Hard Questions for Originalists, Answered From the Text and the Record

Raise the subject of originalism at a dinner party and watch the table divide into three groups: the people who think it means judges should consult a dead man's diary, the people who think it means judges should never think at all, and the one person who wants another glass of wine. All three deserve better than the speeches defenders usually give.

The objections to originalism are not stupid. Many are asked by serious scholars, and some expose real difficulties that serious originalists admit. A theory that cannot take a hard question is not a theory; it is a bumper sticker. So here are twelve, in the questioner's strongest form, with answers drawn from the text and the record. Where the honest answer is "that part is hard," I say so.

Meaning and method

1. Whose meaning counts: the framers' or the ratifiers'?

Neither one's private wishes. The mainstream view is original public meaning: what the words would have meant to a reasonable, informed citizen at the time they were adopted. The reason is structural. The Constitution became law because the people, through state ratifying conventions, adopted it. The Preamble says "We the People of the United States" ordain and establish it. The law is the text the people approved, not the notes the drafters kept in their pockets.

James Madison took this view of the matter. Looking back late in his life, in a letter of 1824, he said he entirely concurred in resorting to the sense in which the Constitution was accepted and ratified by the nation, and that in that sense alone is it the legitimate Constitution. That is original public meaning, said by the man who wrote more of the document than anyone else.

2. Isn't that just "original intent" with a new name?

No, and the difference matters. Original intent asks what a framer privately wanted. It invites a judge to hunt through letters and debate notes, picking the quote he likes. Original public meaning asks what the words communicated to the public, which is checkable: dictionaries, statutes, newspapers, ratification debates, state constitutions. The first treats the Constitution as a puzzle about the drafters' psychology. The second treats it as a legal text, which is what it is. When Congress passes a statute, no one asks what a particular senator was thinking while he voted. We ask what the law says.

3. What happens when the history is unclear?

Sometimes the text is vague and the history is thin. Honest originalists have a name for that space, the construction zone: a place where the original meaning runs out and the judge must decide how to apply a general principle to a specific fact.

Here is my answer. When the text and the history give out, a judge is not licensed to supply his own moral view. The default should be restraint: leave the choice to the elected branches and the states, because under our system the legislature, not the bench, makes policy choices that the Constitution leaves open. A judge who must act in a zone of real uncertainty should lean toward the answer that disturbs the fewest settled arrangements. Originalism does not promise answers in every case. It promises that the judge will not pretend that a blank is a command.

4. Aren't judges bad historians?

Often, yes. Lawyers and judges are trained to win cases and write opinions, not to weigh a mass of conflicting evidence, and critics call the result "law-office history." The Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen (2022) required courts to test gun regulations against the historical tradition of firearms regulation, and plenty of lower-court judges have complained that it asks them to be historians.

That objection has force, and the answer has three parts. First, the adversarial system helps: each side's lawyers, and the amicus briefs of actual historians, put the evidence before the court. Second, a judge who errs about history can be corrected by a better argument and a better record, while a judge who consults his own conscience cannot be corrected by anything. Third, the alternative is not an absence of history but hidden history. Every method of interpretation depends on some account of what the words mean, and the only question is whether the account is open to inspection.

Applying an old text to new things

5. How can a 1791 text cover the internet or a modern weapon?

By separating meaning from application. The meaning of "the freedom of speech" is fixed. What it applies to grows as new ways of speaking appear. In District of Columbia v. Heller (2008), the Court observed that the First Amendment protects modern forms of communication, the Fourth Amendment applies to modern forms of search, and the Second Amendment likewise extends to bearable arms that did not exist at the Founding.

The same logic runs elsewhere. In Kyllo v. United States (2001), the Court held that using a thermal-imaging device on a home was a Fourth Amendment search, in an opinion that applied an old protection to new technology. In Brown v. Entertainment Merchants Association (2011), the Court held that video games are protected expression, and the Justices who wrote and joined it were among the ones usually called originalists. No one needed a living Constitution to protect a tweet. The word "speech" already covered it.

6. Isn't originalism just a way to get conservative results?

If it were, it would be a very bad one. In Texas v. Johnson (1989), the Court held that burning an American flag as political protest is protected speech, and Justice Antonin Scalia, an originalist, joined the majority. Originalist reasoning has also produced rulings that conservatives did not cheer, in cases about the Confrontation Clause, the jury right and searches of the home. A method that sometimes costs you your preferred policy is a method that is doing its job.

I will go further. The honest comparison is not "originalists versus neutral judges." It is originalists versus judges who ask what current values require, and that second method has no stopping point except the judge's own sense of right. Read Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen for the argument that fixed meaning is a discipline on the bench first and a doctrine second.

Precedent and the dead hand

7. Can precedent survive if the original meaning was different?

That is a real fault line among originalists, and I will not hide it. Justice Clarence Thomas has argued that the Court should be willing to correct demonstrably erroneous precedents, while others emphasize that stare decisis supplies stability and humility. Scalia once called himself, in a lecture published in 1989, a "faint-hearted" originalist, because he was confident that courts would not sustain a punishment such as public flogging even though it is hard to find in the text a bar against it. He later repudiated the label.

