The Supreme Court has produced landmark victories for originalism in recent terms. As these once seemingly improbable developments unfolded, they triggered a number of attacks from Erwin Chemerinsky, Noah Feldman, and Ruth Marcus, among other critics of the current Court. Their arguments that originalism as a philosophy of constitutional interpretation is unworkable and dangerous are nothing new. But their consternation is fresh.

It is also mistaken. The danger to constitutional rights is not originalism but what preceded it and is still advocated by the current Court’s most virulent critics. Their elastic notion of living constitutionalism — the idea that fundamental principles of law “evolve” to fit changing times — shrinks the scope of rights enumerated in the Constitution. Meanwhile, this school of interpretation has shown itself willing to conjure up supposed constitutional rights out of whole cloth and to advocate for them more zealously than for those that are enumerated. This leaves representative democracy with the worst of both worlds.

The consummate example of the judicial rejection of originalism in recent times is, of course, the nearly half-century reign of Roe v. Wade (1973). Neither Roe nor its progeny, including the Court’s decision in Planned Parenthood v. Casey (1992), which partially modified Roe while reaffirming its “essential holding,” ever provided any serious foundation in the Constitution’s text for a right to abortion. The methodology of these cases conferred on judges illegitimate and grandiose powers to impose their own policy predilections as unenumerated rights.

The constitutional text from which Roe and Casey drew is the due-process clause of the 14th Amendment. It provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Fifth Amendment already included nearly identical language that bound the federal government. The word “liberty,” on which the Court relied, is of course a sublime concept and a cardinal American value. But it is also so open-ended that, if left unanchored to historical benchmarks, it could cover virtually any subject of legislation.

From its inception, the due-process clause was primarily about process: Liberty or property could be taken away only in a lawful way. The Court could have more defensibly used the 14th Amendment’s privileges-or-immunities clause to protect certain unenumerated rights rather than defining concepts such as liberty or property. But a non-originalist Court eviscerated the privileges-or-immunities clause in the Slaughter-House Cases (1873). And a body of precedents employing the notion of substantive due process has treated the due-process clause as a vehicle for unenumerated rights. Whichever clause is used, Justice Samuel Alito’s opinion for the Court in Dobbs employed the correct methodology for identifying rights not specified in the Constitution — to determine not what judges prefer they should be but what history shows they in fact were. In this case, that entails looking from early common-law principles through the state of the law when the 14th Amendment was proposed by Congress in 1866 and ratified in 1868.

In Dobbs, the question the Court considered was not even close. Not only did abortion lack the status of a legal right. It was a common-law crime. Not a single statement from Reconstruction-era congressional debates suggests Roe’s conclusion. Moreover, there was ample support for the notion that the laws aimed to protect life in utero. In the tendentious historical analysis he employed in Roe, Justice Harry Blackmun tried to squeeze some support for an abortion right out of the common law’s treatment of abortion as homicide after “quickening” — the point at which a woman first feels the fetus move in her womb. But that common-law definition of fetal homicide falls short of recognizing a common-law right to abortion before quickening. Additionally, as Alito pointed out, there was evidence that the common law did not condone abortions even before quickening. Significantly, three-quarters of states had by 1868 statutorily criminalized abortion at all stages of gestation. And while post-ratification evidence can shed light on original meaning, here it certainly did not alter the Dobbs Court’s conclusion, as the trend toward more-protective abortion laws continued well into the 20th century.

Interestingly, the most prominent driver of this tightening of abortion laws was a recognition by physicians, starting in the late 1850s, that the line drawn primitively at quickening failed to reflect the medical reality of the fetus’s life at all stages of gestation. Given that it began before the 14th Amendment, this emerging consensus of physicians is particularly unfortunate for advocates of constitutionalized abortion rights. Ruth Marcus charges originalism with forcing a “cramped reading” of the Constitution “unleavened by modern science,” but she is in fact rejecting a long-established scientific observation about fetal life that modern science has merely reaffirmed. In any event, Marcus’s point is based on a cramped understanding of originalism. Even if the field of embryology had developed after ratification of the 14th Amendment, that would not have changed the legal question in Dobbs. If a state were to prohibit euthanasia and require ongoing care for unconscious patients, with the protected class defined by the patients’ brain waves, no originalist would strike down that protection on the grounds that brain waves were undetectable in 1868. Originalism is an exercise in applying general principles of law, not an attempt to resist the discovery of new facts to which the principles apply.

