Why Originalism Debates Keep Talking Past Each Other
This looks less like justice and more like strategy.
This post is a structural analysis of how originalism operates in Supreme Court interpretation, rather than commentary on a specific case outcome.
Most arguments about originalism assume the same thing: that the method either constrains judges or it doesn’t. The disagreement usually turns on which side someone thinks is true. A different way to look at it is that originalism can do both — but under different institutional conditions.
When historical meaning is clear and widely shared, originalism tends to operate as a constraint. Judges inherit an understanding that already limits the range of plausible outcomes. But when historical meaning is thin or contested, the same method shifts function. Instead of limiting choice, it supplies materials for reconstructing constitutional meaning in the absence of consensus.
The missing variable in many debates is settlement. Settlement doesn’t mean moral agreement or theoretical unity. It means disagreement has narrowed to the point that it no longer determines outcomes. Endurance alone doesn’t create settlement. A doctrine can persist for decades while remaining fundamentally contested. Under those conditions, courts may administer doctrine coherently without that administration maturing into shared constitutional authority.
This also explains why arguments about judicial discretion rarely resolve. Discretion is unavoidable in any interpretive method. The real question is where it’s exercised. In settled domains, discretion happens earlier, during the formation of consensus. In unsettled domains, it happens later, through judicial reconstruction. Originalism doesn’t eliminate discretion so much as relocate it.
This perspective isn’t a defense or critique of particular cases. It’s a way of describing why intelligent participants can share a method and still reach different conclusions, and why those disagreements often persist.
I’ve written a much fuller synthesis essay with the complete framework on Substack for anyone interested.
Full essay here: Originalism, Constraint, and the Conditions of Authority
This looks less like justice and more like strategy.
This post is a structural analysis of how originalism operates in Supreme Court interpretation, rather than commentary on a specific case outcome.
Most arguments about originalism assume the same thing: that the method either constrains judges or it doesn’t. The disagreement usually turns on which side someone thinks is true. A different way to look at it is that originalism can do both — but under different institutional conditions.
When historical meaning is clear and widely shared, originalism tends to operate as a constraint. Judges inherit an understanding that already limits the range of plausible outcomes. But when historical meaning is thin or contested, the same method shifts function. Instead of limiting choice, it supplies materials for reconstructing constitutional meaning in the absence of consensus.
The missing variable in many debates is settlement. Settlement doesn’t mean moral agreement or theoretical unity. It means disagreement has narrowed to the point that it no longer determines outcomes. Endurance alone doesn’t create settlement. A doctrine can persist for decades while remaining fundamentally contested. Under those conditions, courts may administer doctrine coherently without that administration maturing into shared constitutional authority.
This also explains why arguments about judicial discretion rarely resolve. Discretion is unavoidable in any interpretive method. The real question is where it’s exercised. In settled domains, discretion happens earlier, during the formation of consensus. In unsettled domains, it happens later, through judicial reconstruction. Originalism doesn’t eliminate discretion so much as relocate it.
This perspective isn’t a defense or critique of particular cases. It’s a way of describing why intelligent participants can share a method and still reach different conclusions, and why those disagreements often persist.
I’ve written a much fuller synthesis essay with the complete framework on Substack for anyone interested.
Full essay here: Originalism, Constraint, and the Conditions of Authority
Why Originalism Debates Keep Talking Past Each Other
This looks less like justice and more like strategy.
This post is a structural analysis of how originalism operates in Supreme Court interpretation, rather than commentary on a specific case outcome.
Most arguments about originalism assume the same thing: that the method either constrains judges or it doesn’t. The disagreement usually turns on which side someone thinks is true. A different way to look at it is that originalism can do both — but under different institutional conditions.
When historical meaning is clear and widely shared, originalism tends to operate as a constraint. Judges inherit an understanding that already limits the range of plausible outcomes. But when historical meaning is thin or contested, the same method shifts function. Instead of limiting choice, it supplies materials for reconstructing constitutional meaning in the absence of consensus.
The missing variable in many debates is settlement. Settlement doesn’t mean moral agreement or theoretical unity. It means disagreement has narrowed to the point that it no longer determines outcomes. Endurance alone doesn’t create settlement. A doctrine can persist for decades while remaining fundamentally contested. Under those conditions, courts may administer doctrine coherently without that administration maturing into shared constitutional authority.
This also explains why arguments about judicial discretion rarely resolve. Discretion is unavoidable in any interpretive method. The real question is where it’s exercised. In settled domains, discretion happens earlier, during the formation of consensus. In unsettled domains, it happens later, through judicial reconstruction. Originalism doesn’t eliminate discretion so much as relocate it.
This perspective isn’t a defense or critique of particular cases. It’s a way of describing why intelligent participants can share a method and still reach different conclusions, and why those disagreements often persist.
I’ve written a much fuller synthesis essay with the complete framework on Substack for anyone interested.
Full essay here: Originalism, Constraint, and the Conditions of Authority
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