Guns, abortion, religious institutions, presidential power: While today’s Supreme Court identifies itself as originalist, it has resolved constitutional questions on these and many other topics using history and tradition, not just original meaning.1 Scholars debate whether this tendency can be reconciled with originalism.2 In the recent period, originalist justices themselves have joined the fray. Their reflections could foreshadow the reasoning and outcomes of future cases, even on contentious issues. So close analysis should pay off for parties seeking five votes on a methodologically self-aware Court. It should interest citizens eager to know whether the Court sticks to its principles and wonder where they might lead. And close analysis offers theoretical insights. It reveals how easily the original meaning of the text is exhausted in Supreme Court cases, requiring “constitutional interpretation”3 to bridge the gap between vague meaning and specific outcomes. It reveals the divergent paths originalists take when the method is pushed to its limits, shedding light on originalism’s deeper motivations and challenges. It turns out that in such cases, the purer originalism is at the theoretical level, the less it constrains judges in practice.

Part I of this essay distinguishes originalism from traditionalism and describes the Court’s apparent turn toward the latter.

Part II addresses traditionalism in separation of powers cases. While Justices Kavanaugh and Barrett dissented this term on traditionalism in rights cases, both joined in an opinion supporting it in one separation of powers case: CFPB v. Community Financial Services Ass’n of America4 (CFSA). There, the Court had a compelling originalist theory to draw on for some post-ratification practices as forms of what James Madison called “liquidation.” But the late practices cited in almost all of its structural cases actually lack the essential features and authority of Madisonian settlement. 5 Originalism thus proves difficult to apply consistently in structural cases that reach the Supreme Court; there, originalism is less restrictive than has been widely assumed.

Originalism faces a different and more profound challenge in rights cases, where originalist justices themselves are divided over traditionalism. Part III explores that divide using two cases from this period (Vidal v. Elster6 and United States v. Rahimi7) and one from the earlier period (Samia v. United States8). Two approaches emerge. Judge Barrett would consult only the history and precedents of the ratification era. 9 That approach is easier to reconcile with originalism but less often able to resolve cases, so it requires further supplementation with judicially developed tests. The second approach, taken by the other conservatives and spelled out in Justices Thomas’s opinions in Vidal and Samia and Justice Kavanaugh’s concurring opinion in Rahimi, also gives decisive weight to post-ratification practices.10 It thus finds useful history in more cases but is harder to reconcile with originalism. All in all, I suggest that Judge Barrett follows a theoretically more compelling originalism in rejecting the added constraints of post-ratification history.11 But I think her view is too optimistic about finding sources of constraint elsewhere. She turns to Founding-era history and precedent to find determining principles to guide the justices. Yet for systematic reasons rooted in original meaning and function, determinative principles will often not be available for open rights like free speech, as I argue at length elsewhere12 and will suggest here.13

The resulting dilemma for some structural and rights cases—that the strictness of originalist theory might reduce restraint in adjudication—reflects an irony for a modern movement born to rein in judges.14 Yet the irony is not incoherence or even error. As Part IV briefly suggests, the developments discussed here are predictable outcomes of the transition from a legal theory to a “governing” philosophy in a supreme court. Nor will the need for judges to supplement the text and shoulder the burden of decision shock contemporary originalist scholars. They have come to regard originalism, independently, more as a theory of law than as a means of binding

I.  The Originalist Court’s Turn to Tradition

The Court that identifies with originalism relies not only on text and meaning but also on “history and tradition,” especially political practices.16 And not only on practices of the “original” era, but also on those that arose long after ratification.17

Originalism holds that constitutional law must conform to, and be rooted in, the original meaning of the constitutional text,18 or the law that its adoption was originally understood to produce,19 except as legally amended.20 Obviously, the original meaning of a text is one thing and the practice of officials is another. Not every invocation of practice departs from originalism, however. The method readily justifies four kinds of reliance on practice.21

First, preratification practices matter when the original meaning gives them legal relevance. If the Second Amendment “codified a preexisting right,” preratification practices would reveal its contours. 22 Second, early practices, as Justice Barrett noted in Rahimi, “elucidate how contemporaries understood the text—for example, the meaning of the phrase ‘bear [a]rms. ’”23 Third, originalist judges give a role to stare decisis, so the “practice” of prior courts in addressing a legal question counts. One originalist reason for this, as Justice Kavanaugh noted in his concurring opinion in Rahimi, is that the original meaning of “judicial power” itself “incorporates the principle of stare decisis.”24

