Articles Tagged with BILL POWERS

What is originalism in constitutional law? Originalism is a theory of constitutional interpretation that asks judges to read constitutional language according to its original public meaning when adopted and then apply that meaning to the dispute before the court. The theory can affect criminal prosecutions, civil actions, government regulation, voting rights, presidential power, and nearly every other field in which constitutional limits control government conduct.

In an August 8, 2026, Wall Street Journal interview, Justice Samuel Alito describes himself as a practical originalist and rejects the premise that constitutional history produces an automatic answer in every case. He acknowledges that there is “no algorithm” and says judges must determine the governing principle and its proper level of generality.

Justice Alito refers to his approach as “practical originalism.” His defense of that method deserves consideration on its own terms, including his acknowledgment that text and history do not produce an automatic answer in every constitutional case.

The difficulty is the messenger.

Justice Alito sometimes appears less interested in persuading his critics than in delivering the judicial equivalent of a raised middle finger.

That instinct for provocation does not discredit originalism as a method of constitutional interpretation. It does, however, make Justice Alito a less persuasive ambassador for a theory that presents judicial restraint as one of its principal virtues.

There is a legitimate question about whether history has a role in constitutional interpretation. Clearly, it does.

What happens, from a judicial perspective, when historical evidence is disputed, when eighteenth-century rules must govern 2026 technology, and when the breadth used to describe a constitutional principle may decide the outcome?

Two propositions therefore coexist. Originalism is a legitimate theory of constitutional interpretation with a decent level of intellectual force. And, Justice Alito can be combative, politically predictable, if not divisive, and remarkably lacking when it comes to embodying judicial detachment.

What Is Originalism in Constitutional Law?

Originalism begins with a fixed-meaning premise. A constitutional provision retains the meaning it possessed when it became law. Article II of the U.S. Constitution does not suddenly change when public expectations about presidential power change. The First Amendment does not become less controlling simply because unpopular speech is somehow deemed more offensive. The Fourth Amendment does not disappear when the government replaces a constable with a GPS or Flock Camera.

Modern originalists generally focus on an original public meaning. That is technically different from the search for original intent. For example, James Madison’s private hopes may offer historical evidence, but they do not displace the language the nation ratified. The Constitution is law because of its enacted text, not because a court (judge) can reconstruct the private motives of several prominent “founders,” the drafters.

Original public meaning can also differ from the original expected application in the law. The ratifying generation could understand the meaning of “speech,” “search,” or “equal protection” without anticipating every future dispute governed by those terms. A legal or constitutional principle may remain static while its practical application in everyday life may affect fact patterns the ratifiers never encountered or could not have anticipated. The National Constitution Center’s explanation of originalism helps explain the separation between public meaning, subjective intent, and expected applications in day-to-day life.

Originalism is also not a form of strict constructionism. A strict construction of the Constitution generally forces language into its narrowest literal reading. An originalist may instead consider grammar, legal usage, surrounding text, constitutional structure, and implications that a reasonable reader at the time would have recognized. Justice Antonin Scalia, despite his public association with originalism, rejected the strict-construction label.

Originalism | Serious Claim to Constitutional Legitimacy

A written constitution is meant to bind (limit) those who exercise government power. If its meaning changes whenever judges believe social conditions warrant a different rule, the written limits become less secure and the amendment process established by Article V loses part of its purpose. Originalism gives judges a reference point outside their own policy preferences. That makes sense.

History can constrain. A judge who is called to defend a result through text, linguistic usage, legal tradition, and ratification-era evidence has more to answer than a judge who announces that liberty, fairness, or dignity now requires a preferred outcome. The historical case may fail, but it can be examined and challenged. That type of argument gives lawyers, other judges, scholars, and the public a basis for testing the legal opinion.

Originalism also reflects a democratic premise. The people adopted constitutional language through prescribed legal processes. Judges may interpret that language, but they do not possess a roving commission to replace it (through judicial activism) with a constitution they consider more enlightened.

At the same time, none of that serves to prove that originalism provides one indisputable answer to every case. Every interpretive theory of the Constitution can remove judgment from judging.

Text may be broad. Historical evidence may conflict. Longstanding precedent may have generated substantial reliance. Government practices may reveal one understanding in one era and another understanding a generation later.

Originalism offers discipline, not mathematical certainty.

Practical Originalism Admits What Political Slogans Conceal

Justice Alito’s most persuasive point is his rejection of mechanical originalism. A court cannot decide whether a modern law violates an old constitutional provision by demanding an exact historical twin. New facts require reasoning by analogy.

