Legal Theory Lexicon 019: Originalism

By Lawrence B. Solum

Introduction

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is “originalism.” Originalism is actually a family of constitutional theories, but two ideas are common to almost all versions of originalism. The first idea is that the meaning of the constitutional text is fixed: the contextualized linguistic meaning of the words and phrases does not change over time. The second idea is that the original meaning of the constitutional text is binding: judges and officials should consider themselves to be constrained by the text.

The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to “originalism” that is aimed at law students (especially first-year law students) with an interest in legal theory.

Originalism is not just an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan’s nomination of Robert Bork (an avowed originalist) was one key moment—his defeat in the Senate was widely seen as a political rejection of originalism. In subsequent decades, however, originalism has become increasingly dominant: a majority of the current Supreme Court has endorsed or applied originalist methodology, making it for the first time a genuinely dominant force in American constitutional adjudication.

The Origins of Originalism

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger’s book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger’s book was very critical of the Warren Court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest’s article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from “the original intentions of the framers” to the “public meaning of the constitutional text” or “original meaning.”

The New Originalism

The final chapter of the originalism debate in legal theory has yet to be written–and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from “original intentions” to “original public meaning,” but two other developments were key. First, Bruce Ackerman’s work on constitutional history suggested the availability of “left originalism” that maintained the commitment to the constitutional will of “We the People” but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an “originalist,” but many of Ackerman’s former students do work that is implicitly or explicitly originalist.) Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. The most recent development in this dynamic is Jack Balkin’s attempt to reconcile originalism with living constitutionalism. Balkin’s article, “Abortion and Original Meaning” (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further develops his take on originalist theory and applies it to a variety of topics.

After the publication of Paul Brest’s Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is just as likely to hear pronouncements of a different sort: “we are all originalists” or “originalism and living constitutionalism are compatible” or even “originalism is trivially true.” Contemporary debates about originalism sometimes use the label, “the New Originalism” to distinguish the current emphasis on “original public meaning” from older forms of originalism that emphasized “original intentions.” The story of that transition is crucial to understanding the current discussion among constitutional theorists.

Original Intentions

Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as “intentions,” e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality–leading to the conclusion that segregation is unconstitutional–or at a very particular level–in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the “separate but equal” principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.

Yet another challenge to original-intent originalism was posed by Jefferson Powell’s famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell’s critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating, if Powell’s historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers’ resistance to originalism were quite powerful. Especially important was the idea that “secret intentions” or “hidden agendas” had no legitimate role to play in constitutional meaning. In the end, however, Powell’s article actually had the effect of turning originalism in a new direction–from original intention to original meaning.

Original Public Meaning

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”and also is called “Public Meaning Originalism.” Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role. As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.” The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson with Steven Calabresi as another “early adopter.” The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett and Keith Whittington have played prominent roles in the development of the “New Originalism.” Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways. For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason). This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.” With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism. Jack Balkin’s influential 2006 and 2007 essays argued for a reconciliation of original meaning originalism with living constitutionalism—his “compatibilism” holds that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Does Originalism Have a Core?

Despite their differences, almost all originalists share two core commitments: the fixation thesis (the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified) and the constraint principle (the original meaning should constrain constitutional practice). But beyond these, originalists disagree significantly.

Originalists disagree about other important questions as well. In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning. Some originalists believe that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by “We the People.” Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content. And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability. These disagreements about normative foundations may lead to further disagreements about the extent to which “original meaning” should trump other considerations. For example, should constitutional actors always adhere to original meaning when it conflicts with historical practice or judicial precedent?

Forms of Originalism Today

Although “original public meaning” has become the dominant slogan of originalism, the academic literature has produced a more varied landscape. Scholars working in the originalist tradition today defend several distinct theories that differ in their accounts of what is fixed, what sources are authoritative, and why fidelity to originalist meaning is normatively required. The most important forms are the following:

Public Meaning Originalism. The most widely endorsed form in contemporary scholarship, public meaning originalism holds that the meaning of each constitutional provision was fixed at ratification by the original public meaning of the text—how a competent, informed speaker of English would have understood the words in their legal and historical context. The relevant audience is neither the framers as individuals nor subsequent generations, but the ratifying public. This form is associated with Randy Barnett, Gary Lawson, Keith Whittington, and Lawrence Solum, among many others. On the leading version of this theory, recovering the original public meaning is the task of constitutional interpretation, while the further development of constitutional doctrine from that semantic foundation is the task of constitutional construction.

