Above: Universities often produce “theories” to severe Americans from their traditions and promote unlimited government power.
This essay first appeared in Law & Liberty on September 25, 2025.
Some academics employ narratives to manipulate the Constitution into producing results they like. Because of the systemic leftward bias of academia, most of these narratives seek to sever Americans from their traditions, weaken mediating institutions, redistribute wealth, or transfer more power to the federal government.
There is a very effective apparatus for promoting these narratives. While a narrative remains viable, its authors appear on professional panels and are rewarded with career advancement. Top legal journals print their articles. Elite publishing companies publish their books, and elite magazines review them. The authors are nominated for prestigious prizes, and their commentary is featured by the New York Times, the Washington Post, and the legacy broadcast media.
While this continues, skeptics find it difficult to be heard. But eventually, like an ice castle in springtime, the narrative dissolves in the warmth of reality and is seen no more.
A narrative currently in academic favor holds that the method of constitutional interpretation called “originalism” was invented and first promoted in the 1970s by Professor Robert Bork, Attorney General Edwin Meese, and Justice Antonin Scalia. Supposedly, it was a new and radical theory, designed to obtain conservative judicial results. It wasn’t (and isn’t) coherent, because self-described originalists propound different versions of it. Nor is it practical to apply, because history is often disputed or unclear and judges are not professional historians.
This narrative is featured in a September 10, 2025, story in The Atlantic. It consists of a lengthy summary of portions of Jill Lepore’s book, We the People: A History of the U.S. Constitution.
Most of the indicia of the successful narrative-promotion apparatus are present: Jill Lepore is a professor at (of course) Harvard. She was twice nominated for a Pulitzer Prize. Her book was published under an imprint of W. W. Norton, a leading publisher. Her book was reviewed by both The New York Times and The Washington Post. And the excerpt not merely appeared in The Atlantic (a pillar of the elite media), but was the cover story.
The article’s title leaves no doubt as to its purpose: How Originalism Killed the Constitution: A Radical Legal Philosophy has Undermined the Process of Constitutional Evolution. It promotes all the tenets of the current anti-originalist narrative—that is:
- Originalism is a new interpretive theory, first promoted during the 1970s by Bork, Meese, and Scalia.
- It was designed to promote a conservative political agenda.
- It is not a coherent theory, because different proponents present different versions.
- It is impossible to apply.
The article also adds a new charge: Originalism is largely responsible for a breakdown in the Constitution’s amendment process.
In the coming days, Law & Liberty will print a full review of Professor Lepore’s book. My sole purpose is to focus on the allegations against originalism. For those who don’t mind a spoiler alert, here it is: All of these allegations are false. The charge that originalism caused the breakdown in the amendment process is particularly far from the truth.
Originalism was not invented specifically for the Constitution. Originalism is merely a new name (initially coined by opponents) for the dominant mode of documentary construction in the Anglo-American legal system.
Originalism is the process of interpreting a legal document or text with the goal of reconstructing the parties’ initial understanding of its prospective legal effect. As formulated in England during the sixteenth century (if not before), this process was called a search for the “intent of the makers,” which was identified as the “lodestar” of documentary construction. In this context, “intent” is a term of art that, depending on the circumstances, can refer to the parties’ explicit or implicit understanding or the document’s meaning to them.
The “makers” of a legal document are those whose actions give it legal effect. They may or may not also be the document’s drafters. If the document is a will, the sole maker is the testator. If it’s a trust, the maker is the settlor. The makers of a contract are the contracting parties. The makers of a statute are the enacting lawmakers (not the legislative drafters), and the makers of a constitution are the ratifiers (not the framers or constitution-writers).
One seeks evidence of the makers’ “intent” in the document’s words (which usually comprise the best evidence), in the parties’ expectations for the document and their reasons for adopting it, in their prior and contemporaneous statements, and in prior and surrounding circumstances.
