The conservative majority on the Supreme Court has a founding myth. It goes like this: unlike liberal justices who impose their policy preferences onto the Constitution, conservative justices are constrained by the original meaning of the text — what the Founders wrote, what the ratifiers understood. Originalism, in this telling, is not an ideology. It is a discipline. It is the difference between judges who follow the law and judges who make it up.

It is a compelling story. It is also, the evidence shows, false.

Originalism is not a neutral methodology that constrains judicial discretion. It is a selective rhetorical tool — invoked when it produces conservative outcomes, abandoned when it doesn’t, and dressed in the language of historical authority to make political choices look like legal compulsion. The Supreme Court’s recent record makes this impossible to deny, if you are willing to look at the cases honestly.

What Originalism Claims to Be

The modern originalist project was born not in 1789 but in 1985, when Attorney General Edwin Meese gave a speech calling on courts to return to a “jurisprudence of original intention.” Robert Bork refined it. The Federalist Society institutionalized it. For four decades, it has been the official legal philosophy of the conservative legal movement — and the lens through which every Republican-appointed justice since Antonin Scalia has claimed to read the Constitution.

The pitch is simple: the Constitution means what it meant to those who wrote and ratified it. Judges should not impose their own values. The democratic process — not the courts — is where policy gets made. Originalism is restraint.

This is the theory. Now look at the practice.

The Second Amendment: A Right Invented, Then Expanded

Begin with the most obvious example. For most of American history, courts understood the Second Amendment to protect the right to bear arms in the context of militia service. The amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The prefatory clause — the militia clause — was understood as connected to the operative one.

In 2008, Justice Scalia’s majority opinion in District of Columbia v. Heller, 554 U.S. 570 declared, for the first time in the Court’s history, that the Second Amendment protects an individual right to keep firearms in the home for self-defense, militia service be damned. This was, by any measure, a dramatic departure from precedent. It was also, as Justice Stevens wrote in a meticulous 46-page dissent marshaling the historical evidence, not what the Founders intended or what the ratifiers understood.

Scalia’s originalist majority simply disagreed — and outvoted Stevens. The history, it turned out, supported whichever side had five votes.

Then came New York State Rifle & Pistol Association v. Bruen in 2022. Justice Thomas’s majority didn’t just extend Heller — it invented a new test: gun regulations are constitutional only if the government can demonstrate they are “consistent with this Nation’s historical tradition of firearm regulation” as of 1791 or 1868. No modern interest-balancing allowed. Just history.

The result has been chaos. Federal courts have used the Bruen framework to strike down laws prohibiting people under domestic violence restraining orders from owning firearms, laws banning guns near schools, laws restricting machine gun conversions. When lower courts applied Bruen honestly to its logical conclusions, the results were so alarming that the Supreme Court had to issue a corrective in United States v. Rahimi — where even the conservative justices scrambled to limit what they had unleashed. Chief Justice Roberts’s majority opinion relied on a broad, flexible reading of historical tradition that Bruen itself had seemed to foreclose.

This is originalism in practice: invent a right in 2008 that wasn’t there before, construct a test in 2022 that lower courts can’t coherently apply, then walk it back in 2024 when the outcomes become politically embarrassing. The history is decorative throughout.

The Administrative State: Founders Who Built Agencies

Originalists have spent decades arguing that the modern administrative state — agencies like the EPA, the FDA, the FTC — is constitutionally suspect because the Founders never authorized Congress to delegate lawmaking power to executive bureaucracies. This is the intellectual foundation of West Virginia v. EPA, Loper Bright, and the broader project of dismantling the regulatory apparatus built over the past century.

There is a problem with this argument: the Founders built agencies.

The first Congress — the same Congress that drafted and sent to the states the Bill of Rights that originalists claim to revere — created the State Department, the War Department, the Treasury Department, and authorized the executive branch to administer the postal system, collect duties, and manage public lands. Alexander Hamilton, at Treasury, ran something very much like a modern administrative agency. The Founders did not believe in the rigid separation between legislative and executive power that today’s originalists insist the Constitution requires.

When Justice Gorsuch writes opinions treating the administrative state as a constitutional anomaly, he is not recovering the Founders’ original understanding. He is imposing a 21st-century libertarian policy preference onto a document whose authors built the earliest version of the very structure he condemns.

The 14th Amendment: Applied When Convenient, Ignored When Not

The 14th Amendment was ratified in 1868, in the immediate aftermath of the Civil War, to guarantee equal protection of the laws to all persons — specifically, to the newly freed enslaved people whom the pre-war Court had ruled out of constitutional protection. Its authors were explicit about the remedial purpose: to dismantle the legal architecture of white supremacy.

In Students for Fair Admissions v. Harvard (2023), the Supreme Court used the 14th Amendment to strike down race-conscious admissions programs at Harvard and the University of North Carolina. The majority held that considering race as a factor in admissions — a program designed to remedy centuries of exclusion — violated the equal protection clause. The original purpose of the amendment was to help Black Americans. The Court used it to eliminate one of the few remaining tools designed to do exactly that.

At the same time, the Court has repeatedly refused to apply the 14th Amendment’s equal protection clause to racial gerrymandering cases — the systematic drawing of district lines to dilute the political power of Black and Latino voters. The same amendment, applied by the same justices, in opposite directions, depending on who benefits.

