Many historians have assailed the originalist project. While flawed, these scholarly works present serious arguments and sometimes provide useful added information for originalists to consider. But Jill Lepore—one of the nation’s most widely read historians and a chaired professor at Harvard—has recently offered a different sort of broadside in The Atlantic, “How Originalism Has Killed the Constitution.”
In recent pieces for Law & Liberty, legal scholar Robert Natelson and historian Paul Moreno have defended originalism against Lepore’s “constitutional despair.” It is safe to say that, unlike the more rigorous work of her colleagues, her jeremiad fails to meet standards of scholarship, as it distorts quotations out of context, misstates facts, and confuses concepts. And its central thesis—that originalism thwarts constitutional change and kills the amendment process—gets matters precisely backward.
Properly understood, originalism preserves the Constitution and its Article V amendment process, the lawful mechanism for change that a constitutional republic requires. By distinguishing between judicial and political processes, originalism provides a vital framework for protecting the democratic legitimacy, popular sovereignty, and the formal amendment machinery at the heart of the American Founding.
Problematic History
Lepore’s treatment of Antonin Scalia’s ideas is particularly shabby. To support a central claim—that the “idea of amending the Constitution” is “dead”—she quotes the late Justice: “The whole purpose of the Constitution is to prevent a future society from [doing] what it wants to do.” But this comment is out of context—it is in a speech about constitutional interpretation, not amendment. Scalia never opposed the idea of amending the Constitution; quite the opposite. For instance, he stated in a 2007 talk, “If you want more rights, create them by statute; if you want more constitutional rights, create them by amending the Constitution.” What he resisted was changing the Constitution by means he considered extraconstitutional—interpreting the Constitution to reflect present-day values rather than the meaning that was enacted.
Lepore also wrongly claims that interpreting the Constitution according to its original meaning is a recent invention of the political right. She argues that “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.” It is extraordinary for a historian to suppose that contemporary usage settles whether the concept of originalism predates the 1980s.
Even a cursory review of history reveals that originalism’s roots date back to the early Republic. Many statements of the Founders espouse interpreting the Constitution according to its original meaning. To take just one: James Madison, the Father of the Constitution, wrote: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the Nation. In that sense alone, it is the legitimate Constitution.” Professor Howard Gillman, hardly a conservative, wrote a well-known article in which he established that, until the Progressive Era, almost all official interpreters of the Constitution were, in some form, originalists. Woodrow Wilson was innovative precisely because he compared the Constitution to a living organism that evolved. Surprisingly, Lepore appears unaware of such well-documented facts.
For a professor, Lepore strangely does not investigate whether originalism has intellectual, rather than partisan, origins. During the 1950s and 1960s, many constitutional theorists struggled to provide constraints on judicial power. The Warren Court’s activism had created a crisis for constitutional theory. Even if the results were beneficial, how were they legal and not simply political judgments dressed up in the garb of legal opinions? At that time in academia, the legal process school supplied the framework for legal decision-making, and neutrality was its key concept. For the legal process school, what distinguished the judicial from the political process was the judiciary’s obligation to follow neutral rules of law, rendering consistent decisions from one case to the next.
Lepore acknowledges Robert Bork’s role in initiating the modern originalist turn but fails to describe how his theory was a logical outgrowth of the jurisprudential framework of the day. Bork’s insight was that neutral rules of the legal process, by themselves, are not sufficient to constrain judicial discretion because judges would still have discretion to decide which rules to follow. The rules themselves had to be neutrally derived. The original meaning of the Constitution supplied that method. Lepore is right that, in the decades since Bork first wrote, originalism has developed many “nice” distinctions; however, such careful reticulation and debate also show that it is a jurisprudential, not a partisan project.
The Failure of the Constitutional Amendment Process
The most serious flaw in her article, however, is its central thesis: that originalism hinders the process of constitutional change and exacerbates political polarization by making the composition of the Court more salient. Both are the opposite of the truth. As we have shown in detail elsewhere, it is originalism that protects the process of constitutional change outlined in Article V. In contrast, allowing judges to update the Constitution undermines this process.
First, constitutional amendments should garner a consensus of the country so that they do not impose a partisan vision that will be strongly opposed by opponents. This consensus often takes a long time to develop. But suppose the Supreme Court can use non-originalism to decide cases. In that case, they will act to update the Constitution instead, thereby taking the wind out of the sails of a movement to pass a constitutional amendment.
Lepore fails to recognize that originalism, fairly applied, is not a form of policymaking on par with nonoriginalism. It is the opposite.
