The originalist viewpoint on the Civil Rights Act of 1964 holds that the Act must be interpreted according to the original public meaning of its text as understood at the time of enactment, and that subsequent judicial expansions of the Act - particularly those extending its reach to cover sexual orientation, gender identity, disparate impact liability, and other concepts not contemplated by Congress in 1964 - lack constitutional and textual legitimacy. Originalists do not uniformly oppose the Act itself; many regard it as a constitutionally valid exercise of Congress's Commerce Clause and Fourteenth Amendment enforcement powers as understood at the time. Their dispute is primarily with the administrative and judicial transformation of the Act into something its authors neither wrote nor intended.

Text governs, not purpose. Originalists argue that statutes, like constitutional provisions, must be interpreted by the words actually enacted. The Civil Rights Act of 1964 prohibits discrimination “because of … race, color, religion, sex, or national origin.” Advocates of the originalist reading contend that the ordinary public meaning of these terms in 1964 referred to sex as meaning male or female, and racial identity as commonly understood - not to sexual orientation, gender dysphoria, or disparate statistical outcomes across demographic groups. Expanding those terms through judicial interpretation, they argue, usurps the legislative function.

Disparate impact liability was not enacted. Title VII, as written, prohibits intentional discrimination - disparate treatment. The disparate impact theory, first recognized by the Supreme Court in Griggs v. Duke Power Co. (1971), holds that facially neutral employment practices with disproportionate effects on protected groups are presumptively unlawful. Originalists contend this interpretation has no basis in the statutory text and effectively imposes a quota logic that Congress explicitly disclaimed. Section 703(j) of the Act states that nothing in Title VII requires preferential treatment on account of racial imbalance.

Separation of powers. Originalists argue that the Equal Employment Opportunity Commission and other administrative agencies have repeatedly amended the effective meaning of the Act through regulatory guidance and enforcement policy rather than through the legislative process. This practice, they contend, violates the nondelegation doctrine and the separation of powers: Congress writes laws, agencies administer them.

Bostock as textualist error. The Supreme Court's 2020 decision in Bostock v. Clayton County held that Title VII's prohibition on discrimination “because of sex” encompasses discrimination on the basis of sexual orientation and transgender status. Justice Gorsuch, writing for the majority, employed a textualist methodology to reach this conclusion. Many originalists - including Justice Alito in dissent - dispute that this is genuine textualism, arguing that the ordinary meaning of “sex” in 1964 referred to biological sex, not sexual orientation or gender identity, and that no member of Congress in 1964 understood the Act to address those categories. They view Bostock as outcome-driven reasoning dressed in textualist clothing.

Civil rights and economic liberty tension. A strand of originalist and libertarian thought - associated with scholars like Richard Epstein - argues that Titles II and VII of the Act, insofar as they regulate private employment and public accommodations, raise genuine constitutional concerns under the principles of freedom of contract and economic liberty. These scholars do not dispute Congress's power to prohibit discrimination by state actors or entities exercising state-delegated power, but contend that application to fully private conduct stretched the Commerce Clause beyond its original scope. This remains a minority position among originalists; most accept the Commerce Clause basis for the Act as settled.

The originalist reading of the Civil Rights Act developed alongside the broader originalist movement in constitutional law, catalyzed in part by reaction to the Warren Court's expansive interpretive approach. Robert Bork, Edwin Meese, and the founders of the Federalist Society in the early 1980s argued that judicial interpretation had drifted from democratic accountability and textual fidelity. The Civil Rights Act became a test case for these disputes as the EEOC expanded its enforcement theories and the courts ratified them.

The disparate impact controversy intensified through the 1970s and 1980s. The Reagan administration's EEOC, under Clarence Thomas, attempted to reorient enforcement toward intentional discrimination claims. Congressional response to the Supreme Court's decision in Wards Cove Packing Co. v. Atonio (1989), which had partially constrained disparate impact liability, produced the Civil Rights Act of 1991 - which codified disparate impact liability into statute. Originalists who opposed Griggs largely accepted the 1991 Act as a legitimate legislative choice, while continuing to argue that the original 1964 Act had not required it.