The orthodox answer is that precedent is a rule about how courts treat prior courts, and it is not an infinite shield. The Court weighs factors such as the quality of the reasoning, the workability of the rule, its consistency with related decisions, and how much people have relied on it. Stare Decisis Explained, and the Factors Justices Weigh Before Overruling sets out how the Court applies them, and From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule shows cases where it was right to let one go. The Constitution outranks any decision interpreting it, but a prudent judge also knows that a great deal of ordinary life is built on rulings, and that an error corrected carelessly can do its own damage.

8. Why should the dead govern the living?

Jefferson raised this one himself, in a September 1789 letter to Madison, suggesting that the earth belongs to the living and that laws should expire with each generation. It is the most elegant objection and the easiest to answer: the living may rewrite the Constitution any time they can muster the votes. The dead hand holds only as long as the living decline to unclasp it, and Article V, discussed in Question 12, provides the unclasping procedure.

Notice also that the objection proves too much. If the dead cannot bind the living, then no contract, will, statute or treaty can survive its authors. Legislatures routinely pass laws that govern after the legislators are gone. The Constitution is a law the people made, and the people may change it. That is not tyranny by the dead. It is the ordinary operation of a written law with an amendment clause.

Rights the text does not spell out

9. What do originalists do with the Ninth Amendment?

Here is the text, in full: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Critics say it is a blank check for unwritten rights that originalists cannot ignore. Defenders say it is an empty clause.

Both are wrong. The Ninth Amendment is a rule of construction. Madison put it in the Bill of Rights to answer a fear that listing some rights would imply that the government held power over anything not listed, which was the argument against a bill of rights altogether. It says the list is not exhaustive, and that the people retain rights even where the document is silent. It does not tell judges what those rights are, and it does not say that judges are the ones to discover them. The reading in The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter argues that the clause protects those retained rights by limiting federal power, and leaves their definition to the ordinary lawmaking process and to state constitutions, which is where the Founders expected it.

10. Does the Fourteenth Amendment's original meaning support modern results, or undercut originalism?

Start with the text of Section 1: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Those are broad words, adopted in 1868 after a war fought over whether a state could deny a man his rights. Originalists take them seriously. The Court's incorporation of the Bill of Rights against the states, discussed in How the Bill of Rights Came to Bind the States, One Right at a Time, rested on the Due Process Clause, and in McDonald v. City of Chicago (2010) Justice Thomas argued in a separate opinion that the better source was the Privileges or Immunities Clause, which the Court had gutted in the Slaughter-House Cases of 1873. That story is in The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873. The Fourteenth Amendment is not a problem for originalism. It is one of its best textbooks, because its authors wrote it to bind the states and to be understood by the public.

11. Can an originalist defend Brown v. Board of Education?

Yes, and the argument is not a rescue operation. The Fourteenth Amendment says no state may "deny to any person within its jurisdiction the equal protection of the laws." A state that forces children into separate schools by race, in a system designed to mark one group as inferior, denies that protection, and the original public meaning of the clause, understood by the generation that wrote it as a ban on a caste system, supports the result. Scholars such as Michael McConnell made the historical case in a 1995 law review article on the desegregation decisions, and the longer treatment, Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case, takes up the evidence on both sides, including the fact that school desegregation was unpopular in 1868.

That last fact is the strongest objection, and it deserves a straight answer. A history showing that desegregated schools were unpopular in 1868 does not settle the meaning of the words. A text can state a principle broader than every application its authors foresaw. The same Constitution that the Framers wrote while some of them owned slaves contained the principle, in the Declaration's words, that all men are created equal, and the Reconstruction Amendments were what the principle demanded. Plessy v. Ferguson (1896) is the case that departed from the text, and Justice Harlan's solitary dissent in it is a perfect example of originalism done right.

How the Constitution changes

12. If originalism is right, how does the Constitution ever change?

The way the document says it should. Article V reads: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof" (the text goes on to let Congress choose between the two modes).

That is a demanding process, by design: two-thirds of each house or two-thirds of the states to propose, three-fourths of the states to ratify. It has produced twenty-seven amendments, which Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers counts against the thousands proposed. The process is slow, but it has worked when the country truly agreed: abolishing slavery, guaranteeing equal protection, extending the vote to women, lowering the voting age to eighteen. It is also the only honest way to update a law that says what it says. The alternative is the picture I find most alarming: nine unelected people announcing that the document has changed because the country has, which is amendment by memorandum. Hamilton's observation in Federalist 78 that the judiciary has neither force nor will but only judgment depends on judges applying the law as written, not rewriting it, as Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? notes.

If a rule is wrong, the answer is not to wait for nine lawyers to find it wrong. It is to go through the front door, with the states, and write it down.

The case in brief

1. Originalism asks what the Constitution's words meant to the public that ratified them, a question with checkable evidence, and not what a framer privately intended.
2. Where history is unclear, an honest originalist says so, and the default is restraint: leave the open question to the elected branches and the states.
3. The method applies a fixed meaning to new facts, which is why the First Amendment covers the internet and the Fourth covers thermal imaging, and it produces results conservatives do not always like.
4. Precedent matters but does not outrank the text; the Ninth and Fourteenth Amendments are best read by their language and history, and the case for Brown rests on the original public meaning of equal protection.
5. The living are not bound by the dead, because Article V gives them a lawful way to change the document, and the way is meant to be hard.

What you can do: read Article V and the Ninth and Fourteenth Amendments aloud at your next family dinner, then ask your state legislator whether your state has ever considered an application under Article V.