Second, if judges update the Constitution, political energy will naturally be directed into the less laborious process of confirming judges who will update the Constitution in the direction of their supporters. Finally, citizens will become less interested in enacting constitutional amendments to incorporate their own provisions into our fundamental law, as they will rightly fear that judges will treat the new amendment as a blank check to write in their own views. Consider this analogy: if judges did not enforce contracts according to their terms, far fewer people would bother to write contracts.
The need for originalism to support the amendment process is illustrated by the success and failure of the amendments most recently proposed by Congress. For instance, in Oregon v. Mitchell, the Supreme Court correctly interpreted the Constitution’s original meaning to preclude Congress from lowering the voting age to 18 for state and local elections. Because that position did not accord with a consensus of the American people, Congress proposed, and the states ratified an amendment a year and a half after the decision.
In contrast, the Equal Rights Amendment (ERA) likely failed due to the Court’s nonoriginalist approach. The Court had already updated the Equal Protection Clause in a nonoriginalist manner, providing substantial rights to women and making the ERA seem less necessary. And its reputation for judicial activism made it less trustworthy. Not surprisingly, one of Phyllis Schlafly’s arguments against the ERA was that the Supreme Court could not be trusted to interpret the amendment faithfully, and that it would instead use it to impose same-sex bathrooms and other extravagant notions. In short, because the Court had already granted many women’s rights through judicial rulings—and because activists like Schlafly distrusted how judges might interpret a new amendment—momentum for the ERA dissipated.
Lepore unwittingly provides evidence against her own thesis. She writes that “in the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court.” The Court he opposed had generally interpreted the Constitution according to its original meaning, but in many instances against popular consensus. Roosevelt could have used the unpopular originalist interpretation to facilitate constitutional amendments.
By choosing to eschew the amendment process and appoint nonoriginalist justices, Roosevelt made it less likely that the Constitution would be amended. For instance, it seems likely that during the New Deal, the nation would have supported an expansion of the Commerce Power, but the strategy of appointing justices who would not enforce the Constitution as originally written deprived us of the need for such an amendment, along with the salutary social consensus that would have accompanied it. Thus, had Roosevelt pursued amendments (for example, to expand federal power), those changes would have garnered broad democratic support and legitimacy. By instead relying on appointed justices to reinterpret the Constitution, he undercut the very amendment process that could have solidified lasting consensus.
Lepore’s Mistaken Understanding of Originalism
Lepore also fails to recognize that originalism, fairly applied, is not a form of policymaking on par with nonoriginalism. Again, it is the opposite—an effort to follow the meaning of the Constitution, regardless of the policy consequences. In other words, originalism compels judges to apply historical meaning, whereas non-originalist approaches permit judges to consider the preferences of contemporary society or their own views of constitutional morality.
As a result, overruling a nonoriginalist decision does not represent any policy judgment, but just the view that the previous decision has failed to reflect that meaning. For instance, Dobbs (the decision that overruled Roe) did not address the merits of abortion at all; instead, it followed the constitutional line between the authority of the federal judiciary and that of state legislatures, returning the authority to regulate abortion to the people and their elected representatives.
Lepore is also incorrect to contend that originalism makes the confirmation process polarizing. Nonoriginalism is much more polarizing because, if the original meaning of the Constitution does not restrain judges, they are more likely to look to their own values in deciding questions. Americans have different views on what values should be prioritized in policymaking. To be sure, judges may disagree about the meaning of the term, but that is an empirical question to be decided by the strength of the relevant historical evidence. And while the evidence about a constitutional provision’s original meaning is not always clear, often it is. And even if the Court sometimes engages in bad originalism, that reasoning can be criticized by appealing to empirical facts.
Moreover, forcing constitutional change through the amendment process tempers social polarization. To persuade the supermajority of the citizens necessary to enact a constitutional amendment, no social movement or party can achieve its maximum demands. Instead, proponents must build a broad-based coalition, persuading fellow citizens with whom they do not agree on every other issue. This process has the benefit of requiring citizens to think of one another as partners in the common enterprise of constitution-making, not as political enemies.
Ironically, Lepore’s essay itself underscores the virtues of originalism. She is a distinguished American historian, but not a specialist in American legal history. She simply has not undertaken the sustained inquiry the subject demands. Many of Lepore’s claims are contradicted by the relevant literature and the historical record.
Disengaged from the discipline of evidence, ideology supplies Lepore’s narrative, and because she writes from the left, the jurisprudence favored by conservatives becomes the constitutional menace. We should be grateful that our best jurists adhere to a method that prioritizes empirical knowledge of the past, thus making such ideological frolics far less likely.