Two organizations of professional historians submitted amicus briefs in Dobbs, both in support of those challenging Mississippi’s 15-week abortion restriction. But one of them failed to address any of the above historical facts. The other attempted to reprise Blackmun’s long-discredited historical analysis and buried the humanitarian motivation for the 1850s physicians’ campaign to recognize fetal life before quickening by dismissing it as “built on mixed and discriminatory motives.” In broader commentary criticizing Dobbs, those who refuse to follow the science occasionally seek refuge in the fact that women back then could not vote. But this argument ironically muzzles the feminists of the time, whose recorded views, even among different factions, reflect a consensus that abortion is abhorrent.

The argument that the Constitution prohibits the protection of any category of innocent people echoes what is arguably the most infamous Supreme Court decision in history, Dred Scott v. Sandford (1857), which denied rights to people of African descent. Dissenting, Justice Benjamin R. Curtis cited at least five states that conferred on free black men the right to vote at the time of the Constitution’s adoption. Further, the Court — considering slaves to be property and making the first use of substantive due process under the Fifth Amendment — held that Congress could not “deprive[] a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States.” To modern eyes, and indeed to those who held anti-slavery views during the 1850s, such reasoning amounts to a gross curtailment of rights. Jurisprudentially, it demonstrated the peril of allowing justices to overread into the broad language of the due-process clause their own predilections. Dred Scott was an anti-originalist ruling.

And it was not the last time originalism could have prevented the curtailment of rights. Consider, in addition to the Slaughter-House Cases, the Court’s odyssey on the subject of racial segregation after the Civil War. As early as 1863, in a statute extending a railroad into Washington, D.C., Congress provided that “no person shall be excluded from the cars on account of color.” Contemporary congressional debates confirmed that the separation of train cars by race was inconsistent with the legislative understanding of equality. Ten years later, the Supreme Court, recognizing that context, rejected in Railroad Company v. Brown a “separate but equal” argument from a railroad company that practiced such segregation. In 1875, a Congress that was empowered by the 14th Amendment to legislate nationally on the subject passed a civil-rights act that prohibited racial discrimination in “inns, public conveyances on land or water, theaters, and other places of public amusement.” But Reconstruction faced an intense public backlash, and in the Civil Rights Cases (1883), the Court struck down the law as exceeding congressional power.

The decision clearly departed from the original understanding of the 14th Amendment. Republicans who had voted for the amendment in 1866 were nearly unanimous in support of the statute in 1875. Dissenting, Justice John M. Harlan criticized the majority for “depart[ing] from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.” There was even newspaper commentary approving of the Court’s decision that nonetheless admitted that Harlan’s construction reflected the dominant interpretation during the 1860s. Even the author of the Court’s opinion in the Civil Rights Cases, Justice Joseph P. Bradley, was on record in an 1871 letter interpreting the 14th Amendment to support the criminalization of private conspiracies. He employed a theory of congressional enforcement power from which he backtracked by 1883, when he largely confined such authority to corrective legislation addressing “State action.”

The contortion of the 14th Amendment’s original meaning did not end there. After Southern states enacted laws requiring segregation in public accommodations and conveyances, a challenge arose in Louisiana. The Court in Plessy v. Ferguson (1896) notoriously validated the notion of “separate but equal.” And segregation was far from the only legal casualty inflicted by the retreat from Reconstruction. In United States v. Harris (1883), Congress was deemed powerless under the 14th Amendment to pass enforcement legislation that punished private conspiracies without reference to state action. This was regardless of the fact that the drafters of the amendment in 1866 had compiled a massive amount of testimony from witnesses about wrongs by private individuals. Moreover, those who voted for the 14th Amendment and were also in Congress in 1871 overwhelmingly voted to approve the statute being challenged in Harris, the Ku Klux Klan Act. The 15th Amendment, which barred racial discrimination in voting and was drafted with language about states and congressional power similar to that of the 14th Amendment, underwent its own judicial constriction in defiance of original meaning as the Court extended its “state action” doctrine to that amendment in James v. Bowman (1903).

