Illustrations by Tyler Comrie;
typography by Sean & Eve, There Is Studio
A bushy-browed, pipe-smoking, piano-playing Antonin Scalia—Nino—the scourge of the left, knew how to work a crowd. He loved opera; he loved theater; he loved show tunes. In high school, he played the lead role in Macbeth: “I have no spur to prick the sides of my intent, but only vaulting ambition.” As clever as he was combative, Scalia, short and stocky, was known, too, for his slightly terrifying energy and for his eviscerating sense of humor. He fished and hunted: turkeys and ducks, deer and boar, alligators. He loved nothing better than a dictionary. He argued to win. He was one of the Supreme Court’s sharpest writers and among its severest critics. “It’s hard to get it right,” he’d tell his clerks, sending back their drafts; they had that engraved on a plaque. Few justices have done more to transform American jurisprudence, not only from the bench but also from the seminar table, the lecture hall, and the eerie velveteen intimacy of the television stage. He gave one speech so often that he kept its outline, scribbled on a scrap of paper, tucked in his suit pocket. The Constitution is not a living document, he’d say. “It’s dead. Dead, dead, dead!”
Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it. “The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” This is not true. One of the Constitution’s founding purposes was to prevent change. But another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection—the only way to change the fundamentals of government without recourse to rebellion. Amendment is so essential to the American constitutional tradition—so methodical and so entirely a conception of endurance through adaptation—that it can best be described as a philosophy. It is, at this point, a philosophy all but forgotten.
The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.
This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.
The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced. One delegate to a 19th-century constitutional convention in Missouri suggested that a state constitution ought to be rewritten every 14 years on the theory that every seven years, “every bone, muscle, tissue, fibre and nerve matter”—every cell in the human body—is replaced, and surely, in twice that time, every constitution ought to be amended too.
Since 1776, the states have held some 250 constitutional conventions and adopted 144 constitutions, or about three per state. Every state constitution currently in place has an amendment provision. For most of American history, the states have been exceptionally busy holding constitutional conventions, but as with amending the U.S. Constitution, the practice has stagnated. (No state has held a full-dress convention since Rhode Island did in 1986.) Nevertheless, the practice of amendment by popular vote thrives in the states, where constitutional revision is exponentially easier to achieve. Since 1789, some 7,000 amendments formally proposed in the states have been ratified, more than two-thirds of those introduced.
Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.
Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court, and the civil-rights movement adopted a legal strategy that involved seeking constitutional change through the Court too. The Second World War did not awaken Article V, because mid-century liberals abandoned amendment in favor of the exercise of executive and judicial power. From 1961 to 1971, as the United States became engulfed in the Vietnam War, Americans ratified four amendments and seemed very likely to ratify two more. Those that succeeded included the Twenty-Fourth Amendment, which in 1964 abolished poll taxes (generally deployed to suppress the votes of the poor and especially of Black people), and the Twenty-Sixth Amendment (which in 1971 lowered the voting age to 18). Both relied on a broad liberal consensus. Other efforts, such as an amendment abolishing the Electoral College, which passed the House in 1969, failed in the Senate. The Equal Rights Amendment, prohibiting the denial or abridgment of rights on the basis of sex, was introduced in Congress in 1923 and sent to the states in 1972. It fell short of the 38 states needed for ratification before the deadlines set by Congress. Liberals soon stopped proposing amendments, and amendments proposed by conservatives—providing for school prayer, banning flag burning, defining marriage, protecting fetal life, and requiring a balanced budget—all failed, leading conservatives, like earlier liberals, to instead seek constitutional change through the federal judiciary. The amending stopped. The Twenty-Seventh Amendment, which concerns congressional salaries and was ratified in 1992, was one of the 12 amendments sent by Congress to the states in 1789, and then was more or less forgotten; it can hardly be said to have introduced a new idea into the Constitution. The giant has not awoken since, despite half-hearted attempts to rouse it, mainly in the form of presidential political theater. Ronald Reagan supported a balanced-budget amendment. Bill Clinton supported a victims’-rights amendment (granting rights to victims of crime, a law-and-order answer to the defendants’-rights movement of the 1960s), and George W. Bush called for a defense-of-marriage amendment (identifying marriage as between a man and a woman). Neither made any headway. Joe Biden, after stepping down from his reelection campaign in 2024, proposed a constitutional amendment to reverse the Supreme Court’s decision that year granting the president considerable immunity from criminal prosecution. The giant did not wake.
Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, approved none of them. In roughly that same stretch of time, state legislatures introduced almost 5,000 amendments and ratified nearly 4,000. Instead of arguing for amendments at the national level, legislators, lobbyists, and other advocates pursued different means of either securing or thwarting constitutional change: by influencing the nomination and confirmation of Supreme Court justices and by altering the method that those justices use to interpret the Constitution.
The Constitution has not been meaningfully amended since 1971, right when the political parties began to polarize. Polarization would ultimately make the double-supermajority requirements for amending the Constitution impossible to meet. Tellingly, 1971 marked another turning point in the history of American constitutionalism. That year, a method of constitutional interpretation that became known as originalism was put forward by a distinguished legal scholar, the Yale law professor Robert Bork. 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. The nomination was rejected. Bork maintained that the only way to read the Constitution is to determine the original intentions of its Framers and that every other method of interpretation amounts to amendment by the judiciary. Rather than Bork, it would be Scalia who brought originalism to the Court, 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.
