Originalism and the Living Constitution

Living constitutionalism holds that the Constitution's broad language should be applied in light of changing circumstances and values. Woodrow Wilson wrote in 1908 that the government is a living thing, Justice Oliver Wendell Holmes Jr. described the Constitution in 1920 as having called into life a being whose development its framers could not foresee, and the approach shaped many decisions of the mid-twentieth century. Defenders such as Justice William Brennan, in a 1985 speech, argued that the genius of the Constitution lies in its adaptability to current problems, and scholar David Strauss has described it as developing through precedent much like the common law.

Originalism holds that the Constitution's meaning was fixed when each provision was adopted and that judges should apply that meaning. Robert Bork made an early academic case for it in 1971, and Attorney General Edwin Meese called for a jurisprudence of original intention in a speech to the American Bar Association on July 9, 1985. Justice Antonin Scalia and others shifted the focus from the framers' intentions to original public meaning, how the words were understood by the public at the time. Originalism has become the dominant method of the current Supreme Court majority.

Major decisions reflecting originalist reasoning include District of Columbia v. Heller in 2008, recognizing an individual right to keep and bear arms, New York State Rifle and Pistol Association v. Bruen in 2022, which requires gun laws to fit the nation's historical tradition, and Dobbs v. Jackson Women's Health Organization in 2022. Supporters say originalism constrains judges and leaves change to the amendment process and elected officials. Critics say historical meaning is often uncertain, that judges choose history selectively, and that strict originalism would call into question settled rulings, while originalists reply that their method accommodates precedent and new applications.