Remarks delivered March 19, 2026
Thank you, John, for that introduction, and heartfelt thanks to you and the Meese Institute for inviting me. It’s an enormous honor to give this lecture. For one thing, as someone deeply influenced by the conservative legal movement’s ideas, I owe a great debt to the lecture’s namesake, Attorney General Meese, whose effectiveness in advancing originalism is peerless. For another thing, the past lecturers have been very distinguished. And finally, so are the guests. I was nervous about whether you all would think this event had been worth your time until I learned that it would be held at a fine steakhouse. I have tried to make the food for thought half as good.
My topic is the future of originalism, and my question is simple: Will originalism over the next 20 years become the victim of its successes over the last 40? That’s a matter of prediction. And as Yogi Berra said, “it’s tough to make predictions, especially about the future.” I don’t pretend to know how originalism will fare. But I’ll offer my sense of what the answers might turn on and rule out some possibilities. Of course, to consider the movement’s future trajectory at all, we need to plot its past. So, I’ll begin there—with originalism’s rise and recent triumphs. Then I’ll identify the challenges created by those triumphs. I’ll make a few predictions about what will not save originalism from the present challenges. And I’ll end with five possible futures. Overall, I will suggest, originalism faces threats to its political viability, and they are serious. But it may persist—after many changes and refinements—if it finds thinkers and actors capable of carrying on, in the face of new challenges, what pioneers like Attorney General Meese began.
- Successes
As this crowd needs no reminding, originalism attempts to root constitutional decision-making in the understanding of the Constitution’s text at ratification. Its champions would say the method has been with us since the Founding and that it only required a name after the Warren and Burger Courts had strayed so far from it that we needed to name it in order to restore it. That effort began with the work of scholars like Raoul Berger and scholar-judges like Robert Bork and Antonin Scalia, and it was given political reality by officials like Attorney General Meese.
And as the quality of your steak tonight confirms, the movement has done quite well for itself. It has succeeded as an intellectual project and as a politico-legal movement. Start with the academic side. Forty-six years ago, the word “originalism” did not exist. Forty years ago, when I was born, only a few scholars would have embraced the theory, and it was viewed with scorn by every other scholar and by the few judges who had heard of it. Today, originalism as an intellectual project is flourishing. It boasts defenders at the nation’s top-ranked institutions, like Yale, Harvard, Stanford, Chicago, Columbia, UVA, Georgetown, Northwestern, Notre Dame, Minnesota, and so on. It is powered by centers at schools like the University of San Diego and Catholic University and others I’ve mentioned. It’s sustained by dedicated law journals; by an annual scholarly workshop; by fellowships for students and aspiring scholars; by summer seminars for students and judges; and by clerkship academies like this one. Academic originalism is in full flower.
So is chambers originalism. The method is well-represented at every level of the federal judiciary and even on some state courts. I’m sure most of the nearly 600 federal judges appointed by Republicans since President George W. Bush would identify as originalist. A majority of the Supreme Court does so. And the Court has delivered victories that many originalist leaders have long sought. The Court has abandoned the Lemon test, by which the Burger Court had given the Establishment Clause vague and overbroad contours. The Court has overruled Bakke, which had blessed race-conscious affirmative action policies under the Equal Protection Clause. It has seriously injured and may soon finish off Humphrey’s Executor, which authorized the creation of executive agencies enjoying some insulation from the President. And in what my friend and past Meese Lecturer Joel Alicea calls the most important case since Brown v. Board of Education, the Court overruled Roe v. Wade, returning the question of abortion policy to lawmakers.
2. Challenges
These developments create momentum, but also challenges. They create challenges not for originalism as a theory—not for its intellectual defense—but for its practical viability. And that matters because originalism isn’t simply a theory. It’s not like Platonism about mathematics, which is the theory that numbers and sets have objective existence as abstract, mind-independent objects. If you don’t get what I just said, that’s okay, most people don’t, indeed I don’t. And that’s sort of the point. Knowing about Platonic number theory has value in itself. But no one bothers to promote understanding of it by funding steakhouse lectures, because it isn’t meant to affect the real world.