The debate sharpened further with Bostock in 2020. Justice Alito's dissent, joined by Justice Thomas, offered a sustained originalist critique of the majority's textualism and has become a touchstone for the originalist position on Title VII's scope.

Robert Bork (1927-2012) - Federal judge and legal scholar whose nomination to the Supreme Court became a landmark political confrontation. Bork's writings on statutory interpretation and antidiscrimination law argued for tight adherence to legislative intent and skepticism of judicial expansion.

Antonin Scalia (1936-2016) - Associate Justice of the Supreme Court and the most influential proponent of textualism and originalism in the twentieth century. Scalia's opinions and academic writings repeatedly emphasized that statutory text, not legislative purpose or evolving social understanding, controls interpretation.

Samuel Alito (b. 1950) - Associate Justice of the Supreme Court. His dissent in Bostock v. Clayton County is the leading judicial statement of the originalist objection to expanding Title VII beyond its 1964 meaning.

Clarence Thomas (b. 1948) - Associate Justice of the Supreme Court and consistent originalist. As EEOC Chairman under Reagan, Thomas pressed for an enforcement approach focused on intentional discrimination rather than statistical disparity.

Richard Epstein (b. 1943) - Professor at NYU and the Hoover Institution. His book Forbidden Grounds (1992) offers the most systematic libertarian-originalist critique of the Civil Rights Act's application to private contracts, while acknowledging its political settlement value.

Roger Clegg (b. 1953) - President and General Counsel of the Center for Equal Opportunity. A leading critic of disparate impact doctrine and race-conscious remedies under the Act.

Textualism vs. original expected application. Some originalists distinguish between the original public meaning of a text and the original expected applications its authors had in mind. A strict semantic textualist might argue that “sex” in Title VII, read in isolation and applied to a but-for causation analysis, does logically encompass discrimination against gay or transgender individuals (as Gorsuch argued in Bostock). Original expected application originalists reject this move, arguing that meaning is always contextual and that no reasonable 1964 reader would have understood the Act to reach those cases. This is an ongoing methodological dispute within originalism, not merely a dispute about the Civil Rights Act.

Legitimacy of the 1964 Act itself. Most originalists accept the Act as constitutionally valid and as a legitimate political settlement of genuine injustices. A smaller libertarian faction, associated with Epstein and Bork's earlier writing, questions whether the Commerce Clause, as originally understood, extended federal power to purely private employment decisions. This position is largely academic; originalist judges have not pursued it on the bench.

Remedies and affirmative action. Originalists broadly agree that the Civil Rights Act does not authorize race-conscious affirmative action programs and that such programs are in tension with the Act's text and stated purpose. They disagree somewhat about whether and when such programs are permissible under the Fourteenth Amendment as race-conscious remedies for documented prior discrimination by specific actors.

• Civil Rights Act of 1964 - Main Topic
• Civil Rights Act of 1964 - History
• Civil Rights Act of 1964 - Progressive Viewpoint
• Civil Rights Act of 1964 - Libertarian Viewpoint
• Civil Rights Act of 1964 - Debate
• Bostock v. Clayton County
• Originalism
• Disparate Impact Doctrine

1. Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012).
2. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990).
3. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Harvard University Press, 1992).
4. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
5. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
6. Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071.
7. Bostock v. Clayton County, 590 U.S. 644 (2020) (Alito, J., dissenting).
8. Clarence Thomas, “Affirmative Action Goals and Timetables: Too Tough? Not Tough Enough?” Yale Law & Policy Review 5, no. 2 (1987): 402-411.
9. Center for Equal Opportunity, Publications Archive, ceousa.org.
10. Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, Title VII, § 703(j).