Ohio’s Justice DeWine Attempts to Address Criticisms of Originalism

Originalism — a method of constitutional interpretation that focuses on “history and tradition” as a basis for assessing constitutional rights — has become a point of debate in state court judicial philosophy.

Some jurists, like Massachusetts Justice Frank Gaziano, say that originalism “risks perpetuating the discrimination and subordination of the past.” Others, like Wisconsin Supreme Court Justice Rebecca Dallet, point out that “taken to its logical conclusion, it would result in the radical rejection of long-settled constitutional principles” — including “virtually all rights of women and racial minorities.” Still others, like North Carolina Justice Anita Earls, argue that originalist approaches can “paint a distorted picture of a constitution’s historical understanding.” Originalism’s defenders, meanwhile, say it respects “the policy-making role of the legislature” — as Idaho Supreme Court Justice Robyn Brody put it in a decision upholding the constitutionality of the state’s strict abortion ban.

Amid this robust exchange, Justice R. Patrick DeWine of the Ohio Supreme Court advances a unique justification for originalism in state constitutional analysis. His approach, which builds on the distinct features of state judiciaries and constitutions, joins the judicial chorus shouting down state interpretations that follow or “lockstep” with federal ones.

This chorus coincides with the curtailment of federal constitutional rights through recent U.S. Supreme Court opinions, many of which relied on originalist approaches. For example, originalism shaped Dobbs v. Jackson Women’s Health Organization, which declared that the U.S. Constitution does not confer a right to an abortion, and Students for Fair Admissions v. Harvard, which struck down race-conscious admissions policies at Harvard and the University of North Carolina. Five of the current nine justices on the nation’s highest court are self-proclaimed originalists: Samuel Alito, Amy Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. These justices carry the torch of the late Justice Antonin Scalia, among the most prominent originalists in American jurisprudence, who helped usher in a brand of originalism that heavily relies on historical evidence — contemporaneous writings, dictionaries, and legislative history — to determine the original meaning of the text.

The recent dominance of originalism in the Supreme Court has led policymakers, scholars, and practitioners alike to look to state constitutional law to provide broader protections for individual rights. Indeed, there is a growing call to recognize additional rights that voters have legitimately adopted — directly or indirectly — through their state constitutions. Because state constitutions are relatively easy to amend, the rights enshrined within them can provide insight into the values of the people of the state.

Federalism — the American system of government in which certain powers are reserved for the states — shapes originalist interpretations of state constitutions by emphasizing their independent authority while recognizing their historical ties to the U.S. Constitution. Because many state constitutions were drafted in the shadow of federal constitutional principles, originalists often interpret them through a lockstepping approach, aligning state constitutional rights with analogous federal provisions. Indeed, originalism can constrain state courts from expanding protections beyond federal baselines, even when textual differences between the federal and state constitutions exist.

DeWine’s interpretative method, which he outlines in a forthcoming article, embraces originalism while addressing some of these concerns. He outwardly rejects automatic lockstepping — but nonetheless centers historical context and textual analysis as the key interpretive guidelines.

Requiring courts to ground their interpretations in state-specific values as they existed at the time of a provision’s adoption, DeWine says, compels the judiciary to acknowledge and engage with the distinct policy choices and innovations that the state has pursued within its constitutional framework. This approach reinforces the principle that states serve as laboratories of democracy, in which diverse legal and political experiments shape rights and governance. By tethering judicial analysis to historically accepted state norms, courts ensure that constitutional interpretation remains faithful to the unique trajectory of each state’s democratic development and preserves the autonomy of state constitutional law.

Crucially, DeWine’s framework is tailored to the unique features of state constitutions. For example, DeWine leans heavily on voter accountability to support the legitimacy of originalism as a method of state constitutional interpretation in Ohio and other applicable states. The vital link between popular sovereignty and judicial review of state constitutional amendments, according to DeWine, is an elected judiciary. Unlike federal judges, justices of the Ohio Supreme Court are elected, which arguably allows the electorate to influence judicial philosophy. DeWine emphasizes the ability of Ohio voters to replace jurists who misinterpret popular public opinion, something that voters cannot do at the federal level.

DeWine’s framework centers on an understanding of contemporaneous Ohioans, not the intentions and opinions of colonial-era officials who lived in a society far removed from this one. In that sense, this method remedies at least one prominent criticism against the application of originalist interpretation to state constitutions: that originalism prioritizes outdated views, stifling modern governance and its ability to respond to changing demographics and political landscapes.

DeWine’s framework is already embedded in Ohio case law. DeWine’s majority opinion in 2022’s Cincinnati Enquirer v. Bloom advocates for the reexamination of prior state decisions that reflexively lockstepped with federal decisions. The ruling leans on the ways in which the text, purpose, and history of the relevant state constitutional provisions differ from their federal counterparts. And in a concurrence in a case about criminal sentencing, DeWine wrote separately to redirect the analysis to a state constitutional approach and applied his framework to interpret a constitutional provision regarding the finality of a criminal controversy.

The long-term impact that DeWine’s special brand of originalism might have on individual rights in Ohio is still unclear. Should the other justices be swayed by DeWine’s approach, this year’s calendar includes many opportunities for the Ohio Supreme Court to revisit and revise previously accepted interpretations of the state constitution and the individual rights that it protects. The term is expected to bring rulings regarding public records, police reform, and the right to counsel. One case currently before the court asks it to redefine “unreasonable search and seizure” based on an independent examination of Article I, Section 14. The outcome could mark the start of an avalanche of reinterpretations of the Ohio Constitution and ultimately reshape the relationship between the people and state government.

State constitutions can only broaden personal freedoms beyond those at the federal level. But should the court determine that the local understanding of certain terms is narrower than verbiage used by the founders, it could curtail state-level fundamental rights established in previously settled case law.

Ainslee Johnson-Brown is a constitutional law scholar and advocate specializing in judicial interpretation and the evolving role of state courts in protecting democracy.

Suggested Citation: Ainslee Johnson-Brown, Ohio’s Justice DeWine Attempts to Address Criticisms of Originalism, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Apr. 21, 2025), https://statecourtreport.org/our-work/analysis-opinion/ohios-justice-dewine-attempts-address-criticisms-originalism