Finally, originalists draw on some postratification political practices—those that qualify as what James Madison called “settlement.”25 We turn to the vague readings of texts that prior courts arrived at after adversarial discovery. Likewise, Madison thought we should stick to political actors’ interpretations as embodied in established practices that followed debates among them over the meaning of vague texts. 26 Chief Justice Marshall did so in McCulloch v. Maryland,27 holding that the national bank was a legitimate exercise of Congressional powers after presidents and Congresses had debated and resolved the constitutional question and acted on it. 28 Madison’s treatment of liquidation has been cited approvingly by Justices Thomas,29 Gorsuch,30 Kavanaugh,31 and Barrett.32

Here, then, I will reserve “traditionalism” for reliance on practice that falls into none of these four categories. Traditionalist cases cite practices that come too late to shed special light on original meaning; nor have the practices been shown to reflect political or judicial discussions and resolutions of a question of constitutional interpretation. Such “traditions” have included long-standing actions (or inaction) by presidents, Congresses, and state courts and officials. Thus, the Court has found that Congress violates Article II when it insulates the sole head of a federal agency from presidential removal, in part because there is no deep tradition of such insulation.33 The Second Amendment does not protect conduct if the states have long regulated it.34 And so on.35 How to reconcile this with originalism?

II.  Traditionalism About Separation of Powers

Separation of powers cases have long invoked post-ratification practices.36 And while Justices Kavanaugh and Barrett question the role of such practices in rights cases, as seen below,37 both joined an opinion in the late term whose sole basis was a reliance on late practices in a separation of powers case.38 The Court has a compelling originalist defense of relying on certain structural practices, but it has departed from that theory in most cases in which it invokes it. What this reveals, I think, is not opportunism but the difficulty of sticking strictly to originalist-approved methods in structural cases that come before the Supreme Court.

A.  The Limits of Liquidation

In CFSA, the Court reviewed Congress’s decision to allow the CFPB to draw funds from the Federal Reserve without having to ask Congress for an appropriation each year.39 The Court found this to be consistent with the Constitution’s requirement that “[n]o money shall be drawn from the Treasury, but in consequence of appropriations made by law.”40 Justice Thomas’ majority opinion cited “the history prior to the founding” and “the practice of the First Congress” as “contemporaneous” evidence of significance.41 Justice Kagan wrote separately to cite further support in a much later 19th-century practice, which became the 20th-century practice, which became the practice of today.”42 She was joined not only by Justice Kavanaugh,43 who elsewhere defended reliance on such late practices,44 but also by Justice Barrett,45 who wrote in other cases to oppose it.46 What originalist theory could justify their decisions to join?

In Vidal v. In Elster v. Elster, Justice Barrett cited Justice Kagan’s concurring opinion on the CFSA as an example of how “the long-standing practice of the political branches” could “strengthen our understanding of the original meaning of the Constitution.”47 But again, the sole purpose of Justice Kagan’s opinion was to cite practices from the late nineteenth and early twentieth centuries—48 yet Justice Barrett’s Vidal opinion immediately went on to deny that practices “of the late nineteenth and early twentieth centuries” could be “evidence of the original meaning of the Free Speech Clause.”49 Therefore, Justice Barrett must think that the practice of the political branches is different from the state actions cited in Vidal.

The natural explanation is that the branches’ practices are liquidational, and their reliance on them has Founding-era antecedents and stare decisis support. 50 Indeed, Justice Kagan cited the Federalist Paper in which Madison explains liquidation. 51 Of course, this basis for contrasting the CFSA to Vidal, a rights case, assumes that liquidation could not clarify rights either, which is controversial. 52 But at least originalists could cite a Founding-era justification for relying on late practices in the CFSA.