If originalism means anything, it should require asking what the authors of the 14th Amendment would have made of racial gerrymandering. The answer is not ambiguous. The Reconstruction Congress was specifically concerned with Southern states using legal mechanisms to neutralize Black political power. Racial gerrymandering is precisely the kind of abuse the amendment was designed to prevent. The originalist Court has largely looked away.

Presidential Immunity: A Power the Founders Explicitly Rejected

The Founders were obsessed with preventing the emergence of a king. They had just fought a revolution against one. The debates at the Constitutional Convention are filled with explicit anxiety about executive power unchecked by law. Alexander Hamilton, the Founders’ strongest advocate for a powerful executive, wrote in Federalist No. 69 that the president, unlike the British king, would be “liable to prosecution and punishment in the ordinary course of law.”

In Trump v. United States (2024), Chief Justice Roberts’s majority invented sweeping presidential immunity from criminal prosecution for “official acts” — a doctrine with no basis in the Constitution’s text, no support in two centuries of precedent, and no grounding in anything resembling the Founders’ intent. Roberts cited no Founding-era source that supported the immunity he created, because none exists. He constructed it from first principles and called it constitutional law.

This is the doctrine that may ultimately shield a president who attempted to overturn an election from criminal accountability. It was created by the Court’s originalist majority. None of them pointed to the original meaning of Article II, because the original meaning does not support them.

The Methodological Problem

There is a deeper reason why originalism cannot be what it claims to be: the historical record does not support the certainty the method requires.

The Founders disagreed with each other — profoundly, bitterly, on fundamental questions of constitutional structure. The debates at the Philadelphia Convention and in the state ratifying conventions show men arguing about the meaning of the document they were creating in real time. There is no single “original meaning” waiting to be recovered; there are competing original meanings, and choosing between them is an interpretive act, not a historical one.

The Constitution was also deliberately vague in places. “Due process.” “Equal protection.” “Cruel and unusual.” These are not precise technical terms with fixed historical content. They are open-textured principles whose application to new circumstances requires judgment — the kind of judgment that originalism claims to eliminate but cannot.

And the historical record is always incomplete. We have the convention debates, the Federalist Papers, some state ratifying convention records. We do not have a complete account of what “the ratifiers” understood, because the ratifiers were thousands of people across thirteen states whose views were never systematically recorded. Originalists work from a small, skewed, and mostly elite documentary record and extrapolate to a single controlling meaning. That is not history. It is advocacy dressed as history.

Who Invented This, and Why

Originalism was not discovered. It was constructed, in the 1970s and 1980s, as a political response to the Warren Court. The Warren Court had used the Constitution to desegregate schools, protect criminal defendants, guarantee voting rights, and recognize a right to privacy. Conservatives hated these outcomes. They needed a theory that would delegitimize them.

Originalism was that theory. If the original meaning controls, then Brown v. Board of Education becomes questionable (the Congress that passed the 14th Amendment also maintained segregated schools in Washington, D.C.). If original meaning controls, then Griswold and Roe have no constitutional basis. If original meaning controls, then the New Deal administrative state is constitutionally suspect.

The theory was backward-engineered from the desired outcomes. This is not a conspiracy theory — it is the explicit history that conservative legal scholars like Steven Calabresi, one of the Federalist Society’s founders, have largely confirmed. Originalism was a litigation strategy that became a jurisprudential movement.

The Real Double Standard

None of this means that liberal judicial philosophy has no problems of its own. “Living constitutionalism” — the idea that the Constitution’s meaning evolves with changing circumstances — has its own accountability challenges. Critics are right that it can, in theory, become a blank check for judges to impose their preferences.

But here is the difference: living constitutionalists do not claim to be doing something other than exercising judgment. They acknowledge that constitutional interpretation involves value choices and that judges should be transparent about those choices. Originalists claim to be doing something categorically different — recovering a fixed historical meaning that constrains their discretion. They present their choices as not-choices. That is the additional dishonesty.

A judge who says “I believe the Constitution should be interpreted to protect individual liberty in ways its authors didn’t anticipate” is making a contestable claim. A judge who says “I am bound by the original meaning, and the original meaning happens to prohibit affirmative action, agency rulemaking, and campaign finance limits” is pretending that a political program is a historical discovery. The second judge is less honest than the first.

What This Means for Reform

Understanding originalism as a political project rather than a neutral method changes how we should think about Court reform.

The argument for deference to the Court — for waiting for better nominees, for trusting the process — rests partly on the premise that the Court is doing law, not politics. If the justices were genuinely constrained by a methodology that transcended their preferences, there would be a reason to trust their outputs even when we disagreed with them.

But if the methodology is itself a political construct that produces conservative outcomes when applied by conservative judges and would produce liberal outcomes if applied by liberal ones — which is exactly what the evidence shows — then the Court’s claim to special authority collapses. Six people, appointed through a deeply politicized process, insulated from accountability by lifetime tenure, applying a methodology that is itself a political philosophy, are making policy decisions for 335 million Americans.

That is not a court operating as a neutral legal institution. It is a political institution operating in judicial drag.

The answer is structural reform: term limits, expanded membership, shadow docket transparency, binding ethics rules. Not because the current justices are bad people, but because an institution without democratic accountability will, over time, serve unaccountable power — and dress that service in whatever philosophical language is currently most useful.

Right now, that language is originalism. The history that matters, it turns out, is always the history that supports the majority’s preferred outcome. Everything else is just inconvenient facts.

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