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HOW ORIGINALISM KILLED THE CONSTITUTION  
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Jill Lepore
September 10, 2025
The Atlantic
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_ A radical legal philosophy has undermined the process of
constitutional evolution. _

, Nora Carol Photography / Getty

 

A bushy-browed, pipe-smoking, piano-playing Antonin
Scalia—Nino—the scourge of the left, knew how to work a crowd. He
loved opera; he loved theater; he loved show tunes. In high school, he
played the lead role in _Macbeth_: “I have no spur to prick the
sides of my intent, but only vaulting ambition.” As clever as he was
combative, Scalia, short and stocky, was known, too, for his slightly
terrifying energy and for his eviscerating sense of humor. He fished
and hunted: turkeys and ducks, deer and boar, alligators. He loved
nothing better than a dictionary. He argued to win. He was one of the
Supreme Court’s sharpest writers and among its severest critics.
“It’s hard to get it right,” he’d tell his clerks
[[link removed]],
sending back their drafts; they had that engraved on a plaque. Few
justices have done more to transform American jurisprudence, not only
from the bench but also from the seminar table, the lecture hall, and
the eerie velveteen intimacy of the television stage. He gave one
speech so often that he kept its outline, scribbled on a scrap of
paper, tucked in his suit pocket
[[link removed]].
The Constitution is not a living document, he’d say. “It’s dead.
Dead, dead, dead!”

Two hundred and fifty years after Americans declared independence from
Britain and began writing the first state constitutions, it’s not
the Constitution that’s dead. It’s the idea of amending it. “The
whole purpose of the Constitution,” Scalia once said
[[link removed]],
“is to prevent a future society from doing what it wants to do.”
This is not true. One of the Constitution’s founding purposes was to
prevent change. But another was to allow for change without violence.
Amendment is a constitution’s mechanism for the prevention of
insurrection—the only way to change the fundamentals of government
without recourse to rebellion. Amendment is so essential to the
American constitutional tradition—so methodical and so entirely a
conception of endurance through adaptation—that it can best be
described as a philosophy. It is, at this point, a philosophy all but
forgotten.

The philosophy of amendment is foundational to modern
constitutionalism. It has structured American constitutional and
political development for more than two centuries. It has done so in a
distinctive, halting pattern of progression and regression:
Constitutional change by way of formal amendment has alternated with
judicial interpretation, in the form of opinions issued by the U.S.
Supreme Court, as a means of constitutional revision.

This pattern has many times provided political stability, with formal
amendment and judicial interpretation as the warp and weft of a
sturdily woven if by now fraying and faded constitutional fabric. But
the pattern, which features, at regular intervals, the perception by
half the country that the Supreme Court has usurped the power of
amendment, has also led to the underdevelopment of the Constitution,
weakened the idea of representative government, and increased the
polarization of American politics—ultimately contributing, most
lately, to the rise of a political style that can only be called
insurrectionary.

The U.S. Constitution has one of the lowest amendment rates in the
world. Some 12,000 amendments have been formally introduced on the
floor of Congress; only 27 have ever been ratified, and there has been
no significant amendment in more than 50 years. That is not because
Americans are opposed to amending constitutions. Since
1789, Americans have submitted [[link removed]] at
least 10,000 petitions and countless letters, postcards, and phone and
email messages to Congress regarding constitutional amendments, and
they have introduced and agitated for thousands more amendments in the
pages of newspapers and pamphlets, from pulpits, at political rallies,
on websites, and all over social media. Every state has its own
constitution, and all of them have been frequently revised and
replaced. One delegate to a 19th-century constitutional convention in
Missouri suggested that a state constitution ought to be rewritten
every 14 years
[[link removed]] on
the theory that every seven years, “every bone, muscle, tissue,
fibre and nerve matter”—every cell in the human body—is
replaced, and surely, in twice that time, every constitution ought to
be amended too.

Since 1776, the states have held some 250 constitutional conventions
and adopted 144 constitutions, or about three per state. Every state
constitution currently in place has an amendment provision. For most
of American history, the states have been exceptionally busy holding
constitutional conventions, but as with amending the U.S.
Constitution, the practice has stagnated. (No state has held a
full-dress convention since Rhode Island did in 1986.) Nevertheless,
the practice of amendment by popular vote thrives in the states, where
constitutional revision is exponentially easier to achieve. Since
1789, some 7,000 amendments formally proposed in the states have been
ratified, more than two-thirds of those introduced.

Article V, the amendment provision of the U.S. Constitution, is a
sleeping giant. It sleeps until it wakes. War is, very often, what
wakes it up. And then it roars. In 1789, in the aftermath of the
Revolutionary War, Congress passed 12 amendments, 10 of which, later
known as the Bill of Rights, were ratified by the states by 1791. A
federal amendment requires a double supermajority to become law: It
must pass by a two-thirds vote in both houses of Congress (or be
proposed by two-thirds of the states), and then it must be ratified by
three-quarters of the states (either in legislatures or at
conventions). No amendments were ratified in the 61 years from 1804 to
1865, and then, at the end of the Civil War, three were ratified in
five years. What became the Thirteenth Amendment in 1865, abolishing
slavery, had first been proposed decades earlier. No amendments were
ratified in the 43 years from 1870 to 1913, and then, around the time
of the First World War, four were ratified in seven years. The
Nineteenth Amendment, granting women the right to vote and first
called for in 1848, was ratified in 1920, after a 72-year moral
crusade.

Again, the giant slept. In the 1930s, President Franklin D. Roosevelt
largely abandoned constitutional amendment in favor of applying
pressure on the Supreme Court, and the civil-rights movement adopted a
legal strategy that involved seeking constitutional change through the
Court too. The Second World War did not awaken Article V, because
mid-century liberals abandoned amendment in favor of the exercise of
executive and judicial power. From 1961 to 1971, as the United States
became engulfed in the Vietnam War, Americans ratified four amendments
and seemed very likely to ratify two more. Those that succeeded
included the Twenty-Fourth Amendment, which in 1964 abolished poll
taxes (generally deployed to suppress the votes of the poor and
especially of Black people), and the Twenty-Sixth Amendment (which in
1971 lowered the voting age to 18). Both relied on a broad liberal
consensus. Other efforts, such as an amendment abolishing the
Electoral College, which passed the House in 1969, failed in the
Senate. The Equal Rights Amendment, prohibiting the denial or
abridgment of rights on the basis of sex, was introduced in Congress
in 1923 and sent to the states in 1972. It fell short of the 38 states
needed for ratification before the deadlines set by Congress. Liberals
soon stopped proposing amendments, and amendments proposed by
conservatives—providing for school prayer, banning flag burning,
defining marriage, protecting fetal life, and requiring a balanced
budget—all failed, leading conservatives, like earlier liberals, to
instead seek constitutional change through the federal judiciary. The
amending stopped. The Twenty-Seventh Amendment, which concerns
congressional salaries and was ratified in 1992, was one of the 12
amendments sent by Congress to the states in 1789, and then was more
or less forgotten; it can hardly be said to have introduced a new idea
into the Constitution. The giant has not awoken since, despite
half-hearted attempts to rouse it, mainly in the form of presidential
political theater. Ronald Reagan supported a balanced-budget
amendment. Bill Clinton supported a victims’-rights amendment
(granting rights to victims of crime, a law-and-order answer to the
defendants’-rights movement of the 1960s), and George W. Bush called
for a defense-of-marriage amendment (identifying marriage as between a
man and a woman). Neither made any headway. Joe Biden, after stepping
down from his reelection campaign in 2024, proposed a constitutional
amendment to reverse the Supreme Court’s decision that year granting
the president considerable immunity from criminal prosecution. The
giant did not wake.

