Judicial Philosophy Originalism vs. Pragmatism and Constitutional Meaning

Image via Dissent Magazine

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For more than two centuries, Americans have debated over how the Constitution should be read and understood. Should the document be bound to the original meaning the framers intended in 1787, or should its values be adapted to meet the realities of modern society? This dispute between originalism and pragmatism (sometimes referred to as the “Living Constitution”) is one of the most consequential intellectual battles in modern America. Its stakes are immense: from civil rights to the scope of executive power and fundamental freedoms, the lens through which judges view the Constitution often determines the outcome of cases that reshape the nation and our lives. 

Originalism is the predominant school of thought among many conservative jurists, who hold that the Constitution should be interpreted according to the meaning its words had when it was ratified. Pragmatism, by contrast, argues that judges should interpret constitutional provisions in light of evolving values and social understandings. Both theories claim to honor democracy and the Constitution’s intention, but in practice, they represent different visions of legal identity; one rooted in stability and constraint, and the other in adaptation and change. 

Originalists argue that their approach is the traditional one, noting that pragmatic interpretation did not gain widespread popularity until the early 20th century. By grounding constitutional meaning to the framers’ intent and the public understanding of the text at the time of ratification, judges have limits on their own power to reshape the law. In this view, the role of a judge is not to impose personal visions of justice but to uphold the law as it was originally written. Originalists also maintain that the founders never intended for significant political change to come from the courts; instead, that responsibility lies with the legislature. Congress—the Senate and the House—was specifically designed to write and pass laws that adapt to the needs of the present day. Former Supreme Court Justice Antonin Scalia, perhaps the most famous proponent of originalism, put it bluntly: “The Constitution means what it says. You figure out what it was understood to mean when it was adopted, and that’s the end of it. If you want more rights, create them by statute; if you want more constitutional rights, amend the Constitution.” Originalists believe this approach provides predictability and stability. Citizens and lawmakers can understand what the Constitution allows by studying its historical context and meaning. This prevents the Constitution from drifting in meaning with every new generational trend. 

Pragmatists, on the other hand, take a more nuanced approach; they believe that originalism’s stability is also its greatest weakness. The framers could not have anticipated the challenges of the twenty-first century, such as digital surveillance, genetic engineering, and the internet. To interpret the Constitution’s guarantees through a strictly originalist lens in resolving today’s data-privacy disputes is to miss the ways in which those guarantees were designed to adapt to new contexts and protect emerging rights. Phrases such as “equal protection,” “due process,” and “cruel and unusual punishment” are intentionally open-ended. To freeze them in the mindset of the 18th century, pragmatists argue, is to ignore their purpose as living principles meant to resonate with each new generation. Thomas Jefferson captured this sentiment in 1789 in a letter written to James Madison: “The earth belongs in usufruct to the living: the dead have neither powers nor rights over it.” For pragmatists, the Constitution must be adaptable because each generation must govern itself, rather than being held to the moral standards of centuries ago. 

One of the best Constitutional examples to understand this difference in understanding is the Eighth Amendment, which states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Let’s focus on “Cruel and unusual punishment.” What does that mean? To a founding father, sentencing a teenager to the death penalty or branding a thief with a hot iron were certainly not seen as “cruel” or “unusual,” both in fact were quite common, but today such practices are seen as horrific. Pragmatists argue that clinging to such eighteenth-century conventions would trap society in outdated moral frameworks. However, originalists contend that if the standards are left to evolve without textual grounding, then society could just as easily regress as progress. For example, the Supreme Court has twice raised the minimum age for capital punishment in cases like Thompson v. Oklahoma (1988) and Roper v. Simmons (2005), drawing on contemporary standards of morality rather than historical ones. That being said, there is nothing stopping the court from doing the opposite—if society were to decide tomorrow that the death penalty is acceptable for 8-year-olds, a pragmatic interpretation could just as easily change it to be so. For originalists, this is precisely the danger of pragmatism, the notion that pragmatism is simply judicial activism—when a judge decides a case based on their own beliefs rather than adhering to the letter of the law. If judges are bound by original meaning, they cannot invent new rights or restrictions based solely on personal preference. Scalia frequently warned of wayward judges: “The main danger in judicial interpretation of the Constitution is that the judges will mistake their own predilections for the law.” In originalism, the Constitution provides constraints and forces democratic change to come from elected representatives, rather than unelected individuals with lifetime appointments. 

In practice, pragmatism often emphasizes the consequences of judicial rulings and whether they promote justice in a changing world. Former Supreme Court Justice Stephen Breyer argued that constitutional interpretation should “fit the values of democracy, liberty, equality, and fairness” as they evolve. This is evident in landmark rulings such as Brown v. Board of Education (1954), where the Court struck down segregation, or in Obergefell v. Hodges (2015), which established marriage equality for same-sex couples. Such decisions did not rest exclusively on the historical understanding of the Fourteenth Amendment, nor were they the result of congressional action; instead, the Court determined their outcome based on the Fourteenth Amendment’s broader principles of liberty and dignity, and applied them to the contemporary circumstances. 

Another way to illustrate the difference between an originalist and a pragmatist approach is with the following scenario. Suppose there is a park in a town, and in that park, there is a sign reading, “No vehicles allowed on the grass.” Everyone has an idea of what “no vehicles means,” if asked if this rule would apply to a car, many would say yes, but what about a decommissioned tank placed as a memorial? A proper originalist would insist that any object meeting the definition of “vehicle” is prohibited, cars, trucks, motorcycles, even if stationary. A pragmatist, by contrast, would ask about the purpose of the rule: to prevent noise, reduce pollution, or maybe just safety. In that case, the decommissioned tank placed as a memorial might not violate the rule’s spirit, even if it does technically violate its literal language. This example encapsulates the larger constitutional divide: whether to apply rules in a liberal manner or in accordance with the broader principles and purposes they are intended to serve. 

Despite their sharp philosophical contrasts, originalists and pragmatists often overlap in practice. On average, half of all Supreme Court cases are decided unanimously or with a broad consensus, typically drawing on a mix of historical analysis, intent, precedent, and reasoning. Only a small number of decisions form along party lines. During the 2023 Court term, for example, only eight percent of cases—five out of 57—were decided 6-3, with all six Republican appointees on one side and the three Democratic appointees on the other. Furthermore, over ninety percent of the 57 cases had a majority opinion joined by at least one liberal justice.

Still, when high-profile and complicated issues such as abortion, affirmative action, or gun rights reach the court, these interpretive differences can lead to very different understandings. In Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade, the majority held that the Fourteenth Amendment’s protection of liberty did not encompass abortion because such a right was neither explicit in the text nor recognized at the time of ratification. The dissent, however, argued that reproductive autonomy is consistent with the broader principles of liberty and equality that the Constitution ensures to all people. 

There is no clear answer for the best approach. Originalists maintain that pragmatism risks allowing judges to impose personal preferences over the will of the people. At the same time, pragmatists argue that originalism locks society into the prejudices and blindness of earlier centuries. While originalism risks enshrining outdated norms, it relies on the legislative branch to update and address modern queries. Pragmatism, by contrast, allows constitutional principles to evolve with society, even when legislatures fail to act, ensuring that rights can be protected and adapted during periods of gridlock. However, it also carries the risk of allowing judges to create new rights or limits based on personal judgment rather than on the Constitution itself. 

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This article was edited by Tegan Munafo.