State Justices Speak Out Against Originalism

State judges are speaking out against originalism — a method of constitutional interpretation that focuses on “history and tradition” as a basis for assessing constitutional rights. In doing so, they both echo federal judges’ arguments and raise state-specific concerns of their own.

The U.S. Supreme Court has radically changed American law under the banner of originalism. In Dobbs v. Jackson Women’s Health Organization, for instance, the Court conducted an originalist analysis of the rights included in the 14th Amendment’s liberty protections to hold that there was no federal constitutional right to abortion. And in New York State Rifle & Pistol Association v.Bruen, the Court dramatically expanded gun rights under the Second Amendment through a similar originalist interpretation of the history of the nation’s gun regulation.

The Court’s embrace of originalism in these and other cases has prompted sharp criticism, including by other federal judges and prominent historians. Though some state court judges have emerged as prominent advocates of originalism, few state courts have fully embraced originalist methods and some have denounced them when considering how to interpret their states’ constitutions. Here is a sampling of state court judges’ most prominent critiques.

Originalism reinforces the subordination of marginalized groups

One of state judges’ most frequently expressed concerns is that a rigid history-and-tradition approach could further subordinate already marginalized groups. This concern is especially strong in cases involving older state constitutional provisions drafted when large subsets of the population could not participate in amending or ratifying their constitutions. 

For instance, in a recent case in which plaintiffs asserted a state constitutional right to physician-assisted suicide, the Massachusetts high court repudiated the U.S. Supreme Court’s framework for assessing so-called “unenumerated rights.” In an opinion drafted by Justice Frank Gaziano, the Massachusetts court argued that the federal history-and-tradition approach “risks perpetuating the discrimination and subordination of the past.” Instead, he applied a “comprehensive approach” that would “interpret constitutional protections ‘in the light of our whole experience and not merely in that of what we said a hundred years ago,” as well as allow the court to “occasionally . . . employ a more generalized framing of the right at issue” and “consider modern precedent alongside history.” Such an approach would “ensure that those who were denied rights in the past due to outmoded prejudices are not denied those rights in the future.”

Pennsylvania Supreme Court Justice David Wecht made a similar argument in his concurrence to a recent Pennsylvania opinion addressing a state ban on Medicaid funding for abortions. Criticizing the U.S. Supreme Court’s reasoning in Dobbs, Wecht observed that “referring to criminal laws that subjugated the rights of women in the past as a basis to subjugate the rights of women today . . . seems designed to perpetuate the wrongs of our past.”

Originalism binds us to outdated values

State judges also criticize originalism for binding American society to outdated values. As Virginia Supreme Court Justice Thomas Mann said while dissenting from a decision validating a school teacher’s free exercise justification for refusing to use a transgender student’s correct pronouns: “As times change, so do a state’s compelling interests.” 

Similarly, in her dissent in a case concerning a criminal defendant’s constitutional right against self-incrimination, Wisconsin Supreme Court Justice Rebecca Dallet cautioned that “if originalism is taken to its logical conclusion, it would result in the radical rejection of long-settled constitutional principles” that are foundational to our society. “Same sex marriage, virtually all rights of women and racial minorities, and any number of other fundamental rights are difficult, if not impossible, to justify on originalist grounds,” she said.

And in dissenting from a decision finding no fundamental right to abortion in the Iowa constitution, then-justice Brent Appel criticized the court’s originalist test for imposing “historical shackles on our constitutional interpretation.” Citing to the court’s prior decisions, he explained that the Iowa Supreme Court has “emphatically rejected the attempt to restrict our inquiry of liberty interest to what happened in the distant past.”

Across the Pacific, Justice Todd Eddins of the Hawaii Supreme Court likewise sharply rebuked the U.S. Supreme Court’s adherence to expired norms. Rejecting a constitutional challenge to a statute restricting firearm possession in a unanimous decision that condemned the U.S. Supreme Court’s Second Amendment decisions, Eddins quoted HBO’s The Wire: “The thing about the old days, they the old days.”

Originalism is a veneer for subjective value judgments

Another common refrain among state judges is that originalism is not an objective method of constitutional interpretation — instead, it uses historical analysis as a veneer to conceal judges’ subjective value judgments.