Between 1980 and 2020, members of Congress proposed more than 2,100
constitutional amendments. Congress, more divided with each passing
year, approved none of them. In roughly that same stretch of time,
state legislatures introduced almost 5,000 amendments and ratified
nearly 4,000. Instead of arguing for amendments at the national level,
legislators, lobbyists, and other advocates pursued different means of
either securing or thwarting constitutional change: by influencing the
nomination and confirmation of Supreme Court justices and by altering
the method that those justices use to interpret the Constitution.

The Constitution has not been meaningfully amended since 1971, right
when the political parties began to polarize. Polarization would
ultimately make the double-supermajority requirements for amending the
Constitution impossible to meet. Tellingly, 1971 marked another
turning point in the history of American constitutionalism. That year,
a method of constitutional interpretation that became known as
originalism was put forward by a distinguished legal scholar, the Yale
law professor Robert Bork. The word _originalism_ didn’t enter the
English language until 1980, and it had virtually no currency before
1987, when Reagan nominated Bork to a seat on the U.S. Supreme Court.
The nomination was rejected. Bork maintained that the only way to read
the Constitution is to determine the original intentions of its
Framers and that every other method of interpretation amounts to
amendment by the judiciary. Rather than Bork, it would be Scalia who
brought originalism to the Court, trapping the Constitution in a
wildly distorted account of the American past at a time when ordinary
Americans found their ability to amend and repair a constitution to
which they had supposedly given their consent entirely thwarted.   
        

Antonin Scalia, like Felix Frankfurter, came to the Court after a
career primarily as a law professor. He’d been a judge for only four
years; most of his published writing consisted of law-review articles
and speeches, not opinions from the bench. He grew up in Queens, an
only child. His father was an Italian immigrant who’d become a
professor of Romance languages; his mother, the daughter of Italian
immigrants, taught elementary school. He inherited his first gun from
his grandfather, who grew up hunting in Sicily and used to take Nino
to Long Island to shoot rabbits. Scalia attended a Jesuit military
school, where he was on the rifle team; he used to ride the subway
from Queens to Manhattan carrying his .22 carbine target rifle.
“When I was growing up in New York City, people were not afraid of
people with firearms,” he’d say
[[link removed]].
He went to Georgetown University and then to Harvard Law School. He
was a Goldwater conservative—a supporter of Senator Barry Goldwater
of Arizona, the Republican presidential nominee, in 1964. He served in
the Nixon and Ford administrations and taught law at the University of
Virginia and the University of Chicago before Reagan appointed him to
the D.C. Court of Appeals in 1982. Four years later, Reagan nominated
him to the Supreme Court.

On the first day of Scalia’s confirmation hearings, in 1986, he was
welcomed by the 83-year-old committee chair, Strom Thurmond, a one-man
timeline of the political and constitutional history of the 20th
century: a Democratic governor of South Carolina, the 1948
presidential candidate of the southern splinter Dixiecrat party, a
drafter of the segregationist Southern Manifesto, and, in 1964, a
backer of Goldwater. No one in the U.S. Senate had more fiercely
fought for segregation and against civil rights.

“You have got a lot of children there,” the senator from South
Carolina said affably. “I believe you have eight of them here?”

“All nine are here,” Scalia, 50, told Thurmond, beaming. “I
think we have a full committee.”

Thurmond asked Scalia about the difference between serving on a
circuit court and on the Supreme Court.

“There’s no one to correct your mistakes when you’re up
there,” Scalia answered, “except the constitutional-amendment
process.”

That process was by then no more than a chimera. The more difficult it
became to amend the Constitution, the more politicized nominations to
the Supreme Court became. Scalia’s confirmation, though, was a
breeze, partly because liberals had decided to focus their efforts on
questioning the elevation of William Rehnquist to the chief
justiceship, following the resignation of Warren Burger, which is what
had opened up a seat for Scalia. Also: Scalia was charming. And he’d
been exceptionally well briefed. Aides had peppered him with questions
in practice sessions and provided memos with titles such as “Likely
Areas of Interest Arising Out of Your Writings,” warning him, among
other things, about _Roe v. Wade_, the 1973 decision that had
legalized abortion: “You have probably said a little more on this
topic than you think.” (In 1978, Scalia had said that
[[link removed]],
in his view, the courts, in cases such as _Roe_, had “found rights
where society never believed they existed.”) In a typed list in
Scalia’s briefing packet titled “Talking Points,” the No. 1
topic was abortion. Scrawled below in black ink were two tips: “1.
Professional, not adversarial” and “2. Don’t get sucked in.”

Thurmond, after a friendly chat with the nominee, yielded the floor to
Senator Edward Kennedy of Massachusetts, who, without so much as a
hello, jumped in:

Kennedy: Judge Scalia, if you are confirmed, do you expect to overrule
the _Roe v. Wade_ ?

Scalia: Excuse me?

For a long time, the overruling of _Roe_ had appeared most likely to
come in the form of a constitutional amendment. Even before the Court
issued its 1973 decision, the right-to-life movement had worked,
unsuccessfully, to defeat abortion by amending the Constitution to
guarantee a “right to life” beginning at conception. But by the
time Kennedy confronted Scalia, right-to-lifers had decided there was
one other way to overturn _Roe_. In 1980, the GOP had vowed in its
party platform
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appoint “judges at all levels of the judiciary who respect
traditional family values and the sanctity of innocent human life.”

During the confirmation hearings for John Paul Stevens in 1975—the
first justice named to the Court after _Roe_, and by a Republican
president, replacing the most liberal justice, William O. Douglas—no
one asked him even a single question about the abortion decision. That
changed under Reagan, who, in his two terms in office, appointed more
than 400 federal judges, amounting to half the federal judiciary. All
were screened for their views on abortion. (Reagan’s influence on
the judiciary has had a long afterlife: Supreme Court Justices John
Roberts, Clarence Thomas, and Samuel Alito all worked in his
administration.)

Screening judges in this way was, at the time, both novel and
controversial. Members of Reagan’s Justice Department defended the
practice by insisting that they were screening, instead, for
originalism. As an assistant attorney general put it in a memo to the
attorney general
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idea of ‘original intent’ must not be marketed as simply another
theory of jurisprudence; rather it is an essential part of the
constitutional framework of checks and balances.” He emphasized
that, “contrary to allegations, we are not choosing judges who will
impose a ‘right-wing social agenda’ upon the Nation, but rather
those who recognize that they, too, are bound by the Constitution.”