Antonin Scalia, like Felix Frankfurter, came to the Court after a career primarily as a law professor. He’d been a judge for only four years; most of his published writing consisted of law-review articles and speeches, not opinions from the bench. He grew up in Queens, an only child. His father was an Italian immigrant who’d become a professor of Romance languages; his mother, the daughter of Italian immigrants, taught elementary school. He inherited his first gun from his grandfather, who grew up hunting in Sicily and used to take Nino to Long Island to shoot rabbits. Scalia attended a Jesuit military school, where he was on the rifle team; he used to ride the subway from Queens to Manhattan carrying his .22 carbine target rifle. “When I was growing up in New York City, people were not afraid of people with firearms,” he’d say. He went to Georgetown University and then to Harvard Law School. He was a Goldwater conservative—a supporter of Senator Barry Goldwater of Arizona, the Republican presidential nominee, in 1964. He served in the Nixon and Ford administrations and taught law at the University of Virginia and the University of Chicago before Reagan appointed him to the D.C. Court of Appeals in 1982. Four years later, Reagan nominated him to the Supreme Court.
On the first day of Scalia’s confirmation hearings, in 1986, he was welcomed by the 83-year-old committee chair, Strom Thurmond, a one-man timeline of the political and constitutional history of the 20th century: a Democratic governor of South Carolina, the 1948 presidential candidate of the southern splinter Dixiecrat party, a drafter of the segregationist Southern Manifesto, and, in 1964, a backer of Goldwater. No one in the U.S. Senate had more fiercely fought for segregation and against civil rights.
“You have got a lot of children there,” the senator from South Carolina said affably. “I believe you have eight of them here?”
“All nine are here,” Scalia, 50, told Thurmond, beaming. “I think we have a full committee.”
Thurmond asked Scalia about the difference between serving on a circuit court and on the Supreme Court.
“There’s no one to correct your mistakes when you’re up there,” Scalia answered, “except the constitutional-amendment process.”
That process was by then no more than a chimera. The more difficult it became to amend the Constitution, the more politicized nominations to the Supreme Court became. Scalia’s confirmation, though, was a breeze, partly because liberals had decided to focus their efforts on questioning the elevation of William Rehnquist to the chief justiceship, following the resignation of Warren Burger, which is what had opened up a seat for Scalia. Also: Scalia was charming. And he’d been exceptionally well briefed. Aides had peppered him with questions in practice sessions and provided memos with titles such as “Likely Areas of Interest Arising Out of Your Writings,” warning him, among other things, about Roe v. Wade, the 1973 decision that had legalized abortion: “You have probably said a little more on this topic than you think.” (In 1978, Scalia had said that, in his view, the courts, in cases such as Roe, had “found rights where society never believed they existed.”) In a typed list in Scalia’s briefing packet titled “Talking Points,” the No. 1 topic was abortion. Scrawled below in black ink were two tips: “1. Professional, not adversarial” and “2. Don’t get sucked in.”
Thurmond, after a friendly chat with the nominee, yielded the floor to Senator Edward Kennedy of Massachusetts, who, without so much as a hello, jumped in:
Kennedy: Judge Scalia, if you are confirmed, do you expect to overrule the Roe v. Wade [decision]?
Scalia: Excuse me?
For a long time, the overruling of Roe had appeared most likely to come in the form of a constitutional amendment. Even before the Court issued its 1973 decision, the right-to-life movement had worked, unsuccessfully, to defeat abortion by amending the Constitution to guarantee a “right to life” beginning at conception. But by the time Kennedy confronted Scalia, right-to-lifers had decided there was one other way to overturn Roe. In 1980, the GOP had vowed in its party platform to appoint “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”
During the confirmation hearings for John Paul Stevens in 1975—the first justice named to the Court after Roe, and by a Republican president, replacing the most liberal justice, William O. Douglas—no one asked him even a single question about the abortion decision. That changed under Reagan, who, in his two terms in office, appointed more than 400 federal judges, amounting to half the federal judiciary. All were screened for their views on abortion. (Reagan’s influence on the judiciary has had a long afterlife: Supreme Court Justices John Roberts, Clarence Thomas, and Samuel Alito all worked in his administration.)
Screening judges in this way was, at the time, both novel and controversial. Members of Reagan’s Justice Department defended the practice by insisting that they were screening, instead, for originalism. As an assistant attorney general put it in a memo to the attorney general, “The idea of ‘original intent’ must not be marketed as simply another theory of jurisprudence; rather it is an essential part of the constitutional framework of checks and balances.” He emphasized that, “contrary to allegations, we are not choosing judges who will impose a ‘right-wing social agenda’ upon the Nation, but rather those who recognize that they, too, are bound by the Constitution.”
In 1981, Reagan nominated Bork to the D.C. Court of Appeals. “Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority,” Bork had written in a statement. To opponents of abortion, Sandra Day O’Connor’s Supreme Court hearings a few months later were far less reassuring. O’Connor, at 51, said she was personally opposed to abortion but then added, “I am not going to be pregnant anymore, so it is perhaps easy for me to speak.” This response alarmed pro-lifers and greatly contributed to the movement’s decision to abandon constitutional amendment in favor of influencing the judicial-nomination process. “The intensity of right-to-lifers on the issue of judicial power should not be underestimated,” a Reagan adviser had reported.
Republican strategists had been hoping to make the GOP the party of the pro-life movement as a way to expand its base, bringing in Catholics and white evangelicals. This realignment happened very slowly. Not until 1979 were Republican members of Congress more likely to vote against abortion than Democrats. That year, Jerry Falwell helped found the Moral Majority, and a new evangelical-Christian right joined the crusade against abortion. Only after Republicans in Congress began aligning with the pro-life movement did the rest of the party follow, but again, they did so gradually: Republicans were more pro-choice than Democrats until around 1990. And only during Reagan’s presidency did this effort begin to involve attacking the legitimacy of the Court’s decision in Roe.
