Three years ago, the U.S. Supreme Court expanded gun rights and reduced abortion rights by invoking originality, a way of interpreting the constitution that requires judges to look to “history and tradition” or “the original meaning” to assess constitutional rights. Since then, originalism has been a controversial topic in the state Supreme Court and has sparked debate among justice around the country. These lively arguments have generated harsh criticisms of this method, but some state courts, including those who write and participate in the majority opinion, adhere to originalist analysis. The following is built on a sample of recent critiques drawn from opinions published between March 2024 and June 2025, as well as a previous summary of similar critiques.
Originism’s back focus will not be suitable for modern problems
A popular modestness among state Supreme Court justice is that new facts disrupt old understandings of the law, or that those understandings have become obsolete due to changes in social values, and that originality is not equipped to deal with modern issues.
This critique is particularly relevant when technology plays a key role. In these cases, justice questioned the ability of Originalism to resolve legal controversies involving technology that did not exist in the past.
For example, consider the objections of Iowa Susan Christensen, Chief Justice of the Supreme Court. Statev. White. There, the majority of the Iowa Supreme Court ruled that the criminal defendant’s right to conflict was violated when two child witnesses testified on a case of child abuse via a one-way television system while physically located outside the courtroom. The court previously had granted this exception to the standard practice of requiring two-way visibility between the defendant and the witness to protect the child’s well-being and minimise additional trauma. However, a majority of the High Court rejected the arrangement based on an analysis of the history and traditions of Iowa’s conflict clauses, which was understood to require a face-to-face conflict between the accused and the witnesses of the trial.
Christensen criticized the majority originalist approach because he discounted technological advances that should have influenced the reasonable interpretation of constitutional rights. “Originality is limited,” Christensen wrote. “We cannot explain the technology that did not exist in 1857 when the Iowa Constitution was ratified, and the type of cases that were not brought in in 1857.”
Furthermore, she stated that the majority of claims that 19th century legal understanding should be controlled seems to have no stopping point and could lead courts to refuse to change the number of modern laws. “The majority arrive at this decision based on a false view of originality,” she continued. “There have been a lot of developments regarding the law boy since 1857. Are we now back in 1857 in all respects?”
Similar critiques appear when the originalist answers contradict modern values and norms. This is especially true when the rights of historically marginalized groups are included. Critics argue that originality is inappropriate, even when the legal issue itself isn’t entirely new. Because whether it is law or fundamental reason or human decency, they unite judges to apply historical values that would otherwise be rejected.
North Carolina Supreme Court Judge Anita Earls captured the criticism by agreeing to a decision to reaffirm the statutory constitutionality of limiting tort claims by victims of child sexual abuse.
case, McKinneyv. Goinsthe majority applied the original analysis to determine that state constitutional provisions that guarantee legitimate proceedings did not prohibit the law that revived expired child sexual abuse claims. Earls warned that the application of the majority’s originality would “freeze the meaning of Amber’s constitution according to the narrow circumstances of several centuries,” and that “contrary to what is taught in law schools and what common sense strengthens, it gives a great deal of weight to case law law older than new.” The meaning of this approach is radical, she explained, threatening to “return legal and constitutional protections to that point in the history of this state, when slavery was legal and women were unable to own or vote for property.”
Justice generally expresses this version of concern in reproductive rights lawsuits, pointing out that originality would ask for women’s rights to constitutional provisions that women are not working on shaping. Moreover, many of these provisions have been used historically to perpetuate women rather than protect them.
Several judges on the Iowa Supreme Court criticized this feature of the majority of decisions. Heartlandv. Planned Parenthood by Reynoldsapplied an originalist analysis to conclude that the Iowa Constitution does not include the underlying right to abortion. There, the majority ruled that the right to abortion was “not rooted in the history and traditions of the nation (Iowa) state,” and stated that the state banned abortion from 1857 until the US Supreme Court declared it in 1973. Roev. Wade that the federal constitution protected access to procedures. (egg It was rejected in 2022 Dobbs v. Jackson Women’s Health Agency. )
“Do Originalists really believe that women have the same constitutional autonomy over their bodies today, just like they did in 1857? Really?” Judge Edward Mansfield asked in dissent. And in another objection, Christensen raised additional concerns about originality in this case as well, saying that the majority ruling “perpetuates gender hierarchy when women are second-class citizens.” It’s no surprise that Iowa lacks a tradition of abortion support, she wrote, taking into account the “complete absence in the decision-making role” of women in Iowa.