In 1981, Reagan nominated Bork to the D.C. Court of Appeals. “_Roe
v. Wade_ is an unconstitutional decision, a serious and wholly
unjustifiable judicial usurpation of state legislative
authority,” Bork had written in a statement
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To opponents of abortion, Sandra Day O’Connor’s Supreme Court
hearings a few months later were far less reassuring. O’Connor, at
51, said she was personally opposed to abortion but then added
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“I am not going to be pregnant anymore, so it is perhaps easy for me
to speak.” This response alarmed pro-lifers and greatly contributed
to the movement’s decision to abandon constitutional amendment in
favor of influencing the judicial-nomination process. “The intensity
of right-to-lifers on the issue of judicial power should not be
underestimated,” a Reagan adviser had reported.

Republican strategists had been hoping to make the GOP the party of
the pro-life movement as a way to expand its base, bringing in
Catholics and white evangelicals. This realignment happened very
slowly. Not until 1979 were Republican members of Congress more likely
to vote against abortion than Democrats. That year, Jerry Falwell
helped found the Moral Majority, and a new evangelical-Christian right
joined the crusade against abortion. Only after Republicans in
Congress began aligning with the pro-life movement did the rest of the
party follow, but again, they did so gradually: Republicans were more
pro-choice than Democrats
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around 1990. And only during Reagan’s presidency did this effort
begin to involve attacking the legitimacy of the Court’s decision
in _Roe_.

Reagan’s alliance with the New Right proved crucial to his landslide
reelection in 1984, after which he appointed Edwin Meese as his
attorney general. Meese’s Justice Department would soon fill up with
young lawyers who were members of a new organization known as the
Federalist Society, formed by law students at Yale (studying with
Professor Bork) and the University of Chicago (studying with Professor
Scalia). Keen to avoid the word _conservative_, they chose instead to
emphasize the original intent of the Framers, and, in naming the
organization, they honored both the original Federalists and a Reagan
doctrine known as New Federalism, which sought to transfer power from
the federal government to the states. The first meeting of the
Federalist Society, at Yale in April 1982, featured 20 invited
scholars and jurists, including Bork and Scalia. Some Yale law
students perceived the meeting to be hostile to both reproductive
rights and civil rights. A poster objecting to the symposium
warned New Federalism means Old Bigotry—Support Civil Rights. The
legal scholar Mary Dudziak, then a second-year law student, was among
those who picketed. She carried a handwritten sign
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the feminist slogan If men could get pregnant, Abortion would be a
sacrament.

Soon after Meese took office, in 1985, he announced
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the official policy of the Reagan Justice Department would be to
pursue a “jurisprudence of original intention” as the only
legitimate and properly democratic method of constitutional
interpretation. Meese hired some of the founders of the Federalist
Society and trained them up as a “farm team” (as one Meese
aide later put it
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He aimed to sell originalism not only to the legal community but also
to the public as a form of modest and humble deference to the wisdom
of the Framers, in contrast to the unrestrained imperiousness, the
judicial oligarchy, of the Supreme Court.

This strategy raised liberals’ hackles, and it raised historians’
hackles, too. Justice William Brennan, in a speech at Georgetown
[[link removed]],
called the doctrine of original intent “arrogance cloaked as
humility” and speculated that proposals endorsing the idea “must
inevitably come from persons who have no familiarity with the
historical record.” Nothing in history is as clear as originalists
pretended, and not even the most skilled historian—which justices
were not—could reach such certain conclusions from such fragmented
evidence. What really rankled was Meese’s claim that original intent
was democratic, because it was quite clear that, having failed in
their efforts to amend the Constitution, conservatives had changed
course, instead using judicial selection to pursue objectives they
could not achieve by democratic means. “The aim is now to accomplish
in the courts what the Administration failed to persuade Congress to
do—namely, adopt its positions on abortion, apportionment,
affirmative action, school prayer and the like,” a political
scientist wrote in the _Los Angeles Times_. Nor did Meese’s
jurisprudence escape censure as realpolitik. “Mr. Meese’s version
of original intent is a patent fraud on the public,” the historian
Arthur M. Schlesinger Jr. argued in _The Wall Street Journal_. “The
attorney general uses original intent not as a neutral principle at
all but only as a means of getting certain results for the Reagan
administration. He is shamelessly selective.” He was also undeniably
effective.

Before Reagan moved into the White House, as the legal scholar Mary
Ziegler has demonstrated
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pro-life movement had not been especially interested in originalism,
on the theory that there is no “right to life” in the
Constitution, at least not any more than there’s a “right to
privacy,” the right cited by the Court in _Roe_. But after Reagan
pledged to use opposition to _Roe_ as a litmus test in appointing
federal judges, litigation seemed a far better approach than
amendment. In 1984, Americans United for Life held a conference under
the rubric “Reversing _Roe v. Wade _Through the Courts.” Two
years later, the National Abortion Rights Action League observed in a
report on the Scalia and Rehnquist nominations
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the pro-life movement, having failed to amend the Constitution, had
turned to a legislation-and-litigation strategy.

In 1985, for its brief in _Thornburgh v. American College of
Obstetricians and Gynecologists_—concerning a Pennsylvania law that
placed restrictions on abortion—the Meese Justice Department
directed the acting solicitor general, Charles Fried, to ask the Court
to overturn _Roe_ and to base the government’s argument on
original intent; Fried obliged. (A young Samuel Alito, in the Office
of Legal Counsel, who had stated his opposition to abortion in his
application for the position, worked on the brief
[[link removed]].)
“There is no explicit textual warrant in the Constitution for a
right to an abortion,” Fried’s brief read
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The brief elicited considerable protest, including from five former
solicitors general. Only narrowly did the Supreme Court decide against
overturning _Roe_. On June 11, 1986, the Court issued its 5–4
decision in _Thornburgh_, declaring Pennsylvania’s law
unconstitutional. Warren Burger, who had joined the majority
in _Roe_, now dissented. Six days later, Burger announced that he was
resigning to devote himself to the celebration of the Constitution’s
1987 bicentennial.

And so it came to pass that in August 1986, Antonin Scalia sat before
the Senate Judiciary Committee and stumbled over Senator Kennedy’s
question.

“Excuse me?”

Kennedy repeated: “Do you expect to overrule the _Roe v.
Wade _Supreme Court decision?”

Scalia declined to answer.

Kennedy had been questioning Scalia while waiting for the
committee’s ranking Democrat, Joseph R. Biden, the junior senator
from Delaware, to arrive from another meeting. Biden sought a national
stage, but when he got one, he often talked for too long and without
making a great deal of sense. “Obviously, I don’t know what the
hell I’m talking about,” he once said in the middle of remarks at
a Judiciary Committee hearing
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revising the criminal code. Biden was a devout Catholic, but he was
opposed to a constitutional ban on abortion. In 1983, he had
considered making a play for the 1984 Democratic presidential
nomination. (He would make his first bid in 1988.) As Scalia’s
briefing materials warned, Biden had “gradually lived down his early
reputation as an _enfant terrible_.” Biden was affable—goofy,
even—and willing to compromise, and Thurmond liked working with him
so much that he called him “my Henry Clay.”