For almost all documents other than the US Constitution, seeking and applying the parties’ “intent” is uncontroversial. Commentators who think constitutional originalism is unique or “radical”—including some constitutional law professors—may have little experience in other areas of the law and almost none in actual law practice.
Not only is originalism nearly universal, but it is also extremely old. Polybius referred to it in describing a court dispute in ancient Greece. Justinian’s Digest referred to it. It was firmly established in England at least by the time of Edmund Plowden (1520 [N.S] – 1585), one of England’s foremost interpretive scholars.
In the United States during the Confederation era, state courts employed originalist methods for construing their own state constitutions. In Commonwealth v. Caton (1782), for example, Judge George Wythe—later a delegate to the 1787 Philadelphia convention and a leading Virginia ratifier—acknowledged the primacy of the “intent of the framers” in a case where the framers also were the constitution’s ratifiers (and therefore the “makers”). Moreover, as I have demonstrated elsewhere, the Framers of the US Constitution drafted the document with the expectation that it would be applied using the prevailing interpretive method. If they had thought that some non-originalist procedure would be used, they would have written the document differently.
Most participants in the subsequent debates had the same expectation. A few Anti-Federalists, it is true, made extravagant claims about how the document might be twisted. But Federalists responded by reminding their audience of the rules by which legal instruments actually were interpreted. One instance appears in Alexander Hamilton’s Federalist #33.
Until the Supreme Court became dominated by progressive majorities in the twentieth century, it was essentially originalist. Chief Justice John Marshall, among others, frequently resorted to the “intent” or “intention” of lawgivers and constitution-makers. If he failed to cite the actual constitutional debates, it was because transcripts of those debates had not yet been published.
Of course, any interpretive method can be applied badly. The majority opinion in Dred Scott v. Sandford is famous for inept and dishonest originalism. But the two dissents relied on originalist sources as well—and to better effect.
The judicial methods that were novel, radical, unique, and politically-driven are not originalist methods, but those utilized by progressive Supreme Court majorities throughout much of the twentieth century. Illustrative of this approach is an opinion by Chief Justice Charles Evans Hughes, who in Home Building & Loan Assn. v. Blaisdell (1934) held that a constitutional provision designed specifically to ban state debt moratoria did not, in fact, ban state debt moratoria:
“There has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The … pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected. …
“If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: ‘We must never forget, that it is a Constitution we are expounding.’”
This passage has features common to other Supreme Court decisions issued during the periods of progressive dominance. It contains amateur sociology. It is conclusory (“carries its own refutation”). It endorses judicial re-balancing of what the constitution-makers already had balanced. It is utterly foreign to how judges traditionally construed documents. And, like some of the other New Deal decisions, it is partly dishonest: Marshall’s “memorable warning” in McCulloch v. Maryland was not that the makers’ intent should be ignored. It was that the best evidence of intent may vary according to the nature of the document being construed.
Thus, originalism is not a new or radical interpretive method of interpretation. It is restorative: It rescues the Constitution from experiments with new and radical methods of interpretation.
Admittedly, originalists sometimes open themselves to charges of novelty. In the latest version of The Heritage Guide to the Constitution (to which I am a contributor), Justice Samuel Alito suggests that originalism is new:
“What we now call “originalism” arose to fill this void, and three men led the charge. If we can envision a Mt. Rushmore of originalism, the three visages we would see carved in stone are those of Robert Bork, Edwin Meese III, and Antonin Scalia.”
It does no disrespect to any of these three men to acknowledge that they are not the visages on the “Mt. Rushmore of originalism.” If there ever were such faces, they have been eroded by the passage of centuries.
As for the charge that originalism is incoherent: It is true that originalists sometimes offer different versions of their methodology—particularly “original intent” (of the framers), “original understanding” (of the ratifiers), and objective “original meaning.” Moreover, these concepts are often jumbled. For example, a court may refer to the “intent of the framers” when addressing the ratification debates.