The Supreme Court’s 2024 decision in United States v. Rahimi makes the point. The founding fathers had no federal statute temporarily barring firearm possession after a court found that someone subject to a qualifying domestic-violence protective order presented a credible threat. The U.S. Supreme Court nevertheless upheld the statute as applied because founding-era surety laws and restrictions on threatening armed conduct reflected a relevant historical principle. The modern law did not need to copy an eighteenth-century statute word for word.

Practical originalism candidly recognizes that constitutional reasoning requires this comparison. Yet the adjective “practical” also creates a problem. If it merely means that a judge may depart from original meaning whenever the historical answer is inconvenient, it becomes an escape clause. If it means that original meaning supplies the governing principle while reasoned analogy connects that principle to modern facts, it describes what responsible originalists already do.

The label therefore does not resolve the controversy. It directs attention to the explanation. A persuasive opinion should identify the historical rule, disclose competing evidence, explain the analogy, and state why the chosen level of generality is neither so narrow that the Constitution becomes obsolete nor so broad that it becomes an invitation for judicial policy.

The Level of Generality May Decide the Constitutional Case

The August 2026 Wall Street Journal interview discusses an originalist argument for marriage equality vis-a-vis Obergefell v. Hodges. Professor Steven Calabresi and other scholars have argued that the Fourteenth Amendment prohibited laws excluding same-sex couples from civil marriage that would serve to impose an inferior legal status on a defined social class. That argument does not depend on proving that the public in 1868 expected same-sex marriage. It centers on the claimed original meaning of equal protection.

Justice Alito refers to that approach as “Icarian originalism,” an interesting phrase in its own right. His point is that a constitutional principle can be stated at such a high level of generality that it becomes detached from the historical meaning of the constitutional text. The label is somewhat dismissive, but the underlying concern is legitimate. If equal protection is defined merely as equal treatment in every context, the principle may confer broad authority on judges to determine what equality requires in a particular case.

The response simultaneously exposes a weakness in Alito’s position.

Modern originalism insists that original public meaning is not confined to the ratifiers’ expected applications. If Alito rejects an equality claim mainly because people in 1868 would not have expected the claim to prevail, he risks collapsing public meaning back into expected application. The relevant inquiry should be what “equal protection of the laws” meant, including whether it prohibited caste legislation, and then whether the challenged law falls within that prohibition.

Historical expectations remain evidence of purported intent, but they are not necessarily the rule itself – Bill Powers, NC Criminal Defense Lawyer

The same framing problem appears in one of the most contentious Supreme Court opinions in generations.

In Dobbs v. Jackson Women’s Health Organization, Alito asked whether a right to abortion was deeply rooted in the nation’s history and tradition.

Framing the claimed right as a right to abortion points toward one historical record. Framing it as bodily integrity, decisional liberty, or freedom from compelled pregnancy points toward a different level of generality. The choice does not dictate the legally correct answer, but it influences the historical evidence that appears relevant.

District of Columbia v. Heller provides another warning against treating history as self-executing.

Justice Scalia’s majority opinion and Justice John Paul Stevens’s dissent examined many of the same historical materials and reached different conclusions about the Second Amendment. Their disagreement did not prove that history was useless. It proved that historical argument still involves source selection, context, inference, and judgment.

Lawyers sometimes call selective historical advocacy “law-office history.”

It generally refers to using historical material as an advocate would use evidence, selectively assembling sources that support a desired legal conclusion while overlooking contrary evidence or historical context.

The term has been used in scholarship for decades. Justice Breyer also used it in his Bruen dissent, quoting Professor Saul Cornell’s definition of it as a results-oriented method in which historical evidence is selectively collected and interpreted to support a predetermined conclusion. New York State Rifle & Pistol Association v. Bruen, Breyer, J., dissenting. Cornell had previously applied the term directly to originalist methodology in Heller. UCLA Law Review

Originalism restrains judges only to the extent that courts confront adverse sources and explain their choices with the same care expected in other forms of fact-based reasoning.

Does Originalism Always Produce Conservative Results?

Originalism does not logically belong to either political party. That said, conservative lawyers have made it a central part of the modern legal movement, and originalist decisions frequently produce conservative outcomes. That pattern does not establish that every originalist argument is conservative or that every conservative result follows from original meaning.

Criminal procedure provides direct examples.

In Crawford v. Washington, Justice Scalia relied on the historical meaning of the Confrontation Clause to reject a flexible reliability test that had permitted prosecutors to introduce testimonial statements without cross-examination.

In United States v. Jones, the Court used the Fourth Amendment’s property-based history to hold that the government conducted a search when it installed a GPS device on a vehicle and monitored its movements.