Originalism, by contrast, is not just there for contemplation. At least as a theory of adjudication, which is my focus tonight, it’s meant to shape the world in high-stakes ways. And for that, it isn’t enough that the theory be defended in journals and lecture halls. Originalism has to be taken up—by judges, by the politicians who pick them, and by the voters who pick them. So originalism—in this practical dimension—depends on politics. That contrast with Platonism is no embarrassment to originalism, or to Platonism. It doesn’t mean that Platonic number theory is lame, or that originalism is just a cloak for politics. As to originalists, in terms of sincerity and purity of motives, I assume they are no worse or better than non-originalists. And I’ve certainly known originalists who were driven more by the theory than by policy, or who liked most of the method’s outcomes but stuck to it even when it cut against their politics. My point is just that at the systemic level, unless originalism appeals to groups with political influence, it will lose political support. And in a system where the politicians pick the judges, less political support means less impact on judging. Again, it’s to that political viability of originalism that several recent developments pose a challenge.
First, political support for originalism might wane precisely because originalists have been so effective at maiming or lancing their white whales—Lemon, Bakke, Humphrey’s Executor, Roe. The fewer common foes left, the less urgency originalists will feel to spend capital sustaining real-world support for the method. And the idea that maintaining an originalist Court will at least prevent the emergence of new bad precedents might be too abstract to motivate as well.
Of course, this problem could be overcome if originalism’s influence on the Court consistently yielded other results that were broadly appealing and obviously traceable to the method. But that brings me to a second challenge. The rise of an originalist Court majority brings all the difficulties typical of any move from loyal opposition to governing party. It’s easier for originalism—or any philosophy—to be in dissent. For one thing, governing parties get the blame for everything people don’t like. And for another, those in charge are confronted with questions their philosophy might have no answers for. As a dissenter, you pick your battles. You can speak just where your philosophy has something clear and compelling to say. So, it’s no surprise that the most memorable originalist opinions have been dissents—Scalia in Morrison on independent counsels; in Lambs Chapel on Lemon; in Casey on Roe. A governing philosophy, by contrast, has to find something to say on every issue that gets to the Court. And sometimes it will come up short because no theory—at least no determinate theory—will always have clear answers.
Indeed, the fact that the Court is majority-originalist might make it likelier than ever to get cases on which originalism is inconclusive. Of course, it’s always true that an apex Court that selects for issues that split the lower courts would get hard cases. But the more originalist the Court, the likelier it is to get cases that are hard for originalists. That’s because the cases where the originalist outcome would be obvious might seem not worth the expense for the side that expects to lose. There’s an analogy here to the so-called Priest-Klein hypothesis, which predicts “a ‘tendency toward 50 percent plaintiff victories’ among litigated cases,’” on the ground that litigation in more lopsided cases will not seem worthwhile for one of the parties.[1]
This doesn’t mean original meaning does no work at the Court. Recently, for example, in a case about the CFPB’s funding structure, seven Justices thought the original meaning of the Appropriations Clause was decisive. The Court could even advance originalism by cases that never reach it because their originalist resolution would be predictable. A method’s value is not exhausted by its footprint in the U.S. Reports. But the point for our purposes is that at the Court, originalism might get fewer chances to speak with the confidence with which it once boomed from dissent. And that matters politically. The less originalism has to say about litigated cases, the less motivated people will be to make sure originalist judges are there to say it.
Yet another challenge to originalism’s practical viability also results from its coming to dominate the Court. Originalism is committed to distinguishing the posited law from politics. And for good reason. While some legal questions are entwined with political ones, the overlap is far from total—and in our system, judges should defer to the political choices of lawmakers rather than do policy afresh. But that’s easier to say when you’re in the minority, and the Court’s majority is generating political outcomes you hate, as the Warren and Burger Courts did from conservatives’ perspective. With the power of a fifth vote on the Court (or a majority on a circuit court) comes the temptation to use it—not to find the law by your theory’s lights, but to bend the legal sources toward outcomes you like politically. And so, I’m told, conservative law students—who are coming up in the shadow (or in the light?!) of courts full of Republican appointees—tend to have less interest in formalist approaches to judging. Again, that doesn’t mean old-school originalists have been pretending all along. Many oppose using originalism’s newfound voting power to advance their policy goals, even morally pressing goals. The great Ed Whelan, who is here tonight, is a stalwart prolifer who opposes attempts to judicially compel protection of the unborn, based on his reading of the Equal Protection Clause. My point is just that originalism’s salience for conservatives who are not yet convinced will be weaker now that conservatives have power.
