Judges chosen for life all read the same Constitution, yet they often disagree. Much of that disagreement is about method: how to read a text written in 1787 and amended over two centuries. Here are the main approaches, each described as its supporters would put it. (The Constitutional Law course goes further.)
| Approach | The idea | What supporters say |
|---|---|---|
| Originalism | Read the words as they were publicly understood when they were adopted. | The meaning stays fixed until the people change it by amendment; this limits judges and respects democracy. (Justice Antonin Scalia was a leading voice.) |
| Living constitutionalism | Apply the Constitution's broad principles to conditions the framers could not foresee. | Phrases like "equal protection" and "cruel and unusual" were written broadly on purpose; amendment is very hard, so faithful reading must adapt. |
| Judicial restraint | Defer to elected lawmakers and to precedent; strike down laws only when the conflict is clear. | Judges are not elected; policy belongs to the people's representatives. |
| "Judicial activism" | A label, usually used by critics, for rulings they think go beyond the law. | People on every side use it about decisions they dislike; it names a criticism, not a method. |
Why it works
These methods are about how to read, not about which side wins. Judges of each school sometimes reach results people do not expect. In Texas v. Johnson (1989), Justice Scalia, an originalist, joined the 5-to-4 majority holding that burning a flag in protest is protected speech. In McGirt v. Oklahoma (2020), Justice Neil Gorsuch, a textualist, wrote for a 5-to-4 majority that the Muscogee (Creek) reservation established by treaty had never been ended by Congress. Scholars still debate each method's strengths and weaknesses.
Key idea
Originalists read the text as understood when adopted; living constitutionalists apply its principles to changing conditions; judicial restraint defers to elected branches and precedent; "activism" is a critic's label. Each is a method, not a political outcome.
Worked example: Name the method
A judge writes: "To decide what 'unreasonable searches' means, we look at what that phrase meant to Americans in 1791." Which approach is that?
- The judge fixes the meaning at the time of adoption (the Fourth Amendment, 1791).
Answer: Originalism.
Worked example: Method or result?
A student says, "An originalist judge will always vote for the conservative side." Is that right?
- Methods describe how to read the text.
- Scalia joined the majority protecting flag burning in Texas v. Johnson; Gorsuch wrote for the Creek Nation in McGirt.
- So the method does not fix the result in every case.
Answer: No. Methods and outcomes are different things.
Common mistake
Equating originalism with "conservative" and living constitutionalism with "liberal" results in every case. Describe the method by how it reads the text. Check: does the sentence talk about the meaning of words or about who wins?