In Ramos v. Louisiana, original meaning supported the Sixth Amendment requirement of jury unanimity in state criminal trials.

Those rulings protected defendants against government power. Alito dissented in Ramos, which reinforces the larger point. Originalism is not synonymous with Alito’s voting record.

Originalist scholars have also advanced arguments for marriage equality, the constitutional invalidity of school segregation from the moment the Fourteenth Amendment was ratified, and a broad understanding of birthright citizenship. Lawyers may dispute each argument, but their existence largely defeats the assertion that originalism is partisan in nature.

Citizens United Was Not an Inevitable Product of Originalism

Any fair assessment of Justice Alito would necessarily assess his role in Citizens United v. Federal Election Commission accurately. Justice Anthony Kennedy wrote the 2010 majority opinion. Alito joined it. He also joined concurring opinions written by Chief Justice John Roberts and Justice Scalia.

The U.S. Supreme Court held that the government could not prohibit corporations and labor unions from making independent expenditures for political speech. It did not invalidate limits on direct contributions to candidates. It upheld disclaimer and disclosure requirements. It also did not decide whether Congress could prohibit political spending by foreign nationals, and federal law continues to prohibit foreign-national contributions and expenditures in American elections.

Citizens United was not primarily an original-public-meaning opinion. It relied heavily on First Amendment doctrine, prior campaign-finance cases, speaker neutrality, and a broad rejection of the theory that independent corporate expenditures create corruption or its appearance. Originalism did not compel Alito’s vote.

The consequences have been substantial. The Citizens United majority concluded that independent expenditures, including those made by corporations, “do not give rise to corruption or the appearance of corruption.” The Court treated constitutionally cognizable corruption as quid pro quo corruption, rather than the broader influence or access that substantial political spending may purchase. The D.C. Circuit relied on that premise in SpeechNow.org v. FEC to hold that the government could not limit contributions to committees making only independent expenditures. Together, the decisions supplied the constitutional foundation for super PACs and a federal campaign-finance system in which legal independence from a candidate can carry more weight than the political access, influence, or practical alignment that unlimited spending may produce.

Reasonable lawyers can defend strong First Amendment protection for political advocacy while rejecting the Court’s narrow conception of corruption. It is fair to conclude that Citizens United contributed substantially to the dominance of concentrated money in national politics. It is less accurate to attribute the entire system to that one decision, and it is simply wrong to say Justice Alito authored the opinion.

Alito’s State of the Union Response Was Legally Complicated and Institutionally Poor

At the 2010 State of the Union address, President Barack Obama criticized Citizens United while members of the Court sat directly before him. President Obama said the decision would open elections to unlimited spending by powerful interests, including foreign corporations. Members of Congress applauded.

Alito did not shout or audibly interrupt the President. Cameras showed him shaking his head and appearing to mouth “not true.” Accuracy requires that correction. It does not make the display judicious.

President Obama’s reference to foreign corporations went beyond what the Court had decided. Citizens United did not resolve the constitutionality of the separate federal ban on foreign-national election spending. Justice Alito therefore had a legitimate basis to object to that part of the President’s description.

President Obama also placed the justices in an awkward ceremonial position by criticizing a newly decided case while the majority sat in the first row of the chamber, listening to an applauding Congress.

Yet a Supreme Court justice is not another elected combatant in the chamber. Judicial restraint called for Justice Alito to remain silent and let the opinion speak for itself. His visible retort looked less like judging than a protester’s reflex. It offered no legal explanation, changed no mind, and made the Court look more partisan. He may have been right about the narrow point and still wrong in the way he chose to express it.

That episode captures the problem with Justice Alito as a messenger. He appears to enjoy the eye poke. A judge does not need to be warm, fashionable, or agreeable. A Supreme Court justice should understand, however, that every unnecessary partisan gesture makes later claims of detachment harder for the public to credit.

The Upside-Down Flag Presented an Appearance Problem

An upside-down American flag flew outside the Alitos’ Virginia home on January 17, 2021, eleven days after the attack on the Capitol and three days before President Joe Biden’s inauguration. The symbol had been used by supporters to claim that the 2020 election was stolen.

Alito has consistently said that his wife flew the flag during a neighborhood dispute and that he had no involvement. In his May 29, 2024, response to Senators Richard Durbin and Sheldon Whitehouse, he said he did not know the flag was upside down until someone brought it to his attention. He wrote that he asked his wife to remove it, but she refused for several days. He also emphasized her separate property and speech rights.

