This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
The following is lightly adapted from the author’s new book, The Year of Living Constitutionally.
I recently discovered that if you walk around New York City while carrying an 18th-century musket, you get a lot of questions.
“You gonna shoot some redcoats?”
“Can you please leave?”
“What the hell, man?”
Questions aside, a musket can come in handy. When I arrived at my local coffee shop at the same time as another customer, he told me, “You go first. I’m not arguing with someone holding that thing.”
Why was I carrying around a 10-pound firearm from the 1790s? Well, it was because I was deep into my year of living constitutionally. I had decided to explore our founding document by expressing my constitutional rights using the tools and mindset of when they were written in 1787. I would bear arms, but only those arms available when the Second Amendment was written. Hence the musket and its accompanying bayonet.
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I would exercise my First Amendment right to free speech—but in the old-fashioned way: by scratching out pamphlets with a quill pen and handing them out on the street. My right to assemble? I assembled at coffeehouses and taverns, not over Zoom or Discord.
My goal was to understand the Constitution by expressing my rights as they were interpreted back in the era of Washington and Madison (or, in the case of the later amendments, how those amendments were interpreted when they were ratified). I’ve long been fascinated by the debate over how we should interpret our nation’s founding document. How much should the meaning evolve, and how much should it be beholden to the past and tradition? Should we search for the original meaning, or is the Constitution a living document?
It’s a vastly important question with implications well beyond the specifics of my personal project. The Supreme Court’s view on what meaning of the Constitution we should follow has guided their decisions on women’s rights, gun rights, environmental regulations, and religion. And even though it’s just four pages, the Constitution seems almost infinitely complex. I could go broke buying books explaining different ways to interpret the Constitution. There are hundreds of them covering every angle, every phrase, every amendment. There are three entire books on the Third Amendment, for crying out loud—and that’s the obscure one about how you don’t have to quarter soldiers in your home without your consent.
But the other problem is, most crucial of all, the Constitution never gives any instructions on how to interpret itself. It has no user’s manual, no glossary. Which is why, when I started my year of living constitutionally, I knew I couldn’t do it alone. I needed a Board of Constitutional Advisers. So, I assembled a group of generous legal scholars whom I called and emailed with questions.
My advisers held beliefs from all over the political spectrum. What are the axis (axes?) of the political spectrum when it comes to the Constitution, you ask? Well, to way oversimplify, there are two main types of interpretation: living constitutionalism, which tends to be the direction liberals go, and originalism, which tends to be the more conservative approach.
Living constitutionalism argues that we need to adapt the meaning of the words to fit with changing morality. As my advisers over the course of my year showed me, this belief can edge on being practically postmodern, saying that there’s no intrinsic meaning in the Constitution at all and that it’s completely up to the interpreter, Play-Doh for us to mold as we wish. For instance, the 14th Amendment promises “equal protection” for all. The writers of the 14th Amendment in 1866 almost certainly did not mean for this protection to apply to gay marriage. But living constitutionalism says it does because it makes sense today and we need to adapt. The biggest criticism of living constitutionalism is obvious: If you’re not anchored to the original meaning, then what stops you from changing the Constitution’s meaning to whatever you want? The slope is slippery.
Originalism, in contrast, came to the fore in the 1980s as a way to stop what the conservatives saw as the liberal Supreme Court’s overreach. They worried that the Supreme Court—which had recently ruled in favor of affirmative action and a right to abortion—was untethered and was willy-nilly making rulings that aligned with their politics—that liberals were “legislating from the bench.”
And that’s where originalism comes in. It says you need to go back to the original meaning of the text when it was ratified. Originalists like to argue that the Constitution is not a poem or a metaphor. It’s more like a … recipe for, say, chicken salad. And just because it was written over 230 years ago, you still need to follow the recipe if you want to make chicken salad. One of my advisers is so originalist, for example, that he refuses to capitalize the word supreme in Supreme Court, because it’s not capitalized in the Constitution.
As another example, hardcore originalist Justice Clarence Thomas says that the Constitution’s “equal protection” does not apply to gay marriage. The phrase appears in the 14th Amendment, which was ratified in 1868, an era when the average American would never have conceived of gay marriage.
Originalists are not completely frozen in time, though a thoughtful originalist takes the centuries-old principles of the Constitution and applies them to current technology and situations, using history and tradition as a guide. So the prohibition against unreasonable searches and seizures, originally meant to stop the constable banging on your door in 1787, now applies to the government snooping through the contents of your smartphone. It’s the same idea, even though the execution of the idea has necessarily changed with time.