Original Methods Originalism. Developed by John McGinnis and Michael Rappaport in Originalism and the Good Constitution (Harvard University Press 2013), this approach argues that the Constitution should be interpreted using the legal interpretive methods that were themselves authoritative at the time of framing and ratification. Because the founding generation recognized certain interpretive conventions as legally binding, those conventions are part of what was enacted and remain binding today. Original methods originalism may generate results that diverge from simple public meaning approaches when period-specific interpretive conventions—such as rules for resolving conflicts between provisions or for reading terms of art—would have operated differently than modern practice.

Original Law Originalism. Associated primarily with William Baude and Stephen Sachs, original law originalism holds that the Constitution as originally enacted is the law that is in force today—not merely as a matter of political philosophy, but as a claim about the structure of the legal system itself. On this view, the original Constitution is binding because it is our law, continuous through an unbroken chain of legal authority. The question “why should we follow original meaning?” thus receives a legal rather than a purely normative answer: we follow it for the same reason we follow any other valid law.

Original Intentions Originalism (New Intentionalism). Associated with Richard Kay, Larry Alexander, and Saikrishna Prakash, new intentionalism holds that constitutional meaning is fixed by the communicative intentions of the framers and ratifiers—what they meant to convey—rather than by the abstract linguistic meaning the text would have had to a general reader. The “new” label distinguishes this position from older intentionalism by its awareness of the publicity requirement: the intentions that are legally relevant are those that were actually communicated through the text, not hidden subjective aims. New intentionalists argue that this approach is more faithful to ordinary communicative practice, in which the meaning of an utterance is determined by the speaker’s communicative intention as recognizable to a competent audience.

Originalism and Linguistics

The turn to original public meaning has drawn originalism into close contact with theoretical linguistics and the philosophy of language. Understanding what the constitutional text “means” requires clarity about what meaning itself is — and that is a question that linguistics and philosophy of language have investigated in depth. The most important framework for originalist theory comes from the work of H.P. Grice, whose seminal distinction between what is said (the semantic content of an utterance) and what is implicated (the additional content that a speaker conveys through context, inference, and the cooperative norms of communication) shapes the conceptual architecture of public meaning originalism. On the Gricean picture, the full communicative content of a text includes both its semantic content — the meaning given by the conventional rules of the language — and its pragmatic content — the additional meaning that a competent reader recovers by reasoning about context, purpose, and what a cooperative communicator would intend to convey. Applied to constitutional interpretation, this framework means that the original public meaning of the text is not reducible to the bare dictionary meanings of its words; it also includes everything that a competent, informed reader of American English in the founding era would have understood the text to communicate, drawing on the publicly available context of constitutional framing and ratification.

Originalism and Precedent

We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent–both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Some originalists have argued that as a general rule, constitutional actors should follow original meaning, even if it would conflict with longstanding historical practice or settled precedent. Other originalists argue that precedent and/or historical practice can trump original meaning in specified circumstances. Among originalist judges, Justice Scalia sometimes argued that precedent trumps original meaning, whereas Justice Thomas is more willing to upset precedent that is inconsistent with originalism.

The New Critics of the New Originalism

Originalism has attracted sustained critical attention throughout its history, and the shift to public meaning has generated a new wave of scholarship that engages the theory on its own terms. The earlier critical literature—including “Rebooting Originalism” by Stephen Griffin, “Originalism is Bunk” by Mitchell Berman, and “Originalism’s Living Constitutionalism” by Thomas Colby and Peter Smith—took the move from intentions to public meanings seriously and argued that it did not rescue the theory from fundamental difficulties. More recent critics have mounted substantial new challenges.

Richard Fallon has offered perhaps the most searching philosophical critique in “The Chimerical Concept of Original Public Meaning” (107 Virginia Law Review 1421 (2021)). Fallon argues that constitutional provisions rarely if ever have uniquely correct original public meanings that are determinate enough to resolve contested constitutional cases. The problem, he contends, is metaphysical rather than merely epistemological: beyond historical facts about what various people said and understood at the founding, there is no further diversity-transcending fact that constitutes “the” original public meaning. In a related piece, “Selective Originalism and Judicial Role Morality” (Texas Law Review, 2024), Fallon argues that the avowedly originalist Justices on the current Supreme Court apply originalism in a highly selective manner that tends to abet conservative outcomes rather than following original meaning wherever it leads.