Biden and Scalia had much in common: middle-aged Catholic men from
industrial eastern cities, with young families and thinning hair and
big dreams and funny jokes, though Scalia’s humor was more studied.
(He once famously began an opinion with this sentence
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“This case, involving legal requirements for the content and
labeling of meat products such as frankfurters, affords a rare
opportunity to explore simultaneously both parts of Bismarck’s
aphorism that ‘No man should see how laws or sausages are
made.’ ”) Biden gave the judge his wide smile, told him he’d
read all of his speeches that he could find, and said he was pretty
darn interested in this “newfound, newly enunciated doctrine of
original intent.” He began by asking Scalia about a speech he’d
given two months earlier, at a conference hosted by Meese.

Scalia had known when he delivered that speech, on June 14, that he
was being considered for a position on the Court. Burger had visited
the White House on May 27 to tell Reagan he intended to retire and to
give him a list of possible replacements for the chief justiceship,
including Scalia and Bork. By June 12, Reagan had decided to nominate
Rehnquist for the chief justiceship and leaned toward replacing
Rehnquist with Scalia, in part because he was nearly a decade younger
than Bork, though there was some concern about the quickness of his
temper. Scalia was scheduled to meet with the president on June 16.

Riffing on the flap between Meese and Brennan, Scalia in his June
speech had cataloged the weaknesses of the doctrine of original
intent, including by pointing out that the early Supreme Court could
not possibly have followed it, because James Madison’s notes on the
Constitutional Convention, generally cited by originalists as
definitive, were not available until 1840. What people who talked
about original intent must mean, then, Scalia argued—essentially
offering Meese a way out of the box he’d locked himself in—was not
the original intent of the _Framers_ but of the _Constitution_:
“It is not that ‘the Constitution must mean this because Alexander
Hamilton thought it meant this, and he wrote it’; but rather that
‘the Constitution must mean this because Alexander Hamilton, who for
Pete’s sake must have understood the thing, thought it meant
this.’ ” The doctrine of original intent, Scalia concluded, just
needed a better name; he proposed “the doctrine of original
meaning.” (Originalism, perhaps surprisingly, is quite changeable,
and originalists have for decades come up with new varieties, so many
niceties.)

When Biden seemed baffled, Scalia said he’d be happy to explain the
distinction but it wouldn’t be worth it, because, he admitted,
“it’s not a big difference.” As for that June speech, in which
Scalia had professed his allegiance to originalism, Biden told Scalia
wearily, “I just hope you don’t mean it.” But he very much did.

Originalism in the 1970s and ’80s was an outsider’s game.
Originalists accused the Supreme Court of amending the law by creating
new rights, such as the right to an abortion, and insisted both that
Article V amendment was the only legitimate method of constitutional
change and that originalism was the only legitimate method of
constitutional interpretation. Practically, though, originalism took
hold from the failure of conservatives to change the Constitution by
democratic means—by means of amendment.

Since the days of the New Deal, social and especially fiscal
conservatives had now and again called for constitutional amendments
and even for a constitutional convention. Among their more notable
efforts was a campaign starting in 1939 to call a convention to repeal
the Sixteenth Amendment, which provides for a federal income tax. For
the entirety of the Warren and Burger Courts, there had also been
calls for a constitutional convention: in the 1950s, to
overturn _Brown v. Board of Education_, which found racial
segregation in public schools to be unconstitutional, and in the
1960s, to repeal the Court’s one-man, one-vote decisions. A
balanced-budget amendment, first seriously proposed in the ’50s,
gained support during the economic malaise and rising federal debt of
Jimmy Carter’s presidency. By March 1979, 28 states had called for a
convention to adopt a balanced-budget amendment. Richard Rovere, the
celebrated Washington correspondent for _The New Yorker_, believed
that the call for a constitutional convention was a bluff and that
Congress would pass a stand-alone balanced-budget amendment in order
to avoid the terrifying prospect of a convention—which, he warned,
might “throw out much or all of the Bill of Rights” and could lead
“possibly even to civil war.”

Sixty-five percent of Americans favored a constitutional convention.
Scalia, asked at a forum that May whether the prospect was really all
that dangerous, joked that it was always possible a constitutional
convention might “pass a bill of attainder to hang Richard
Rovere,” but said he’d support “a convention on abortion.”

One person who was decidedly unwilling to run that risk was the
conservative insurgency’s most prominent political strategist,
Phyllis Schlafly. A convention called for the purpose of a
balanced-budget amendment might get out of hand and turn its mind to
other business—becoming a so-called runaway convention—and very
likely undo all her work to defeat the Equal Rights Amendment. She
went to war, and she won. Aside from defeating the ERA and “making
the Republican Party pro-life
[[link removed]],”
Schlafly considered defeating a convention in the 1980s her signal
achievement.

Herein lie the origins of originalism’s rise to power: in the
failures of the right-to-life amendment and the balanced-budget
amendment. It was at this very moment that the Federalist Society was
founded.

The subsequent history of originalism has everything to do with
abortion, and everything else to do with guns. One in three
Americans owns a gun
[[link removed]];
one in four American women will have an abortion
[[link removed]].
In the 1970s, as partisanship strengthened and polarization worsened,
guns and abortion became the defining constitutional issues in the
life-and-death, winner-take-all fury of modern American politics. On
the left, abortion came to mean freedom and guns murder; on the right,
guns came to mean freedom and abortion murder. That none of these
equivalencies can withstand scrutiny has not seemed to matter.

In 1975, the District of Columbia introduced a law that all but banned
the possession or sale of any handgun. That year, there were two
assassination attempts on President Gerald Ford. The National Council
to Control Handguns proposed a national ban. In 1976, the California
legislature debated a similar bill; opponents proposed a state
constitutional amendment guaranteeing a right to keep and bear
handguns, rifles, and shotguns. There was no reason to believe that
any of these gun-control measures violated the Second Amendment, which
the Court had hardly ever paid attention to and in any case had long
read as concerning only the keeping and bearing of arms for military
purposes—not as a right pertaining to citizens as individuals—and
as limiting only the federal government, not the states.

The National Rifle Association, whose motto since 1957 had been
“Firearms safety education, marksmanship training, shooting for
recreation,” had endorsed the 1968 Gun Control Act. But in the
mid-1970s, the NRA began organizing in opposition to handgun-control
laws. Ronald Reagan, who had just left the California governor’s
office, joined this campaign, too. In an article published in _Guns
& Ammo_ in 1975
[[link removed]],
Reagan advocated for the altogether novel and unsupported
individual-rights interpretation of the Second Amendment, maintaining
that “it appears to leave little, if any, leeway for the gun control
advocate.” In 1977, the NRA abandoned a planned move to Colorado to
remain in Washington, where it became essentially a lobbying
organization, with a new motto displayed at the entrance of its
building: “The right of the people to keep and bear arms shall not
be infringed.”