There has recently been growing criticism of originalism, especially around its staunch approach to not updating women’s rights, gay rights, or environmental regulations. For instance, former Justice Antonin Scalia famously said that the 14th Amendment’s original meaning doesn’t apply to “discrimination on the basis of sex,” under the principle of originalist interpretation. If true, then 19th-century laws forbidding married women from signing their own contracts might still be constitutional today. But … my wife, Julie, owns a small business and signs several contracts with clients every day. Which is why, for my originalism project, I suggested I take over that aspect of her business. She allowed me to do so … for an hour. I screwed it up so badly she fired me that same day. My takeaway? It would be … bad to have to live under the originalist meaning of this clause in 2024.
Another charge against originalists is that judges apply the theory inconsistently. Sometimes, a certain constitutional right is interpreted as narrowly as possible—as with Thomas’ view of gay marriage. Other times, a right can be stretched to the breaking point. Most originalists say, for example, that the “right to bear arms” covers flintlock muskets as well as AR-15s, even though these two objects are arguably vastly different. I would not have walked into a coffee shop with an AR-15 and expected the reactions I got for walking in with a musket, for one thing.
How did I personally resolve disputes in Constitutional meaning during my year? I pledged to avoid the hubris of assuming we know what the founders would have thought about modern innovations. Which is why I decided I would go back to the basics and become the ultimate time-dated originalist.
When I told Julie that I planned to live for a year constitutionally—muskets, quill pens, and all—her reaction was not “Huzzah!”
“I’m not going to churn butter,” she said.
“You won’t have to,” I said. “That’s not part of it. Unless the soldiers who quarter in our house really want it.”
But the butter-churning comment raises an interesting question: Just how much could I commit to an 18th-century lifestyle? The Constitution does not say “All citizens shall wear a tricorne hat and drink rum punch,” just as the Bible didn’t say “Thou shalt bake bread from scratch and wear a robe.” But when I did my year of living biblically, I baked the bread and wore the robe—because I believed that it might help me get into the mindset of my ancestors.
And I think it did. In fact, my attempt to look and act like my biblical forefathers was one of my favorite parts of that project. It was a lesson in how much the outer affects the inner, how much behavior affects our thoughts. Even my flowing garments affected my outlook. There’s truth in the saying “Clothes make the man.”
So I wanted to do the same thing with the constitutional era. I wanted to walk the walk and talk the talk and eat the mutton and read the Cicero. I believed that it would help me see the world differently.
Before I got started, several of my advisers told me they appreciated the goal, but that getting into an 18th-century mindset is a tough task. “They thought about life in a completely different way back then,” one historian said to me. “The past is another country. It’s like trying to get inside the mind of a mollusk—it’s just so foreign to us.”
I took his point. But I still wanted to try.
One of the first things I did was go online and buy an American flag—one of the first versions, with just 13 stars arranged in a circle. I hung it on our bedroom wall, hoping it would get me into an 18th-century mentality.
It reminded me that I used to have patriotic art in my room. When I graduated from high school, my grandfather gave me a poster of the Statue of Liberty by the artist Peter Max. It hung in my apartment throughout college and in my home after I graduated. I loved that this was the same statue my great-great-grandparents saw when arriving at Ellis Island after fleeing Russia in 1904. I loved what it stood for. It made me feel patriotic.
Which is a feeling I’ve been missing. For most of my life, I’ve been a fan of the American experiment, despite its flaws. But lately, I’d been having profound doubts about our country. Can America survive this cultural divide? Am I being alarmist, or are we really in some sort of national existential crisis? One goal of this project was to try to answer these questions.
So what did I think of originalism after living a reductio ad absurdum version of it for a year? Well, in the book, I talk at length about the many lessons from the experiment, which have to do with governance, progress, and so much more.
But one lesson I can share with you already is this: Although I see originalism’s allure and acknowledge the weaknesses of living constitutionalism, I believe originalism is, at heart, an unbalanced approach. I am a fan of balancing, which I think is a deeply American value. The founders were big into balancing too. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I don’t normally think of it this way, but the truth is, I use a balance of factors when I make decisions in my daily life—a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or religion. A fox views it through multiple lenses, combining approaches and strategies.
Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. We can interpret the Constitution using several lenses: Yes, what was the original public meaning? But also—what will be the societal consequences of the ruling? What has the Supreme Court ruled in recent decades? What was the purpose of the law? How will it affect our descendants?
I believe that flexible thinking leads to better solutions and a better life. Though I do find the hedgehog-fox parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
