Many originalists disclaim that competing strands of originalism are not history. This is perplexing, in part because the disclaimer contradicts what is arguably the central purpose of originalism: decoding the original meaning of constitutional text at a fixed point in time. Originalism’s strength is that it provides legal professionals with familiar tools to supplement the world of historical uncertainty. By accepting the premise that originalists only need to be familiar with a “subspecialty of history” or the “investigation of legal meanings,” originalism fails by facilitating mythmaking more so than fact-finding. Of course, originalism can be reformed in this respect. One suggested rule that, if applied, would minimize mythmaking, would be a requirement that originalists contextualize the Constitution before delving into its original meaning. Another such rule would require that any accepted contemporaneous legal doctrines must supersede the original meaning of the text.

This abstract was written after publication by 2023-2024 Et Cetera Editor-in-Chief Philip Shipman