When the Supreme Court narrowed the Reconstruction amendments between the late 19th and the early 20th century, it was following the playbook of living constitutionalism. During the retreat from Reconstruction, popular opinion increasingly rejected the earlier egalitarian impulse and federal intervention in the South, and the Court’s rulings tracked that sentiment. It is contrary not only to originalism, but also to the very notion of having a written constitution, to allow rights to be disregarded because they have fallen out of fashion. But critics of originalism uniformly ignore this unfortunate history when making their arguments.

The issue of racial discrimination resurfaced when the Supreme Court recently rejected the affirmative-action programs that were challenged in Students for Fair Admissions v. President and Fellows of Harvard College. For decades, such programs had been defended under the rationale that racial preferences advance “diversity.” In muddled precedents, the Court tolerated these programs. The equally muddled dissents in Students for Fair Admissions ignored the voluminous evidence that framers of the 14th Amendment aspired to abolish racial distinctions in the law. The dissenters argued instead against color-blindness and for “race consciousness” in the law. They expected their audience to buy into the notion that landmark anti-discrimination laws during Reconstruction, including the Civil Rights Act of 1866, fit their paradigm.

Professional historians had submitted an amicus brief in which they attempted to provide cover for the dissenters’ sleight of hand. In their summaries of congressional debates during Reconstruction, the historians substituted the term “race conscious” for the words used by the 14th Amendment’s framers. They attempted to water down the notion of color-blindness as embraced by Justice Harlan in his famous dissent in Plessy. Hasn’t modern society fallen short of that ideal? The historians might have looked to framers such as Senator Henry Wilson of Massachusetts, who had impeccable credentials as an egalitarian and at one point made the most sweeping proposal for the language of the 15th Amendment. He expressed his wish that “this talk about superiority of race, about these distinctions in this Christian and democratic land, should pass away and pass away forever,” even while doubting that “the distinctions between the races” would “be forgotten altogether in the future.” Still, he maintained, “whatever differences of opinion there may be” on this subject, “one thing is clear, that there should be no distinction recognized by the laws of the land.”

A major aim of the historians in their brief was to validate the pedigree of ameliorative measures employed historically to counter discrimination. Of course, such policies (typically described as remedial) could come to the relief of victims of race-based discrimination, as Justice Clarence Thomas recognized in his originalist concurring opinion. But that is not what was happening in Students for Fair Admissions. The universities by their own admission to the Court were “not pursuing any sort of remedial justification for our policy.” In fact, evidence showed that consideration of race most starkly reduced the number of admitted Asian-American applicants — members of a racial group that had undergone considerable past discrimination. The historians thus failed to address the case that was actually before the Court.

Noah Feldman complains that the current originalist majority of the Court, in his view, is wedded to a “nostalgia doctrine” rationalized by distorted history that “ignored” the briefs of professional historians “or used lawyers’ tricks to explain away the inconvenient facts proffered by the historians.” No, the real problem is that their briefs have done a poor job addressing the issues that the Court had been asked to consider.

Even more than was the case a generation ago, academic historians tend to occupy an ideological monoculture too brittle to engage with diverse ideas. A 2016 study of 40 leading universities found that academic historians registered as Democrats outnumbered those registered as Republicans by a ratio of 33.5 to one. They have a strong tendency to reject originalism itself.

Like other critics of originalism, historians often point out that framers of various constitutional provisions had different understandings, that there was no one consensus as to original meaning. To be sure, the Supreme Court grapples with some difficult questions for which originalism does not provide a clear answer. Originalist judges often disagree. The framers varied in their intent and in some of their specific understandings regarding legal text, but individual court cases raise narrow questions about that text. Judges need only answer those questions, not ponder every conceivable application of a law. The focus on often undiscernible intent is a straw man that distracts from what is discernible about the general principles underpinning a text. Hewing to those general principles, the Court can discern much about the law’s contours to help decide cases. Remove those principles, and the ability to render objective judgment will give way to a judge’s subjective preferences.