Reagan’s alliance with the New Right proved crucial to his landslide reelection in 1984, after which he appointed Edwin Meese as his attorney general. Meese’s Justice Department would soon fill up with young lawyers who were members of a new organization known as the Federalist Society, formed by law students at Yale (studying with Professor Bork) and the University of Chicago (studying with Professor Scalia). Keen to avoid the word conservative, they chose instead to emphasize the original intent of the Framers, and, in naming the organization, they honored both the original Federalists and a Reagan doctrine known as New Federalism, which sought to transfer power from the federal government to the states. The first meeting of the Federalist Society, at Yale in April 1982, featured 20 invited scholars and jurists, including Bork and Scalia. Some Yale law students perceived the meeting to be hostile to both reproductive rights and civil rights. A poster objecting to the symposium warned New Federalism means Old Bigotry—Support Civil Rights. The legal scholar Mary Dudziak, then a second-year law student, was among those who picketed. She carried a handwritten sign with the feminist slogan If men could get pregnant, Abortion would be a sacrament.
Soon after Meese took office, in 1985, he announced that the official policy of the Reagan Justice Department would be to pursue a “jurisprudence of original intention” as the only legitimate and properly democratic method of constitutional interpretation. Meese hired some of the founders of the Federalist Society and trained them up as a “farm team” (as one Meese aide later put it). He aimed to sell originalism not only to the legal community but also to the public as a form of modest and humble deference to the wisdom of the Framers, in contrast to the unrestrained imperiousness, the judicial oligarchy, of the Supreme Court.
This strategy raised liberals’ hackles, and it raised historians’ hackles, too. Justice William Brennan, in a speech at Georgetown, called the doctrine of original intent “arrogance cloaked as humility” and speculated that proposals endorsing the idea “must inevitably come from persons who have no familiarity with the historical record.” Nothing in history is as clear as originalists pretended, and not even the most skilled historian—which justices were not—could reach such certain conclusions from such fragmented evidence. What really rankled was Meese’s claim that original intent was democratic, because it was quite clear that, having failed in their efforts to amend the Constitution, conservatives had changed course, instead using judicial selection to pursue objectives they could not achieve by democratic means. “The aim is now to accomplish in the courts what the Administration failed to persuade Congress to do—namely, adopt its positions on abortion, apportionment, affirmative action, school prayer and the like,” a political scientist wrote in the Los Angeles Times. Nor did Meese’s jurisprudence escape censure as realpolitik. “Mr. Meese’s version of original intent is a patent fraud on the public,” the historian Arthur M. Schlesinger Jr. argued in The Wall Street Journal. “The attorney general uses original intent not as a neutral principle at all but only as a means of getting certain results for the Reagan administration. He is shamelessly selective.” He was also undeniably effective.
Before Reagan moved into the White House, as the legal scholar Mary Ziegler has demonstrated, the pro-life movement had not been especially interested in originalism, on the theory that there is no “right to life” in the Constitution, at least not any more than there’s a “right to privacy,” the right cited by the Court in Roe. But after Reagan pledged to use opposition to Roe as a litmus test in appointing federal judges, litigation seemed a far better approach than amendment. In 1984, Americans United for Life held a conference under the rubric “Reversing Roe v. Wade Through the Courts.” Two years later, the National Abortion Rights Action League observed in a report on the Scalia and Rehnquist nominations that the pro-life movement, having failed to amend the Constitution, had turned to a legislation-and-litigation strategy.
In 1985, for its brief in Thornburgh v. American College of Obstetricians and Gynecologists—concerning a Pennsylvania law that placed restrictions on abortion—the Meese Justice Department directed the acting solicitor general, Charles Fried, to ask the Court to overturn Roe and to base the government’s argument on original intent; Fried obliged. (A young Samuel Alito, in the Office of Legal Counsel, who had stated his opposition to abortion in his application for the position, worked on the brief.) “There is no explicit textual warrant in the Constitution for a right to an abortion,” Fried’s brief read. The brief elicited considerable protest, including from five former solicitors general. Only narrowly did the Supreme Court decide against overturning Roe. On June 11, 1986, the Court issued its 5–4 decision in Thornburgh, declaring Pennsylvania’s law unconstitutional. Warren Burger, who had joined the majority in Roe, now dissented. Six days later, Burger announced that he was resigning to devote himself to the celebration of the Constitution’s 1987 bicentennial.
And so it came to pass that in August 1986, Antonin Scalia sat before the Senate Judiciary Committee and stumbled over Senator Kennedy’s question.
“Excuse me?”
Kennedy repeated: “Do you expect to overrule the Roe v. Wade Supreme Court decision?”
Scalia declined to answer.
Kennedy had been questioning Scalia while waiting for the committee’s ranking Democrat, Joseph R. Biden, the junior senator from Delaware, to arrive from another meeting. Biden sought a national stage, but when he got one, he often talked for too long and without making a great deal of sense. “Obviously, I don’t know what the hell I’m talking about,” he once said in the middle of remarks at a Judiciary Committee hearing about revising the criminal code. Biden was a devout Catholic, but he was opposed to a constitutional ban on abortion. In 1983, he had considered making a play for the 1984 Democratic presidential nomination. (He would make his first bid in 1988.) As Scalia’s briefing materials warned, Biden had “gradually lived down his early reputation as an enfant terrible.” Biden was affable—goofy, even—and willing to compromise, and Thurmond liked working with him so much that he called him “my Henry Clay.”
Biden and Scalia had much in common: middle-aged Catholic men from industrial eastern cities, with young families and thinning hair and big dreams and funny jokes, though Scalia’s humor was more studied. (He once famously began an opinion with this sentence: “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”) Biden gave the judge his wide smile, told him he’d read all of his speeches that he could find, and said he was pretty darn interested in this “newfound, newly enunciated doctrine of original intent.” He began by asking Scalia about a speech he’d given two months earlier, at a conference hosted by Meese.
Scalia had known when he delivered that speech, on June 14, that he was being considered for a position on the Court. Burger had visited the White House on May 27 to tell Reagan he intended to retire and to give him a list of possible replacements for the chief justiceship, including Scalia and Bork. By June 12, Reagan had decided to nominate Rehnquist for the chief justiceship and leaned toward replacing Rehnquist with Scalia, in part because he was nearly a decade younger than Bork, though there was some concern about the quickness of his temper. Scalia was scheduled to meet with the president on June 16.
