Interpretive Equality: Why Originalism Gives Every Citizen the Same Constitution
Appellate judges spend their careers confronting a paradox: the law must be stable enough to guide citizens, yet flexible enough to resolve problems the Framers could never have imagined. This is not merely a philosophical tension—it is a daily institutional one. When the record is long, precedent is murky, and a constitutional provision is silent on a modern question, the court must decide how to read a text written in another era for a different world.
In those moments, the method of interpretation becomes as important as the outcome. Legitimacy in judicial decision making—indeed, the credibility of appellate courts themselves—turns on the process by which decisions are reached. A decision’s authority rests not only on what the court holds, but on how it arrives there.
This is where originalism offers something no other interpretive approach reliably can: interpretive equality. It provides a constitutional meaning that does not shift from judge to judge, panel to panel, or generation to generation. A meaning that belongs to the people, not to the subjective values or policy preferences of the interpreter. A meaning that treats every citizen as entitled to the same Constitution—not one contingent upon who happens to occupy the bench at a particular moment in history.
This is the overlooked virtue of originalism—not its historical focus, nor its linguistic method, nor its perceived political implications. Its virtue is equality, and its unwavering commitment to democratic legitimacy.
Appellate advocacy—and a legal system grounded in stability and predictability—depends on it.
I. The Constitution as a Public Commitment, Not a Judicial Blank Check
The Constitution is not merely a legal document; it is a public commitment. It binds because the people—through ratification—chose to be bound. Its authority flows not from judicial creativity but from democratic assent.
If the meaning of that commitment drifts with the values, intuitions, or aspirations of individual judges, then the Constitution becomes something fundamentally different: a judicial blank check. Judges become free to impose personal preferences under the guise of interpretation, unmoored from the text that gives the Constitution its democratic legitimacy.
Originalism prevents that drift.
It grounds constitutional meaning in the public understanding at the time the text was adopted—the moment when the people, not the judiciary, conferred authority, and when democratic choice—not judicial improvisation—formed the foundation for protecting liberty, autonomy, and self-governance.
II. The Problem of Unequal Constitutions
Non-originalist approaches often emphasize updating, moral interpretation, or evolving meaning. These theories can be intuitively appealing. Yet they share a structural flaw: they make constitutional meaning contingent on the values of whoever interprets it.
Under such approaches, the Constitution means not what it says, but what a judge at a particular moment believes it should say.
If the Constitution can mean X on Tuesday because a court believes society’s values point to X, but Y on Friday because a new majority sees something different, then citizens are effectively governed by unequal constitutions—constitutions that vary according to judicial philosophy rather than constitutional text.
Appellate practitioners see this every day in:
- split circuits;
- fractured en banc opinions;
- emergency orders that diverge from doctrinal expectations; and
- clients asking, “Does it depend on my panel?”
These are not academic curiosities. They are real-world consequences of interpretive methods that allow constitutional rights to hinge on judicial identity rather than constitutional meaning.
A Constitution interpreted through fluctuating judicial values inevitably yields fluctuating constitutional protections. It invites unelected judges to decide issues that belong to the democratic process.
Originalism is the only method that resists this instability.
III. Why Originalism Produces Interpretive Equality
Interpretive equality means that every citizen stands before the same constitutional rule, regardless of:
- who their judge is;
- what cultural moment they inhabit; or
- what values are ascendant.
Originalism promotes interpretive equality by anchoring interpretation in something external to the interpreter: the fixed public meaning at the time of enactment.
This yields three virtues essential to appellate adjudication:
A. Predictability
Advocates can structure briefs and arguments around stable textual meaning rather than speculative judicial intuitions. Litigation becomes grounded in law, not guesswork.
B. Constraint
Judges decide cases by reference to text and established meaning—not personal morality or evolving norms. Constraint is what separates adjudication from legislation.
C. Neutrality
Litigants are not advantaged or disadvantaged because their case reaches a judge whose ideological instincts align with their claim.
Originalism does not guarantee unanimity. But it guarantees a shared starting point—the foundation of interpretive equality.
IV. The Appellate Advocate’s Perspective: Why Method Matters
Appellate advocacy is not only the art of persuasion—it is the art of legitimacy. Advocates must persuade while honoring the institutional constraints that preserve judicial credibility.
When a court uses original meaning as its interpretive anchor, advocates know the terrain. Issue statements sharpen. Fact sections highlight context relevant to meaning at adoption. Standards of review gain substance. And precedent fits into a coherent, principled interpretive framework.
Value-based methods provide none of this. Under such approaches, advocacy becomes speculative:
- Which values matter?
- Whose sense of societal evolution controls?
- Which judge’s intuitions will decide the case?
That is not advocacy rooted in law. It is advocacy rooted in subjective intuitions.
Originalism avoids this by supplying judges and advocates a shared constitutional language—one grounded in text, history, and democratic legitimacy, not personal philosophy.
V. Addressing the Most Common Objection: “But Times Change.”
The strongest critique of originalism is familiar: the world has changed. And it has—dramatically.
Originalism responds not by denying change, but by allocating responsibility for addressing it.
If society’s values have evolved such that the original public meaning no longer reflects contemporary needs, the Constitution provides a remedy: amendment and democratic deliberation.
Amendment is not rigidity.
It is accountability.
It demands consensus rather than judicial invention.
It ensures that constitutional change belongs to the people—not to unelected judges with life tenure.
For appellate advocates, amendment embodies interpretive equality: citizens share responsibility for defining the meaning of the Constitution that governs them.
VI. Why Originalism Matters More Today Than Ever
In a diverse and polarized nation, a Constitution whose meaning depends on judicially selected values will never belong to the entire public. It will belong only to those whose values currently prevail in the judiciary.
Originalism prevents that outcome.
It ensures no citizen must guess which Constitution they will receive.
It prevents appellate panels from functioning as miniature legislatures.
It keeps the law a source of stability rather than an instrument of ideological flux.
And above all, it ensures that every American—regardless of belief, identity, geography, or generation—stands before the same Constitution.
That is interpretive equality.
And that is justice.
VII. An Inclusive—Not Unequal—Constitution
Originalism is often defended on historical or linguistic grounds. Those defenses have value. But the deeper truth is simpler:
Originalism is the only interpretive method that treats the Constitution as a common inheritance, not a moving target shaped by shifting judicial philosophies.
Appellate courts thrive on consistency.
Advocacy thrives on predictability.
Citizens thrive on equal rules.
Originalism, properly understood, is not a partisan philosophy.
It is a commitment to fairness.
It gives every citizen the same Constitution—yesterday, today, and tomorrow.
And in a system built on equality before the law, that is not merely a theoretical virtue—
it is a constitutional imperative, and our democracy depends on it.