Originality is inappropriate in state courts
The judge also specifically raised concerns about the use of originality in state courts. At the heart of this criticism is the observation that methodology was developed primarily to interpret the federal constitution. This is a document that is different from the national constitution in many important ways.
For example, judges point out that state constitutions are amended more frequently than federal counterparts, making it difficult to determine whether constitutional provisions should be authoritative when determining their original meaning. In North Carolina, Earls investigated the issue in a case relating to whether a juvenile defendant’s life sentence without opportunity for parole violated the A-state clause prohibiting cruel and unusual punishment. in Statev. Tirade, The majority fixed the analysis to the original intent of the clause when it was drafted in 1776.
In her consent, Earls denounced the majority of “correcting that gaze” in the 1776 version without “needing to control the moment without explaining it.” She provided a set of considerations that challenged the majority conclusions, such as “the 1776 Constitution () is the only version that has never been voted directly by voters and approved.” The majority of decisions “are having a perverse influence on the “appearance” of our “appearance” as the star of guidance to the most exclusive and least democratic version of our constitution.
At the time, Supreme Court Justice of South Carolina, Donald Beatty, disputed these concerns in part. Owensv. Stirlingfound that executions by the Electric Squadron and executions by the Dismissal Squad do not constitute “cruel or unusual” punishment under the state constitution. Beatty pointed out the difficulty of determining the original meaning of multiple amended constitutional clauses. “Even using the concept of originalism, the courts must decide whether the prohibition of “cruel” punishment should be based on collective judgments of the meaning of 1790, 1865, 1868, 1895, and possibly 1971. ”
Other critics have called attention to the often available evidence to decipher the original meaning of the state’s constitutional provisions. For example, in Rutgers Method ReviewMaryland Court of Appeals Judge Dan Friedman explains the “sudden and inadequate” treaty records in his hometown, and gives a broader point about variation in the quality and quantity of state treaty records in 50 states. The originality applied to the federal constitution simply “is not perfectly compatible with the national constitution,” Friedman wrote.
Scholars reflect these views. For example, Professor Maureen Brady of Harvard University called out courts to habitually use the state’s constitutional treaty records in a “reckless waiver.” in Wisconsin Legal Reviewshe detailed many issues related to the records of state constitutional treaties, including poor documentation, delays and secret procedures, inaccuracies introduced in records released decades later in the facts, and politicized records of treaties.
The review is a purposeful and subjective effort.
Proponents of originalism argue that it excludes subjectivity from the examination. The claim that critics are challenged points to selective, outcome-oriented methods in which judges often apply the method. Critics emphasize that originality is not different from other approaches to judicial decision-making, as all reviews require some degree of subjective judgment, even when applied in good faith.
Beatty emphasized this point with his partial opposition. OwensReference above: “From a practical point of view,” he wrote, “the use of fundamentalism does not exclude the elements of judicial interpretation (or as a fear, potential bias of the majority) that exist in answering questions.”
Furthermore, state justice points out that subjectivity is a necessary and important part of judgment that should be recognized and accepted, rather than hidden or rejected. South Carolina Supreme Court Judge D. Garrison Hill argued subjectively in another opinion Owensnote that judicial analysis relies on sound judgments of judges. Hill opposed originalism as an “unconscious methodology,” and urged the judiciary to actively “consider the principles underlying constitutional rights, determine the contours of rights, and use common sense to apply them to facts.”
He continued to explain his vision for a pluralistic approach to jury. He gave a better explanation of the intentional freedom of constitutional provisions. Citing former US Supreme Court Judge Oliver Wendell Holmes and former President Thomas Jefferson, he concluded: “The law isn’t. “The gloomy omnipresent in the sky” always provides a clear answer.
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As these recent state Supreme Court opinions have shown, state judges continue to provide critiques of originality and continue to promote alternative interpretive methodologies. These critiques often reflect those raised by federal judges, but also introduce national-specific considerations. By promoting this lively discussion, judges affirm their commitment to the state as an independent constitutional thinking laboratory, helping to clarify a positive and non-original vision of the role of review.
Chihiro Aizaki is an advisor to the Brennan Judicial Center’s Democracy Program.
Maryjane Johnson is a program associate for the Brennan Center for Justice’s Democracy Program.
Suggested Quotes: Chihiro Isoki & Mary Jane Johnson, National justice continues to challenge itselfsᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (August 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-justices-continue-challenge-originalism