The most important recent contribution from the historical side is Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique (Yale University Press, 2024), winner of the Order of the Coif Book Award and described by Cass Sunstein as “a thunderclap.” Gienapp argues that originalists have staked constitutional interpretation to history while failing to take that history seriously on its own terms. Rather than recovering the Constitution as eighteenth-century Americans actually understood it, originalists project modern constitutional assumptions—about the nature of written constitutions, the fixity of meaning, and the character of law—onto the founding era. By misunderstanding how fundamentally founding-era constitutionalism differed from modern constitutionalism, Gienapp argues, originalists end up fabricating a historical past rather than recovering it. This critique cuts deeper than the earlier philosophical objections: even if the originalist methodology were conceptually sound, it may be historically incapable of doing the interpretive work originalists claim for it.

Originalism and Statutory Interpretation

Many originalists believe that constitutional originalism and statutory textualism are not merely compatible theories but are, in an important sense, the same theory applied to different legal texts. Both are committed to the claim that the legal meaning of a text is its communicative content — what the text conveyed to its intended audience at the time of enactment — and both treat that communicative content as fixed and binding on later interpreters. On this view, the tools that constitutional originalists use to recover original public meaning and the tools that statutory textualists use to recover plain meaning are fundamentally the same: they look to the ordinary meaning of the words and phrases in their historical and legal context, employ canons of interpretation that were accepted at the time of enactment, and rely on pragmatic enrichment — the reconstruction of meaning from context — to produce complete and determinate legal content. As I argue in “Pragmatics and Textualism” (33 Journal of Law and Policy 2 (2025)), good textualism is not the wooden application of dictionary definitions but the recovery of plain meaning, understood as the communicative content of a statutory text to its primary intended readership. This is the statutory analogue of the constitutional originalist’s goal of recovering original public meaning. The identification of textualism with originalism thus reflects a deep theoretical unity: both are theories of communicative content, both apply the same Gricean framework of semantics and pragmatics, and both insist that the legal meaning of a text is a historical fact to be discovered, not a value judgment to be made.

Conclusion

This entry in the Legal Theory Lexicon is both too long and too short. Too long, because I strive to make Lexicon entries sufficiently brief so that they can be read in just a few minutes. Too short, because the convoluted terrain of the originalism debates can only be fully mapped (much less argued out) in a very long article. Nonetheless, I hope that I have provided enough background for a beginning student of constitutional law to get a sense of the lay of the land. Debates about the new originalism are at the center of contemporary constitutional theory, but the long and twisted history of those debates makes it difficult to get started without a guide.

Related Lexicon Entries

Bibliography

This very selective bibliography includes some of the articles and books that have been influential in the ongoing debates over originalism.

Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
Jack Balkin, Abortion and Original Meaning, 24 Constitutional Commentary 291 (2007).
Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) & Restoring the Lost Constitution (Princeton University Press 2004).
Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard University Press 2021).
William Baude, Is Originalism Our Law?, 115 Columbia Law Review 2349 (2015).
Raoul Berger, Government by Judiciary (Harvard University Press 1977).
Mitchell Berman, Originalism is Bunk, 84 New York University Law Review 1 (2009).
Robert Bork, The Tempting of America (Vintage 1991).
Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
Thomas Colby & Peter Smith, Originalism’s Living Constitutionalism, 59 Duke Law Journal 239 (2009).
Richard H. Fallon, Jr., The Chimerical Concept of Original Public Meaning, 107 Virginia Law Review 1421 (2021).
Richard H. Fallon, Jr., Selective Originalism and Judicial Role Morality, Texas Law Review (2024).
Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique (Yale University Press 2024).
Stephen Griffin, Rebooting Originalism, 2008 University of Illinois Law Review 1185 (2008).
Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern University Law Review 226 (1988).
Gary Lawson, Proving the Law, 86 Northwestern University Law Review 859 (1992).
John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (Harvard University Press 2013).
Jefferson Powell, The Original Understanding of Original Intent, 98 Harvard Law Review 885 (1985).
Antonin Scalia, Originalism: The Lesser Evil, 57 University of Cincinnati Law Review 849 (1989).
Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997).
Lawrence B. Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Northwestern University Law Review 1243 (2019).
Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 Boston University Law Review 1953 (2021).
Lawrence B. Solum, Semantic Originalism (2008).
Lawrence B. Solum, Pragmatics and Textualism, 33 Journal of Law and Policy 2 (2025).
David A. Strauss, The Living Constitution (University of Chicago Press 2010).
Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University Press of Kansas 1999) & Constitutional Construction: Divided Power and Constitutional Meaning (Harvard University Press 2001).
Originalism: A Quarter Century of Debate (Stephen G. Calabresi ed., Regnery Press 2007).

Link to the Most Recent Version of this Lexicon Entry

Legal Theory Lexicon 019: Originalism

(This entry was last revised on April 1, 2026.)