Riffing on the flap between Meese and Brennan, Scalia in his June speech had cataloged the weaknesses of the doctrine of original intent, including by pointing out that the early Supreme Court could not possibly have followed it, because James Madison’s notes on the Constitutional Convention, generally cited by originalists as definitive, were not available until 1840. What people who talked about original intent must mean, then, Scalia argued—essentially offering Meese a way out of the box he’d locked himself in—was not the original intent of the Framers but of the Constitution: “It is not that ‘the Constitution must mean this because Alexander Hamilton thought it meant this, and he wrote it’; but rather that ‘the Constitution must mean this because Alexander Hamilton, who for Pete’s sake must have understood the thing, thought it meant this.’ ” The doctrine of original intent, Scalia concluded, just needed a better name; he proposed “the doctrine of original meaning.” (Originalism, perhaps surprisingly, is quite changeable, and originalists have for decades come up with new varieties, so many niceties.)
When Biden seemed baffled, Scalia said he’d be happy to explain the distinction but it wouldn’t be worth it, because, he admitted, “it’s not a big difference.” As for that June speech, in which Scalia had professed his allegiance to originalism, Biden told Scalia wearily, “I just hope you don’t mean it.” But he very much did.
Originalism in the 1970s and ’80s was an outsider’s game. Originalists accused the Supreme Court of amending the law by creating new rights, such as the right to an abortion, and insisted both that Article V amendment was the only legitimate method of constitutional change and that originalism was the only legitimate method of constitutional interpretation. Practically, though, originalism took hold from the failure of conservatives to change the Constitution by democratic means—by means of amendment.
Since the days of the New Deal, social and especially fiscal conservatives had now and again called for constitutional amendments and even for a constitutional convention. Among their more notable efforts was a campaign starting in 1939 to call a convention to repeal the Sixteenth Amendment, which provides for a federal income tax. For the entirety of the Warren and Burger Courts, there had also been calls for a constitutional convention: in the 1950s, to overturn Brown v. Board of Education, which found racial segregation in public schools to be unconstitutional, and in the 1960s, to repeal the Court’s one-man, one-vote decisions. A balanced-budget amendment, first seriously proposed in the ’50s, gained support during the economic malaise and rising federal debt of Jimmy Carter’s presidency. By March 1979, 28 states had called for a convention to adopt a balanced-budget amendment. Richard Rovere, the celebrated Washington correspondent for The New Yorker, believed that the call for a constitutional convention was a bluff and that Congress would pass a stand-alone balanced-budget amendment in order to avoid the terrifying prospect of a convention—which, he warned, might “throw out much or all of the Bill of Rights” and could lead “possibly even to civil war.”
Sixty-five percent of Americans favored a constitutional convention. Scalia, asked at a forum that May whether the prospect was really all that dangerous, joked that it was always possible a constitutional convention might “pass a bill of attainder to hang Richard Rovere,” but said he’d support “a convention on abortion.”
One person who was decidedly unwilling to run that risk was the conservative insurgency’s most prominent political strategist, Phyllis Schlafly. A convention called for the purpose of a balanced-budget amendment might get out of hand and turn its mind to other business—becoming a so-called runaway convention—and very likely undo all her work to defeat the Equal Rights Amendment. She went to war, and she won. Aside from defeating the ERA and “making the Republican Party pro-life,” Schlafly considered defeating a convention in the 1980s her signal achievement.
Herein lie the origins of originalism’s rise to power: in the failures of the right-to-life amendment and the balanced-budget amendment. It was at this very moment that the Federalist Society was founded.
The subsequent history of originalism has everything to do with abortion, and everything else to do with guns. One in three Americans owns a gun; one in four American women will have an abortion. In the 1970s, as partisanship strengthened and polarization worsened, guns and abortion became the defining constitutional issues in the life-and-death, winner-take-all fury of modern American politics. On the left, abortion came to mean freedom and guns murder; on the right, guns came to mean freedom and abortion murder. That none of these equivalencies can withstand scrutiny has not seemed to matter.
In 1975, the District of Columbia introduced a law that all but banned the possession or sale of any handgun. That year, there were two assassination attempts on President Gerald Ford. The National Council to Control Handguns proposed a national ban. In 1976, the California legislature debated a similar bill; opponents proposed a state constitutional amendment guaranteeing a right to keep and bear handguns, rifles, and shotguns. There was no reason to believe that any of these gun-control measures violated the Second Amendment, which the Court had hardly ever paid attention to and in any case had long read as concerning only the keeping and bearing of arms for military purposes—not as a right pertaining to citizens as individuals—and as limiting only the federal government, not the states.
The National Rifle Association, whose motto since 1957 had been “Firearms safety education, marksmanship training, shooting for recreation,” had endorsed the 1968 Gun Control Act. But in the mid-1970s, the NRA began organizing in opposition to handgun-control laws. Ronald Reagan, who had just left the California governor’s office, joined this campaign, too. In an article published in Guns & Ammo in 1975, Reagan advocated for the altogether novel and unsupported individual-rights interpretation of the Second Amendment, maintaining that “it appears to leave little, if any, leeway for the gun control advocate.” In 1977, the NRA abandoned a planned move to Colorado to remain in Washington, where it became essentially a lobbying organization, with a new motto displayed at the entrance of its building: “The right of the people to keep and bear arms shall not be infringed.”
In 1981, Strom Thurmond appointed Senator Orrin Hatch of Utah as chair of the Senate Judiciary Committee’s subcommittee on the Constitution. Hatch had already proposed a right-to-life amendment, and an amendment outlawing affirmative action. Reagan would later consider naming him to the Supreme Court. Amending the Constitution having failed, Hatch was now interested not in a new amendment but in an old one. Upon assuming the chairmanship, he called immediately for a report on the original meaning of the Second Amendment.
