Originalism Explained, With the Strongest Case Its Critics Make

In July 1985, Attorney General Edwin Meese walked to the lectern at the American Bar Association's annual meeting in Washington and did something attorneys general rarely do: he criticized the Supreme Court's reasoning in front of the country's lawyers. The Court, he said in substance, had too often decided cases according to the justices' own ideas of good policy rather than the Constitution's text and the understanding of those who wrote and ratified it. He called for a "jurisprudence of original intention." Legal elites mostly treated the speech as a political attack by a Reagan administration frustrated with liberal precedents. A few months later, Justice William Brennan answered him in a speech at Georgetown, arguing that judges in the twentieth century could not know, and should not be bound by, the specific intentions of men in the eighteenth. That exchange is a good place to begin understanding originalism, because forty years later, the side Meese spoke for has a majority on the Supreme Court, and the argument has become the central argument in American law.

In short: Originalism holds that the Constitution's meaning was fixed when its words were adopted and that judges should apply that meaning today. It has moved from a political slogan in 1985 to the dominant method of the current Supreme Court. Its critics raise serious objections about history, democracy and results, and progressives need to understand both the theory and the critique to argue well about the Court.

What originalism claims

At its core, originalism makes two claims. The first is the "fixation thesis": the meaning of a constitutional provision was set at the time it was adopted. The words of the First Amendment meant something in 1791, and that is what they mean now. The second is the "constraint principle": judges should be bound by that original meaning when they decide cases, rather than by their own views of what the Constitution should mean.

Originalists offer several reasons for this approach. The Constitution is law, and law has a fixed meaning that can be discovered; otherwise it is not law at all. Judges are unelected, and if they are free to update the Constitution as they see fit, they become unaccountable policymakers. The Constitution contains its own procedure for change, the amendment process in Article V, and judges who update it by interpretation are bypassing that process. And a fixed meaning gives citizens and officials stable rules they can rely on.

Those are serious arguments. A citizen who believes that the people, not judges, should make the fundamental choices about their government has reason to find them appealing, and many progressives who are uneasy with the current Court share the underlying worry about unelected judges making policy.

From intention to public meaning

Originalism has changed since Meese's speech, and the change matters. Early originalists emphasized the intentions of the framers: what did the people who drafted the Constitution mean to accomplish? That version ran into problems quickly. The framers were many people who often disagreed. Their private intentions are hard to recover. And the Constitution became law not because the drafters wrote it but because the ratifiers approved it.

By the late 1980s, many originalists had shifted to what is now called "original public meaning." The question is not what the framers privately intended, but how a reasonable, informed reader would have understood the words at the time they were adopted. Justice Antonin Scalia was the most influential advocate of this version, both on the Court and in his writing. He described himself as a textualist in reading statutes and an originalist in reading the Constitution, and he insisted that judges look to the words and their public meaning, not to legislative history or the drafters' subjective hopes.

That shift made originalism more defensible as a theory. It also made it more dependent on historical research about language, which, as critics would point out, is not something judges are trained to do.

From the margins to the majority

When Robert Bork, a leading originalist, was nominated to the Supreme Court in 1987, the Senate rejected him by a vote of 58 to 42, after hearings in which his views on the Constitution, including his criticism of decisions protecting privacy and civil rights, became the central issue. For a time, that defeat seemed to show the limits of originalism as a political project.

The conservative legal movement responded by building institutions. The Federalist Society, founded by law students in 1982, grew into a national network of lawyers, judges and scholars. Originalism became the shared language of conservative judicial nominees. By the time of Donald Trump's first term, nominees routinely described themselves as originalists and textualists at their confirmation hearings.

The results show in the Court's recent landmark cases. In District of Columbia v. Heller in 2008, Scalia wrote for a 5-4 majority that the Second Amendment protects an individual right to keep and bear arms, after a long historical analysis. Justice John Paul Stevens dissented with a historical analysis of his own, reaching the opposite conclusion. In New York State Rifle and Pistol Association v. Bruen in 2022, Justice Clarence Thomas wrote that gun regulations must be consistent with the nation's historical tradition of firearm regulation. In Dobbs v. Jackson Women's Health Organization the same year, Justice Samuel Alito's majority opinion held that the Constitution does not protect a right to abortion, relying heavily on the argument that such a right was not deeply rooted in the nation's history and tradition.

The first critique: history is harder than it looks

The strongest objection to originalism may be practical. Recovering the original public meaning of constitutional language is difficult, and judges are not historians.

Historians have criticized the Court's historical work in several major cases, arguing that the justices selected the evidence that supported their conclusions and ignored the rest, a practice some scholars call "law office history." In Heller, groups of professional historians filed briefs disputing the majority's reading of the Second Amendment's history. After Bruen, lower courts struggled to apply its history-and-tradition test, reaching inconsistent results on which modern gun laws had adequate historical analogues. In United States v. Rahimi in 2024, the Court upheld, 8-1, a federal law disarming people subject to domestic violence restraining orders, and in doing so clarified that modern laws need not have a "historical twin," only a sufficient analogue. Several justices wrote separately about how the method should work, a sign that its application remained unsettled.

The critique is not that history is irrelevant. Everyone agrees history matters to constitutional interpretation. The critique is that originalism claims more precision than history can provide. When the historical record is ambiguous, as it often is, the judge's choice of which evidence to emphasize can do the work that originalism says should be done by the text.