In light of the 14th Amendment’s genesis in a historical context dominated by the issue of race, it is telling that the same Supreme Court justices who in recent years have been unwilling to disapprove of racial discrimination in university admissions did not hesitate to declare the traditional definition of marriage unconstitutional in Obergefell v. Hodges (2015). There, for its holding that marriage must include same-sex couples, the Court invoked both substantive due process and the 14th Amendment’s equal-protection clause. The equal-protection clause and the unused privileges-or-immunities clause do include a nondiscrimination principle that prohibits the creation of caste, but that does not give license for judges to invalidate any distinction they disagree with as a policy matter. In the face of a claim of invidious discrimination ungrounded in constitutional text and the nation’s history, judges should presume the challenged law to be valid as long as it is rationally related to a legitimate state interest, a standard supported by a long line of Supreme Court precedents.

Of course, the traditional definition of marriage as the union of a man and a woman is no more irrational or invidious than the observation that every person who has ever lived resulted from an opposite-sex union — not to mention that all the distinctive challenges raised by unwanted pregnancies can arise only from such a union. (This is one context in which the modern Left fails to grasp the significance of diversity.) Obergefell was not simply about providing access to an institution, as in the case of interracial-marriage bans that were innately discriminatory. The Court redefined the institution entirely, casting aside “thousands of years of human history in every society known to have populated the planet,” as Chief Justice John Roberts wrote in dissent. Yet even while doing that, the Court acknowledged the “good faith” of those who embrace the traditional definition of marriage and the need for First Amendment protection of those who hold that “sincere conviction.” Such language about good faith and sincerity undermines the notion of invidiousness, further raising the question of why a majority of justices thought they had license for their heavy-handed ruling.

Predictably, plenty of people have since ignored Obergefell’s passages of magnanimity toward those who disagreed, necessitating subsequent cases to vindicate First Amendment rights. Even after victories in the Supreme Court for the cake artist and then for the graphic designer who embraced the traditional definition of marriage, some government officials try to exclude such people who wish to become foster parents, fulfilling Justice Alito’s dissenting prediction in Obergefell: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

The license claimed by those who reject originalism is not only to condone past instances of judicial fiat but also to invite new ones. If Obergefell was correct, for instance, why should the Court not compel all 50 states to accept polygamy or child or cousin marriage, all of which have, in some cultures, at least a historical pedigree that same-sex marriage lacks? If Roe was correct about ahistorical and absolutist conceptions of bodily autonomy, why is there not a right to use currently prohibited narcotics? Or to commit suicide (assisted, in the case of the gravely ill, or otherwise)? Why should a court be unable to strike down prohibitions on the use of alcohol or tobacco by people under a certain age — or, for that matter, on any other activity denied to the young? The scenario of the Court reaching some of these conclusions might seem far-fetched in our time, but that was how the Court viewed same-sex marriage when such a claim came before it in 1972. The justices summarily dismissed the claim “for want of substantial federal question,” deeming it insufficiently serious to warrant a judicial opinion. And these were the same justices who decided Roe v. Wade a few months later.

Several federal district courts have recently enjoined laws prohibiting gender-transition procedures for minors as unconstitutional, another outcome that would have been unfathomable a few years ago. Not to mention that this is a brazen intrusion by judges into an area of medicine that is still very unsettled. The appellate process has yet to fully play out, but we should be thankful that at the end of the line stands the current Supreme Court, less inclined than its predecessors to derail such a legislative policy debate and more likely to stop courts from behaving, to borrow Justice Byron White’s words in his partially dissenting opinion in Planned Parenthood v. Danforth (1976), like an “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

In his time, Justice William Brennan may have been the preeminent defender of living constitutionalism. “We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans,” he declared in 1985. That statement has not aged well. First, it is fair to ask decades after the end of that century why an unelected institution that by nature attempts to build a lasting body of case law — usually in deference to precedent — should graft the perspective of any one time onto the Constitution. Second, while Brennan was obviously a man who lived during the 20th century, his views were not the views of the 20th century. They were those of one faction of his time.

Similarly, we should be clear as to what today’s anti-originalists are doing. They would not replace original public meaning with today’s public meaning. At most, they would replace the original public meaning with the meaning recognized in our time by one faction — theirs. They have an obligation to allow the people’s elected representatives, not judges, to chart the nation’s course, to be overridden only by the constitutional constraints that prior generations of representatives adopted through the ratification process. And given the necessity of avoiding overreach by either the federal or state government, the question of which representatives decide is also important. The Court lost sight of this during a long stretch in which it upheld every federal statute that purported to be based on the interstate-commerce clause, regardless of how little the law’s reach was either interstate or commercial.