While Hatch’s subcommittee was at work, Reagan was shot; his press secretary, James Brady, was also shot. Reagan continued his opposition to gun-control legislation; Brady became an advocate for it. In February 1982, Hatch’s subcommittee published a report called “The Right to Keep and Bear Arms.” The subcommittee maintained that it had found “clear—and long-lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” That November, after the NRA waged a well-funded campaign against California’s handgun-control bill, voters resoundingly defeated it in a statewide referendum.
As the Reagan administration prepared for the Constitution’s bicentennial, a private committee was set up to consider possible constitutional reforms. Its members included present and former elected officials, scholars, and business and labor leaders, and its focus was largely on addressing the growing problems of congressional gridlock and budgetary brinkmanship. In a compilation of working papers published in 1985, it urged Americans not to treat the Constitution as “immutable, like the Ark of the Covenant,” but to be open to changes, such as amendments. It recommended six, including longer congressional terms and bonus seats in the House and the Senate for the party that wins the presidency. None of these ideas made any headway. It wasn’t voters who were opposed to amendments. The hurdle was Congress—and, more and more, conservatives. In 1984, James McClellan, who had left his position as a staff member on the Senate Judiciary Committee to become the president of a newly formed Center for Judicial Studies, urged conservatives to “kick the habit” of Article V. “There is something fundamentally wrong with our system if we are driven to amend the Constitution so as to restore its original meaning,” McClellan wrote. “We should resist efforts to add amendments to our fundamental law to correct misinterpretations rendered by the Supreme Court.” Better to effect constitutional change under the guise of restoring the Constitution’s original meaning. But that would require taking over the Court.
When Meese became attorney general in 1985, he announced that originalism would govern judicial selection. John Paul Stevens would later recall that between 1969, when Burger became chief justice, and 1986, when Scalia joined, “no judge or justice expressed any doubt about the limited coverage of the [second] amendment.” But in 1986, Congress passed the Firearms Owners’ Protection Act, which repealed parts of the 1968 Gun Control Act by invoking “the rights of citizens to keep and bear arms under the second amendment.” This was by no means an article of faith among conservatives. To the contrary. Bork, for instance, did not endorse this theory. “I’m not an expert on the Second Amendment,” he said in 1989, “but its intent was to guarantee the right of states to form militia, not for individuals to bear arms.” From retirement in 1991, Warren Burger, appearing on PBS and holding a pocket Constitution in his hands, said that if he were writing the Bill of Rights, he wouldn’t include the Second Amendment, adding that the NRA’s individual-rights interpretation was “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.” The test of originalism would be whether this interpretation—an amendment by fiat—would be accepted by the Supreme Court.
As the Constitution’s bicentennial year began, Meese’s Office of Legal Policy issued a 200-page sourcebook on “original meaning jurisprudence,” containing excerpts from the work of Bork, Scalia, and Meese himself, with Brennan as a counterpoint. It alleged that until the 1960s, original-meaning jurisprudence had been “the dominant form of constitutional interpretation during most of our nation’s history.” Meanwhile, plans were drawn up for grocery-store cashiers to give away free copies of the Constitution; the government was to print enough for every American household. A facsimile of the Constitution went on the road, along with an original of the Magna Carta, in a temperature-controlled, 40-foot trailer that traveled to more than 100 cities. ABC ran a series of “Bicentennial Constitutional Minutes” during Saturday-morning cartoons, featuring characters from Looney Tunes. Professor Bugs Bunny, dressed in cap and gown at the front of a lecture hall, sings, “Our Constitution’s really splendid, but sometimes we do amend it.” Daffy Duck, dressed as a vaudevillian in waistcoat and spats, soft-shoes across the stage, while Bugs belts out, “It was intended! To be amended!”
And it was intended to be amended. But it was no longer amendable. Instead of producing constitutional amendments, liberals achieved landmark legislative gains and rights-protecting Court decisions whose importance was matched only by their reversibility. Conservatives of course were abandoning amendment too, instead seeking constitutional change by judicial appointments and judicial interpretation. Reagan transformed the judiciary; not since FDR had a single president replaced so high a percentage of the federal bench. He nominated Bork to the Supreme Court in July 1987, but the prospects for confirmation were mixed at best: The president was a visibly aging lame duck and reeling, too, from the Iran-Contra scandal; Republicans had lost the Senate in the 1986 midterms, with the result that Biden, not Thurmond, was now chair of a Democratic-run Senate Judiciary Committee. Scalia had replaced Rehnquist, which meant that his appointment didn’t change the balance on the Court. But Bork would be replacing Lewis Powell, often a swing vote. On the day Reagan announced the nomination, Ted Kennedy described “Robert Bork’s America” as
a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution. Writers and artists would be censured at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often, the only protector of the individual rights that are the heart of our democracy.
Bork afterward insisted that “there was not a line in that speech that was accurate,” but it had raised the stakes for the hearings.
Warren Burger wanted Congress to declare Constitution Day, September 17, 1987 (which happened to fall on his own 80th birthday), a onetime national holiday. But, in a speech in Hawaii, Justice Thurgood Marshall declared his refusal to participate in any such celebration. “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” Marshall said. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”
When Constitution Day came, Reagan delivered a bicentennial address at Independence Hall, in Philadelphia, calling the Constitution a “covenant with the supreme being,” and CBS televised Philadelphia’s Constitution Day parade. But on C-SPAN that day, you could watch a very different discussion of the Constitution: Robert Bork explaining his understanding of the nation’s founding document.
Biden’s staff had advised him not to center his attack on abortion but instead to call attention to Bork’s “judicial philosophy,” while Bork’s opponents waged a remorseless and relentless campaign against his confirmation. In an unprecedented attack on a Supreme Court nominee, People for the American Way aired a television ad narrated by Gregory Peck. “If Robert Bork wins a seat on the Supreme Court, it will be for life,” Peck warned. “His life and yours.” A Block Bork Coalition argued that Bork would “turn back the clock” on civil rights, women’s rights, and workers’ rights. Making the case that Bork would not hesitate to overturn Roe, no matter what he told the committee, Kennedy played an audio recording from 1985 in which Bork had said, “I don’t think that in the field of constitutional law, precedent is all that important.” In a cover story published on September 21, four days after the Constitution Day parade, Time magazine hinted that if Bork were confirmed, Roe might go.