The justification, however, does not fit the CFSA. That is because Justice Kagan’s concurring opinion did not show that the Congresses that adopted the funding mechanisms of the nineteenth and twentieth centuries had ever considered and debated their constitutionality. And without such discussions, political practices lack the force of Madisonian liquidation. Discussion of the underlying legal question is crucial not just because Madison said so,53 but because it is essential to arguments for giving settlement the force of precedent. Judicial precedent draws its force from legal deliberation. That is why we do not treat a case as authoritative on questions the parties and the court never addressed—even questions the court was constitutionally obligated to resolve in a certain direction, such as whether it had jurisdiction.54 (And with good reason: if stare decisis is intended to balance settling the law and getting it right,55 precedent must reflect someone’s effort to get the law right.) Likewise, we should not treat political practices as authoritative without confirming that officials had settled the constitutional question.56 Justice Kagan’s concurring opinion in the CFSA did not confirm that. (And if the practices were never challenged because their permissibility was clear, settlement—which is meant to clarify ambiguity—would be superfluous. 57) While some might think that uncontested traditions are an independent source of constitutional law, that would undermine the originalist judges’ definitional view that constitutional change requires amendment. 58

This point has significance beyond the CFSA. 59 As it turns out, the vast majority of structural cases citing the practice never show that those who engaged in it had discussed the underlying legal question. 60 And very often, I have argued, we have reason to hope that they had not, as the Court has sometimes admitted. 61 In those cases, reliance on tradition goes beyond what settlement theory can justify. The fact that many cases rely on it anyway might suggest that originalism often simply runs out of steam in the Court’s structural cases.

B.  The Limits of Alternative Rationales

Originalists might have other reasons for sticking to uncontested practices in structural cases,62 but not as often as the Court assumes.

First, under certain conditions, late practices offer some evidence of others’ views of the original meaning, which constitutes some evidence of what the meaning actually was (albeit weaker evidence than early practice or practice reflecting debate). But practice is likely to reflect legal judgments only when actors are likely to have (1) acted diligently and in good faith, so that their choice of a practice shows that they considered it lawful, and (2) prioritized the original meaning, so that their consideration of a practice as lawful should matter to originalists. Judge Barrett apparently doubted that these conditions were met in a recent human rights case, in which she refused to treat a practice as evidence of its compatibility with a right without any sign that officials had addressed the issue.63

It is also not clear that departmentalism—respect for coordinated powers—requires a different result when the actors are Congress and the President. Departmentalism relies primarily on deference to the “interpretation” of other branches,64 not to nondeliberate action (to which, again, the Court does not defer even when the action is its own.65 Indeed, conservative judges have repeatedly denied that the Court must (in justiciable cases) “defer to the other branches” on “questions involving the governmental structuring provisions of the Constitution.”66 On top of all this, a late practice may add little probative value relative to the original meaning. Compared with today, how much better were anglophones in, say, the 1920s at discerning a word’s meaning to speakers of the 1790s?67 The evidentiary justification is even weaker when the Court cites a lack of practice to show that it is impermissible.68 There are many reasons not to take an action other than a belief that it would be illegal.69 The justification of evidence of original meaning does not go very far.

Second, one might think that in many cases there are adequate substitutes for interpretive debate. In turf wars between the President and Congress, each branch might seem to have the incentives and the means to fight perceived intrusions. For example, Congress might deny salaries to officials it believes the President appointed illegally.70 In such cases, one might argue, one branch’s silence should be interpreted as considered agreement with the other’s actions, giving it settlement force after all.

But this suggestion assumes that Congress jealously protects its prerogatives and puts constitutional fidelity above all else, which is empirically dubious71 (and must seem dubious to judges interested in preventing Congress from illegally delegating power to the Executive, for example72). This reasoning also assumes that the primary question in disputes between branches is “whether or not the invaded branch approves [an] invasion,” when what really matters is whether “one branch invades the territory of another.”73 Perhaps that is why no judge used this reasoning in CFSA, even though it would have made the case a clear-cut one. After all, the Appropriations Clause gives Congress a check on the Executive,74 and here, of course, it was Congress that decided to give the CFPB free rein. 75

Originalists will therefore sometimes have a basis for relying on post-ratification practices in structural cases, but not always and not easily. The originalism guideline runs dry in structural cases more often than the Court’s invocations of liquidation suggest.

III.  Traditionalism About Rights

Both the pull of traditionalism and its friction with originalism are most intense in some human rights cases. The divide among the justices in this case is pronounced, exposing fissures in their reasons for being originalists and in the degrees to which their approaches would constrain the justices.

