At Law & Liberty, Robert G. Natelson: Answering the Latest Anti-Originalism Narrative. From the introduction:
… A narrative currently in academic favor holds that the method of constitutional interpretation called “originalism” was invented and first promoted in the 1970s by Professor Robert Bork, Attorney General Edwin Meese, and Justice Antonin Scalia. Supposedly, it was a new and radical theory, designed to obtain conservative judicial results. It wasn’t (and isn’t) coherent, because self-described originalists propound different versions of it. Nor is it practical to apply, because history is often disputed or unclear and judges are not professional historians.
This narrative is featured in a September 10, 2025, story in The Atlantic. It consists of a lengthy summary of portions of Jill Lepore’s book, We the People: A History of the U.S. Constitution.
Most of the indicia of the successful narrative-promotion apparatus are present: Jill Lepore is a professor at (of course) Harvard. She was twice nominated for a Pulitzer Prize. Her book was published under an imprint of W. W. Norton, a leading publisher. Her book was reviewed by both The New York Times and The Washington Post. And the excerpt not merely appeared in The Atlantic (a pillar of the elite media), but was the cover story.
The article’s title leaves no doubt as to its purpose: How Originalism Killed the Constitution: A Radical Legal Philosophy has Undermined the Process of Constitutional Evolution. It promotes all the tenets of the current anti-originalist narrative—that is:
– Originalism is a new interpretive theory, first promoted during the 1970s by Bork, Meese, and Scalia.
– It was designed to promote a conservative political agenda.
– It is not a coherent theory, because different proponents present different versions.
– It is impossible to apply.
The article also adds a new charge: Originalism is largely responsible for a breakdown in the Constitution’s amendment process.
In the coming days, Law & Liberty will print a full review of Professor Lepore’s book. My sole purpose is to focus on the allegations against originalism. For those who don’t mind a spoiler alert, here it is: All of these allegations are false. The charge that originalism caused the breakdown in the amendment process is particularly far from the truth.
And specifically on amendments:
Rather than rebut the article’s strained argument point by point, I’ll outline the actual reasons for the paucity of recent amendments.
Throughout much of the twentieth century, liberals and progressives enjoyed enough power to secure the adoption of amendments they favored. Around 1968, they lost that power, as Americans increasingly recognized that the federal government was not living up to the liberals’ billing. At that point, as Professor Lepore acknowledges, liberals turned to the Supreme Court to obtain constitutional change.
After 1968, “conservative” proposals—such those for amendments mandating a balanced budget and congressional term limits—became hugely popular. But liberals were still strong enough to prevent Congress from proposing conservative amendments. So conservatives turned to the convention-proposal mechanism.
To force Congress to call an amendments convention, two-thirds of the state legislatures must issue demands on matching subjects. To block this from happening, liberal opinion makers, in conjunction with compliant mass media, argued that an amendments convention was an unlimited “constitutional convention” that could stage a coup d’état and rewrite the Constitution at will. This claim frightened some conservative state lawmakers into joining with liberals to defeat legislative applications for a convention. Thus, the disuse of the amendment process has nothing to do with originalism. It is the result of the current political balance and of the power of the “runaway convention” myth.
Agreed. I found the charge that originalism caused a breakdown in the amendment system to be bizarre. As Mike Rappaport has argued, it seems the opposite is true: nonoriginalism degrades the amendment process by offering the easier alternative of getting five members of the Supreme Court to amend the Constitution.
Posted at 8:29 PM