Five Serious Objections to Originalism and the Answers That Hold Up

The fastest way to lose an argument is to refuse to hear it in its strongest form. Conservatives who defend originalism with slogans, "just read the words," as if the words read themselves, hand their opponents an easy victory and their own side a false sense of security. The method deserves better, and so do you.

So this post does it the hard way. Five objections, each stated the way its most thoughtful defenders would state it, each followed by an answer that rests on the text of the Constitution or the record of the cases. I will tell you where I think the objection scores a point. Then I will tell you why it does not win.

A definition first. Originalism, as used here, is the view that the Constitution's words carry the public meaning they had when adopted, and that this meaning binds until the people change it by amendment. For the case that this is the method that binds judges, see Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen. Here the question is whether it can survive its critics.

Objection one: the dead hand

The objection. Why should people who died two centuries ago govern us? The generation that wrote the Constitution did not know electricity, aircraft or the internet. The moral and political views of 1788 and 1868 are not ours. A method that freezes meaning in the past hands the present to the dead. Thomas Jefferson himself wrote to James Madison from Paris in September 1789 that the earth belongs to the living, and that no generation has the right to bind the next.

That is a serious point, and it was made by a Founder. Here are the answers.

1. The Constitution answers it in Article V. The document does not claim to be immortal and unchangeable. It provides its own method of change: amendments proposed by two-thirds of both houses of Congress, or by a convention called on the application of two-thirds of the state legislatures, and ratified by three-fourths of the states. The living have a door. Every generation that has wanted a different Constitution has been able to use it, and several did: the Thirteenth, Fourteenth and Fifteenth Amendments after the Civil War, the Nineteenth for women's suffrage, the Twenty-Sixth for the voting age. The dead hand is attached to a living arm that can let go.
2. The people, not the dead, are the source of authority. When we say the Constitution binds, we do not mean that Madison rules us. We mean that a law adopted by the sovereign people remains law until the sovereign people change it. That is how every written law works. A statute passed in 1990 is not "the dead hand of 1990" simply because the legislators have since retired.
3. The alternative gives power to the living, but not to the people. The living who actually change the meaning under a non-originalist method are nine judges, not the electorate. Replacing the dead hand with the hand of the Court does not liberate the present. It hands the present to five people with life tenure. Jefferson's own solution, in the same letter, was that laws should expire after a generation and be re-enacted by the living; no one I know of has proposed that for the Bill of Rights.
4. Entrenchment is the whole point of a constitution. The reason to write down the freedom of speech is that a future majority, in an angry mood, might want to restrict it. Rights that last only until the next majority disagrees are not rights.

Verdict: the objection identifies a real tension, and Article V resolves it. The remedy for a Constitution you dislike is to amend it, not to read it as though it said something else.

Objection two: historical uncertainty

The objection. The historical record is incomplete, contradictory and selective. Founders disagreed. Ratifiers had many views. Historians spend careers arguing over what a single clause meant. Asking judges to resolve those disputes means asking them to do something no one can do reliably, which is why the method ends up reflecting the judge's politics.

Here the critic scores a point. History is hard, and some clauses do not yield clean answers. But the objection proves less than it appears to.

1. Difficulty is not the same as indeterminacy. Many constitutional questions have clear historical answers. Nobody seriously disputes that the President must be at least thirty-five years old, that each state gets two Senators, or that the Fourth Amendment was a response to general warrants. Hard cases are hard. The method is not discredited by hard cases any more than medicine is discredited by diseases that are hard to diagnose.
2. Interpretation and construction are different jobs. Many originalist scholars, including Randy Barnett and Lawrence Solum, distinguish between interpretation, finding the meaning of the text, and construction, filling the gaps when the text is vague or silent. When the original meaning runs out, the honest originalist says so and leaves the question to the political process. That is a constraint: the method sometimes says "the Constitution does not decide this." A method that never admits it has run out of answers is the one that should worry you.
3. The comparison is not with certainty but with the alternatives. The living-constitutionalist must also consult history, or tradition, or moral philosophy, or social science, and each of those is at least as contestable. Asking what "cruel and unusual" meant in 1791 is hard. Asking what "evolving standards of decency" require today is harder, because the standard has no external anchor at all.
4. Errors can be corrected. A claim about the 1791 meaning of a clause can be tested by the next brief, the next historian, the next dissent. A claim about what contemporary values demand can be disputed but not disproved.