A.  The Lack of an Originalist Defense

Originalist justices are divided over whether traditions that emerged long after ratification can be decisive in human rights cases, whether they can be necessary, or, as the case may be, sufficient for constitutionality. Justice Barrett thought not; the other originalists disagreed. As this section shows, Justice Barrett argued forcefully that such traditionalism has no affirmative originalist backing. The next two sections explore whether originalists should accept traditionalism as the least bad option.

Justice Barrett’s distinctive opinion was clear in Vidal, which upheld a federal law prohibiting the registration of trademarks that include the names of others without their consent.76 Justice Thomas’ majority opinion found that state court cases applying state trademark law support the “compatibility” of the federal statute with the First Amendment.77 Justice Barrett thought that such practices came too late to shed light on the original meaning of the Free Speech Clause or its incorporation against the states.78 She inferred that Justice Thomas “presented tradition itself as the constitutional argument,” making the practices of “the late 19th and early 20th centuries” “decisive to the First Amendment question.”79 Perhaps she meant that she was treating historical practice as constituting (and thus possibly altering) the contours of a right over time, much as the Court treats “shifting standards of decency” as determining the scope of the prohibition on cruel and inhuman punishment. unusual.80 He saw no “theoretical justification for using tradition in that way” here.81

The same was true in Samia. There, the Court held that if two defendants, let’s call them Jones and Smith, are tried together, prosecutors may admit a confession by Jones that might have implicated Smith as long as the confession is modified to avoid reference to Smith and the jury is instructed not to treat it as evidence against him. 82 The Court held that this would not violate Smith’s constitutional right to confront witnesses against him. 83 In support, Justice Thomas, joined in relevant part by all conservatives except Justice Barrett, cited cases that admitted similar confessions, including cases that arose long after the ratification or incorporation of the Confrontation Clause. 84 Justice Barrett responded that cases from the 1890s shed no more light on the original meaning than “cases from, say, the 1940s.” 85

Finally, Rahimi upheld a law disarming persons subject to domestic violence restraining orders against a challenge to the confession. of the Second Amendment.86 The Court’s test required the government to point to a historical tradition of analogous regulations.87 Justice Barrett wrote that in this inquiry, post-ratification regulations should not play a decisive role.88 Earlier regulations could shed light on original meaning.89 And regulations before or near ratification could illuminate the boundaries of “pre-existing law.”90 But according to Justice Barrett, neither the latter, the “original contours” justification91 nor the evidence-of-original-meaning justification would justify relying on post-ratification gun laws.92

Thus, Justice Barrett sees no affirmative originalist case for the willingness of the other five conservative justices to begin and end a rights analysis with traditions. That argument is prima facie compelling. Against it, Justice Kavanaugh pleads a necessity defense: traditionalism should be permissible because it is better than available alternative approaches.

B.  The Limits of a Popular Sovereignty-and-Restraint Defense

In Rahimi, Justice Kavanaugh defended reliance on traditions dating back long after ratification as good for the rule of law and popular sovereignty.93 This section shows that, on this latter count, traditionalism ultimately falls short; the next section asks whether Justice Barrett’s alternative method works better.

When original meaning and jurisprudence are exhausted, as sometimes happens with broad or vague provisions, Justice Kavanaugh believes that traditionalism wins by default for the following reasons:

In the absence of clear original meaning or precedent, the alternatives are history or politics—political traditions or judicial balance.94
Consulting history is more restrictive for judges, leading to more predictable outcomes.95
Relying on history also better serves popular sovereignty.96
I will return to the first premise in the next sections, when I discuss Judge Barrett’s doubts that even history will always be available.97

Contrary to the second premise, Justice Sotomayor argued that traditionalism is less restrictive because traditions are mixed, allowing judges to choose according to unexpressed political preferences.98 But Justices Gorsuch and Kavanaugh think that something is better than nothing: judicial reasoning that has to cite or distinguish history is more restricted than judicial reasoning that has to cite or distinguish history.99 which it does not.99 While Justice Jackson questioned that view, noting that as to whether gun cases decided under balancing tests converged more than those reached under historical tests,100 Justices Gorsuch and Kavanaugh would reply that they converged at the price of eviscerating the Second Amendment.101