In 1981, Strom Thurmond appointed Senator Orrin Hatch of Utah as chair
of the Senate Judiciary Committee’s subcommittee on the
Constitution. Hatch had already proposed a right-to-life amendment,
and an amendment outlawing affirmative action. Reagan would later
consider naming him to the Supreme Court. Amending the Constitution
having failed, Hatch was now interested not in a new amendment but in
an old one. Upon assuming the chairmanship, he called immediately for
a report on the original meaning of the Second Amendment.

While Hatch’s subcommittee was at work, Reagan was shot; his press
secretary, James Brady, was also shot. Reagan continued his opposition
to gun-control legislation; Brady became an advocate for it. In
February 1982, Hatch’s subcommittee published a report called “The
Right to Keep and Bear Arms
[[link removed]].”
The subcommittee maintained that it had found “clear—and
long-lost—proof that the second amendment to our Constitution was
intended as an individual right of the American citizen to keep and
carry arms in a peaceful manner, for protection of himself, his
family, and his freedoms.” That November, after the NRA waged a
well-funded campaign against California’s handgun-control bill,
voters resoundingly defeated it in a statewide referendum.

As the Reagan administration prepared for the Constitution’s
bicentennial, a private committee was set up to consider possible
constitutional reforms. Its members included present and former
elected officials, scholars, and business and labor leaders, and its
focus was largely on addressing the growing problems of congressional
gridlock and budgetary brinkmanship. In a compilation of working
papers published in 1985
[[link removed]],
it urged Americans not to treat the Constitution as “immutable, like
the Ark of the Covenant,” but to be open to changes, such as
amendments. It recommended six, including longer congressional terms
and bonus seats in the House and the Senate for the party that wins
the presidency. None of these ideas made any headway. It wasn’t
voters who were opposed to amendments. The hurdle was Congress—and,
more and more, conservatives. In 1984, James McClellan, who had left
his position as a staff member on the Senate Judiciary Committee to
become the president of a newly formed Center for Judicial Studies,
urged conservatives to “kick the habit” of Article V. “There is
something fundamentally wrong with our system if we are driven to
amend the Constitution so as to restore its original meaning,”
McClellan wrote. “We should resist efforts to add amendments to our
fundamental law to correct misinterpretations rendered by the Supreme
Court.” Better to effect constitutional change under the guise
of _restoring_ the Constitution’s original meaning. But that would
require taking over the Court.

When Meese became attorney general in 1985, he announced that
originalism would govern judicial selection. John Paul Stevens would
later recall
[[link removed]] that
between 1969, when Burger became chief justice, and 1986, when Scalia
joined, “no judge or justice expressed any doubt about the limited
coverage of the amendment.” But in 1986, Congress passed the
Firearms Owners’ Protection Act, which repealed parts of the 1968
Gun Control Act by invoking “the rights of citizens to keep and bear
arms under the second amendment.” This was by no means an article of
faith among conservatives. To the contrary. Bork, for instance, did
not endorse this theory. “I’m not an expert on the Second
Amendment,” he said in 1989, “but its intent was to guarantee the
right of states to form militia, not for individuals to bear arms.”
From retirement in 1991, Warren Burger, appearing on PBS and holding
a pocket Constitution in his hands
[[link removed]], said that if he were
writing the Bill of Rights, he wouldn’t include the Second
Amendment, adding that the NRA’s individual-rights interpretation
was “one of the greatest pieces of fraud, I repeat the
word _fraud_, on the American public by special-interest groups that
I have ever seen in my lifetime.” The test of originalism would be
whether this interpretation—an amendment by fiat—would be accepted
by the Supreme Court.

As the Constitution’s bicentennial year began, Meese’s Office of
Legal Policy issued a 200-page sourcebook on “original meaning
jurisprudence,”
[[link removed]] containing
excerpts from the work of Bork, Scalia, and Meese himself, with
Brennan as a counterpoint. It alleged that until the 1960s,
original-meaning jurisprudence had been “the dominant form of
constitutional interpretation during most of our nation’s
history.” Meanwhile, plans were drawn up for grocery-store cashiers
to give away free copies of the Constitution; the government was to
print enough for every American household. A facsimile of the
Constitution went on the road, along with an original of the Magna
Carta, in a temperature-controlled, 40-foot trailer that traveled to
more than 100 cities. ABC ran a series of “Bicentennial
Constitutional Minutes
[[link removed]]” during
Saturday-morning cartoons, featuring characters from _Looney Tunes_.
Professor Bugs Bunny, dressed in cap and gown at the front of a
lecture hall, sings, “Our Constitution’s really splendid, but
sometimes we do amend it.” Daffy Duck, dressed as a vaudevillian in
waistcoat and spats, soft-shoes across the stage, while Bugs belts
out, “It was intended! To be amended!”

And it _was_ intended to be amended. But it was no longer amendable.
Instead of producing constitutional amendments, liberals achieved
landmark legislative gains and rights-protecting Court decisions whose
importance was matched only by their reversibility. Conservatives of
course were abandoning amendment too, instead seeking constitutional
change by judicial appointments and judicial interpretation. Reagan
transformed the judiciary; not since FDR had a single president
replaced so high a percentage of the federal bench. He nominated Bork
to the Supreme Court in July 1987, but the prospects for confirmation
were mixed at best: The president was a visibly aging lame duck and
reeling, too, from the Iran-Contra scandal; Republicans had lost the
Senate in the 1986 midterms, with the result that Biden, not Thurmond,
was now chair of a Democratic-run Senate Judiciary Committee. Scalia
had replaced Rehnquist, which meant that his appointment didn’t
change the balance on the Court. But Bork would be replacing Lewis
Powell, often a swing vote. On the day Reagan announced the
nomination, Ted Kennedy described “Robert Bork’s America”
[[link removed]] as

a land in which women would be forced into back-alley abortions,
blacks would sit at segregated lunch counters, rogue police could
break down citizens’ doors in midnight raids, and schoolchildren
could not be taught about evolution. Writers and artists would be
censured at the whim of government, and the doors of the federal
courts would be shut on the fingers of millions of citizens for whom
the judiciary is, and is often, the only protector of the individual
rights that are the heart of our democracy.

Bork afterward insisted that
[[link removed]] “there was
not a line in that speech that was accurate,” but it had raised the
stakes for the hearings.

Warren Burger wanted Congress to declare Constitution Day, September
17, 1987 (which happened to fall on his own 80th birthday), a onetime
national holiday. But, in a speech in Hawaii
[[link removed]],
Justice Thurgood Marshall declared his refusal to participate in any
such celebration. “I do not believe that the meaning of the
Constitution was forever ‘fixed’ at the Philadelphia
Convention,” Marshall said. “Nor do I find the wisdom, foresight,
and sense of justice exhibited by the Framers particularly
profound.”

When Constitution Day came, Reagan delivered a bicentennial address
[[link removed]] at
Independence Hall, in Philadelphia, calling the Constitution a
“covenant with the supreme being,” and CBS televised
Philadelphia’s Constitution Day parade. But on C-SPAN that day, you
could watch a very different discussion of the Constitution: Robert
Bork explaining his understanding of the nation’s founding document.