Verdict: uncertainty is real and calls for humility, not abandonment. When the history is genuinely unclear, deference to the legislature is the originalist answer.

Objection three: Brown v. Board of Education

The objection. The decision in Brown v. Board of Education (1954), which held racial segregation in public schools unconstitutional, is a moral landmark. If originalism cannot justify Brown, the method must be wrong. And Congress, in the 1860s, passed laws setting up separate schools for Black children in the District of Columbia, so how can the original meaning forbid segregation?

This is often called the hardest question for originalists, and for a long time it was treated as a trump card. It is not one.

1. The text points to Brown. The Fourteenth Amendment says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." A state that assigns children to schools by race, and tells one race it may attend only schools set apart from the other, is not extending equal protection to both. The question is whether the 1868 public meaning of that phrase tolerated legally mandated caste. A growing body of scholarship says it did not.
2. The leading scholarly case was made in 1995. Michael McConnell, then a law professor, published "Originalism and the Desegregation Decisions" in the Virginia Law Review in 1995. His article examined the Reconstruction record, including the congressional debates over school segregation in the 1870s, and argued that Republicans of that era understood the Amendment to bar segregated schools, so that the evidence supports the result in Brown. I am summarizing his thesis, not the whole article, and he did not claim the record was one-sided. He argued that the better reading of the whole record favored the Court's holding.
3. The District of Columbia schools do not settle it. Congress's separate D.C. schools were ordinary legislation, not a ruling on what the Amendment meant. Legislators routinely vote for measures that fall short of the principle they have enacted. A lawmaker's failure to apply a principle fully does not narrow the principle.
4. The Court itself decided the question as a matter of principle. Justice Harlan's dissent in Plessy v. Ferguson (1896) had already said what the principle was: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." For the longer story, see Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case and Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution.

There is a fair concession to make. Chief Justice Warren's opinion in Brown did not rest on originalist reasoning. It said the history of the Amendment was inconclusive on schools and relied instead on the importance of public education and on the conclusion that separate facilities are inherently unequal. A critic may say that proves the Court did not think originalism could deliver the result. The reply is that the Court's choice of reasoning in 1954 does not show the text could not support it, and the scholarship since has shown that it can.

Objection four: changing technology

The objection. The framers wrote about muskets and printing presses. A Constitution fixed in 1791 cannot sensibly govern semi-automatic rifles, wiretaps, thermal cameras or social media. Originalism ends up protecting only the technology of the eighteenth century or forces absurd results.

This objection is repeated often and is wrong in an instructive way. It confuses the meaning of a provision with its application.

1. Meaning is fixed; applications are new. The distinction is old and familiar. The freedom of speech was written in the age of the printing press, and nobody thinks it excludes radio or the internet. "Speech" and "press" name categories, and new technologies fall into them. The Constitution does not list the covered instruments. It sets principles.
2. The Court has said so in the context of arms. In District of Columbia v. Heller (2008), Justice Scalia's majority opinion rejected the argument directly. The Second Amendment, the Court said, extends "to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The same logic that protects speech on the internet protects arms invented after 1791. The objection that originalists are committed to muskets is answered in the opinion.
3. A privacy case shows it cuts for the citizen. In Kyllo v. United States (2001), federal agents aimed a thermal imaging device at a private home from the street to detect heat patterns consistent with high-intensity lamps used for growing marijuana. Justice Scalia wrote for a 5-4 majority that using a sense-enhancing technology not in general public use to learn details of the interior of a home that could not otherwise be known without physical intrusion is a search, and so requires a warrant. The originalist reasoning was that the Fourth Amendment protects the home against unreasonable searches, and that principle does not lapse because technology can now do from the street what once required walking in the door. The technology was new. The principle was old. The citizen won.
4. The living-constitution method has its own technology problem. If the Fourth Amendment's reach shifts with social expectations, a government that spreads a surveillance technology widely can erode the protection by making the technology familiar. An anchored meaning does not erode that way.

