Former circuit judge Michael McConnell and Professor Noah Rosenblum debate originalism

The merits and pitfalls of originalist interpretation of the US Constitution were the focus at the November 19 installment of Respectfully Dissent, an NYU Law discussion series that, in an era of less-than-civil public argument, showcases reasoned dialogue between faculty members on contentious topics. Originalism holds that the Constitution’s text should be interpreted today as it would have been at the time of its writing in the 18th century. While stirring debate among practitioners and scholars, the legal theory has been the basis for far-reaching opinions from the US Supreme Court, such as Dobbs v. Jackson Women's Health Organization, which overturned a 50-year-old precedent by holding that the Constitution does not provide for the right to an abortion.

Visiting Professor of Law Michael McConnell, a professor at Stanford Law School and former judge on the US Court of Appeals for the Tenth Circuit, advocated for a “common sense” version of originalism, while Professor Noah Rosenblum, an expert in constitutional law, administrative law, and legal history, offered a critique of originalism centered on the practical evolution of constitutional law. Jeanne Fromer, Walter J. Derenberg Professor of Intellectual Property Law and vice dean for University partnerships, moderated the discussion.

McConnell opened the debate by framing originalism as the most logical way to approach a text drafted more than two centuries ago. He argued that the Constitution derives its authority from the specific intent of “We the People” at the moment it was ordained.

To McConnell, originalism is less about a judge’s personal ideology and more about adhering to the actual meaning of words like “equal protection” or “due process” as understood at the time of their writing. He warned that the alternative is a system where judges may effectively substitute their personal policy preferences for the law. McConnell maintained that while history may not provide a specific answer in every case, it provides essential guidance that prevents judicial overreach.

Rosenblum countered that while original meaning has some bearing on the law, it is rarely dispositive. Judges naturally weigh the original text against other values, such as precedent, practicability, and the “rule against absurdities,” he suggested. To illustrate the limits of originalism, Rosenblum used the often-cited example of West Virginia: while that state’s creation during the Civil War likely violated the Constitution’s literal requirements for statehood, its status is now an accepted fact. He argued that a theory of interpretation must account for these “settled arrangements” rather than clinging to a “binding authoritative past.”

Watch the full video of the discussion:

A key point of contention was the concept of “goat sense”—what Rosenblum described as a lawyer’s intuition about “what you can get away with and where the law will go.” He argued that this sensibility often does more to shape the Constitution’s meaning than original intent. McConnell, however, argued that originalism is a vital tool for overturning bad precedents, such as racial segregation: looking back to the original aspirations of the Fourteenth Amendment, he said, led to a more equitable result than following flawed and more recent rulings such as Plessy v. Ferguson’s “separate but equal” doctrine.

The speakers found common ground in the concept of “liquidation”—the idea that the meaning of vague constitutional provisions is gradually settled through consistent custom and judicial precedent. Despite this, they remained divided on whether originalism should serve as the primary “anchor” for judges or merely one tool in their interpretive toolkit.

Selected remarks from the discussion: 

Noah Rosenblum: “We’ve already ruled out places [for applying originalism] in which the meaning isn’t clearly ascertainable. So we’re talking about either places where there’s a clear meaning and the meaning is in tension with some other judicial value, or places in which…a range of possible meanings have been allowed and we’re going to choose within that range…. I think we’re already moving away from some of the strongest claims of originalism—that all that constitutional interpretation is would be trying to ascertain the original meaning of a proposition at the time it was elaborated.” (video 15:43)

Michael McConnell: “Goat sense is you take things as far as you can. You push the envelope at a certain point. You need to know what the direction is, and my aspiration for constitutional law is to have it look a little bit more like what the document looks like and a little less like what the Warren and Burger Courts imagined that they wanted it to look like. So that’s my aspiration. By all means let’s use goat sense as a way of getting there, but we need to have a sense of where we’re heading, and that’s what I think originalism does.” (video 31:40)