Introduction: The Rising Influence of Originalist Reasoning in Subnational Law

Originalist reasoning has become a dominant framework in American constitutional interpretation, particularly in legal challenges that arise at the state and local level. When courts assess whether a city ordinance, county regulation, or state statute comports with the U.S. Constitution, they increasingly look to the document’s original public meaning or the intent of its framers. This methodological shift has profound implications for issues ranging from firearms regulation to voting procedures, and from free speech disputes to conflicts between state and federal authority. Understanding how originalism operates in these contexts is essential for policymakers, attorneys, and citizens who navigate the complex landscape of state and local government law.

Originalism is not a monolith but a family of interpretive approaches. At its core, it holds that constitutional text has a fixed meaning—the meaning that reasonably informed persons would have understood at the time of ratification. By anchoring judicial decisions to that stable meaning, proponents argue that originalism curbs judicial discretion and preserves democratic self-governance. Critics, however, contend that it can lock in outdated norms and ignore evolving societal values. Nevertheless, the doctrine has gained significant traction on the U.S. Supreme Court and in lower federal and state courts, especially since the appointments of Justice Antonin Scalia and, more recently, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett.

This article expands on the core concepts of originalist reasoning as applied to state and local government legal challenges. It examines the historical roots of originalism, key Supreme Court decisions that have reshaped subnational law, the growing role of originalism in state constitutional interpretation, practical impacts on major areas of litigation, and the ongoing debates that surround this interpretive method. By the end, readers will have a deeper appreciation of how originalism influences the daily operation of local governance and the rights of individuals within their communities.

The Foundations of Originalist Reasoning

Historical Roots and the Shift from Textualism

Originalism emerged as a coherent judicial philosophy in the late twentieth century, largely as a reaction against what its proponents viewed as activist judicial interpretation. During the Warren and Burger Court eras, the Supreme Court issued landmark decisions in areas such as school desegregation, criminal procedure, and abortion rights, often relying on a “living Constitution” approach that allowed the document’s meaning to evolve. Critics such as Attorney General Edwin Meese III and Justice Scalia argued that this method gave judges too much power to impose their own policy preferences. In a famous 1986 speech, Meese called for a “jurisprudence of original intention,” and Scalia later refined the theory in his 1997 essay “Originalism: The Lesser Evil.” Scalia advocated for “original meaning” rather than original intent, emphasizing the text as understood by the public at the time of ratification, rather than the subjective intentions of the drafters.

This distinction between original intent and original public meaning is critical. Original intent focuses on what the framers personally believed or hoped the Constitution would accomplish. Original public meaning, by contrast, asks what a reasonable person at the time would have understood the words to mean. The latter is now the prevailing form of originalism on the Supreme Court, as articulated in cases like District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). These decisions explicitly invoked the original understanding of the Second Amendment to strike down handgun bans in the District of Columbia and Chicago, setting the stage for a wave of state and local gun control challenges.

The Theoretical Underpinnings: Why Originalism for State and Local Law?

Originalism is often discussed in the context of federal constitutional law, but its impact on state and local governments is equally significant. States and municipalities operate under both the U.S. Constitution and their own state constitutions. When a local law is challenged as violating the U.S. Constitution, a court applying originalist reasoning will ask whether the challenged action falls within the original meaning of the relevant provision. For example, if a city imposes a licensing requirement on public assemblies, a court might examine whether the original understanding of the First Amendment’s right to peaceably assemble allows such prior restraints. Similarly, if a state enacts a law restricting abortion after fifteen weeks, a court applying originalist principles might conclude that the Fourteenth Amendment’s Due Process Clause, as originally understood, does not protect a right to abortion—as the Supreme Court indeed held in Dobbs v. Jackson Women’s Health Organization (2022).

