Sketching a History of “History” in Originalism

Originalism has a fraught relationship with history. Scholars in this field of Constitutional Theory have articulated an account of Constitutional interpretation that centers on finding the fixed meaning of the Constitution. Typically, they start from the words and phrases of provisions in the text of the Constitution. This text-centered approach has faced trenchant critique from historians, who argue that the Originalist approach to history projects a contemporary understanding of textual meaning onto the founding era (e.g., Gienapp 2024). Originalists have objected to this argument characteristically by starting with the text, arguing that the language of the document points to itself as a document.

At the same time, Originalism has not always been framed as an historical inquiry. Early Originalists sought the intentions of the founders, but they didn’t consider this a historical inquiry. Rather it was a traditionally legal inquiry—one they claimed was more in keeping with longstanding legal tradition. As Originalists became advocates of a form of textualist inquiry for the Constitution, they even at times contrasted their approach to history: it was “grammar” rather than “history” that was law. It has been as they have responded to their critics that Originalists have come to characterize their inquiry as historical.

In this paper, I attempt to document the development of a conception of Originalism as an historical inquiry. Drawing on Originalists engagements with their critics, I argue that their conception of history has been mediated by a set of conflicting linguistic beliefs and practices—language ideologies—that may very well be more broadly shared within the legal profession. Originalists have not agreed among themselves or with their critics about how language works. These debates about meaning have shaped not only their approach to history, but the development of the field of Constitutional Theory.