Originalism is a theory of constitutional interpretation according to which the meaning of the Constitution remains fixed until it is properly changed by amendment, not by judges. On The Bob Zadek Show, guests presented originalism as one side of a dichotomy with living constitutionalism, the view that the meaning of a written constitution can and should be updated by judges to reflect changing times. The show treated the distinction as foundational to debates over Supreme Court nominations, the Second Amendment, the Fourteenth Amendment, and the Dobbs draft.
Defining the dichotomy
Bob Zadek framed the debate as a contrast between originalism — interpreting the Constitution according to the common meaning of its words at the time of enactment — and a living constitution, which gives judges latitude to interpret what the words mean now, even at the cost of doing havoc with the original meaning. He asked whether progressives favor a living constitution because of something inherent in progressive political philosophy Eight-Dimensional Chess (2020).
Randy Barnett offered a plainer formulation: originalism is the view that the meaning of the Constitution should remain the same until it is properly changed by amendment and not by judges. Living constitutionalism, by contrast, holds that the meaning of a written constitution can and should be updated by judges to reflect the changing times and troubles and problems that every society faces. Barnett described it as a judicial updating view rather than one that treats the Constitution’s meaning as fixed and judges as subject to that meaning Amy Coney Barrett on Trial (2020).
Evan Bernick defined originalism by two core commitments: first, that the object of constitutional interpretation is to determine the meaning conveyed to the ratifying public at the time a provision was enacted; second, that judges are bound to follow that original meaning Evan Bernick on the Dobbs Draft (2022).
The Second Amendment as a test case
Josh Blackman told Bob Zadek that liberals historically said they could not get what they wanted from history, so they ignored it, but that a modern trend among progressives seeks to ground arguments in originalism because a majority of the Court is inclined to look to text and history. He cited District of Columbia v. Heller, the 2008 case in which a majority opinion by Justice Scalia found that the Second Amendment protects an individual right to keep and bear arms, and a dissent by Justice Stevens that was thoroughly based in history — founding-era statements, the drafting history of the Second Amendment, and statutes passed in the 1800s. Blackman called the result a victory for Scalia and for originalism Eight-Dimensional Chess (2020).
Barnett used the same amendment to illustrate how the two philosophies diverge. An originalist, he said, would argue that the meaning of the right to keep and bear arms is the same today as when the Second Amendment was ratified and as when the Fourteenth Amendment was ratified in 1868, with the right among the privileges or immunities of citizens. He acknowledged that people opposed to gun rights make an originalist argument that the original meaning was a collective rather than individual right — an argument he called wrong but permissible. A living constitutionalist, by contrast, would treat the Second Amendment as at best a starting point or a single factor, and might argue that public safety requires strong restrictions today, invoking the idea that policy should not be bound by the dead hand of the past Amy Coney Barrett on Trial (2020).
The rule of law and the amendment process
Barnett gave two reasons for his commitment to originalism. The first concerns the rule of law: judges and all government officials take an oath to adhere to a written constitution, and the power they receive is given in return for that promise. The Constitution, he said, is the law that governs those who govern us; without it, officials could make up the laws that govern them, much as individuals making up their own laws would produce chaos — like having living speed limits instead of a speed limit for everybody. The second reason is that the Constitution is a good document, and following its original meaning would reduce the significance of national elections and of who sits on the Supreme Court by allocating power to 50 states for 50-state solutions, while the Fourteenth Amendment would still protect individual rights against their own states Amy Coney Barrett on Trial (2020).
Barnett also emphasized that originalism does not leave society stuck with the dead hand of the past, because the Constitution provides a mechanical way to change it. He noted that the Constitution has been changed 27 times, including the Fourteenth Amendment, which created a federal power to police states, and the Progressive Era amendment allowing Congress to tax incomes. He argued that if the Supreme Court enforced the original meaning and it flew against modern opinion, a rapid amendment would likely follow. He also described the Slaughterhouse Cases, decided five years after the Fourteenth Amendment was enacted, as an instance in which judges undid the Privileges or Immunities Clause because they disagreed with the scale and scope of the change — a form of living constitutionalism Amy Coney Barrett on Trial (2020).
Dobbs and the limits of originalism
In a 2022 episode on the Dobbs draft, Bernick gave the draft an incomplete from an originalist perspective. He said Dobbs does not seek to determine the original meaning of liberty in the Due Process of Law Clause, of the privileges or immunities of US citizens, or of equal protection, but relies entirely on the Glucksberg test without explaining why that test is grounded in the original meaning of the Constitution. He noted that the outcome — that abortion is not protected by the Fourteenth Amendment — is the generally held position among originalists, citing Jack Balkin’s Abortion and Original Meaning as almost the only major work taking a different view. Bernick disputed a Wall Street Journal article calling the decision a triumph of originalism, saying it barely perceives an obligation to be originalist at all Evan Bernick on the Dobbs Draft (2022).
Bernick also described the draft’s adoption of the rational basis test as the lowest level of constitutional scrutiny, so extreme that even if the government provides no reasons for a burden on abortion rights, a judge is obliged to come up with a plausible justification. He called it less a standard of review than an abstention rule. Bob Zadek characterized the Court as saying that Americans who wish to make rules governing abortion should go to the ballot box rather than the courts, and Bernick agreed that the Court could not be clearer that it considers the matter not its business Evan Bernick on the Dobbs Draft (2022).
Across episodes
The topic recurs across three episodes. In the 2020 episode with Josh Blackman, originalism is treated as a battlefield on which liberals and conservatives now compete, with Heller as the leading example. In the October 2020 episode with Randy Barnett, originalism is defended on rule-of-law grounds and tied to the amendment process. In the 2022 episode with Evan Bernick, the focus shifts to whether the Dobbs draft actually applies originalism, with Bernick arguing it does not. The excerpts show a development from defending originalism as a philosophy to interrogating whether a specific decision lives up to it.
What the sources do not cover
The excerpts do not state the full holdings of the cases discussed beyond what the speakers say, nor do they identify the specific constitutional provisions at issue in Dobbs beyond the clauses named. The excerpts do not describe the outcome of the Dobbs case or whether the draft became final. They also do not cover the views of any originalist scholar beyond those named, or the details of any living constitutionalist theory beyond the general descriptions offered.