Originalism also resonates in federalism disputes. The Tenth Amendment, which reserves powers not delegated to the United States to the states or the people, is often interpreted through an originalist lens. In cases like Printz v. United States (1997) and Murphy v. National Collegiate Athletic Association (2018), the Supreme Court relied on historical practice and the original understanding of federal power to strike down federal commands that sought to commandeer state officials. These decisions directly affect how state and local governments can regulate everything from firearms to sports betting.

Key Supreme Court Decisions Shaping State and Local Government Law

Second Amendment: From Heller to Bruen

The most prominent example of originalist reasoning reshaping state and local law is the line of Second Amendment cases. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense, based on the original public meaning of the text. Justice Scalia’s majority opinion examined historical sources from the founding era to conclude that the right is not unlimited but extends to bear arms in common use. Two years later, McDonald v. City of Chicago incorporated that right against state and local governments through the Fourteenth Amendment’s Due Process Clause, again using historical analysis to show that the right to self-defense was deeply rooted in the nation’s history and tradition.

In New York State Rifle & Pistol Association v. Bruen (2022), the Court dramatically expanded the originalist framework. It held that a New York law requiring applicants for a concealed-carry license to demonstrate “proper cause” violated the Second Amendment. The Court articulated a new test: when the Second Amendment’s plain text covers an individual’s conduct, the government must demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation. This “history and tradition” test has forced state and local governments to scour historical analogies when defending gun laws. For example, after Bruen, a federal district court struck down California’s ban on assault weapons, and the Third Circuit overturned New Jersey’s similar law, citing a lack of historical precedent for such restrictions. The decision has triggered hundreds of lawsuits against state and local gun-control measures, from age restrictions to magazine capacity bans.

First Amendment: Speech, Assembly, and Religion

Originalist reasoning also influences First Amendment disputes affecting local governments. In Reed v. Town of Gilbert (2015), the Supreme Court struck down a town’s sign code that imposed different restrictions based on the content of signs. Justice Clarence Thomas’s opinion relied on the original understanding of the First Amendment’s Free Speech Clause, emphasizing that content-based laws are presumptively unconstitutional. This decision has had a direct impact on local zoning and sign ordinances across the country, forcing municipalities to revise their codes or face litigation.

In the area of religious liberty, originalism informed the Court’s analysis in City of Boerne v. Flores (1997), where it held that the Religious Freedom Restoration Act (RFRA) could not be applied to state and local governments because Congress exceeded its Section 5 enforcement power under the Fourteenth Amendment. The Court’s opinion, written by Justice Anthony Kennedy, considered the original meaning of the enforcement clause and the scope of federal power. More recently, in Kennedy v. Bremerton School District (2022), the Court held that a public school football coach had a right to pray on the field after games, based on the original meaning of the Free Exercise and Free Speech Clauses. That decision has reshaped how school districts manage employee religious expression.

Voting Rights and Federal Oversight

Originalism has been particularly consequential in voting rights cases. In Shelby County v. Holder (2013), the Supreme Court struck down the coverage formula of the Voting Rights Act of 1965, which required certain states and localities with a history of discrimination to obtain federal preclearance before changing voting laws. Chief Justice John Roberts’s opinion applied a form of originalism to the Fourteenth and Fifteenth Amendments, concluding that the formula was based on decades-old data and violated principles of equal state sovereignty. The decision effectively freed nine states and numerous local jurisdictions to enact voting restrictions without federal preclearance, leading to a wave of new voter identification laws, polling place closures, and redistricting changes. Lower courts have since grappled with whether these new laws violate the Constitution, often applying originalist reasoning to assess claims of racial discrimination in voting.

In Brnovich v. Democratic National Committee (2021), the Court upheld Arizona voting restrictions against a challenge under Section 2 of the Voting Rights Act. Justice Samuel Alito’s opinion relied heavily on historical practice and the original understanding of the Fifteenth Amendment to determine what constitutes an “unduly burdensome” voting rule. The decision has emboldened states to enforce stricter voting laws, including restrictions on ballot collection and out-of-precinct voting.