Finally, as to whether relying on political traditions better respects popular sovereignty, Justice Barrett thought otherwise. At least when courts require a close historical analogue for new regulations to survive rights challenges, she wrote, they wrongly “assume that founding-era legislatures fully exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority” that reduces the people’s power to make laws over time.102 In other words, a judge does not honor the will of the people by constitutionalizing what the people made through ordinary legislation. Rather, a judge does so by being allowed to make laws that the people have not declared out of bounds through higher legislation. And for Judge Barrett, higher law is created and undone by only one means: the “ratification” of a “text.”103 Thus, she wrote, while “relying exclusively on history and tradition [might] seem like a way [to] avoid judge-made tests,” “a norm that makes tradition decisive is not itself” binding law but simply another “judge-made test.”104 Tying the hands of judges will not serve popular sovereignty if the rope is not one that the people have woven into higher law. (A ruling based on coin tosses would reduce judicial policy reasoning to zero without honoring the will of the people at all.)

This disagreement stems from Justices Kavanaugh and Barrett’s different conceptions of originalism, which Rahimi laid bare. Justice Kavanaugh cited the work of then-Professor Bork and Justice Scalia promoting originalism as a means to constrain judges.105 Justice Barrett cited a formalist defense of originalism as the best explanation of our higher law.106 This follows a longstanding division in legal conservatism between “those who viewed originalism as a means to some other substantive end” such as “judicial restraint” and those who thought it was “logically implicit in the Constitution and the principles on which it was based.”107

But suppose (as I do) that some kind of formalist case is stronger,108 so that late practice never elevated to higher law should not be treated as decisive simply as a means to tie the hands of judges. Still, Justice Kavanaugh might ask: Is there some alternative standard, when original meaning and precedent are exhausted, that better respects popular sovereignty?

Judge Barrett’s concern with respecting the ordinary law of the people might suggest one answer: deference to ordinary laws that the higher law does not clearly prohibit. This “Thayerian” norm has its own backing in the Founding era.109 And it might seem to offer all the results that Judge Kavanaugh favored in Samia, Vidal, Rahimi, and CFSA. Does it offer a way out of the dilemma he sees when original meaning is exhausted? Could judges use the same norm to defer to ordinary laws that are not clearly prohibited by higher law?

C.  The Limits of Other Sources of Restraint in Liberties Cases

If Judge Kavanaugh thinks that historical or policy reasoning may be inevitable, Judge Barrett thinks that something like policy—judicial application of principles about what is reasonable—is inevitable in interpreting broad rights like free speech. However, she also seeks to avoid such general principles that would leave judges too broad a discretion. To moderate, she would turn to narrow principles, not from post-ratification history, but from the ratification era or from judicial precedent. I agree with her view that clinging to historical analogies “delays the inevitable”112 movement toward general principles. But I have the same concern about her proposal to cling to low-level (determined) principles drawn from early history or from precedent. We have good reason to think that reliance on even more open principles is inevitable, and more consistent with original conceptions. Originalism, therefore, may be less restrictive than she supposes.

1. Judge Barrett’s proposal. — In Vidal, Justice Thomas argued that because trademark limitations similar to the one under review had a long history, the challenged rule did not violate free speech. 113 In Justice Barrett’s view, Justice Thomas’ insistence on judging by historical analogies merely “delays the inevitable” because the Court is certain to confront laws that lack historical analogies when it “applies broadly worded text like the Free Speech Clause.”114 She would cut to the chase and have judges develop more flexible tests that require assessments of “reasonableness in light of” certain “historical purposes.”115 Justice Kavanaugh in Rahimi wrote that all such tests collapse into a free-form balance that empowers judges at the expense of the right. 116 But Judge Barrett was sensitive to this concern herself, warning that “a court should… not… read a principle to such a high level of generality that it dilutes the law.”117 What then should guide a court’s design for implementing principles?

Her next sentence in Rahimi gave two answers: “jurisprudence or history.”118 First, by “history,” she meant the practices leading up to ratification that constituted the “preexisting law” enshrined by the text; she called that “history of the ‘original contours.’”119 In Rahimi, she thought the majority had extracted from the early regulations a principle of “just the right level of generality,”120 allowing laws “to prevent persons who threaten to cause physical harm to others from misusing firearms.”121 Second, as to extracting principles from precedent, Judge Barrett’s own analysis of Vidal is a case in point. There he devised a standard (trademark restrictions must be “reasonable in light of the trademark system’s purpose of facilitating source identification”)122 by analogy with one found in earlier free speech cases (restrictions on “limited public forums” must be “reasonable in light of [the forum’s] purpose”).123

Thus, for broadly worded texts like the First or Second Amendment, Judge Barrett would ask the justices to develop tests, but they would be based on a low level of generality dictated by the original history or by analogies in judicial precedents—a test limited to disarming dangerous individuals, in the Rahimi case, or trademark rules, in the Vidal case.

