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Samuel Alito

Justice Alito on Originalism

His recent Wall Street Journal column on this subject makes some interesting points, but raises more questions than answers.

Ilya Somin | 10.5.2026 10:36 PM

Justice Samuel Alito (CNP/AdMedia/Sipa/Newscom)

In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specific constitutional issues. Here, I note a few of particular interest.

There is a longstanding debate among originalists as to whether the proper original meaning courts should apply is that understood by ordinary people at the time of ratification, that understood by lawyers and other well-informed experts, or that understood by hypothetical "reasonable" readers (many advocates of the latter approach assume the "reasonable" reader is highly knowledgeable about legal doctrine and methodology). I call this the divide between "elitist" and "populist" versions of originalism. Alito clearly comes down on the populist side:

When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language?

How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.

In taking this position Alito seems to ignore the potential downsides of the populist approach. Among other things, ordinary people may be ignorant about a variety of constitutional issues, and may have particular difficulty interpreting technical legal terms embedded in the Constitution, such as "writ of habeas corpus" or "bill of attainder." Populist approaches to original meaning are also less likely than elitist ones to offer insight on how to deal with issues unanticipated at the time of enactment, such as........

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