by Seth Kading & Jorge Gomez • 5 min read
Throughout the Biden presidency, many judicial nominees have raised concern. Several have not been able to answer basic questions about the Constitution and core legal doctrines at their confirmation hearings. One couldn’t recall what Article II and Article V said and another struggled when asked about Article I. One was stumped when a senator asked him about criminal law procedure.
Many of these judicial picks are alarming and do not inspire confidence. Not only does it appear that some do not understand or know the Constitution, the records of many show they could be hostile to religious liberty if confirmed to the federal bench for life.
This raises a very important question: Will these nominees and potential judges uphold and protect our God-given rights and freedoms?
In this essay, we’ll discuss why it’s so important for federal judges to not only to know the Constitution, but to also interpret and apply it according to its original meaning and intent.
What is Originalism?
When analyzing judicial records and the philosophy of a nominee, you probably wondered what legal experts mean when they say “originalism” or “an originalist judge.”
At its most basic level, originalism is interpreting the Constitution according to its original meaning and intent. This legal philosophy sets a standard for judges and justices—some would even say it is a burden or responsibility—to wholly surrender to the original text, taking into account the historical context in which a law is written and the intent of its authors. Steven G. Calabresi, law professor at Northwestern University, argues that “the original meaning of a constitutional text is an objective legal construct.” He also explains:
“Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision.”
We can also reference Federalist No. 78, the prime defense of the judiciary at the time of America’s Founding. Alexander Hamilton makes clear that the duty of the courts “must be to declare all acts contrary to the manifest tenor of the Constitution void.” Scholars explain that Hamilton’s reference to the “manifest tenor of the Constitution” means that, when encountered by a person competent in the English language, the Constitution has a plain meaning which courts should apply.
James Madison, Father of the Constitution, believed the same. According to the National Constitution Center:
“For Madison, the text’s meaning consisted of the original meaning of the words of the document—the meaning the Constitution’s words and phrases would have had to those using them at the time the document was adopted…The meaning of the Constitution’s terms did not change with time.”
The late Supreme Court Justice Antonin Scalia commented on originalism: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
The Federalist Society calls originalism “an essential ingredient in this democratic recipe because, when judges give laws a new meaning, the laws are changed; and changing law, like adopting law in the first place, is the function of the political branches of government, not the judicial branch.”
Originalism at Work
A case that offers a great example of originalism is First Liberty’s Supreme Court victory for the Bladensburg Peace Cross, the landmark 2019 ruling American Legion v. American Humanist Association. We represented The American Legion in defending the veterans memorial that honors 49 WWI fallen heroes from Prince George’s County, Maryland. A secular group filed a lawsuit on behalf of an “offended observer,” saying this historic memorial had to be removed simply because it was shaped like a cross. They argued the Peace Cross was an “establishment of religion” because it stood on government property in the middle of a complex intersection.
Our attorneys argued that the Bladensburg Peace Cross is consistent with our nation’s history and traditions—and therefore constitutional. Our legal argument centered on the original meaning of the First Amendment’s Establishment Clause. Grounded in its historical context, this clause was written to prohibit the State from establishing a Church, such as the Church of England. It was never meant to compel the government to purge all religious reference from the public sphere. We explained to the Court, “consistent with the original meaning of the Establishment Clause, this Court should clarify that passive displays with religious imagery—like the Peace Cross—will not constitute an establishment of religion.”
The Supreme Court agreed, and its opinion held to the originalist standard. The historic 7-2 ruling upheld the memorial as constitutional and set a precedent protecting public religious displays throughout the country. It made an important change in constitutional law, returning to a more commonsense understanding of the First Amendment. For cases involving religious displays, the Court would apply a more constitutionally faithful “history and tradition” test. It held that historic displays with religious references are “presumptively constitutional.” In the majority opinion, Justice Samuel Alito wrote:
“The Court today relies on a more modest, historically sensitive approach, interpreting the Establishment Clause with reference to historical practices and understandings. The monument here is clearly constitutional in light of the nation’s traditions.”
Originalism, as seen applied in the Bladensburg case, is effective in preserving our constitutional liberties. This ruling became one of the most important religious freedom victories Americans have seen in more than 50 years, all because a majority of the Justices interpreted and applied the Constitution according to its original, plain meaning. This ruling helped affirm the religious heritage of our nation. It made clear that religious expression, including cross-shaped monuments, is a part of who we are.
A Living Constitution? Harmful Consequences
On the opposite side of originalism is consequentialism, which first considers the ramification of a ruling instead. A similar legal philosophy, living constitutionalism, says that the meaning of the text changes over time, as social attitudes change. These judicial philosophies, however, are dangerous. Judges who don’t adhere to originalism often distort the Constitution and our laws, rewrite our history and radically redefine who we are as a nation.
A prime example is the Supreme Court’s 2020 decision in Bostock v. Clayton County, in which a federal statute was not interpreted according to its original intent. That ruling held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation or transgender status. It expanded the definition of the single word “sex” in a way that distorted the original text and intent of that law. In the Notre Dame Law Review, two professors contend this is inappropriate because the plain meaning of the statute’s ban on sex discrimination does not encompass sexual-orientation discrimination.
Justices Alito and Clarence Thomas articulated in their dissent:
“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive… Neither ‘sexual orientation’ nor ‘gender identity’ appears [in the Civil Rights Act of 1964].”
Bostock has led to a spiral of harmful actions against religious freedom, just as First Liberty predicted when the decision came down. Because the statute was wrongly interpreted, the Biden administration has used Bostock to distort other areas of the law. It put forward policies that directly target and harass people of faith. For example:
Playing fast and loose with the text and the meaning of the Constitution and our laws is a recipe for disaster. When judges stray from its original meaning and intent, their rulings tend to become a fount of poisonous water. Everyday Americans—people of faith who want to exercise their constitutional rights and live out their faith—are the ones who pay the price, often with attacks on their freedoms.
Fidelity to the Constitution
At a time when religious Americans confront increasing threats to their rights, our nation needs excellent judges who know the Constitution, and who will faithfully apply its original meaning. We need jurists who understand this foundational document as the Founders intended.
“If the Constitution is a ‘living and breathing document,’ that means by definition that it should reflect the preferences of the current political majority,” explains the American Enterprise Institute. “A ‘living and breathing’ Constitution actually is a dead Constitution in its fundamental purposes, and protection of the original meaning of the Constitution is the only way to make it truly ‘living.’”
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