Federalism: The Limits of National Power

Originalist reasoning has also been pivotal in defining the boundaries between state and federal authority. In Printz v. United States (1997), the Court struck down provisions of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks. Justice Scalia’s opinion reviewed historical records to show that the federal government had never been able to command state officials to administer federal programs. More than two decades later, in Murphy v. National Collegiate Athletic Association (2018), the Court struck down the Professional and Amateur Sports Protection Act, which had prohibited states from authorizing sports betting. The Court held that the law violated the “anticommandeering” principle, again relying on the original understanding of state sovereignty.

These decisions have significant practical effects. State and local governments now have greater leeway to legalize sports betting, establish marijuana regulatory schemes, and implement environmental policies without federal interference. Conversely, when the federal government tries to impose conditions on federal grants, states have argued—sometimes successfully—that such conditions violate originalist principles of federalism, as in National Federation of Independent Business v. Sebelius (2012).

Originalism in State Constitutional Interpretation

State Courts as Laboratories of Originalism

While much attention focuses on the U.S. Supreme Court, state courts are increasingly adopting originalist reasoning when interpreting their own constitutions. Many state constitutions contain provisions that parallel the U.S. Constitution but with distinct language that can yield different outcomes. For example, some state constitutions have broader protections for the right to bear arms, freedom of speech, or against unreasonable searches. State courts that apply originalism look to the historical meaning of their own state’s founding documents, which can lead to rulings that either expand or limit individual rights beyond federal guarantees.

In Florida, the state supreme court has employed originalist reasoning in cases involving the privacy clause of the Florida Constitution. In Waters v. State (1978), the court held that the state constitution’s privacy provision originally protected individuals from warrantless searches of their bank records. More recently, the Texas Court of Criminal Appeals applied originalist principles to interpret the Texas Constitution’s right to bear arms, concluding that it protects an individual right to carry handguns in public—a decision that predated the U.S. Supreme Court’s Bruen holding. Similarly, the Wisconsin Supreme Court used originalist reasoning in State v. Roberson (2022) to strike down a law prohibiting people under a domestic violence injunction from possessing firearms, finding no historical tradition of such disarmament.

The New Judicial Federalism and Originalism

The “New Judicial Federalism,” which gained momentum in the 1970s, encouraged state courts to rely on their own constitutions to provide rights beyond those guaranteed by the U.S. Constitution. Originalism injects an additional layer of analysis. When a state court decides whether to interpret its state constitution independently, it must consider the original meaning of the state’s founding document. For instance, the California Supreme Court’s decision in People v. Brisendine (1975) held that the state constitution’s search and seizure provision required a warrant for a car search, even though federal law allowed a search incident to arrest. The court’s reasoning referenced the debates of California’s 1849 constitutional convention to argue that the framers intended broader privacy protections. Such interpretations are now being revisited by courts that emphasize original public meaning over evolving standards.

Practical Impacts on Local Ordinances

State constitutional originalism directly affects local governments. When a municipal ordinance is challenged under the state constitution, the outcome can hinge on how the state supreme court interprets original meaning. For example, after the U.S. Supreme Court upheld a local campaign finance ordinance in Citizens United v. FEC, several states considered their own limits on independent expenditures. In Montana, a 2012 state supreme court case initially upheld a state law banning corporate independent expenditures, relying in part on the original meaning of the Montana Constitution, which had a strong anti-corruption tradition. However, the U.S. Supreme Court reversed that decision without oral argument, citing Citizens United. Nevertheless, the state court’s originalist analysis remains influential for future state-level challenges.

Gun Control Ordinances After Bruen

The immediate post-Bruen landscape is a laboratory for originalist reasoning. Cities and counties that enacted strict gun control measures—such as New York City, San Francisco, Los Angeles, and Chicago—now face multiple lawsuits challenging their laws. For example, a federal district court in California struck down the state’s ban on the sale of semiautomatic rifles to adults under 21, citing Bruen’s historical test. Another court ruled that New York’s ban on guns in “sensitive places” like Times Square and public parks was too broad and lacked historical precedent. Local governments are now scrambling to adjust their ordinances to fit within the new historical framework, often employing historians and relying on early American and English common law to justify restrictions. The result is a fragmented patchwork of litigation, with originalist analysis at the center of every debate.