One reason for the confusion is simple fallibility, especially by harried judges swamped with work. Another may be unfamiliarity with traditional interpretive standards. Still another may be that evidence of original intent also can serve as evidence of original understanding or original meaning, and so forth.
The correct historical standard is clear: In construing a constitution, the “lodestar” is the understanding of the ratifiers, with objective public meaning serving as a substitute when evidence of understanding is insufficient or fatally conflicting. The framers’ intent is useful primarily as evidence of original understanding or original meaning.
As a practical matter, these sub-methodologies usually produce similar results, and those results generally are more accurate than achieved by “progressive” interpretive experiments.
As I have shown elsewhere, difficulties in applying originalism—evidentiary gaps, conflict, ambiguity, and the like—tend to be exaggerated. When construing other legal documents, the courts regularly confront and overcome such difficulties. Fortunately, much of the Constitution does not suffer from such uncertainties, and some uncertainties that formerly existed have been resolved by originalist scholars.
Unfortunately, some originalists have supplied fodder to opponents by arguing from “evidence” of little or no probative value—especially material arising well after the provision being construed was ratified. Justice Scalia’s opinion in District of Columbia v. Heller can be justly criticized for this: What happened in 1867 (or 1267) should be of little concern to a court interpreting the meaning of a clause adopted in 1791.
Moreover, expanding the temporal scope of an originalist inquiry beyond the scope of the ratification record increases evidentiary difficulties and risks. I plan to enlarge on those in a later essay.
I have published extensively on the amendment process—perhaps more extensively than any other active scholar. From that perspective, I found particularly unpersuasive the Atlantic/Lepore charge blaming originalism for our modern reluctance to amend the Constitution.
It was not reassuring to find the charge marred by some technical errors. The assembly that the Constitution calls a “Convention for proposing Amendments” is the immediate proposing entity—not, as the article says, the states. Nor is a convention for proposing amendments a “constitutional convention,” as the article labels it. In its purpose, power, and scope, an amendments convention is more akin to the 1861 Washington Peace Conference than to a constitutional convention.
Rather than rebut the article’s strained argument point by point, I’ll outline the actual reasons for the paucity of recent amendments.
Throughout much of the twentieth century, liberals and progressives enjoyed enough power to secure the adoption of amendments they favored. Around 1968, they lost that power, as Americans increasingly recognized that the federal government was not living up to the liberals’ billing. At that point, as Professor Lepore acknowledges, liberals turned to the Supreme Court to obtain constitutional change.
After 1968, “conservative” proposals—such those for amendments mandating a balanced budget and congressional term limits—became hugely popular. But liberals were still strong enough to prevent Congress from proposing conservative amendments. So conservatives turned to the convention-proposal mechanism.
To force Congress to call an amendments convention, two-thirds of the state legislatures must issue demands on matching subjects. To block this from happening, liberal opinion makers, in conjunction with compliant mass media, argued that an amendments convention was an unlimited “constitutional convention” that could stage a coup d’état and rewrite the Constitution at will. This claim frightened some conservative state lawmakers into joining with liberals to defeat legislative applications for a convention. Thus, the disuse of the amendment process has nothing to do with originalism. It is the result of the current political balance and of the power of the “runaway convention” myth.
To summarize: Originalism is not new or different. It is an application to the US Constitution of the same interpretive methods applied to other documents—the same interpretive environment in and for which the Founders wrote and ratified it. Originalism’s pedigree dates back thousands of years—hundreds in the Anglo-American system. Its weaknesses have been exaggerated, but to the extent they exist, they sometimes are the product of confusion among originalists themselves.
Interpreting a document using originalist sources can, like any legal task, be done badly or well. The fact that it can be done badly is not a reason for adopting less accurate methods.
Finally, the recent paucity of constitutional amendments has nothing to do with originalism. It is the result of political factors coupled with a successful “runaway convention” propaganda campaign.
