Why is the Supreme Court Obsessed with Originalism?

These days, American constitutional law looks obsessively to the past. Interpreters of the U.S. Constitution have always appealed to history to understand what it means, but never to this extent or with these consequences. As the most recent Supreme Court term underscored, in interpreting the U.S. Constitution never before has so much weight been placed on the historical past.

This unprecedented emphasis on history in constitutional interpretation is thanks to the rise of constitutional originalism, the theory that insists the Constitution be interpreted today in accordance with its original meaning. Instead of adjudicating cases based on what the Constitution has come to mean in light of evolving attitudes, values, and conditions, or longstanding precedents and practices, originalism calls for judges to enforce the meaning the Constitution had when it was laid down. More often than not, this backward-looking exercise focuses on the nation’s eighteenth-century founding, the period when the United States earned its political independence and adopted the national constitution that remains its fundamental law to this day.

For several decades, originalism has been the rallying cry of the conservative legal movement, and thanks to the recent vicissitudes of American politics, it now dominates the federal judiciary, for the first time ever commanding a majority on the Supreme Court. Where once it was but one voice in the constitutional chorus, originalism now dominates the choir. In its recent terms, the Court has turned to the nation’s early history to determine the scope of gun rights, speech rights, the freedom of religion, presidential immunity, and the legitimacy of the administrative state.

Today’s originalist jurists defend their favored approach much as early originalists did a half-century ago: looking to history offers the only objective and neutral method for interpreting the Constitution. They look to the past, they claim, not out of reverence for the American Founding and the iconic cultural figures who are often said to be most responsible for it—statesmen such as James Madison, Alexander Hamilton, and Thomas Jefferson—but because doing so is the only way to ensure that judicial interpretation of the Constitution is adequately channeled and constrained.

This defense was front and center in United States v. Rahimi (2024), the much-anticipated case from this past term that considered whether an individual subject to a federal domestic violence restraining order could be prevented from possessing a firearm consistent with the protections of the Second Amendment. Justice Brett Kavanaugh laid down a revealing dichotomy. In deciphering uncertain constitutional text, and without clear precedent to guide them, justices had but two options before them: “history or policy.” Either they could look to the “laws, practices, and understandings from before and after [the Constitution’s] ratification,” or they could consider the policy merits of the regulation in question, an approach that ultimately “rests on the philosophical or policy dispositions of the individual judge.”1 History forces judges to answer fact-based empirical questions about what past lawmakers did, whereas policy empowers judges to impose their own moral values and ideological preferences on the case at hand. Therefore: “History, not policy, is the proper guide.” Whatever its own difficulties, it is the only thing that “keeps judges in their proper lane,” wrote Justice Neil Gorsuch in the same case.2

This argument is of longstanding vintage. It’s the same one that Robert Bork and other legal conservatives deployed to criticize the supposedly freewheeling style of interpretation that the liberal Warren Court relied on following the Second World War, that Attorney General Edwin Meese trotted out to defend the favored approach of the Reagan Justice Department, or that originalist Justice Antonin Scalia repeatedly emphasized during his three-decade tenure on the Supreme Court. It’s the argument that originalists have long used to favorably distinguish their approach from living constitutionalism—the rival theory that broadly insists that the Constitution’s meaning evolves as values and conditions change. Unless jurists set their sights on the original meaning of the Constitution, they will end up imposing their own modern views on the Constitution they are sworn to uphold.

And yet, too often originalists fail to take seriously the very history they have pledged to follow. Some will insist that this failure is an altogether predictable byproduct of motivated reasoning, confident that originalist jurists use history only as cover to reach their ideologically favored results. In this respect, originalism is just living constitutionalism for conservatives, masquerading as something more noble. But the failure runs deeper than that. In looking to the distant American past to divine the nation’s constitutional law, originalists fail to appreciate the differences between past and present, and the difference those differences make.

In investigating the nation’s eighteenth-century constitutional origins and the decades that followed, when the Constitution was first implemented and interpreted, contemporary originalists often assume too much about a constitutional world that was in fact very different from our own. Whereas originalists tend to ask whether a particular constitutional word or phrase carried a different linguistic meaning in the eighteenth century, they instead ought to ask whether eighteenth-century Americans conceptualized constitutionalism and law itself—and its defining concepts of rights, liberty, and governance—as we do today. As it turns out, Founding-era Americans thought much differently about all of these things. For that reason, the Constitution carried a different meaning for them than originalists tend to appreciate.