Of course, politically desirable outcomes are not the only things that appeal to law students or politicians or voters. People also care about the distinction between law and politics itself. In our system, that distinction isn’t some bloodless theorem of legal philosophy. It reflects the potent ideal of popular sovereignty—the view that it’s for the people and their representatives to make policy choices, not unelected judges. But here again originalism’s success may undermine it.
For while it might have been easy for the public to accept in the abstract that sticking to the Founders is doing law, and going by modern values is doing politics, the question is no longer abstract. Term after term, the public is seeing the concrete results of having an originalist-identified Court. And for the public, the temptation will be to assume that those results reflect only politics. For what strikes the public when the outcomes are concrete is not the legal niceties of the Court’s analysis. Most Americans don’t read majority opinions. They don’t see which passage of Blackstone or the Federalist Papers or which entry in Black’s Law Dictionary the Court invoked. And they never will. The public just sees that abortion won or lost, that affirmative action won or lost. And it knows most of the Court was picked by Republicans. So the public is liable to infer—with the help of a press encouraging this—that the Justices acted on their political views after all.
Of course, the public’s impressions could be different if the Court consistently ruled against the conservative-coded outcome, or if the politics of outcomes seemed random, but that isn’t likely for an originalist Court—even if it never cheats. For while our rival constitutional methods and political ideologies are distinct, they are correlated—and in ways that should embarrass no one. Originalism—which tries to root doctrine in certain choices of the past—will often overlap with political conservatism, which after all seeks to conserve. The link is at least as tight on the other “side”: living constitutionalism, which seeks greater alignment with present needs and values, will overlap with progressivism, which seeks much the same.
Of course, there isn’t perfect overlap between either legal method and the correlated political ideology. We have progressive originalists and conservative non-originalists. Criminal defendants fared well with Justice Scalia though his politics favored law and order, because he thought originalism favored criminal defendants. The Court appointed by the prolife party, and which gave us Dobbs, also recently gave those seeking restrictions on abortion drugs a 9-0 defeat on Article III grounds. Still, the public’s overall impression will inevitably be that what the originalists do, when they take over, is politics, not law, after all. And so the one politically appealing general promise made by originalism will be undermined by the sheer fact of our having an originalist Court. It will be undermined by one of originalism’s triumphs. Again, not because the Justices are being pervasively dishonest, or because originalist thinkers had been, but because the public won’t distinguish legal from political grounds for decision, and the two will correlate.
Finally, these challenges created by originalism’s success in the real world—especially the fading of its contrasts with other methods and of its promise to constrain—could only be reinforced by its evolution in the world of ideas. Academics originalism’s instructions to judges have become more muffled, and for academics, the judicial-constraint rationale is on its last legs.
Early originalists thought courts should resolve constitutional cases by appeal to the Founders’ intent. But over time, under the pressure of scholarly critiques, most originalists went from caring about the Framers’ intent to caring about the text’s original meaning. They also distinguished original meaning from expected applications. The question wasn’t what James Madison thought a text would require but what the norm it communicates in fact requires. And these changes led originalists like Professor Steve Smith, and critics like Professor Tom Colby, to argue that the theory had lost its distinctness. They thought the so-called New Originalism, far from tying judges’ hands as promised, could justify whatever reasoning and outcomes the non-originalist heart desired. Any meaningful difference between originalism and its rivals had collapsed. After all, the original meaning of many texts—like “due process” or “the freedom of speech”—seems broad, open-ended, and arguably value-laden.[2]
Contemporary originalist scholars have responses, of course. Many draw a contrast between interpretation—identifying the meaning of the words—and construction, or the use of doctrines or other devices to get from vague meaning to concrete outcomes. Some argue that in the “construction zone,” we should have recourse to the text’s original function, or original methods of interpretation, including default rules for dealing with gaps. Others invoke the original law, as lawfully changed—some function of the text, interpretive conventions, common or general law or other unwritten background principles incorporated or presupposed by the text, and later changes that are ratified by the rules of legal change (rules that might themselves be unwritten). In short, academic originalists have answers about how to handle open texture in the Constitution.