Abortion Legislation Following Dobbs

The Dobbs decision, which overturned Roe v. Wade and Planned Parenthood v. Casey, was a quintessential originalist ruling. Justice Alito’s majority opinion held that the right to abortion is not deeply rooted in the nation’s history and tradition, as required for protection under the Due Process Clause. The decision directly empowers state and local governments to regulate abortion. Some states immediately enacted near-total bans, while others, like California and New York, passed laws expanding access. The legal challenges to these new state laws often involve originalist arguments about state constitutional rights. For instance, the Florida Supreme Court is currently considering whether the Florida Constitution’s privacy clause, originally adopted in 1980, protects abortion access. The outcome will hinge on originalist interpretation of that clause’s text and the voters’ intent. Similarly, the Kansas Supreme Court has held that the state constitution protects abortion rights based on the original meaning of its Bill of Rights, a ruling that critics say is inconsistent with originalist methodology.

Campaign Finance and Election Integrity

Originalist reasoning also drives challenges to local campaign finance laws. In Citizens United, the Supreme Court used originalism to conclude that independent corporate expenditures are protected speech under the First Amendment. This decision has been applied to strike down state and local laws that limit independent spending, such as Montana’s Corrupt Practices Act. More recently, the Court’s decision in Thompson v. Hebdon (2022) reaffirmed that states cannot set contribution limits arbitrarily low without historical justification. Lower courts now routinely cite original meaning when evaluating state and local contribution limits, disclosure requirements, and public financing schemes.

Election laws have also been challenged using originalist arguments. In Rucho v. Common Cause (2019), the Supreme Court held that partisan gerrymandering claims are not justiciable under the U.S. Constitution, in part because the original understanding of the Elections Clause gave states broad authority over redistricting. This decision allowed state courts to continue hearing such claims under state constitutions, leading to important originalist rulings in states like Pennsylvania, North Carolina, and Ohio. In Harper v. Hall (2023), the North Carolina Supreme Court reversed its earlier holding that partisan gerrymandering violated the state constitution, with the new majority applying originalist reasoning to conclude that the state constitution does not prohibit such practices.

Environmental Regulations and Land Use

Local governments often face challenges to environmental regulations based on the Takings Clause of the Fifth Amendment, incorporated against the states under the Fourteenth Amendment. Originalist reasoning has influenced the Court’s approach in cases like Cedar Point Nursery v. Hassid (2021), where the Court held that a California regulation granting union organizers access to farm property constituted a per se physical taking. Chief Justice Roberts’s opinion looked to the original meaning of “taking” to conclude that actual physical invasions, even if temporary, require just compensation. This decision has implications for local ordinances that mandate access to private property, such as housing inspection laws or energy efficiency audits. Similarly, the Court’s originalist analysis in Lucas v. South Carolina Coastal Council (1992) continues to guide state and local land-use regulations, holding that if a regulation deprives property of all economic value, it constitutes a taking unless it reflects background principles of state property law.

Criticisms and Counterarguments

The Living Constitution Alternative

Critics of originalism argue that the Constitution is a living document that must adapt to changing circumstances. Justice William Brennan famously called originalism “arrogance cloaked as humility.” They contend that the framers deliberately used broad language—such as “due process” and “equal protection”—intending for future generations to give them evolving content. In the context of state and local government, this means that a city’s need to address modern challenges like digital surveillance, climate change, or public health emergencies may not be well served by a rigid adherence to eighteenth-century meanings. For example, applying originalist reasoning to the Fourth Amendment raises difficult questions about whether the founders could have envisioned geolocation tracking or data collection, leading some judges to adopt more flexible approaches.