There is much that modern liberals can accomplish through their elected representatives in a country with an originalist judiciary. Want to abolish the death penalty? Crack down on carbon emissions? Have the federal government forgive student loans? Have discrimination laws cover sexual orientation and gender identity? Have states redefine marriage? Elected representatives operating under an originalist Constitution are free to implement all those policy preferences. Just don’t intrude on First Amendment or other constitutional limitations in the process. When liberals cannot get their elected representatives to legislate as they wish, they too often rely on the fiat of unelected agency officials or judges who are glad to work around inconvenient text to give them what they want. Many states do not authorize the death penalty, but living constitutionalists want courts to compel the federal government and all the states to follow suit under the guise of a constitutional rule. Never mind Justice Antonin Scalia’s commonsense observation regarding capital punishment that “it is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”

Over the years, Congress considered and rejected numerous cap-and-trade proposals and similar measures, as well as bills addressing loan repayment and forgiveness that met the same fate. When extravagant readings of inadequate existing statutes became the work-around for these legislative losses, the Supreme Court was not fooled. But a comparable process of repeatedly failing proposals in Congress to amend Title VII of the Civil Rights Act of 1964 so that it would include sexual orientation and gender identity did not prevent the Court from making that revision to the statute itself in Bostock v. Clayton County (2020). This notwithstanding the first ten circuit-court decisions, involving some 30 judges of varying judicial philosophies, which had reached the contrary conclusion. Same-sex marriage was being adopted legislatively in an increasing number of states before the Court short-circuited the democratic process in Obergefell.

The Court obviously has not consistently followed the originalist path. But it has followed it increasingly. Egregious contortions of the Constitution in major cases are limited to the era before the arrival of Justice Amy Coney Barrett in 2020, which gave the Court five justices who subscribe to some form of originalism. When judges anchor their analysis to text and history, the results are not only more protective of representative democracy but more jurisprudentially open-minded. The most conspicuous examples of judicial overreach in the modern era tend to involve claims to redefine America’s two foundational values, liberty and equality, as if constitutional text gave carte blanche to judges to graft onto the law whatever views they agree with.

Originalist judges might be just as opinionated in their politics, but they are subject to the obligation of humility in allowing competing factions to duke it out in legislatures when the Constitution is silent. They do not confuse the majesty of the law for the majesty of judges. The Constitution includes numerous provisions that protect specific aspects of liberty interests or property rights, but originalism does not permit reliance on the due-process clause alone to reach a substantive conclusion about life, liberty, or property divorced from process. The shibboleth of substantive due process coupled with living constitutionalism opens the door to judicial override of virtually any law that implicates those concepts — which is to say virtually any law. Citizens may petition their representatives on a wide array of issues that deeply concern them and may invoke liberty and equality while doing so. In fact, that is their First Amendment right. But courts are not legislatures and should not behave as if they were.

The principle behind originalism should be no mystery. It proceeds from the natural expectation behind the ratification of legal text that the text will not be contorted into something unrecognizable to the ratifiers. Even originalism’s most ardent critics likely appreciate this commonsense idea when it comes to their own work product. Erwin Chemerinsky suggests that “maybe it’s time to begin thinking about the process for drafting a new Constitution, a Constitution that’s much more adapted to the world we live in in the twenty-first century.” He presumably believes that such a document would derive its meaning from the public meaning of the words at the time of its drafting — now. And if living constitutionalists believe that language is not enduring enough for our government’s blueprint to last without periodic replacement — not mere amendment, but replacement — that would all but confirm what is already apparent about that philosophy: It is not truly constitutionalist to begin with.

Noah Feldman with his “nostalgia doctrine” thesis inadvertently reveals his own central grievance. He calls the Court’s originalism “a game plan to roll back the clock to an era when personal freedom depended on which state you lived in.” His critique exudes nostalgia for the jurisprudence that not long ago characterized the Court — uninhibited invention of new rights and contraction of enumerated rights deemed inconvenient to modern-day agendas. Fortunately, those trends are becoming a thing of the past as actual constitutionalism re-emerges. And that is a very good thing for the future of representative democracy.