The Atlantic’s Originalist Sin

By Christian Schneider

Thursday, September 18, 2025

 

President Donald Trump has a unique conversational tic in which every time he learns a new fact, he assumes nobody else knew it either. We all got to witness his childlike wonder, for instance, when he discovered the party affiliation of one of our greatest presidents.

 

“Great president,” Trump said in 2017 about Abraham Lincoln. “Most people don’t even know he was a Republican. Right? Does anyone know? A lot of people don’t know that. We have to build that up a little more.”

 

(Actually, most people knew.)

 

Similarly, historian Jill Lepore wants to let you know about a “radical” judicial philosophy that has “killed the Constitution.” In The Atlantic this week, Lepore holds forth on “originalism,” the idea that — I hope you are sitting down — provisions of the U.S. Constitution should mean today what they meant when they were adopted.

 

Lepore argues that this fringe theory, which has formed the backbone of conservative legal philosophy for over 40 years, has killed the constitutional amendment process, effectively leaving our founding document outdated. Over the course of 10,000 words (twice the length of the actual Constitution), Lepore posits that the rise of originalism is to blame for “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.”

 

Yet she provides exactly zero evidence that originalism had anything to do with the death of the constitutional amendment. In fact, anyone paying attention for the last half century would recognize that it is more likely the very people advocating for a “living Constitution” who have rendered the amendment process obsolete.

 

Progressives, knowing that a pliant court will simply invent new rights, have no use for the messy amendment marathon. Why bother spending decades pushing constitutional change through a politically divided country when federal courts can drag your issue over the line in the span of months? To Lepore, the idea that words should mean what they say is “radical,” but pulling a never-before-contemplated national right to abortion out of the clouds is simply “rights-protecting.”

 

Naturally, the target of Lepore’s ire is the patron saint of originalism, the late Supreme Court Justice Antonin Scalia. Because it is easier to argue with a caricature, Lepore offers Scalia up as a cartoon who delighted in declaring the Constitution “dead, dead, dead.” (She mentions this three times.) She offers every excuse possible to explain why Scalia was so persuasive on the issue of originalism: He was funny and gregarious, he was backed by shadow organizations, and he ignored the work of established historians.

 

Yet nowhere does Lepore find room in her piece to reflect on why originalism became so popular: It makes sense. Changing the meaning of the Constitution to suit modern times leaves America adrift. Our legal anchor works only if it remains moored in the concepts that gave rise to its crafting. Despite the complaints that the judiciary is too political, the courts would become even more politicized if they were freed from the Constitution’s limiting principle.

 

The American people understand this, which is why originalism is actually quite popular. When polled as to whether the Supreme Court should interpret the Constitution as it was originally written or update our understanding of it to “modern times,” Americans are typically split down the middle. It seems unlikely that half the country has been hypnotized by the Federalist Society.

 

And yet Lepore is as confused about the popularity of originalism as the Insane Clown Posse is about magnets.

 

Of course, in order to argue with one of the most consequential jurists America has produced, Lepore has to leave out much of the nuance Scalia offered in hundreds of public speeches. He didn’t simply run around yelling “dead, dead, dead,” he gladly spoke about how the Constitution’s principles held up in modern times.

 

“Originalists believe that the provisions of the Constitution have a fixed meaning, which does not change: they mean today what they meant when they were adopted, nothing more and nothing less,” Scalia said in a 1994 speech at the Australian Parliament House. He continued:

 

This is not to say, of course, that there are not new applications of old constitutional rules. The Court must determine, for example, how the First Amendment guarantee of ‘the freedom of speech’ applies to new technologies that did not exist when the guarantee was created — to sound trucks, for example, or to government-licensed over-the-air television. In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires — and assuredly that enterprise is not entirely cut and dried, but requires the exercise of judgment. But acknowledging the need for projection of old constitutional principles upon new physical realities is a far cry from saying what the non-originalists say: that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids.

 

Further, while Lepore argues that originalism is a plot to destroy the amendment process, she downplays Scalia’s robust support for changing the Constitution through amendments. Rather than being at odds, the two are quite complementary: if the Constitution doesn’t say what you want it to mean, then change it. Convincing people is difficult, sure. But when it comes to altering our founding document, there is a role for persuasion.

 

It is the idea of a “living Constitution” that strips from voters any involvement in the democratic process. For instance, when the Court fabricated a right to abortion in 1972, it removed the issue from the ballot box, to which it has now properly been restored. Since the 2022 Dobbs decision, voters have been making decisions on a state-by-state basis, which is what originalists had in mind all along. So while those who complain that the Constitution is too hard to amend bemoan the lack of citizen input, it is instead courts acting as legislatures that ultimately rob us of the power of the franchise.

 

For her part, Lepore never notes which constitutional amendments should have been passed in the previous half century. Clearly, she imagines we are missing out on some unalienable rights that have been discovered since the early 1970s, leaving the Constitution outdated. What are they? The article offers no hint.

 

Lepore also never considers that the difficulty of amending the Constitution has benefits. The nearly impossible process saves America from engraving capricious fads and ill-considered whims into our bedrock document. Think of the dramatic cultural changes America has seen over the past half decade. For instance, if progressives had gotten their wish and it were easier to adopt amendments, gay marriage almost certainly would currently be illegal. (George W. Bush offered a proposal to limit marriage to the union of a man and a woman before public sentiment shifted sharply in favor of legal same-sex marriage.)

 

And as Scalia recognized, the “living Constitution” crowd naturally assumes that allowing flexibility in constitutional interpretation will always benefit them. But what if it doesn’t? What if the Supreme Court ignored the plain language of the 14th Amendment and overturned birthright citizenship for immigrants? Legions of progressives would become card-carrying originalists before you could say “Felix Frankfurter.”

 

Want to know why Americans haven’t amended the Constitution recently? It’s because they don’t want to. If enough people cared about passing a balanced budget amendment or if enough members of Congress felt their jobs were in danger unless they passed a gun control amendment, it would happen.

 

Sure, demographic changes and Americans self-sorting by party make that difficult. But as the saying goes, if you think it’s bad when the government acts too slowly, just wait until you see the damage wrought by a government that races toward change.