But this is its own problem. Academic originalists have all too many answers, thanks to another success I mentioned earlier—an increase of originalist scholars. From that growth have stemmed widely ramifying theories about how to specify originalism beyond or besides a commitment to original meaning. It’s too early to tell how much those theories, mostly skeletal at this stage, will converge when filled in. But I doubt they will bring the degree of constraint sought by early figures like Judge Bork. I doubt the unwritten background principles or interpretive conventions or customs that are meant to take over when text is vague will greatly constrain judges.
Indeed, initial work suggests the opposite. Originalist Professor Sai Prakash has argued in recent pieces that “spirit” (intent, purpose, and function) and the “inconvenience doctrine” (an instruction to avoid bad consequences) played crucial roles in interpretation for the Founders. He thinks the Founders allowed moral, policy, or functionalist considerations to guide the choice among candidates for original meaning—and even sometimes to trump the most natural reading of the text. Other originalists, like Professor Kurt Lash, have suggested that original methods of interpretation were too conflicted to deliver any clear guidance when the text was open-ended.
The Court itself has taken yet another approach to dealing with limits in original meaning. It has turned to “history and tradition.” That phrase refers to longstanding or widespread practices of political actors like Congresses, Presidents, state lawmakers and executives. For example, the Court has said that Congress can’t compel commerce under the Commerce Clause partly because it traditionally hasn’t. Or that the President has special authority when it comes to recognizing foreign powers partly because Presidents have long acted as if they do. Or that the states may pass a certain gun law because they long have. Or that they can’t because they haven’t. But reliance on historical practice will not constrain much. For in most cases, the practices cited don’t reflect attempts to make or clarify constitutional law explicitly. They’re ordinary regulations—a speech restriction, a gun law. The Court just assumes their authors had a constitutional principle in mind that explained why the regulations they were adopting were constitutional—an unspoken principle that we can discern by triangulating from those ordinary laws. Said otherwise, political practices don’t wear their constitutional reasoning on their sleeves, as judicial precedents do—or state the constitutional law directly, as the canonical text itself does. As a result, synthesizing such practices and teasing out of them a principle to guide new cases will often require normative reasoning far more than the search for a precedent’s holding or text’s ordinary meaning.
So, while it is again too early to say for sure, I suspect we will see at best no change, and most likely a decline, in originalist theorists’ and courts’ ability to find general constraints on judicial discretion. I think originalism does still differ from other methods, but the contrasts are harder to state in terms that are both general and informative. And that makes them harder to sell to the public. The remaining contrasts tend to fall into two categories that won’t excite a crowd. First, originalism still gives different answers to questions about this or that specific issue. For example, the original meaning of the Recess Appointments Clause probably rules out some of the recess appointments upheld in Noel Canning. But such contrasts on specific issues are narrow and contingent on close historical arguments. Second, there are some across-the-board differences—like how intensely originalists search for evidence of original meaning before calling it a draw and moving on to other criteria—and these are consequential, but they’re vague matters of degree. So they, too, can’t be captured in snappy formulas, or political slogans.
Again, these difficulties don’t prove originalism unsound. Even if modern originalism proved less simple, less peremptory, less useful in polemic against rivals than Judge Bork’s, it wouldn’t for all that be less principled. It could be at once true and complicated. The problem is about the political viability of an originalism that is hard to distinguish from its rivals. Religions that merge with the ambient culture soon see empty pews. And schools of thought do the same. Above all, there is a selling point that I think originalism will never get back. It’s lost the ability to reject, up front and wholesale, a certain style of reasoning, which Justice Scalia sold originalism exclusively as a way of avoiding. I mean common law reasoning—which he deemed antidemocratic when applied by unelected judges to a legal text. For something like common law reasoning—with its heavier reliance on normative judgments—is needed for applying many of the non-textual criteria that originalists have variously turned to when faced with vague text: constitutional “backdrops,” general law, customary norms of interpretation, history and tradition.