Biden’s staff had advised him not to center his attack on abortion
but instead to call attention to Bork’s “judicial philosophy,”
while Bork’s opponents waged a remorseless and relentless campaign
against his confirmation. In an unprecedented attack on a Supreme
Court nominee, People for the American Way aired a television ad
narrated by Gregory Peck
[[link removed]]. “If Robert Bork wins
a seat on the Supreme Court, it will be for life,” Peck warned.
“His life and yours.” A Block Bork Coalition argued that Bork
would “turn back the clock” on civil rights, women’s rights, and
workers’ rights. Making the case that Bork would not hesitate to
overturn _Roe_, no matter what he told the committee, Kennedy played
an audio recording from 1985 in which Bork had said
[[link removed]],
“I don’t think that in the field of constitutional law, precedent
is all that important.” In a cover story published on September 21
[[link removed]], four
days after the Constitution Day parade, _Time_ magazine hinted that
if Bork were confirmed, _Roe_ might go.

_Roe_ did not go, at least not then. Bork went instead, defeated
42–58. Having endured a brutal series of attacks, many of them
unwarranted, he sought vindication in a tell-all book recounting his
experience of the confirmation process—he noted, for instance, how
news stories on CBS ran eight to one against him. Intended to tamp
down the politicization of Supreme Court appointments, Bork’s book
only inflamed it.

If Bork’s nomination had been a referendum on originalism,
originalism had lost. But originalism also won, because it had been
brought so entirely into the public eye. Biden gave originalism 115
days of free television at the height of the nation’s celebration of
the Constitution’s bicentennial.

Scalia, meanwhile, bided his time.

In 1989, abortion again came before the Court. _Webster v.
Reproductive Health Services_ involved an abortion-restricting
Missouri law. Rehnquist wrote a draft opinion that both upheld the law
and, almost as an afterthought, essentially overturned _Roe_ by
arguing that the key elements of _Roe_ “are not found in the text
of the Constitution or in any place else one would expect to find a
constitutional principle.” Stevens, who had been wavering, declined
to join the majority, circulating a memo in which he said that he’d
rather not overturn _Roe_, but if it had to be done, he’d rather
give it “a decent burial instead of tossing it out the window of a
fast-moving caboose.” O’Connor agreed, which everyone assumed
would elicit a strong reaction from Scalia. “The expected
‘Ninogram’ will arrive this morning,” Justice Harry Blackmun’s
clerk wrote, anticipating Scalia’s fury that the majority opinion
would fall short of overturning _Roe_. Scalia was indeed furious,
scolding the Court in his concurrence
[[link removed]]:
“We can now look forward to at least another Term with carts full of
mail from the public, and streets full of demonstrators urging
us—their unelected and life-tenured judges who have been awarded
those extraordinary, undemocratic characteristics precisely in order
that we might follow the law despite the popular will—to follow the
popular will.”

The Court again upheld _Roe_ in _Planned Parenthood v. Casey_, in
1992. Scalia said, “The only reason you need a Constitution is
because some things you don’t want the majority to be able to
change.” Those things are fundamental rights, and Scalia did not
believe that a woman’s right to decide whether to end a pregnancy,
even if her life was in danger, was one of them. Unlike an individual
right to bear arms.

Because neither side in the abortion debate had succeeded in amending
the Constitution, the right to an abortion asserted
from _Roe_ to _Casey_ remained vulnerable. By the end of the
1980s, the parties had sorted themselves over this issue. Few were the
commentators who, like the feminist legal scholar Joan C. Williams,
acknowledged that views on abortion were nuanced, complicated, deeply
felt, and likely irreconcilable. “I, for example, am convinced,
absolutely convinced without hesitation, that the Constitution
protects a woman’s right to choose abortion as a basic, undeniable
political right, a right without which many other political rights are
worthless,” Williams wrote
[[link removed]].
“And yet I can see how the conclusion that seems so obvious to me
can seem foreign, even repulsive” to others—a celibate priest,
say, or a mother of five—and “I must acknowledge that consensus on
this issue is not in the cards.”

The abandonment of amendment has meant that constitutional history
since the 1970s has turned on presidential nominations to the Supreme
Court, placing pressure on that institution that it has proved nearly
unable to bear. Presidential elections no longer involved campaigns to
amend the Constitution. They involved campaigns to appoint justices.
Nomination hearings have become spectacles. Trust in the Court has
plummeted. And it’s no longer clear that the president of the United
States will honor its decisions.

In 1991, when George H. W. Bush nominated D.C. Court of Appeals Judge
Clarence Thomas to replace Thurgood Marshall in what some called the
“Black seat” on the Court, opponents of the nominee again braced
for battle. This time the hearings took a nasty turn when Anita Hill,
a Black law professor and former colleague of Thomas’s, testified
before an all-male, all-white Senate Judiciary Committee that Thomas
had sexually harassed her. Other women had made similar allegations,
but only Hill had been called to appear before the committee, where
Biden, as chair, altogether failed to restrain Republican Senators
Orrin Hatch, Arlen Specter, and Alan Simpson from essentially placing
Hill on trial. Thomas, citing his own right to privacy, refused to
answer questions
[[link removed]] about “what
goes on in the most intimate parts of my private life or the sanctity
of my bedroom.” Questions about Thomas’s qualifications to serve
as a justice were set aside, overwhelmed by the attention given to the
allegations of sexual harassment.

Feminists had defeated Bork by claiming that he would turn back the
clock on women’s rights and undo _Roe_. By the time Bush nominated
Thomas, sexual harassment was the unforgivable sin of the day. The
Thomas hearings also set a precedent, prefiguring the airing of
sexual-assault charges levied at Donald Trump’s nominee Brett
Kavanaugh in 2018, and the reckless, remorseless, and wildly partisan
news coverage in which liberal news organizations appeared less
interested in reporting on the nomination than in defeating it, while
conservative organizations sought only to secure the confirmation. The
Senate confirmed Thomas, 52 to 48.

In 1993, Bill Clinton desperately needed to appoint a woman to the
high court. Ruth Bader Ginsburg was rightly celebrated as the Thurgood
Marshall of women’s rights. She’d first appeared before the
Supreme Court in 1973, and as the head of the women’s-rights program
at the ACLU, she had methodically chipped away at discrimination on
the basis of sex, each case, as she once put it, another “small,
guarded step.” Yet she refused to take on cases that would have
required her to defend _Roe_, which she believed had been badly
decided (among other things, she wished the case had rested on an
argument for equality, not privacy). Jimmy Carter had named her to the
D.C. Circuit in 1980, where she served alongside Scalia and Bork.
“_Roe v. Wade_ sparked public opposition and academic criticism, in
part, I believe, because the Court ventured too far in the change it
ordered and presented an incomplete justification for its
action,” she said in 1984
[[link removed]].
In 1993, at NYU, she had cited _Roe_ as an example of a bad judicial
decision. When Clinton nominated her to the Court, leading women’s
groups refused to endorse her. Fourteen members of the faculty of NYU
Law School signed a letter stating that they were “distressed that
her remarks at NYU have been misconstrued as anti-choice and
anti-women.” The Senate confirmed her 96–3. The fact that she had
grave doubts about _Roe_ would be forgotten and, by the left,
forgiven.

