Understanding Originalism: Justice Thomas’s Approach

Justice Clarence Thomas has long been the most consistent and forceful proponent of originalism on the Supreme Court. While other justices occasionally invoke original meaning in specific cases, Thomas applies the method across virtually every area of constitutional law. For him, originalism is not merely a tiebreaker or a convenient tool; it is the only legitimate way to interpret a written constitution. He has stated in multiple opinions that the judiciary’s role is to “give effect to the Constitution’s original public meaning” rather than to update or adapt it based on modern values. This philosophy leads him to outcomes that often align with conservative political views, but Thomas insists that his decisions follow from the text and history, not from personal preference.

Originalism, as Thomas practices it, requires a rigorous examination of historical sources: the debates at the Constitutional Convention, the Federalist Papers, state ratification documents, and contemporaneous dictionaries and treatises. He also examines post-ratification practice to confirm what the public would have understood the text to mean. This method yields results that can be surprising. For example, Thomas has argued that the original understanding of the Commerce Clause is far narrower than the modern interpretation used to justify federal regulation, but he has also argued that the original understanding of the Privileges or Immunities Clause protects many unenumerated rights that modern courts have overlooked.

Thomas’s originalism is often contrasted with the “living constitution” approach, which holds that the Constitution’s meaning can evolve with society. Thomas rejects that view as antithetical to the rule of law, arguing that it grants judges too much power to impose their own values. Instead, he believes that if the people want to change how their government operates, they should amend the Constitution through the Article V process, not rely on judges to rewrite it.

Key Recent Rulings Shaped by Justice Thomas’s Originalism

Second Amendment: New York State Rifle & Pistol Association v. Bruen (2022)

Bruen is perhaps the clearest example of Thomas’s originalist methodology driving a major decision. Writing for the majority, Thomas held that New York’s “proper cause” requirement for carrying a concealed handgun violated the Second Amendment. He rejected the two-step means-end scrutiny that lower courts had used for years and instead mandated a new test: whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” This test requires courts to scour historical analogues from the Founding era and, in some cases, the Reconstruction era, to determine whether a modern law is constitutional. Thomas’s reasoning in Bruen drew heavily on historical sources, including late-1700s statutes and English common law. The decision has upended gun regulations nationwide, prompting hundreds of challenges to state and local laws. Critics argue that the historical analysis is unpredictable and burdensome, but Thomas maintains that the Founders’ understanding must control.

Religious Liberty: Kennedy v. Bremerton School District (2022)

In Kennedy, Thomas authored a concurring opinion that reinforced his originalist view of the Establishment Clause. The case involved a high school football coach who prayed at the 50-yard line after games. The majority, through Justice Gorsuch, held that the coach’s prayer was private speech protected by the First Amendment. Thomas went further, arguing that the Establishment Clause was originally understood only to prevent the federal government from establishing a national church, not to restrict state or local religious expressions. He has long advocated for this “original meaning” of the Establishment Clause, which would substantially limit its application to state actors. While the majority did not adopt Thomas’s full position, his concurrence signals the direction he would like the Court to take.

Abortion: Dobbs v. Jackson Women’s Health Organization (2022)

Although Thomas joined the majority opinion in Dobbs that overruled Roe v. Wade and Casey, he wrote a separate concurrence to press his originalist views further. He argued not only that the Constitution does not protect a right to abortion, but also that the Court should reconsider other substantive due process precedents, including Griswold (contraception), Lawrence (sodomy), and Obergefell (same-sex marriage). Thomas asserted that these decisions are “demonstrably erroneous” because they rely on a doctrine—substantive due process—that is irreconcilable with the original meaning of the Fourteenth Amendment. He argued that the Privileges or Immunities Clause, properly understood through an originalist lens, is the only legitimate source for unenumerated rights, and that the rights recognized in those cases do not satisfy the historical test. This concurrence alarmed many who fear Thomas’s originalism will dismantle a host of personal liberties.

Criminal Justice: United States v. Taylor (2022)

In Taylor, Thomas dissented from the majority’s interpretation of a federal statute that made attempted Hobbs Act robbery a “crime of violence” for purposes of a sentence enhancement. While the majority used modern canons and public policy reasoning, Thomas criticized the court for ignoring the original meaning of the statute. He argued that the text, as understood at the time of enactment, did not include attempted robbery as a predicate offense. His dissent meticulously tracked the historical usage of the term “robbery” and the common law treatment of attempts. This case illustrates how Thomas applies originalism not just to constitutional text but also to statutory interpretation, insisting that Congress’s original intent, as expressed in the words, should control even when it leads to a result that might seem harsh or lenient.

Federal Power: West Virginia v. EPA (2022)

Although Chief Justice Roberts authored the majority opinion in the major questions doctrine case, Thomas wrote a concurrence that rooted the decision in originalist principles. He argued that the EPA’s attempted regulation of greenhouse gases through the Clean Air Act violated the nondelegation doctrine because Congress had not clearly authorized such a sweeping program. Thomas’s originalism leads him to believe that Congress cannot delegate its legislative power to administrative agencies; the Vesting Clauses of Articles I, II, and III establish a rigid separation of powers that the modern administrative state often transgresses. His concurrence in West Virginia v. EPA foreshadows potential future challenges to agency authority, particularly if the Court takes up cases on the constitutionality of the Consumer Financial Protection Bureau or the Federal Trade Commission.

