What Is Originalism?

Originalism is a method of constitutional interpretation that seeks to give the words of the Constitution the meaning they had when they were adopted. Originalism holds that the Constitution’s text and its original public meaning should bind judges today, preventing them from injecting their own policy preferences into rulings. This philosophy has gained significant influence among conservative and libertarian legal scholars and judges, particularly in the last four decades.

There are two main branches of originalism. Original intent focuses on what the Framers themselves thought the words meant. Original public meaning asks how a reasonable person at the time of ratification would have understood the text. Modern originalists, including Justice Antonin Scalia and Justice Clarence Thomas, generally favor the latter approach, arguing that it is more objective and less reliant on subjective inquiries into the minds of long-dead framers.

Key Proponents and Their Influence

Justice Scalia, who served on the Supreme Court from 1986 to 2016, was originalism’s most prominent advocate. His opinions in cases like District of Columbia v. Heller (2008) and United States v. Lopez (1995) applied originalist reasoning to limit federal power. Justice Thomas has consistently applied originalist principles to areas including citizenship, federalism, and immigration. Judge Robert Bork and Professor Randy Barnett have also shaped originalist theory, with Barnett emphasizing the importance of original meaning in protecting economic liberties.

The influence of originalism extends beyond the Supreme Court. Many lower federal judges now cite originalist reasoning in decisions involving immigration, criminal procedure, and administrative law. Law schools teach originalism as a serious interpretive theory, and it remains a central topic in judicial confirmation hearings.

The Plenary Power Doctrine and Its Originalist Roots

Immigration law has long been shaped by the plenary power doctrine, which holds that the federal government has virtually unlimited authority over the admission, exclusion, and deportation of noncitizens. This doctrine originated in a series of late‑nineteenth‑century Supreme Court cases dealing with Chinese immigration. The Court reasoned that the power to control immigration was inherent in national sovereignty and not subject to judicial review.

Originalists have taken a mixed view of the plenary power doctrine. Some argue that it finds support in the Constitution’s structure, which vests foreign affairs power in the federal government and grants Congress authority over naturalization. Others contend that the doctrine’s harsh application to Chinese immigrants violated the Due Process Clause and the equal protection guarantees of the Fourteenth Amendment, which originalists argue were intended to protect all persons, not just citizens.

Historical Cases That Established Plenary Power

In Chae Chan Ping v. United States (1889), also known as the Chinese Exclusion Case, the Supreme Court held that the power to exclude aliens was a sovereign attribute that could not be limited by previously enacted treaties. The Court wrote that the federal government’s control over immigration was “an incident of sovereignty” and that Congress could “exclude aliens from the United States for reasons that are deemed appropriate.” This decision gave Congress nearly unlimited discretion.

In Fong Yue Ting v. United States (1893), the Court extended the plenary power doctrine to deportation. It held that the federal government could deport resident Chinese laborers without a trial and without the protections of the Bill of Rights. The majority opinion, written by Justice Horace Gray, stated that the right to deport was an inherent sovereign power. Dissenters argued that deportation involved punishment and thus required due process, but the plenary power view prevailed and remains influential today.

Modern originalists often criticize these decisions for ignoring constitutional safeguards. Justice Scalia, for example, questioned the breadth of the plenary power doctrine in Arizona v. United States (2012), though he ultimately upheld state enforcement of immigration law on other grounds. Some originalist scholars argue that the original meaning of the Constitution’s immigration provisions is narrower than the plenary power doctrine suggests, pointing to the Framers’ limited understanding of federal authority.

Originalism in Key Immigration Decisions

Originalism has guided judicial reasoning in several landmark immigration cases. By examining the text and history of constitutional provisions, judges have reached different conclusions about the scope of federal power and individual rights.

Chinese Exclusion Cases: Originalist Dissent

Although the majority in Chae Chan Ping and Fong Yue Ting did not use originalist language, the dissents often did. Justice Stephen Field, dissenting in Chae Chan Ping, argued that the Constitution’s grant of power over naturalization did not include an unlimited power over immigration. He reasoned that the Framers intended to protect personal liberty and property from arbitrary government action, including the exclusion of lawful residents. Field’s dissent anticipated modern originalist arguments that the plenary power doctrine overrides constitutional protections without historical justification.

Arizona v. United States (2012)

In this case, the Supreme Court struck down key provisions of Arizona’s immigration enforcement law (S.B. 1070) because they conflicted with federal law. Justice Scalia dissented, applying an originalist interpretation. He argued that the Constitution’s structure permitted states to cooperate in enforcing immigration laws, even when the federal government chose not to. Scalia cited historical examples of state involvement in immigration enforcement prior to the federal takeover, asserting that the original understanding allowed such state action.

Justice Thomas also dissented, offering a textualist critique. He argued that the majority’s reasoning improperly limited state sovereignty. The case illustrates how originalism can lead to divergent outcomes: Scalia and Thomas both claimed originalist support, but their conclusions differed. The majority opinion, written by Justice Kennedy, did not rely explicitly on originalism but instead emphasized federal preemption and the national interest in uniform immigration policy.