Those facts deserve to be included. A spouse’s political expression cannot automatically be imputed to a judge. Marriage does not extinguish independent judgment or First Amendment rights. The neighborhood dispute may also explain why Mrs. Alito acted without proving that Justice Alito endorsed election denial.

The explanation does not eliminate the institutional problem. The Supreme Court’s Code of Conduct directs a justice to promote public confidence in judicial integrity and impartiality and to avoid even the appearance of impropriety. The Code was issued after the flag incident, but the Court described it as a statement of principles the justices had long treated as governing their conduct.

A reasonable outside observer could see a symbol associated with resistance to a lawful election result flying over the shared home of a justice while election litigation was reaching the Court. That observation does not prove actual bias. It does explain the loss of public confidence. Alito’s letter addressed legal ownership and responsibility more effectively than it addressed the institutional damage.

The Journal Interview Does Not Resolve Concerns About Alito

The recent Wall Street Journal profile makes a sound point about the Supreme Court as an institution. The Court rejected three major Trump administration positions during the 2025–2026 term in Learning Resources, Inc. v. Trump, Trump v. Cook, and Trump v. Barbara. Those cases involved tariffs, Federal Reserve independence, and birthright citizenship.

Those decisions serve to refute the claim that the Court as a whole simply takes orders from the President.

The same evidence does much less for Justice Alito personally. He and Justice Clarence Thomas dissented in all three cases. That voting record does not prove corrupt motive or bad faith. Judges can reach recurring results through sincerely held legal premises. Yet the three cases do not answer the narrower concern that Justice Alito’s jurisprudence aligns with President Trump’s claims more reliably than the Court does.

The WSJ profile is useful as an account of how Justice Alito explains himself. It is not a neutral adjudication of his record. Its headline dismisses critics before the discussion begins, and the interviewer devotes more energy to attacking a hostile biographer than to pressing Justice Alito on the hardest implications of practical originalism. Readers might be wise to treat it as a revealing defense brief, not as a verdict.

Justice Alito is nevertheless right about one point. Much of Supreme Court commentary is partisan and legally thin. Calling a justice a partisan, an activist, or a jerk does not answer a constitutional argument. The remedy is not to ignore Justice Alito’s conduct, but instead to examine his reasoning with enough precision that personality cannot substitute for legal analysis on either side.

A Fair Judgment on Originalism Requires Separating the Method from the Man

Originalism deserves neither automatic reverence nor casual dismissal. It begins with a sound proposition that a written Constitution has meaning independent of a judge’s political preferences. Text, history, and legal tradition can discipline judicial power. The amendment process, rather than judicial updating, remains the lawful method for changing constitutional commands.

Originalism does not operate by itself. Judges must identify the relevant historical community, weigh conflicting sources, select the level of generality, reason from old practices to new facts, and decide how precedent affects the result. Justice Alito’s practical originalism is most credible when it admits those choices and explains them. It is least credible when “practical” appears to excuse a predictable political destination.

Justice Alito’s general temperament and demeanor do not disprove originalism. His vote in Citizens United, his State of the Union performance, and the flag controversy do not establish that original public meaning is a defective interpretive method. They do provide some grounds for questioning whether he appreciates the restraint, humility, and institutional judgment needed to persuade those who do not already agree with him.

From outside the Court, Justice Alito can look like a justice who enjoys provocation more than persuasion. That makes him difficult to admire. It does not relieve lawyers, judges, or citizens of the responsibility to confront his strongest legal arguments. Nor does the seriousness of originalism excuse the needless political theater of one of its most visible defenders.

For trial lawyers, constitutional interpretation is not an academic exercise. It governs how courts evaluate searches and seizures, compelled statements, confrontation, jury-trial rights, due process, and the limits of government power. Those principles acquire practical meaning through motions, evidentiary hearings, objections, jury instructions, and appellate decisions.

Bill Powers has practiced law in North Carolina since 1992. He is a former President of the North Carolina Advocates for Justice and a recipient of the North Carolina State Bar’s John B. McMillan Distinguished Service Award. His work at Powers Law Firm draws upon more than three decades of courtroom advocacy, legal writing, and teaching lawyers about criminal law, evidence, and trial practice. That experience informs how he evaluates constitutional doctrine, including the difference between an interpretive theory that sounds coherent in the abstract and a legal rule that must be applied to an actual case.

When a North Carolina criminal case presents a substantial constitutional issue, Bill Powers and Powers Law Firm may be available to review the record, evaluate the controlling authority, and determine whether the Constitution provides a basis to challenge the government’s evidence or proposed course of action. Call now to schedule a confidential consultation 704-342-4357