of the text and the expectations of the people who wrote it”, if written laws are bound purely by the Constitution’s text. This goes to show that originalism isn’t even entirely helpful for conservatives, emphasizing Gorsuch’s commitment to originalist text as opposed to political borders.

Progressive Constitutionalism

Progressive constitutionalism strikes me, at least, as an interesting comment on originalism. Partially oxymoronic, it is used to sustain the Equal Protection Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. At a time of a politically divided court, Justice Jackson, in particular, has developed a distinctive approach to voting rights described as “progressive originalism.” Employing such originalist rhetoric in responding to appellant’s claims during hearings for Merrill v. Milligan, Justice Jackson reasoned that the language of the Fourteenth Amendment, in particular the Equal Protection Clause, backed by other Reconstruction Era documents, determines the Constitution to be race-neutral. Therefore, progressive originalist arguments offer liberals a new perspective on analyzing race-consciousness in the Constitution, subverting the commonly understood form of originalism employed by Justice Jackson’s conservative colleagues. At the same time, progressive originalism departs from conservative counterpart by highlighting Reconstruction Amendments. Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. In that light, liberals seek to deploy powerful arguments to cement precedents for securing certain civil liberties.

Common Good Constitutionalism

Various conservative alternatives to originalism have emerged. “Common good” constitutionalism, proposed by Adrian Vermeule, rejects originalism altogether. His approach to constitutional analysis is “based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” In other words, common-good constitutionalism would ensure that rulers have the power to rule even as perceptions of what is good for citizens shift over time. Justices and other officials would willingly import moral principles into the Constitution through this ideology. Thomas Aquinas, a 13th-century Italian Scholastic thinker, would agree with this line of reasoning as he viewed law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated." However, it may be argued that Vermeule inserts his Catholic faith into his approach to constitutional analysis. Not only does he believe that “The Church’s job in the modern day, he said, is to survive this liberal onslaught — and ultimately emerge as not only an ideological opponent, but as a political one”, but also decisions like Obergefell v. Hodges and Planned Parenthood v. Casey, under common good constitutionalism, would be considered ‘abominable, beyond the realm of the acceptable forever after’ because they do not provide a single edict for subjects to follow. What is needed, then, in line with the common good of society, is a more substantive approach: one that focuses on providing basic capabilities to all people to enable them to live their lives.

The Classical Liberal Constitution

I tend to side with advocates for classical liberal constitutional interpretation. In his book “The Classical Liberal Constitution”, Richard Epstein criticizes both conservatives and liberals for, respectively, narrow-minded originalism and an ambiguous  “living constitution”—upholding the “classical liberal tradition that emphasizes limited government, checks and balances, and strong protection of individual rights”. He notes that the leading political theory at the time of the Constitution was classical liberalism.  Reading the constitution as classically liberal could be seen as, on its face, a facet of originalism, holding that constitutional language should be given its original meaning, but language must be interpreted with background and liberal principles. Classic liberalism differs from the progressive originalism championed by Yale Law professor Akil Reed Amar and Justice Brown Jackson, as the former argues for a Constitutional interpretation that secures progressive goals, while the latter is a belief system that links prosperity, both material and immaterial, to respect for the individual. Epstein goes against the grain of modern Supreme Court jurisprudence and legal scholarship, declaring that both progressives and conservatives are divorced from constitutional principles. The classical liberal constitution advocates individual rights and liberty, rejecting the judicial restraint of conservatives and the naivete of progressives.

Real-Life Impact of Varying Philosophies

Originalism, or different varieties of originalism, may influence upcoming Supreme Court decisions. Specific court decisions that originalism might affect are Hecox v. Little, L.W v. Skrmetti, and Louisiana v. Callais by subjecting the interpretation of equal rights protections related to sex discrimination and voting rights to the Constitution’s text as understood at the founding. 

Hecox v. Little challenges an Idaho law banning transgender women and girls from female sport teams, arguing it violates the Equal Protection Clause and Title IX. An originalist approach would examine the understanding of the Fourteenth Amendment’s Equal Protection Clause and the meaning of “sex” at the time. At the same time, a “good originalist” who upholds the original text of the Constitution might consider Bostock v. Clayton County, which interpreted sex discrimination to include gender identity, though Skrmetti limited this reasoning. 

Similarly, the verdict of L.W v. Skrmeti, a case concerning Tennessee’s ban on gender-affirming medical care for minors, though aligned with originalist principles of judicial restraint and federalism, reinforced the ability of states to regulate medical practices concerning minors and limited the application of the Equal Protection Clause. 

Finally, Louisiana v. Callais involves a challenge to Louisiana’s congressional map, which includes a second-majority Black district to comply with unconstitutional racial gerrymandering. The impact of originalism could be profound and conflicting, forcing the Court to grapple with the tension between the Reconstruction Amendments’ founding public meaning and the decades of precedent it has established regarding the Fourteenth and Fifteenth Amendments. Constitutional interpreters, then, cannot ignore the pressing pull of originalism on modern jurisprudence today.

Closing 

Of the three alternatives to originalism presented, the Classical Liberal Constitution provides the best understanding of the constitutional analysis that parallels the Framers’ Constitution. It presents as a constitutional philosophy that should be seriously considered. Unlike rigid forms of originalism that purport to constrain judicial discretion while selectively deploying history, classical liberal constitutionalism takes seriously the political theory that defined the Founding itself. Advocates of Classical Liberal Constitution like Richard Epstein or Milton Friedman advocate a commitment to limited government, individual liberty, and structural checks on power, independent of political ideology. It avoids the indeterminacy of living constitutionalism and the moral imposition inherent in common-good constitutionalism or conservative originalism. Neither offers a stable or historically grounded framework for constitutional interpretation. By interpreting the constitutional text in light of its original meaning and the classical liberal principles that gave it coherence, the Classical Liberal Constitution reconciles fidelity to the Founders’ philosophy encircling the Constitution with practical demands of modern democracy, offering a possible durable framework for constitutional interpretation in a divided legal landscape.

Works Cited

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https://fedsoc.org/commentary/publications/the-great-debate-justice-william-j-brennan-jr-october-12-1985

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Cornell, Saul “ Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions” https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/#:~:text=The%20originalist%20methodology%20applied%20by,agenda%20of%20the%20Federalist%20Society. 

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Louisiana v. Callais, No. 24-109 (2025) https://supreme.justia.com/cases/federal/us/2024/24-109/