Thomas’s originalist philosophy has reshaped the Supreme Court’s agenda and the terms of debate. Even justices who do not fully embrace originalism, such as Chief Justice Roberts and Justice Kavanaugh, now routinely invoke original public meaning in their opinions. The shift is most evident in Second Amendment and religion cases, where historical analysis has become central. Law clerks, legal scholars, and lower court judges now spend significant time researching Founding-era sources to comply with the tests Thomas has championed.

Thomas’s influence extends beyond his own majority opinions. His dissents and concurrences often lay out roadmaps for future litigants. For example, his solo concurrence in McDonald v. Chicago (2010) argued that the Privileges or Immunities Clause, not the Due Process Clause, should be the vehicle for incorporating the Second Amendment against the states. While he did not win that argument, his persistence kept the clause in circulation, and some scholars now argue that the Court may eventually revisit the issue. His opinions also serve as a counterweight to the more pragmatic originalism of Justice Gorsuch or the textualism of Justice Kagan, pushing the Court further toward a rigid historical approach.

In the 2023–2024 term, Thomas wrote a majority opinion in Counterman v. Colorado (2023) that applied a subjective “recklessness” standard for true threats, but he did so while insisting that the First Amendment’s original meaning required that standard. Even when his vote aligns with the liberal wing, as it sometimes does in cases involving federalism or criminal procedure, his reasoning remains solidly originalist. This consistency gives his jurisprudence a coherence that few other justices can match.

Criticisms and Defenses of Thomas’s Originalism

Criticisms

Critics argue that Thomas’s originalism is selectively applied and leads to results that align with libertarian or conservative ideologies. They point to cases where he ignores historical practices that are inconvenient. For example, his interpretation of the Establishment Clause would allow state-sponsored prayer, something the Founders themselves may have opposed in the context of the First Congress’s debates. Others contend that history is indeterminate: for every Founding-era source supporting a broad Second Amendment right, there are sources supporting reasonable regulations. Judges can cherry-pick history to reach their desired outcome, a charge leveled against the Bruen decision itself, which has produced chaotic lower court rulings as judges struggle to apply the historical test.

Another criticism is that Thomas’s originalism is too rigid for a modern, diverse nation. The Constitution was written by a small group of white, propertied men in a society that permitted slavery and denied women the right to vote. Applying their original understanding to issues like data privacy, assisted reproduction, or artificial intelligence seems impractical. Thomas acknowledges this but argues that principles, not specific expectations, should govern—and that the amendment process is the proper vehicle for change. Many Americans, however, find this faith in an unworkable amendment process unrealistic.

Finally, some legal scholars argue that Thomas’s originalism is a form of natural law in disguise. He often appeals to “the nature of man” or “first principles” in a way that seems to go beyond the text. For instance, in his concurrence in Department of Homeland Security v. Regents of the University of California (2020), Thomas argued that the Deferred Action for Childhood Arrivals (DACA) program was unlawful because it contravened the original meaning of the Immigration and Nationality Act. His opinion rested heavily on his view of the President’s constitutional duty to “take Care that the Laws be faithfully executed,” a phrase he interpreted through a natural-law lens. Critics claim this stretches beyond textual originalism into a kind of moral reasoning that Thomas would otherwise reject.

Defenses

Defenders of Thomas argue that his originalism is intellectually honest and principled even when it leads to outcomes they dislike, such as his opinion in Trump v. Hawaii (2018) upholding the travel ban. In that case, Thomas applied a deferential standard based on the President’s broad foreign affairs power, which he derived from originalist history. His consistency is often contrasted with the result-oriented approaches of other justices. For example, some liberal justices who usually favor broad federal power suddenly embrace states’ rights when it comes to environmental regulation; Thomas, by contrast, is consistently skeptical of federal power across the board.

Supporters also point to the democratic accountability that originalism promotes. When the meaning of the Constitution is fixed, citizens and legislators know what the rules are. They can amend the Constitution through Article V if they disagree. This restraint, Thomas believes, prevents a judicial oligarchy from overriding popular will. And while critics claim history is indeterminate, Thomas’s defenders argue that well-trained judges can reach objective conclusions by applying proper historical methodology. The Bruen test, for all its difficulties, has at least forced courts to engage seriously with history rather than balancing interests on the fly.

Finally, Thomas’s originalism has had a profound impact on legal education. Law schools now offer more courses in constitutional history, and the student-edited law journals publish a steady stream of originalist scholarship. Even scholars who reject originalism concede that Thomas has forced the entire legal profession to become more historically literate. This is a legacy that transcends any single decision.

Conclusion

Justice Clarence Thomas’s originalist philosophy has been a defining force on the Supreme Court for over three decades. In recent years, it has moved from the margins to the mainstream, shaping landmark decisions on guns, religion, abortion, and federal power. His approach demands that judges become historians, and his opinions are dense with citations to 18th- and 19th-century sources. Whether one views his jurisprudence as a bulwark for liberty or a rigid straitjacket that ignores modern realities, there is no doubt that Thomas has changed the way the Court reasons about the Constitution. As the Court becomes increasingly conservative, his originalist methodology is likely to become even more influential. Understanding it is essential for anyone who wants to grasp the trajectory of American constitutional law.

For further reading, see Justice Thomas’s concurrence in Dobbs v. Jackson Women’s Health Organization on Cornell’s Legal Information Institute, the majority opinion in New York State Rifle & Pistol Association v. Bruen from the Supreme Court’s website, and biographical and opinion summaries on Oyez. For a scholarly critique, see “Thomas and the Future of Originalism,” Harvard Law Review, 2023.