The second critique: the dead hand

A second objection is about democracy. The Constitution was ratified by a small slice of the population. Women could not vote. Most Black Americans were enslaved. Property requirements excluded many white men. The Reconstruction Amendments were adopted in a different era, but still one in which women were excluded from the electorate.

Critics ask why the understandings of that limited electorate should bind a nation that now includes everyone. This is sometimes called the "dead hand" problem: originalism lets people long dead govern the living. Brennan made a version of this point in his 1985 response to Meese, describing an approach that would freeze constitutional meaning as a kind of arrogance cloaked as humility.

Originalists have answers. The Constitution can be amended, so the living are not bound forever. And if judges update the Constitution instead, it is not "the people" who decide, but nine lawyers. That is a fair point. The reply is that Article V makes amendment extraordinarily difficult, requiring supermajorities that are nearly impossible to assemble in a polarized country, so the amendment route is largely theoretical.

The third critique: results and consistency

A third objection concerns results. Critics point out that originalism, as practiced by the current Court, tends to produce conservative outcomes, and they ask whether the method drives the results or the results drive the method.

The hardest test for any interpretive theory is Brown v. Board of Education. The Congress that proposed the Fourteenth Amendment also ran segregated schools in the District of Columbia, and many of the amendment's supporters did not believe it would require desegregation. If originalism cannot justify Brown, critics argue, it cannot be the right theory. Some originalists, notably the scholar Michael McConnell, have argued at length that Brown is consistent with the original meaning of the Fourteenth Amendment, based on Reconstruction-era debates over civil rights legislation. Others concede the difficulty. The debate is real and unresolved.

Critics also note that the Court applies originalism selectively, invoking history in some cases and setting it aside in others, for example in its rulings on affirmative action, campaign finance or the scope of executive power. Defenders respond that every method has hard cases and that inconsistency in applying a theory does not refute the theory itself.

The progressive originalists

Here is a reframing that progressives should take seriously. Originalism is not owned by conservatives. A growing group of scholars argues that the original meaning of the Constitution, especially of the Reconstruction Amendments, supports progressive outcomes.

The Thirteenth, Fourteenth and Fifteenth Amendments were written by people determined to remake the Constitution after a war fought over slavery. Their text speaks of equal protection, the privileges and immunities of citizens and the right to vote regardless of race. The Fourteenth Amendment's first sentence established birthright citizenship. The scholar Jack Balkin has argued for what he calls "living originalism," which treats the Constitution's broad principles as fixed while allowing their application to change. Others have argued that the original meaning of the Reconstruction Amendments supports broad federal power to protect civil rights.

In the 2024 case over whether Colorado could keep Donald Trump off the ballot under Section 3 of the Fourteenth Amendment, which bars certain officials who engaged in insurrection from holding office, two prominent originalist scholars, William Baude and Michael Stokes Paulsen, had argued that the provision applied and was self-executing. The Court unanimously reversed Colorado's decision, holding that states could not enforce Section 3 against federal candidates, and did not resolve the originalist argument on its merits. But the episode showed that originalist reasoning does not always point in one political direction.

Textualism, and a surprise in 2020

Originalism has a close relative in statutory cases: textualism, the view that judges should apply the ordinary meaning of a law's words rather than guess at what legislators hoped to achieve. The two methods share a temperament, and the same judges usually champion both. They also share a feature critics tend to overlook: a method that follows the words can take a judge somewhere he did not expect to go.

The clearest example came in Bostock v. Clayton County in June 2020. The question was whether Title VII of the Civil Rights Act of 1964, which forbids employment discrimination "because of" sex, protects gay and transgender workers. The Congress that passed the law almost certainly did not have them in mind. Justice Neil Gorsuch, a committed textualist appointed by Donald Trump, wrote for a 6-3 majority that it does: an employer who fires a man for being attracted to men, but would not fire a woman for the same attraction, is discriminating because of sex. The words, he reasoned, mean what they say, whatever the drafters expected.

The dissenters, including Justices Alito, Thomas and Kavanaugh, accused the majority of rewriting the statute under the banner of textualism. Progressives, meanwhile, found themselves celebrating a ruling built on a method they usually criticize. The lesson is not that textualism is secretly progressive. It is that methods matter, that they can bind the people who use them, and that the best way to hold a judge to a method is to know it as well as the judge does.

Where I come down

Here is the opinion, labelled as one. I think originalism captures something true: the Constitution's text matters, history matters and judges should not simply impose their own preferences. I also think the critics are right that originalism as practiced claims a certainty that history rarely provides, and that its application has been selective in ways that suggest outcomes are doing more work than method.

The practical lesson for progressives is twofold. First, learn the history and use it. The Reconstruction Amendments are a progressive inheritance, and their original meaning is a powerful argument for civil rights and federal power. Second, do not concede that originalism is the only legitimate way to read the Constitution. American constitutional law has always combined text, history, structure, precedent and consequences. A method that ignores all but the first two is not the only faithful one.

What you can do

1. Read the Court's opinions with the method in mind. The Court Watch page lists this term's opinions with the Court's summaries; look for how often the majority and dissent argue over history, and whose history persuades you.
2. Follow the major rulings and the arguments about them. The Supreme Court rulings coverage collects reporting and analysis on the Court's decisions.
3. Watch confirmation hearings closely. Nominees now routinely describe their interpretive philosophy. The representatives page lets you find your senators and their contact information so you can tell them what questions you want asked.
4. Read the Reconstruction Amendments. They are short. The Thirteenth, Fourteenth and Fifteenth Amendments together run under a page, and they remain the strongest constitutional text for equality ever adopted in this country.