Roe did not go, at least not then. Bork went instead, defeated 42–58. Having endured a brutal series of attacks, many of them unwarranted, he sought vindication in a tell-all book recounting his experience of the confirmation process—he noted, for instance, how news stories on CBS ran eight to one against him. Intended to tamp down the politicization of Supreme Court appointments, Bork’s book only inflamed it.
If Bork’s nomination had been a referendum on originalism, originalism had lost. But originalism also won, because it had been brought so entirely into the public eye. Biden gave originalism 115 days of free television at the height of the nation’s celebration of the Constitution’s bicentennial.
Scalia, meanwhile, bided his time.
In 1989, abortion again came before the Court. Webster v. Reproductive Health Services involved an abortion-restricting Missouri law. Rehnquist wrote a draft opinion that both upheld the law and, almost as an afterthought, essentially overturned Roe by arguing that the key elements of Roe “are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle.” Stevens, who had been wavering, declined to join the majority, circulating a memo in which he said that he’d rather not overturn Roe, but if it had to be done, he’d rather give it “a decent burial instead of tossing it out the window of a fast-moving caboose.” O’Connor agreed, which everyone assumed would elicit a strong reaction from Scalia. “The expected ‘Ninogram’ will arrive this morning,” Justice Harry Blackmun’s clerk wrote, anticipating Scalia’s fury that the majority opinion would fall short of overturning Roe. Scalia was indeed furious, scolding the Court in his concurrence: “We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators urging us—their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will—to follow the popular will.”
The Court again upheld Roe in Planned Parenthood v. Casey, in 1992. Scalia said, “The only reason you need a Constitution is because some things you don’t want the majority to be able to change.” Those things are fundamental rights, and Scalia did not believe that a woman’s right to decide whether to end a pregnancy, even if her life was in danger, was one of them. Unlike an individual right to bear arms.
Because neither side in the abortion debate had succeeded in amending the Constitution, the right to an abortion asserted from Roe to Casey remained vulnerable. By the end of the 1980s, the parties had sorted themselves over this issue. Few were the commentators who, like the feminist legal scholar Joan C. Williams, acknowledged that views on abortion were nuanced, complicated, deeply felt, and likely irreconcilable. “I, for example, am convinced, absolutely convinced without hesitation, that the Constitution protects a woman’s right to choose abortion as a basic, undeniable political right, a right without which many other political rights are worthless,” Williams wrote. “And yet I can see how the conclusion that seems so obvious to me can seem foreign, even repulsive” to others—a celibate priest, say, or a mother of five—and “I must acknowledge that consensus on this issue is not in the cards.”
The abandonment of amendment has meant that constitutional history since the 1970s has turned on presidential nominations to the Supreme Court, placing pressure on that institution that it has proved nearly unable to bear. Presidential elections no longer involved campaigns to amend the Constitution. They involved campaigns to appoint justices. Nomination hearings have become spectacles. Trust in the Court has plummeted. And it’s no longer clear that the president of the United States will honor its decisions.
In 1991, when George H. W. Bush nominated D.C. Court of Appeals Judge Clarence Thomas to replace Thurgood Marshall in what some called the “Black seat” on the Court, opponents of the nominee again braced for battle. This time the hearings took a nasty turn when Anita Hill, a Black law professor and former colleague of Thomas’s, testified before an all-male, all-white Senate Judiciary Committee that Thomas had sexually harassed her. Other women had made similar allegations, but only Hill had been called to appear before the committee, where Biden, as chair, altogether failed to restrain Republican Senators Orrin Hatch, Arlen Specter, and Alan Simpson from essentially placing Hill on trial. Thomas, citing his own right to privacy, refused to answer questions about “what goes on in the most intimate parts of my private life or the sanctity of my bedroom.” Questions about Thomas’s qualifications to serve as a justice were set aside, overwhelmed by the attention given to the allegations of sexual harassment.
Feminists had defeated Bork by claiming that he would turn back the clock on women’s rights and undo Roe. By the time Bush nominated Thomas, sexual harassment was the unforgivable sin of the day. The Thomas hearings also set a precedent, prefiguring the airing of sexual-assault charges levied at Donald Trump’s nominee Brett Kavanaugh in 2018, and the reckless, remorseless, and wildly partisan news coverage in which liberal news organizations appeared less interested in reporting on the nomination than in defeating it, while conservative organizations sought only to secure the confirmation. The Senate confirmed Thomas, 52 to 48.
In 1993, Bill Clinton desperately needed to appoint a woman to the high court. Ruth Bader Ginsburg was rightly celebrated as the Thurgood Marshall of women’s rights. She’d first appeared before the Supreme Court in 1973, and as the head of the women’s-rights program at the ACLU, she had methodically chipped away at discrimination on the basis of sex, each case, as she once put it, another “small, guarded step.” Yet she refused to take on cases that would have required her to defend Roe, which she believed had been badly decided (among other things, she wished the case had rested on an argument for equality, not privacy). Jimmy Carter had named her to the D.C. Circuit in 1980, where she served alongside Scalia and Bork. “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action,” she said in 1984. In 1993, at NYU, she had cited Roe as an example of a bad judicial decision. When Clinton nominated her to the Court, leading women’s groups refused to endorse her. Fourteen members of the faculty of NYU Law School signed a letter stating that they were “distressed that her remarks at NYU have been misconstrued as anti-choice and anti-women.” The Senate confirmed her 96–3. The fact that she had grave doubts about Roe would be forgotten and, by the left, forgiven.
