Originalism is now a common feature of constitutional litigation. Throughout the federal courts — and, to a lesser extent, the state courts — judges are resolving major legal questions with reference to the “original public meaning” of constitutional provisions or related concepts of “history and tradition.”
This turn in American jurisprudence now led by the Roberts Court has been widely and rightfully criticized for fostering an approach to judging at odds with established ways of making sense of the Constitution and for ignoring staple features of general legal reasoning such as precedent, purpose, morality, prudence, logic, and transparency. Critics have likewise noted that courts are using this approach to expand executive power in democracy-eroding ways, undermine long-standing rights and protections, and entrench inequality and marginalization. Given these problems, it’s important to challenge attempts to remake legal reasoning to conform to originalism’s demands.
And given the prevalence of originalist arguments in opinions and briefs, it’s also important to contain and counter them when they appear in litigation. This guide is designed to help you do just that. It offers practical strategies and tactics for addressing originalist arguments that can persuade judges, take some of those originalist arguments off the table, and help win cases for your clients. This guide should help you spot originalist arguments, understand at a high level how they work, and respond to them effectively while maintaining a robust critique of originalism and its applications.
We’ve written this guide primarily for litigators. But litigators aren’t the only ones who need to respond to originalist arguments. Judges, scholars, teachers, journalists, commentators, and others do too. Indeed, everyone is involved in the process of understanding and applying the Constitution; it’s not just the province of the highest court or a matter confined to the courtroom. Throughout this guide, we talk about court filings and lawyering tactics. But many of our insights should also be useful for scholarly articles, judicial opinions, public writing, and debates.
At the core of the guide’s approach is a basic idea: To address originalist arguments, attorneys don’t have to discard their tried and true lawyering techniques and become historians. Historical research undoubtedly plays an important role in shaping responses to originalism in litigation, but it’s just one tool in the lawyer’s tool kit. Other tools — including precedent, logic, and critical reasoning — can be used to reduce the legal significance of your opponents’ originalist claims without even engaging their historical merits. And, once you engage those merits, there are additional tactics that can help you more effectively work with historians and historical materials as well as avoid mistakes that can weaken your case.
This guide synthesizes holdings and useful commentary from judicial opinions, analysis from the scholarly literature, and tactics the Brennan Center for Justice has learned or developed in working with lawyers and historians on strategies for litigation in which originalism has been in play. It includes insights that are relevant for lawyering in both the federal and the state courts.
After a brief discussion of some of the ways originalism appears in litigation, this guide offers three sets of arguments that you can use to reduce the scope and legal significance of originalist propositions you encounter in your cases. It then provides practice pointers that can help you address the historical merits of originalist arguments. The guide closes with a sampling of approaches for recasting, in non-originalist forms, history’s role in constitutional disputes. Along the way, you’ll find copious citations to sources that can bolster your case filings and deepen your knowledge.
This guide aims to be thorough, but it does not claim to be comprehensive. The authors’ principal experiences have been with federal appellate litigation on issues of structural constitutional law. We hope our observations will encourage practitioners in other areas of the law and other courts to bring more insights to bear in the coming years.
Additionally, this guide does not attempt to train you in substantive history or historical research methods. Our practice pointers should, however, help you identify problems with historical arguments you encounter and structure your consultations with historians.
Finally, this guide does not claim — and cannot responsibly claim — to offer advice that will work for every case and at every stage in the litigation life cycle. Your immediate obligation is to your clients. The choice of whether and how to deploy each of these tactics will depend on the needs of your case. In any given case, you should adopt only what will serve your clients’ interests according to your own considered judgment. In that spirit, we encourage you to evaluate each of these arguments with the particulars of your case in mind.
Addressing the courts’ originalist turn can be daunting. For your work and your thinking, it is crucial to take the long view. Originalism may be dominant now. But as a jurisprudential project it is just decades old, and only more recently has it become so consequential. It will not govern the law forever. Litigators have a key role to play in developing tools to challenge originalism’s spread and advancing alternatives when opportunities arise.
