Did Originalism Kill the Constitution?

Jill Lepore—law professor, author, commentator—has published another book. An adapted extract from said book appeared recently in The Atlantic under the titillating headline: “How Originalism Killed the Constitution.” Upon reading Lepore’s words, and not those of the Atlantic staffer who thought up its headline, it becomes clear that the Constitution is not quite dead yet. It “limps along, a walking shadow.” Nonetheless, originalism and originalists are, according to Lepore, to blame. These concerns are not just theoretical or fun to debate at a cocktail party; they are playing out in real time at the Supreme Court and becoming manifest in how government wields power. And more appropriately, how government power is restrained.

Many words can be written—and ought to be written, in some other place—about Lepore’s dubious historical and constitutional account. In a spirit of charity, it will suffice to note that her prior work is not distinguished for its accuracy, and that her narrative set forward in The Atlantic fares little better. For the sake of this analysis, all that can be left aside.

Lepore seems worried primarily that Americans no longer attempt seriously to remedy perceived constitutional deficiencies by proposing and ratifying constitutional amendments. They forgo that democratic process in favor of appealing to the Supreme Court, the Constitution’s most counter-democratic institution. Here, she faults originalists and conservatives. Having failed in their bids to amend the Constitution in the latter half of the 20th century—as Lepore tells it—conservative factionalists concocted a new theory of legal interpretation—originalism—to achieve their ends in court. Of the fact that originalism—although not so named—was the unquestioned method of judicial interpretation at the Founding and before, she makes no mention. This ought to be obvious to any historian.

Lepore concedes that, after World War II, “Instead of producing constitutional amendments, liberals achieved landmark legislative gains and rights-protecting Court decisions whose importance was matched only by their reversibility.” Yet her opprobrium is showered on conservatives, who, in fact, sought to construct a Supreme Court that would correct the abuses and errors of earlier Courts. The liberal-dominated Court of the midcentury, which indulged in the writing of constitutional fan fiction, remains safe and dry. (Tellingly, Earl Warren appears only once in Lepore’s narrative, and only in passing.)

In this cosmos, the force which impels conservatives is an antidemocratic tendency; that which impels liberals is a “rights-protecting” one. Her argument fails to establish the proper differentiation between the man who vandalizes a courthouse with graffiti and the man sent by the city to restore the original paint job.

This supremely political account makes scant effort either to understand or to explain whether originalism is, or is not, an intellectually credible mode of constitutional analysis. In Lepore’s words, “The subsequent history of originalism [after the founding of the Federalist Society] has everything to do with abortion, and everything else to do with guns.”

If this is true, the reader may wonder: What is originalism—indeed, what is Lepore’s Atlantic essay—to the humble taxpayer advocate? Of course, it is false. Notwithstanding the prominence of abortion and guns in the history of originalism, the originalist rulings propounded in such cases as District of Columbia v. Heller (2008) and Dobbs v. Jackson Women’s Health Organization (2022) are but conclusions radiating from the central tenet of originalism: that the constitutional provisions and ordinary statutes ought to be interpreted to be taken to mean precisely what they meant at their ratification or enactment. The rulings of originalist judges in any particular case, on any particular subject, emanate from this principle.

Even this simple belief erects towering barriers against abuses of Congresses, presidents, and state governments. The Constitution prohibits the state from enacting certain policies and prohibits one branch of government from invading the prerogatives of the other. Laws are not promissory notes of power to elected officials and bureaucrats, ripe for exploitation for the sake of convenience, but discrete grants of defined powers and duties.

Within the Taxpayers Protection Alliance’s bailiwick, the current Supreme Court’s originalist majority has stood athwart unconstitutional or statutorily unfounded endeavors on a number of policy questions. It has halted attempts to infringe upon online free speech, to stultify energy production by bureaucratic fiat, to impose arbitrary fees on fishermen, to coerce financial institutions to sever business relations with an organization of which regulators disapproved—naming just a few particularly noteworthy cases from the 2020s.

Such economic issues often become intertwined with structural constitutional questions, because, at the heart of the matter, whether a statute or regulation is good or bad does not concern the originalist justice. The question is whether the statute or regulation in question was legal or illegal, constitutional or unconstitutional.

In the American system, a judiciary that performs its duties faithfully will, on the whole, promote liberty. This is so because the American system itself serves the purpose of enabling self-government, of establishing an order in which liberty—both political and individual—flourishes.

If such commentators as Lepore regret the energetic activity of today’s Supreme Court, they might consider if their distaste springs from originalism per se or from the constitutional structure that originalism defends. They might also reflect on the century of political and constitutional innovations that rendered the frequent participation of the Supreme Court necessary to the maintenance of some semblance of a constitutional republic. It stands to reason that if politicians and bureaucrats were to attempt fewer illegal and unconstitutional acts, the Court would find itself less frequently compelled to intervene in the political decision-making of a free people.

It cannot be credibly contended that the originalist movement of the past half century bears responsibility for rendering the Constitution a dead man walking. Antonin Scalia, Robert Bork, and Ed Meese cannot be blamed for all the dissatisfactions that, for good reasons and bad, roil the minds of Ivy League law professors. As the saying goes, the first step to recovery is admitting one has a problem. Misdiagnosis, however, is a step backwards, away from recovery. If Lepore manages to prove any point, she proves that the foes of originalism embody every deficiency—paper-thin argumentation, dubious historiography, outcomes-obsessed jurisprudence, and anti-democratic sentiments—of which originalism stands accused.