There were rumors, in the spring of 2000, that if Al Gore were to win the presidency, Scalia would resign, at age 64. “A Gore presidency would eliminate his chance of becoming Chief Justice and ensure that his jurisprudence will never be anything more than a footnote,” one reporter wrote at the time. During the campaign, Gore pledged that, if elected, he “would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people.”
After Bush v. Gore, which resolved the disputed 2000 election results in Florida in favor of Bush, giving him the presidency, Scalia, who had generally failed to build a conservative coalition on the Court, became more isolated. In Lawrence v. Texas (2003), the Court found laws banning homosexual conduct to be unconstitutional. Scalia, dissenting from the bench, said that while he did not endorse the Texas law at issue—he once said he wished all judges were given a stamp that said “Stupid but Constitutional”—the Court had no right to overturn it and was, instead, taking sides in a culture war. (Where did the Court find the right to homosexual behavior in the Constitution? he would later ask. “On the basis of, I don’t know, the sexual-preference clause of the Bill of Rights?”)
Amendments defining marriage as between one man and one woman were first introduced in Congress in 2002. Two years later, the GOP platform endorsed such an amendment for the first time. But public opinion increasingly favored allowing same-sex marriage. Fifty percent of Americans favored a constitutional amendment banning gay marriage in 2003; that fell to 37 percent in 2008. In 2015, in Obergefell v. Hodges, the Court held that same-sex marriage is protected under the Fourteenth Amendment.
If Scalia had waved aside Biden’s question, in 1986, about the difference between original intent and original meaning, he eventually settled the matter in his own mind. “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated,” he explained. He brought his case to the public in a series of interviews and speeches that pundits came to call the Dead Constitution Tour. “When I find it—the original meaning of the Constitution—I am handcuffed,” he’d say, pressing his hands together, as if bound. “The Constitution is not a living organism, for Pete’s sake,” he’d say, and then recite the familiar refrain: “It’s dead, dead!”
The case Scalia had been waiting for finally came before the Court in 2007, in District of Columbia v. Heller, a challenge to D.C.’s handgun ban. The work of discovering the original meaning of the Constitution, Scalia had once said, was “a task sometimes better suited to the historian than the lawyer.” But in case after case, he set aside briefs submitted by distinguished historians in favor of his own reading of a carefully selected set of historical documents. No application of this method was more consequential than his reinterpretation of the Second Amendment in Heller, an opinion that Scalia considered to be, as he told NPR’s Nina Totenberg, “the most complete originalist opinion that I’ve ever written.”
Heller is an excellent illustration of the distance between originalism and historical scholarship. “Historians are often asked what the Founders would think about various aspects of contemporary life,” read an amicus brief submitted by 15 eminent university professors of early American history. “Such questions can be tricky to answer. But as historians of the Revolutionary era we are confident at least of this: that the authors of the Second Amendment would be flabbergasted to learn that in endorsing the republican principle of a well-regulated militia, they were also precluding restrictions on such potentially dangerous property as firearms, which governments had always regulated when there was ‘real danger of public injury from individuals.’ ”
In June 2008, in a 5–4 opinion, Scalia held most of the provisions of the handgun law unconstitutional. “The Court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written,” he explained. “With these in hand, what method would be easier or more reliable than the originalist approach taken by the Court?” He then set aside the brief written by distinguished scholars of American history who disagreed with his interpretation of the Second Amendment. Relying on his own reading of history, Scalia insisted that the Second Amendment protects the right of citizens to bear arms not only to defend the state in a militia but also to defend themselves as individuals. The day after the Court issued its opinion, The Wall Street Journal ran an op-ed by Randy Barnett, a Georgetown law professor and the author of Restoring the Lost Constitution, under the headline “News Flash: The Constitution Means What It Says.” Barnett argued that “in the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.” This proved prophetic.
“I used to be able to say with a good deal of truth that one could fire a cannon loaded with grapeshot in the faculty lounge of any law school in the country and not strike an originalist,” Scalia, delighted with his triumph in Heller, said at a Federalist Society meeting. “That’s no longer true.” But the criticism of Heller had been pointed, too, beginning with sharply worded dissents written by Justices Stevens and Stephen Breyer. In McDonald v. City of Chicago (2010), Stevens described Scalia’s account of the Second Amendment as part of a “rudderless, panoramic tour of American legal history” that was “not only bad history, but also bad constitutional law.” Stevens would later propose amending the Second Amendment to avoid Scalia’s “misinterpretation.”
Criticism of Heller had also come from conservative quarters. J. Harvie Wilkinson III, a retired conservative Fourth Circuit Court of Appeals judge, argued that Scalia had done exactly what he accused liberals of doing: He had found in the Constitution a new right, a “right of self-defense,” a “right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment.”
By now, the Second Amendment, like Roe, had come to feature in judicial confirmation hearings. Elena Kagan, nominated to the Court by Barack Obama in 2010, was asked so many questions about whether she had ever hunted or even held a gun (she hadn’t) that, in a private session with a member of the Senate, she promised that, if confirmed, she would go hunting with Scalia. (And when she was confirmed, she did.) Originalism appeared to gain strength, even as it lost all historical coherence in Thomas’s bewildering opinion in New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, a decision announced in the same term that, with Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe.
In Bruen, which came six years after Scalia’s death, Thomas applied a “text, history, and tradition” test, requiring lawyers to demonstrate the existence of an 18th-century (or in some cases 19th-century) “historical analogue” to any law that in any way restricted or regulated the ownership of firearms. If no analogue could be found, the law violated the Second Amendment. (“Tradition is a living thing,” Justice John Marshall Harlan II once wrote; the Roberts Court disagreed.) American history is full of gun laws at the municipal, county, and state level—rules and restrictions of nearly every kind and variety—which meant that lawyers and organizations all over the country were left to dedicate countless hours to arcane historical research to meet the requirements of Bruen. An entirely new field of the history of firearms law emerged, documenting that if anything could fairly be said of American text, history, and tradition, it was that Americans had always been interested both in owning guns and in imposing rules on their manufacture, sale, use, and ownership.