Verdict: originalism handles new technology better than its critics expect, because it reasons from principles. The objection is a straw man.

Objection five: judges as amateur historians

The objection. Judges are trained in law, not in history. Asking them to evaluate eighteenth-century sources produces "law office history," where lawyers hunt for supporting quotations, and judges, lacking the training to see the cherry-picking, adopt it. Professional historians often find originalist opinions unpersuasive. A method that depends on skills its practitioners do not have will produce bad results.

This is a practical objection and a fair one, and the answers are practical too.

1. Adjudication already requires judges to master unfamiliar fields. Patent cases require engineering. Antitrust cases require economics. Medical malpractice cases require medicine. We do not say judges should abandon those fields; we say they should hear from experts on both sides and decide. The adversary process is the tool, and historical claims can be briefed, rebutted and tested like any others.
2. Historians file briefs. In major cases, professional historians and scholars file amicus briefs. In Heller, professional historians and linguists filed briefs supporting the District of Columbia, and the majority and dissenting opinions argued over the historical evidence at length. That is not a failure of the method. It is the method being tested publicly.
3. The standard for judges is evidence, not expertise. The test is whether a claim about original meaning can be supported by sources a reasonable reader could verify. When it cannot, the opinion should be criticized, and often is, including by other originalists.
4. The alternative is no better. A judge who bases a ruling on moral progress or social consensus is no more of an expert on morality or sociology. The difference is that errors of history can be shown by pointing to a document, while errors of "evolving standards" can only be disagreed with.
5. Where the history is thin, the judge should defer. The professional historian's best advice to a judge is often "the record is mixed here." The honest response is to leave the question to the elected branches.

Verdict: the amateur-historian problem argues for better briefing, more humility and more deference in close cases. It is not an argument for replacing a standard that can be checked with one that cannot.

What the five objections have in common

Read the five together and a pattern appears. Each objection points to a real difficulty, and each difficulty is a difficulty for every theory of interpretation. The dead hand problem is a problem of legitimate authority. The uncertainty problem is a problem of evidence. Brown is a problem of principle against practice. The technology problem is a problem of application. The historian problem is a problem of competence. No theory escapes them. What matters is which theory gives the best answer and the clearest accountability.

Originalism's answers share a feature: they point outside the judge. Article V points to the people. The briefs and sources point to evidence anyone can inspect. The text points to the text. In each case the judge is asked to answer to something other than his own sense of justice, and that is the entire promise of the method. That is also why the best critics of originalism, the ones who have thought hardest about it, tend to argue that its constraint is partly illusory and not that it is undesirable. If you want to read the best replies to that worry, see Hard Questions for Originalists, Answered From the Text and the Record and Are Conservative Justices the Real Activists? A Rebuttal in Six Points.

There is an unflattering comparison here worth making in the plainest terms. A method that cannot be wrong is a method that cannot be corrected. Living constitutionalism, as practiced, says that the meaning of the Constitution evolves, but never says by what test we could know it had evolved the wrong way. Originalism can be wrong, and says so, and that willingness to be tested is the honest part of its claim.

The case in brief

1. The dead-hand objection is answered by Article V: the living can amend the Constitution, and the alternative gives the power to change it to unelected judges, not to the people.
2. Historical uncertainty calls for humility and, where the record runs out, deference to the political branches, which is itself a constraint.
3. Brown v. Board of Education is defensible on the Fourteenth Amendment's text and Reconstruction history, as McConnell's 1995 article argued, even though Warren's opinion did not rest on that reasoning.
4. New technology does not defeat originalism: Heller extends the Second Amendment to arms not in existence in 1791 and Kyllo applies the Fourth Amendment to thermal imaging.
5. Judges are not trained historians, so the answer is adversarial briefing, expert amicus briefs and humility, not a standard that cannot be checked.

What you can do: pick one objection from this list and read the Court opinion that addresses it, starting with the Heller majority on bearable arms or the Kyllo opinion on thermal imaging, and decide for yourself whether the answer holds.