There were rumors, in the spring of 2000, that if Al Gore were to win
the presidency, Scalia would resign, at age 64. “A Gore presidency
would eliminate his chance of becoming Chief Justice and ensure that
his jurisprudence will never be anything more than a footnote,” one
reporter wrote at the time. During the campaign, Gore pledged that
[[link removed]],
if elected, he “would look for justices of the Supreme Court who
understand that our Constitution is a living and breathing document,
that it was intended by our Founders to be interpreted in the light of
the constantly evolving experience of the American people.”

After _Bush v. Gore_, which resolved the disputed 2000 election
results in Florida in favor of Bush, giving him the presidency,
Scalia, who had generally failed to build a conservative coalition on
the Court, became more isolated. In _Lawrence v. Texas_ (2003), the
Court found laws banning homosexual conduct to be unconstitutional.
Scalia, dissenting from the bench, said that while he did not endorse
the Texas law at issue—he once said
[[link removed]] he wished
all judges were given a stamp that said “Stupid but
Constitutional”—the Court had no right to overturn it and was,
instead, taking sides in a culture war. (Where did the Court find the
right to homosexual behavior in the Constitution? he would later ask
[[link removed]].
“On the basis of, I don’t know, the sexual-preference clause of
the Bill of Rights?”)

Amendments defining marriage as between one man and one woman were
first introduced in Congress in 2002. Two years later, the GOP
platform endorsed such an amendment for the first time. But public
opinion increasingly favored allowing same-sex marriage. Fifty percent
of Americans favored a constitutional amendment banning gay marriage
in 2003; that fell to 37 percent in 2008. In 2015, in _Obergefell v.
Hodges_, the Court held that same-sex marriage is protected under the
Fourteenth Amendment.

If Scalia had waved aside Biden’s question, in 1986, about the
difference between original intent and original meaning, he eventually
settled the matter in his own mind. “The theory of originalism
treats a constitution like a statute, and gives it the meaning that
its words were understood to bear at the time they were
promulgated,” he explained. He brought his case to the public in a
series of interviews and speeches that pundits came to call the Dead
Constitution Tour. “When I find it—the original meaning of the
Constitution—I am handcuffed,” he’d say, pressing his hands
together, as if bound. “The Constitution is not a living organism,
for Pete’s sake,” he’d say, and then recite the familiar
refrain: “It’s dead, dead!”

The case Scalia had been waiting for finally came before the Court in
2007, in _District of_ _Columbia v. Heller_, a challenge to D.C.’s
handgun ban. The work of discovering the original meaning of the
Constitution, Scalia had once said
[[link removed]],
was “a task sometimes better suited to the historian than the
lawyer.” But in case after case, he set aside briefs submitted by
distinguished historians in favor of his own reading of a carefully
selected set of historical documents. No application of this method
was more consequential than his reinterpretation of the Second
Amendment in _Heller_, an opinion that Scalia considered to be, as he
told NPR’s Nina Totenberg, “the most complete originalist opinion
that I’ve ever written.”

_Heller_ is an excellent illustration of the distance between
originalism and historical scholarship. “Historians are often asked
what the Founders would think about various aspects of contemporary
life,” read an amicus brief submitted by 15 eminent university
professors of early American history
[[link removed]].
“Such questions can be tricky to answer. But as historians of the
Revolutionary era we are confident at least of this: that the authors
of the Second Amendment would be flabbergasted to learn that in
endorsing the republican principle of a well-regulated militia, they
were also precluding restrictions on such potentially dangerous
property as firearms, which governments had always regulated when
there was ‘real danger of public injury from individuals.’ ”

In June 2008, in a 5–4 opinion, Scalia held most of the provisions
of the handgun law unconstitutional. “The Court had before it all
the materials needed to determine the meaning of the Second Amendment
at the time it was written,” he explained
[[link removed]].
“With these in hand, what method would be easier or more reliable
than the originalist approach taken by the Court?” He then set aside
the brief written by distinguished scholars of American history who
disagreed with his interpretation of the Second Amendment. Relying on
his own reading of history, Scalia insisted that the Second Amendment
protects the right of citizens to bear arms not only to defend the
state in a militia but also to defend themselves as individuals. The
day after the Court issued its opinion, _The Wall Street
Journal_ ran an op-ed by Randy Barnett
[[link removed]], a Georgetown law
professor and the author of _Restoring the Lost Constitution_, under
the headline “News Flash: The Constitution Means What It Says.”
Barnett argued that “in the future, we should be vetting Supreme
Court nominees to see if they understand how Justice Scalia reasoned
in _Heller_ and if they are committed to doing the same.” This
proved prophetic.

“I used to be able to say with a good deal of truth that one could
fire a cannon loaded with grapeshot in the faculty lounge of any law
school in the country and not strike an originalist,” Scalia,
delighted with his triumph in _Heller_, said at a Federalist Society
meeting
[[link removed]].
“That’s no longer true.” But the criticism of _Heller_ had
been pointed, too, beginning with sharply worded dissents written by
Justices Stevens and Stephen Breyer. In _McDonald v. City of Chicago_
[[link removed]] (2010),
Stevens described Scalia’s account of the Second Amendment as part
of a “rudderless, panoramic tour of American legal history” that
was “not only bad history, but also bad constitutional law.”
Stevens would later propose amending the Second Amendment to avoid
Scalia’s “misinterpretation.”

Criticism of _Heller_ had also come from conservative quarters. J.
Harvie Wilkinson III, a retired conservative Fourth Circuit Court of
Appeals judge, argued that Scalia had done exactly what he accused
liberals of doing
[[link removed]]:
He had found in the Constitution a new right, a “right of
self-defense,” a “right that the Court had never acknowledged in
the more than two hundred years since the amendment’s enactment.”

By now, the Second Amendment, like _Roe_, had come to feature in
judicial confirmation hearings. Elena Kagan, nominated to the Court by
Barack Obama in 2010, was asked so many questions about whether she
had ever hunted or even held a gun (she hadn’t) that, in a private
session with a member of the Senate, she promised that, if confirmed,
she would go hunting with Scalia. (And when she was confirmed, she
did.) Originalism appeared to gain strength, even as it lost all
historical coherence in Thomas’s bewildering opinion in _New York
State Rifle & Pistol Association, Inc. v. Bruen _in 2022, a decision
announced in the same term that, with _Dobbs v. Jackson Women’s
Health Organization_, the Court overturned _Roe_.

In _Bruen_, which came six years after Scalia’s death, Thomas
applied a “text, history, and tradition” test, requiring lawyers
to demonstrate the existence of an 18th-century (or in some cases
19th-century) “historical analogue” to any law that in any way
restricted or regulated the ownership of firearms. If no analogue
could be found, the law violated the Second Amendment. (“Tradition
is a living thing,” Justice John Marshall Harlan II once wrote
[[link removed]]; the Roberts
Court disagreed.) American history is full of gun laws at the
municipal, county, and state level—rules and restrictions of nearly
every kind and variety—which meant that lawyers and organizations
all over the country were left to dedicate countless hours to arcane
historical research to meet the requirements of _Bruen_. An entirely
new field of the history of firearms law emerged, documenting that if
anything could fairly be said of American text, history, and
tradition, it was that Americans had always been interested both in
owning guns and in imposing rules on their manufacture, sale, use, and
ownership.