Discerning the Original Meaning

A second criticism is that original meaning is often indeterminate. Historians disagree about what the founding generation actually believed, and the historical record is incomplete. Justice Elena Kagan, for instance, has noted that originalism can yield results that are either conservative or liberal, but its application often depends on which historical sources judges choose to emphasize. In Bruen, the majority and the dissent each cited extensive historical evidence to support their views on the tradition of gun regulation. Critics argue that this selective use of history allows judges to reach their preferred outcomes while claiming fidelity to original meaning. For state and local governments defending their laws, this creates uncertainty about which historical analogies will be accepted.

Ideological Bias and Outcomes

Many observers contend that originalism is a tool for achieving conservative policy outcomes. The Dobbs decision, which overturned Roe, and the Bruen decision, which struck down modern gun regulations, are frequently cited as examples of originalism producing results that align with the Republican Party’s platform. However, originalism can also produce liberal results. In Ramos v. Louisiana (2020), Justice Gorsuch applied originalism to hold that the Sixth Amendment requires a unanimous jury verdict in state criminal trials, overruling a precedent that had been upheld for decades. That decision expanded defendants’ rights in state courts. Similarly, originalist reasoning could be used to argue that the Constitution protects same-sex marriage or prohibits the death penalty, though the Court has not taken that path. The ideological valence of originalism is therefore complex, but its association with conservative activism has fueled ongoing debates.

The Future of Originalist Reasoning in State and Local Government

With a conservative majority on the Supreme Court, originalist reasoning is increasingly required in lower courts when they decide constitutional questions affecting state and local governments. The “history and tradition” test from Bruen and the “deeply rooted” test from Dobbs demand that judges engage with historical sources. This has led to a boom in historical briefs from historians and law professors, and it requires state attorneys general and local government lawyers to become adept at archival research. Some courts have complained about the burden of evaluating centuries of historical evidence, and the Supreme Court itself has acknowledged the difficulty. The future may see refinements to the methodology, perhaps limiting the need for exhaustive historical analysis in cases where clear textual guidance exists.

State-Level Originalism and the Supreme Court’s Shadow

State courts are also grappling with originalism, but they operate in the shadow of U.S. Supreme Court precedent. When a state court interprets its own constitution more broadly than federal law, the Supreme Court cannot review that decision unless it violates a federal constitutional right. This means that states can become laboratories for originalist interpretation, experimenting with different historical methods. For instance, the Ohio Supreme Court has applied a strong originalist approach to the state constitution’s right to a remedy, while the New York Court of Appeals has resisted. Over time, these divergent applications may create a body of state constitutional originalism that either influences or diverges from federal practice.

The Role of Public and Scholarly Debate

Originalism remains a hotly contested subject in legal academia and public life. Prominent scholars like Randy Barnett, William Baude, and Steven Calabresi defend originalism as the only legitimate method of constitutional interpretation, while critics like Erwin Chemerinsky and Jamal Greene argue for more flexible approaches. The debate is not merely academic: it shapes how state and local governments draft laws, how litigants frame challenges, and how judges issue rulings. As more states adopt originalist reasoning in their constitutional jurisprudence, the landscape of local governance will continue to evolve. Legislators and city attorneys who understand originalist methodology will be better positioned to craft laws that survive judicial scrutiny.

Conclusion

The use of originalist reasoning in legal challenges confronting state and local governments has become a defining feature of contemporary American law. From gun control and abortion to voting rights and federalism, courts increasingly look to the historical meaning of the Constitution and its amendments to decide the legality of local ordinances and state statutes. While originalism offers the promise of stability and fidelity to the founding document, it also raises difficult questions about how to apply eighteenth-century understandings to twenty-first-century problems. The controversy over originalism is unlikely to subside, but its continued influence means that anyone involved in state or local government—whether as an official, attorney, or citizen—must engage with its principles. By understanding the theory, its applications, and its limitations, stakeholders can better anticipate how courts will resolve the constitutional disputes that shape everyday life in communities across the nation.

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