North Carolina Justice Anita Earls, dissenting from a decision that partisan gerrymandering claims under the state constitution were non-justiciable, argued that the majority’s originalist approach had “weaponized” historical analysis to “paint a distorted picture of a constitution’s historical understanding.” Quoting Judge Richard Posner, then of the U.S. Court of Appeals for the Seventh Circuit, she wrote that originalism “is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.”

Then Michigan Chief Justice Bridget McCormack also called out the dissenting opinion’s proposed originalist approach in her concurrence to a case challenging the constitutionality of life sentences for crimes committed by juveniles. She observed that “adherence to original meaning” allows for “disguised policy choices about how to interpret text” and would “make it just as likely that judges’ policy preferences drive a result.”

Originalism seeks a single original public meaning that does not exist

Finally, a number of state judges have rejected originalism’s underlying premise that a single original public meaning of constitutional provisions exists. “What originalism requires judges to identify — a single, objective original public meaning — is something we cannot know,” read Wisconsin Justice Rebecca Dallet’s concurrence in a case concerning the process of submitting a state constitutional amendment to voters. Dallet criticized the majority’s review of the “original meaning of the Wisconsin Constitution” as a “fruitless” exercise.

In a related vein, judges have observed the difficulties in present-day interpreters reaching an unambiguous or incontrovertible interpretation of the past. Kansas Justice Dan Biles noted in a concurrence to a case allowing a sweeping abortion ban to stand that “an originalism search only gets us so far,” acknowledging that “the historical back-and-forth really just boils down to how much weight is given one selected fact over another.” And writing for the court in an Ohio case involving a constitutional challenge to a ban on the use of a firearm while intoxicated, then Chief Justice Maureen O’Connor pointed out that a “text, history, and tradition” approach would not provide a clear answer because “historical evidence can be viewed in different ways by different people.” Thus, she wrote, originalism necessarily involves “present-day judgments.”

Originalism does have many defenders among state justices

To be sure, the use of originalism is just as hotly contested in the states as it is in the federal arena, and several state supreme court justices have embraced originalism. These proponents typically argue that originalism is preferable because it constrains judges from policymaking and makes judging more democratic by tying it to the intentions of the people who adopted the constitutions.

Writing for the majority in a decision upholding the constitutionality of sweeping abortion bans in the state, Idaho Supreme Court Justice Robyn Brody defended originalism as a way to enforce judicial restraint and respect “the policy-making role of the legislature.” Brody also dismissed concerns that discerning original meaning was “difficult” or “speculative” because “importantly, abortion was a procedure known to the framers in 1889.”

Yet many justices who have applied originalist methods have also noted originalism’s limitations. Brody observed in the same case, for example, that it would be more difficult to apply an originalist test to issue areas that were “likely never envisioned in the nineteenth century, such as regulation of the Internet, airwaves, bitcoin, and drones.” 

Wisconsin Justice Brian Hagedorn, who defended originalism as the method of constitutional interpretation most faithful to the meaning “adopted by the people,” pointed out in the same opinion that “constitutional language is at times written with less precision” than statutes. He noted that this inexactitude made a text-and-history focused analysis more difficult for constitutional provisions. Similarly, writing for the Utah Supreme Court in a case concerning a criminal defendant’s right to a jury trial, Justice John Pearce endorsed originalist methods as helping to prevent an “undue reliance on arguments based primarily upon the zeitgeist,” but then compared originalist constitutional analysis to discerning meaning from a Jackson Pollock painting. Like an abstract Pollock painting, he explained, the historical record was often opaque and difficult to interpret.

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As this sampling of recent state supreme court decisions makes clear, state judges across the country are debating the future of originalism in the states, with many calling for an alternative approach. The sharp rebukes of originalism suggest that state supreme courts could become increasingly important laboratories for anti-originalist jurisprudence. As state courts are increasingly called upon to consider state constitutional claims, judges will have the opportunity to build on these critiques of originalism and develop alternate approaches to constitutional interpretation.

Chihiro Isozaki is a counsel in the Democracy Program at the Brennan Center for Justice.

Suggested Citation: Chihiro Isozaki, State Justices Speak Out Against Originalism, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 7, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-justices-speak-out-against-originalism