Two years after _Bruen_, in _United States v. Rahimi_
[[link removed]], the
Court would attempt to walk back _Bruen_ by clarifying that its
intent in its recent Second Amendment cases was not “to suggest a
law trapped in amber.” (Thomas dissented.) But originalism, like the
text, history, and tradition test, had become so confused that seven
justices found it necessary to offer separate opinions in _Rahimi_,
each attempting to explain what originalism is or isn’t, or ever was
or wasn’t. Without Scalia, originalism—its conceptual integrity as
constitutional theory—disintegrated. Its political power, however,
remains intact.

Antonin Scalia considered _Heller_ to be his most important legacy.
But he also wanted to leave behind an originalist instruction manual.
That book, _Reading Law_, appeared in 2012, jointly authored with the
legal scholar and lexicographer Bryan Garner. In a chapter called
“Thirteen Falsities Exposed,” Scalia and Garner
discuss _Heller_ under the heading “The false notion that lawyers
and judges, not being historians, are unqualified to do the historical
research that originalism requires.” Historical research is not a
difficult endeavor, they alleged. Nor are historical sources difficult
to discover or to read. Nor is such a reading likely to be
inconclusive. The historical record is, instead, legible, unitary, and
dispositive. Learning how to “read law” requires three years of
law school and the study of many books, like the more-than-500-page
textbook _Reading Law_, but anyone can write history and anyone who
says otherwise has exaggerated the nature of the work.

This, unsurprisingly, did not quiet Scalia’s
detractors. _Heller_ is the most criticized of all of Scalia’s
opinions. The Seventh Circuit judge (and Reagan nominee) Richard
Posner wrote in a review
[[link removed]]:
“_Reading Law_ is Scalia’s response to the criticism. It is
unconvincing.” Scalia and Garner had suggested that one tool that
made reading history so simple was the availability of so many amicus
briefs written by actual historians. But as Posner observed, “The
book’s defense of the _Heller_ decision fails to mention that most
professional historians reject the historical analysis in Scalia’s
opinion.” Scalia must have known that the historical record is
scarcely ever unambiguous. In _Heller_, Justice Stevens had stacked
his historical evidence up against Scalia’s. What made Scalia’s
history into law was that he got five votes, and Stevens got only
four. That didn’t make Scalia’s history right.

Yet Scalia may have wielded his greatest influence not on the Court
but outside it. At a certain point, he seems to have become more
interested in speaking to his admirers off the Court than in winning
votes on it. He had an insatiable appetite for intellectual battle,
but as political rhetoric heated up after the election of Barack
Obama, in 2008, Scalia found himself the subject of ceaseless personal
attack. Understandably, he grew weary and alienated. Like many
Americans, he found the polarization of the press troubling and the
insurrectionary style of American politics unbearable. The crazier the
far-right press of Fox News got, the crazier became MSNBC, CNN, and
even the nation’s newspapers of record. At the beginning of
Obama’s second term, Scalia told a reporter that he didn’t
read _The New York Times_ and had given up on reading _The
Washington Post_, saying that it “went too far for me. I couldn’t
handle it anymore.” By then, he said, he was getting most of his
news from talk radio.

_Heller_, he began to fear, had been originalism’s high point. But
after that case, originalism soared on the Supreme Court, as Trump
added three originalist justices to the bench: Neil Gorsuch, Brett
Kavanaugh, and Amy Coney Barrett. In 2022, this originalism-powered
Court overturned _Roe_. Progressives, who expect originalism to
prevail on the Court for decades to come, have attempted to devise
something called “progressive originalism,” seemingly favored by
the Biden-appointed justice Ketanji Brown Jackson. As one law
professor explained in 2022
[[link removed]], “If
conservative judges are making selective use of history to make
originalist arguments for conservative results, then the only way to
show this is to make better originalist arguments to the contrary.”

Would judging law be reduced to the act of choosing among competing
accounts of the past written by different groups of historians, based
on some as-yet-undefined method of determining which account is the
correct one? It hasn’t worked out that way. In a series of crucial
cases, the Trump-era Court cited history if the history supported a
preferred outcome; if history did not support that outcome, the Court
simply ignored the past. As the liberal justice Sonia Sotomayor
observed in a scorching dissent
[[link removed]] in the
presidential-immunity case _Trump v. United States_, “It seems
history matters to this Court only when it is convenient.”

_The Constitution is dead!_ Scalia liked to say. To many Americans in
the early decades of the 21st century, it has begun to seem that way,
although half of the country blames Republicans and the other half
blames Democrats. In 2021, one in three Americans said they might
consider either abolishing the Supreme Court or limiting its power.
Senator Elizabeth Warren of Massachusetts, a former Harvard law
professor, co-sponsored a new Judiciary Act to restructure the
Court. Warren charged the conservative six-justice supermajority with
pursuing
[[link removed]] a
“deeply unpopular and partisan agenda at odds with the Constitution
and the settled rights of our citizens.”

In 2022, Trump, citing “Massive Fraud” in the 2020 election and
seeking reelection, called for “the termination of all rules,
regulations, and articles, even those found in the Constitution.”
Democrats called for two justices, Thomas and Alito, to recuse
themselves in cases relating to the 2020 election and the January 6
insurrection, arguing that their wives had been publicly associated
with the “Stop the Steal” effort; when they refused, Democrats in
Congress called for their impeachment. After _Dobbs_ and _Bruen_,
public estimation of the legitimacy of the Court fell to record lows,
although opinion divided along strictly partisan lines. This year,
after Trump returned to the White House, he was asked whether he has a
duty to uphold the Constitution. He said he didn’t know
[[link removed]].

Scalia did not live to witness this crisis in constitutionalism. In an
exceptionally candid interview near the end of his life, he speculated
that he might be despised for his legacy, adding, “And I don’t
care.” Long before, playing Macbeth onstage back in high school,
he’d uttered some of Shakespeare’s most aching lines:

Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more.

Did he ever wonder if that might be true of the Constitution, if he
had been wrong, and if it were, all along, a living thing, though now
stunted, thwarted, ailing? In 2016, during a quail-hunting trip in
Texas, he died in his sleep, at age 79. The Constitution limps along,
a walking shadow.

_This article was adapted from Jill Lepore’s new book, _We the
People: A History of the U.S. Constitution
[[link removed]]_. It appears in
the October 2025
[[link removed]] print edition
with the headline “How Originalism Killed the Constitution.”_

We the People: A History of the U.S. Constitution
[[link removed]] By Jill Lepore

When you buy a book using a link on this page, we receive a
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JILL LEPORE [[link removed]] is a
staff writer at _The New Yorker_, the David Woods Kemper ’41
Professor of American History at Harvard University, and a professor
of law at Harvard Law School. Her many books include _We the People:
A History of the U.S. Constitution_
[[link removed]] and _These Truths: A
History of the United States_
[[link removed]].

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