Two years after Bruen, in United States v. Rahimi, the Court would attempt to walk back Bruen by clarifying that its intent in its recent Second Amendment cases was not “to suggest a law trapped in amber.” (Thomas dissented.) But originalism, like the text, history, and tradition test, had become so confused that seven justices found it necessary to offer separate opinions in Rahimi, each attempting to explain what originalism is or isn’t, or ever was or wasn’t. Without Scalia, originalism—its conceptual integrity as constitutional theory—disintegrated. Its political power, however, remains intact.
Antonin Scalia considered Heller to be his most important legacy. But he also wanted to leave behind an originalist instruction manual. That book, Reading Law, appeared in 2012, jointly authored with the legal scholar and lexicographer Bryan Garner. In a chapter called “Thirteen Falsities Exposed,” Scalia and Garner discuss Heller under the heading “The false notion that lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires.” Historical research is not a difficult endeavor, they alleged. Nor are historical sources difficult to discover or to read. Nor is such a reading likely to be inconclusive. The historical record is, instead, legible, unitary, and dispositive. Learning how to “read law” requires three years of law school and the study of many books, like the more-than-500-page textbook Reading Law, but anyone can write history and anyone who says otherwise has exaggerated the nature of the work.
This, unsurprisingly, did not quiet Scalia’s detractors. Heller is the most criticized of all of Scalia’s opinions. The Seventh Circuit judge (and Reagan nominee) Richard Posner wrote in a review: “Reading Law is Scalia’s response to the criticism. It is unconvincing.” Scalia and Garner had suggested that one tool that made reading history so simple was the availability of so many amicus briefs written by actual historians. But as Posner observed, “The book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion.” Scalia must have known that the historical record is scarcely ever unambiguous. In Heller, Justice Stevens had stacked his historical evidence up against Scalia’s. What made Scalia’s history into law was that he got five votes, and Stevens got only four. That didn’t make Scalia’s history right.
Yet Scalia may have wielded his greatest influence not on the Court but outside it. At a certain point, he seems to have become more interested in speaking to his admirers off the Court than in winning votes on it. He had an insatiable appetite for intellectual battle, but as political rhetoric heated up after the election of Barack Obama, in 2008, Scalia found himself the subject of ceaseless personal attack. Understandably, he grew weary and alienated. Like many Americans, he found the polarization of the press troubling and the insurrectionary style of American politics unbearable. The crazier the far-right press of Fox News got, the crazier became MSNBC, CNN, and even the nation’s newspapers of record. At the beginning of Obama’s second term, Scalia told a reporter that he didn’t read The New York Times and had given up on reading The Washington Post, saying that it “went too far for me. I couldn’t handle it anymore.” By then, he said, he was getting most of his news from talk radio.
Heller, he began to fear, had been originalism’s high point. But after that case, originalism soared on the Supreme Court, as Trump added three originalist justices to the bench: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. In 2022, this originalism-powered Court overturned Roe. Progressives, who expect originalism to prevail on the Court for decades to come, have attempted to devise something called “progressive originalism,” seemingly favored by the Biden-appointed justice Ketanji Brown Jackson. As one law professor explained in 2022, “If conservative judges are making selective use of history to make originalist arguments for conservative results, then the only way to show this is to make better originalist arguments to the contrary.”
Would judging law be reduced to the act of choosing among competing accounts of the past written by different groups of historians, based on some as-yet-undefined method of determining which account is the correct one? It hasn’t worked out that way. In a series of crucial cases, the Trump-era Court cited history if the history supported a preferred outcome; if history did not support that outcome, the Court simply ignored the past. As the liberal justice Sonia Sotomayor observed in a scorching dissent in the presidential-immunity case Trump v. United States, “It seems history matters to this Court only when it is convenient.”
The Constitution is dead! Scalia liked to say. To many Americans in the early decades of the 21st century, it has begun to seem that way, although half of the country blames Republicans and the other half blames Democrats. In 2021, one in three Americans said they might consider either abolishing the Supreme Court or limiting its power. Senator Elizabeth Warren of Massachusetts, a former Harvard law professor, co-sponsored a new Judiciary Act to restructure the Court. Warren charged the conservative six-justice supermajority with pursuing a “deeply unpopular and partisan agenda at odds with the Constitution and the settled rights of our citizens.”
In 2022, Trump, citing “Massive Fraud” in the 2020 election and seeking reelection, called for “the termination of all rules, regulations, and articles, even those found in the Constitution.” Democrats called for two justices, Thomas and Alito, to recuse themselves in cases relating to the 2020 election and the January 6 insurrection, arguing that their wives had been publicly associated with the “Stop the Steal” effort; when they refused, Democrats in Congress called for their impeachment. After Dobbs and Bruen, public estimation of the legitimacy of the Court fell to record lows, although opinion divided along strictly partisan lines. This year, after Trump returned to the White House, he was asked whether he has a duty to uphold the Constitution. He said he didn’t know.
Scalia did not live to witness this crisis in constitutionalism. In an exceptionally candid interview near the end of his life, he speculated that he might be despised for his legacy, adding, “And I don’t care.” Long before, playing Macbeth onstage back in high school, he’d uttered some of Shakespeare’s most aching lines:
Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more.
Did he ever wonder if that might be true of the Constitution, if he had been wrong, and if it were, all along, a living thing, though now stunted, thwarted, ailing? In 2016, during a quail-hunting trip in Texas, he died in his sleep, at age 79. The Constitution limps along, a walking shadow.
This article was adapted from Jill Lepore’s new book, We the People: A History of the U.S. Constitution. It appears in the October 2025 print edition with the headline “How Originalism Killed the Constitution.”
The post How Originalism Killed the Constitution appeared first on The Atlantic.