2. Delay the inevitable. — Like Judge Kavanaugh’s, this proposal is an appealing effort to achieve objectivity and predictability using established tools. But much as Judge Barrett feared that a historical-analogical approach simply “delays the inevitable”124 move to principles, I believe that trying to stick to low-level or determinate principles from the era of ratification or precedent only delays an inevitable move to broader principles (tacit or explicit).125 This is true not for discrete rights with fairly fixed costs (such as the right to confront witnesses referenced in Samia), but for open-ended rights with more variable and unpredictable costs, such as freedom of speech and the right to bear arms, as in Vidal and Rahimi.

Open-ended freedoms like freedom of speech protect against unforeseeable regulation that cannot be captured—in the history of “original contours” or in a finite set of precedents—with sufficient concreteness to obviate the need to apply highly general principles later. Not only do the vague terms enshrining these liberties require reasoning from close analogies at the semantic margins, but the function of these liberties also requires a more flexible balance (stated or not) at their core. And the history of the doctrinal development of these rights—a saga of repeated failures to break the balance—bears this out. While I do not have space to defend those claims here, I do so in an article in which I conclude that while something like balance is not inevitable for the application of all constitutional rights, it is for liberties such as guns, religion, and speech.126

For now, as a small case study at hand, let us take the case of Vidal. As noted, Judge Barrett proposed a narrow test of constitutionality: assessing the reasonableness of trademark restrictions in light of the purposes of trademark law. 127 This assumed that trademark law and its purposes were constitutional. 128 Her narrow test did not yield that conclusion, but (sensibly!) took it as a premise. 129 Nor could she have treated the long history of trademark law as evidence of the original meaning of free speech, 130 or as self-justification, 131 for reasons she herself cited against Justice Thomas. She could cite precedent that exonerated trademark law from any general free speech deficiency, but the Court that set that precedent could not rely on original meaning or close analogical reasoning. 132 That Court relied instead on a freer balance of the benefits of trademark rules against the values ​​of free speech. 133 Who could blame it?

In fact, reliance on general principles is supported by original meaning. According to Professor Jud Campbell, the rights to religion, guns, and free speech were originally understood as broad natural rights that could nonetheless be regulated to achieve sufficiently large public benefits.134 So while they underpinned some particular rules, their full scope could not be specified in advance except in very general terms, leading to a balancing of interests over time.135 This means that these rights did not have particular “original contours”136 for us to discover.137 The contours were not simply blurred by vague terms (such as “guns”) that required judgment calls in extreme cases.138 “The contours were simply not set out, not in terms that one could read without weighing.”139

Judge Barrett made a related point about the Second Amendment: that it extends not just to “the catalog of arms that existed in the eighteenth century, but rather to all arms that meet the ‘general definition’ of ‘bearable arms.’” 140 As she noted, such flexibility about the right’s coverage required flexibility about its boundaries. 141 Perhaps similar intuitions drove her preference in Vidal for using “generally applicable” standards142 rather than “looking for historical predecessors.” 143 The inevitability of applying flexible principles would also explain why the proposal put forward above—achieving judicial restraint through Thayerian deference without balancing—is not available here. 144 Balancing cannot be avoided by identifying the core of a right and upholding all regulations that fall outside it if there is no fixed core to identify without balancing.

If so, Judge Barrett’s position on traditionalism is correct to a point, but it does not go far enough: yes, post-ratification history is not apt for developing open-ended rights like free speech, but neither are the low-level principles Judge Barrett draws from “original contours” history and precedent. Broader principles may be inevitable.