Consider again the original meaning of the Second Amendment. Before scrutinizing the amendment’s textual commands, a faithful originalist would need to appreciate how fundamental rights were understood at the Founding, something that Supreme Court originalists have repeatedly failed to do. Not only in Rahimi but also in the landmark cases that preceded it—D.C. v. Heller (2008) and NYSRPA v. Bruen (2022), which too relied heavily on early constitutional history—the Supreme Court presupposed a decidedly modern understanding of constitutional rights and the significance of their enumeration in constitutional text. The justices assumed that the rights enshrined in the Second Amendment enjoyed constitutional status because they had been expressly codified in 1791 and that, as Justice Scalia wrote in Heller, “constitutional rights are enshrined with the scope that they were understood to have when the people adopted them.”3 Since “the whole purpose” of codifying certain rights in the text of a constitution was, as Scalia put it, “to prevent change,” the point of entrenching rights in the text of the Constitution was to create spaces free from burdensome governmental interference.4 Constitutional liberty was imagined to be in fundamental tension with government regulation.

But these underlying assumptions about constitutional rights that have undergirded the Court’s interpretation of the Second Amendment are ahistorical. Those who constructed the amendment had something very different in mind. Believing that law was found, not made, eighteenth-century constitutionalists assumed that many fundamental rights were established through nature or longstanding custom rather than textual codification in a written constitution. Often, the enumeration of certain rights protections in written constitutions was meant merely to announce existing fundamental rights, and textual enumeration usually did not alter the status or scope of the right in question. As Virginian George Nicholas explained, “A Bill of Rights is only an acknowledgement of the pre-existing claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution.”5 This was certainly true of the first amendments to the U.S. Constitution, now called the Bill of Rights, including the Second Amendment. As those amendments’ principal architect, James Madison, explained, they were little more than “an enumeration of simple acknowledged principles.”6 What textual enumeration could do was more precisely map the legal contours of a right, including by placing firmer prohibitions on the government’s regulation of it. But notably, the Second Amendment did no such thing. Like most rights provisions at the time, it left those determinations of the scope of the right and its regulation to the people’s representative institutions—above all, their legislatures.

This understanding of how fundamental rights would be fleshed out over time presumed a different conception of liberty, one defined not by the absence of government regulation but by the conditions of its legitimacy. Fundamental rights could be regulated only by the people’s faithful representatives and in the interest of the common good.7 But as long as those conditions were met nothing about the fact of governmental regulation violated the enshrined right, contrary to what Justice Scalia assumed. Finally, this very different eighteenth-century understanding of constitutional rights—which placed limited emphasis on textual enumeration and did not assume that enshrining a constitutional right meant that its scope would be “trapped in amber,” as Justice Gorsuch put it in Rahimi—assumed that the people themselves, through their elected representatives, would enforce their rights, rather than the judges whom originalist jurists often assume were designed for that role. The original Second Amendment thus presupposed a constitutional world at odds with the one the Supreme Court’s originalists take for granted.

While judicial originalists continue to trumpet the importance of history, they rarely take that history on its own terms. They claim to be wedded to the Constitution’s eighteenth-century meaning, yet they fail to engage in the deeper work of reconstructing the often-unfamiliar understandings of constitutionalism on which that original meaning was based. Justice Gorsuch insisted in Rahimi that originalism was the only thing that could keep judges on the straight and narrow, “seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.”8 Yet in foisting modern constitutional assumptions on an eighteenth-century past that did not share them, jurists like Gorsuch ignore the supreme law those earlier people in fact made. These originalist jurists end up rewriting the constitutional past based on the logic of the legal present. In that respect, their interpretive approach resembles the living constitutionalism they otherwise disparage. A better understanding of early American constitutionalism might not be able to solve all the constitutional problems of today, but it can expose how faithless today’s Supreme Court originalists too often are to the history they claim is the lodestar of our law.