Trump v. Hawaii (2018)

In Trump v. Hawaii, the Court upheld the Trump administration’s travel ban targeting several majority‑Muslim countries. Chief Justice Roberts wrote for the majority, applying a rational‑basis review and concluding that the proclamation fell within the president’s broad statutory discretion. The opinion did not lean heavily on originalism. However, Justice Thomas concurred separately, arguing that the historical understanding of the president’s foreign affairs power supported the proclamation. He cited originalist sources to argue that the president has inherent authority over immigration matters.

Justice Sotomayor dissented, contending that the travel ban was motivated by anti‑Muslim animus and violated the Establishment Clause. She did not use originalist reasoning. The case demonstrates the limited role of originalism in modern immigration jurisprudence: while some justices invoke it, the majority often prefers statutory interpretation or precedent.

How Originalism Shapes Judicial Decisions on Federal Power

Originalism influences how judges interpret the Constitution’s grants of power to Congress, the president, and the courts. In immigration law, originalist reasoning often focuses on the Commerce Clause, the Naturalization Clause, and the Due Process Clause.

The Commerce Clause and Immigration

Some originalists argue that the Commerce Clause, which grants Congress power to regulate commerce with foreign nations, provides a textual basis for immigration regulation. Justice Thomas, for example, has suggested that foreign commerce includes the movement of people. However, other originalists contend that the clause was only meant to cover trade, not individuals, and that broad immigration rules require a different constitutional hook. This debate continues in scholarly circles and occasionally appears in judicial opinions.

Due Process and Original Meaning

The Fifth Amendment’s Due Process Clause protects persons, not just citizens, from arbitrary government action. Originalists frequently cite the clause’s historical meaning to argue that immigrants enjoy due process rights. In Zadvydas v. Davis (2001), the Supreme Court held that the federal government cannot indefinitely detain noncitizens without a hearing. The Court relied partly on the text and traditional understanding of due process, echoing originalist reasoning. Justice Scalia wrote separately in a related case, arguing that the Due Process Clause originally applied to “persons” within the jurisdiction of the United States, a position that supported the majority outcome.

However, originalism can also limit due process protections. In Department of Homeland Security v. Thuraissigiam (2020), the Court rejected an expedited removal challenge by an asylum seeker. Justice Alito, writing for the majority, used originalist reasoning to conclude that the Suspension Clause (which protects habeas corpus) did not provide the broad review the respondent sought. The Court held that the original meaning of habeas corpus only required judicial review of detention, not full administrative hearings. This case shows how originalism can cut both ways: it can expand some protections and restrict others.

Criticisms of Originalism in Immigration Law

Originalism faces significant criticism, especially when applied to the complex and evolving field of immigration. Critics argue that the method is too rigid, relies on selective history, and fails to account for modern realities.

Rigidity and Changing Circumstances

Immigration today involves technology, international cooperation, and humanitarian crises that the Framers could not have anticipated. Critics contend that originalism locks judges into an outdated framework. For example, the original meaning of the Naturalization Clause (Article I, Section 8) likely contemplated naturalization as a permanent, individual process. Today, many immigrants seek temporary status, asylum, or deferred action. An overly rigid originalism might prevent the executive branch from crafting flexible policies that respond to current conditions.

Justice Breyer, a consistent critic of originalism, has argued in several cases that the Constitution’s framework should be understood as creating a living document that adapts to new contexts. In immigration cases, he often emphasizes pragmatic consequences over historical meaning.

Historical Inaccuracies and Selective Use

Some originalist arguments rely on disputed historical evidence. Legal historian Jack Rakove has shown that the original meaning of many constitutional provisions is unclear or contradictory. In immigration, originalists may cherry‑pick historical sources to support a desired outcome. For instance, the plenary power doctrine’s supporters point to sovereignty; its critics point to the Fourteenth Amendment. Both can claim historical backing, making originalism less determinate than its advocates suggest.

Critics also note that originalism was historically used to justify slavery and racial discrimination. The Chinese Exclusion Cases, decided under originalist‑friendly reasoning, upheld race‑based immigration restrictions. Modern originalists often distance themselves from those results, but they have not uniformly repudiated the method that produced them.

The Problem of Precedent

Immigration law relies heavily on decades of precedent. Even originalist judges often defer to settled cases like Chae Chan Ping or Fong Yue Ting. Justice Scalia acknowledged that sometimes he would accept precedent even when it conflicted with original meaning. This tension weakens the claim that originalism provides a consistent guide. In practice, judges apply originalism selectively, reinforcing the criticism that it is a tool for outcomes rather than a rule of decision.

Conclusion

Originalism continues to play a significant role in how courts decide immigration cases. By focusing on the text and historical understanding of the Constitution, originalist judges aim to limit judicial discretion and respect the political branches’ authority over immigration. Yet the method is not monolithic: originalists disagree on the plenary power doctrine, the scope of due process, and the role of precedent. Real‑world decisions show both the strength and the limitations of originalism in this complex area.

For further reading, see the Oyez summary of Chae Chan Ping v. United States, the Cornell Legal Information Institute’s Constitution Annotated, and the Volokh Conspiracy blog’s analysis of originalism and immigration. The ongoing debate ensures that originalism will remain a central—and contested—guide in immigration jurisprudence.