3. Unrestricted popular sovereignty. Though less restrictive, Judge Barrett’s proposal is quite respectful of popular sovereignty. At first glance, the opposite seems true. Recall that she opposed reducing the authority of future legislatures by treating the ordinary legislation of a single generation as higher law.146 Isn’t she turning such a restriction into something even less democratic: the elaboration of principles by a few judges?147

Indeed, her approach to free speech seems close to that of originalism’s rivals. Professor Ronald Dworkin argued that the free speech clause embodies a general principle that judges cannot avoid moral-political reasoning in applying.148 And Professor David Strauss argues for common law constitutionalism, whose driving force is not original meaning but judge-made precedents substantially shaped by normative principles.149 Originalist scholars such as Professor Michael McConnell criticize Dworkin’s “moral philosophical” approach,150 and originalist jurists such as Justice Scalia denounced the “common law” model for “interpreting a democratically adopted text.”151 However, Justice Barrett would craft free speech rights using common law-style value-laden principles.152

I, too, would read Justice Barrett’s assertion of inevitability as a response to this objection. If the people enshrined rights using “broadly worded texts,” and it is “inevitable” that judges applying them “will articulate principles to resolve individual cases,”153 then their agency is after all attributable to the people. The people effectively delegated this work to the judges. That this interpretation might be less restrictive for the judges may not worry Judge Barrett, whose defense of originalism is formalistic, not instrumental.154 It is the standard the people enacted, restrictive or not, that she sees as authoritative.

Of course, that assumes that these rights were originally understood to be enforceable primarily by judges, as Campbell believes they were not.155 The balance needed to implement them rested primarily with legislators.156 But here Judge Barrett can claim stare decisis. The case law overwhelmingly favors judges applying these rights.157 She might argue that one departure from the original law as to who enforces a right cannot justify a second departure with respect to what the right protects.158 Thus, if the original substance of the law required the application of general principles, judges should now use principles.

To be sure, in fashioning principles, courts might look for guidance in post-ratification history, as well as anything else. Judge Barrett herself would use history as a “persuasive data point.”159 In Vidal, she cited the history of trademark law—which had not been used for censorship—to justify setting a low standard of scrutiny.160 But her analysis of rights would not begin and end with post-ratification history,161 as Justice Thomas did in Vidal. 162

Thus, Judge Barrett’s restriction at the level of theory—not making late history decisive in the absence of an originalist logic—produces less restriction in practice: quicker jumps to tests designed to

Conclusion: Originalism’s Evolutions

Originalist judges are grappling with the limits of original sources and the need to supplement them with something: judicially developed traditions or principles. That need has emerged as real but moderate when it comes to disputes over the separation of powers164 and acute in cases dealing with open liberties like free speech165 or the right to bear arms.166 A final question is whether the emergence of these nontextual criteria on an originalist Court should surprise or shock. It should not.

The trends described here are predictable developments in the continuing elaboration of originalism under pressure. Originalists first urged an appeal to the Founders’ intent.167 When this faced theoretical challenges, they defended the original public meaning as more definite and democratically legitimate.168 Now that originalism has become a governing philosophy, it is developing under the practical pressures of implementation on a supreme court. Originalist judges see cases in which its natural resources are being exhausted. Not only are broad rights and vague texts more likely to propel cases before a Court that resolves circuit splits,169 now that the Court identifies itself as originalist,170 it is more likely to receive cases that are close to originalist. If professors George Priest and Benjamin Klein are right in predicting “a ‘trend toward 50 percent plaintiffs’ wins’ among litigated cases,”171 an originalist Court may see more cases where originalism is inconclusive (another irony). This is not to say that original meaning does not work on the Court.172 The Court may even be promoting originalism with cases that never reach it because their originalist resolution would be predictable and expected. The value of a method is not exhausted by its imprint on the U.S. Reports. But the reach of nontextual criteria is not a surprise.

Nor is it a betrayal of originalism, at least as the theory has developed under decades of intellectual pressure. Modern academic originalism is not just a theory of adjudication (much less of Supreme Court adjudication), not just a means of tying the hands of judges, but a theory of the content of our higher law.173 The law created by the adoption of a text depends on the interpretive conventions of the day.174 Thus, among scholars, originalism has accommodated itself to nontextual criteria175—constitutional “backdrops,”176 general law,177 customary rules of interpretation,178 “constitutional construction”179—that both traditionalism and judicially developed doctrines may reflect (sometimes clumsy) efforts to capture.180

Perhaps the practical pressures of governance are causing “chamber” originalism to converge in the direction taken by the academic variety. Originalism so developed may prove less simple, less peremptory, less useful in polemic against rivals than Justice Bork’s, but no less principled for that.