As a result, in fact, most academic originalists now reject constraint as a rationale for the method. So does Justice Scalia’s successor as the Court’s originalist scholar-jurist, his own former clerk, Justice Barrett. On this matter, too—on the method’s justifications—originalists have now splintered, with different figures appealing to the judicial oath, or to the natural moral law, or to the abstract nature of law for their normative hook. Compared to the old promise of tying judges’ hands, these justifications are a harder sell for Senators, Presidents, and voters.
What all these challenges show is that originalism’s astonishing rise as an academic and political movement in tandem, depended on a rare and perhaps fragile combination of factors. There was great overlap between theoretical justifications and political motivations: both were about tying judges’ hands. So the theory gave sincere intellectual cover to the politics, and the politics gave muscle to the theory. The method’s abstract general promise (to keep judges doing law, not politics) got a boost from what were perceived to be its more concrete implications (to overrule Roe and Bakke and the like). And the method was in exile—giving it the frisson of an insurgency in law schools, and shielding it from the blame and complications that beset any governing party. None of that is true now.
3. Possible Futures
So, what does the future hold? I don’t think originalism will get back its stark contrasts and bold promises by suddenly finding new determinacy in the text’s original meaning. There are too many provisions that were not meant to do work through the everyday meaning of the words. Think again of phrases like “due process of law,” “the freedom of speech,” or “the executive power.” Everyone agrees these phrases point you to something off the page—preexisting norms, constituted partly but perhaps not entirely by historical practices; practices that judges will have greater discretion in reading than they would in reading a detailed statute. Not only do many cases turn on spare texts like those; in many cases, even originalists rule on “structural” grounds or precedents that have no text on point at all. Take the recent presidential immunity decision. For all these reasons, a renewed push to just stick to the words on the page will not bring the determinacy and rhetorical power that originalists once sought. So, what will become of the method in practice?
I don’t know. I do theory. I can tell you that I think a certain type of originalism—called original-law originalism—is roughly right, and for roughly the natural-law reasons given by scholars like Kevin Walsh and my colleague Jeff Pojanowski.[3] As an academic, I’ll try to keep asking what’s true and articulating and refining my best efforts at an answer. As a citizen, I hope that variety (if indeed it’s sound) spreads and is sustained in the real world, because it’s good for true normative theories about governance to shape governance. But I’m not sure it will. Here are five possible outcomes.
First, at one end of the spectrum, originalism might vanish from public life. Maybe the label goes, or maybe it sticks but becomes synonymous with political conservatism—not just for critics, but for adherents and the public, too. Originalism as an apolitical approach would be gone from public life. It might survive in the academy for a time, but as something inert—different in style and content and glamorous past, but no different in present impact, from Platonic number theory. And so, eventually, the funding for centers, fellowships, and steak dinners would dry up.
A second possibility, at one step remove from the first, is that originalism comes to live a durable double life—meaning one thing in the academy, and something else altogether in the arena. Of course, there have always been differences between academic and chambers originalism, given the different aims and resources of scholarship and judging. But the gap might grow. The same label might come to denote political conservatism, in courts; and something more complicated and less politically salient, in law school offices. The two could remain linked for mutual advantage—the more purely political thing getting intellectual cover from the academic, and the academic getting resources from its apparent (but merely apparent) tie to the political.
A third possibility is that originalism gives way to an idea it was once allied with—a norm of judicial restraint, or what’s often called Thayerian deference. Thayer was a constitutional theorist who said judges should effectively under-enforce constitutional limits on political actors. They should invalidate a political action only when its unconstitutionality is beyond reasonable doubt. Early originalists sounded Thayerian. But over time, most came to think this was a mistake. The goal should not be under- (or over-) enforcement of the original meaning but enforcement, whether that meant upholding or invalidating a political action. If this more assertive approach faces the challenges I’ve canvassed, judicial restraint might have the mirror-image advantages. It’s simple enough to be chanted. Its tie to popular sovereignty is palpable to the public. And so we might imagine the country entering a truce, with both sides underenforcing their vision of the Constitution to gain the other side’s restraint. But because no one likes “unilateral disarmament,” and only one side at a time can commit to this path, it may be unlikely.
A fourth possibility is that chambers originalism becomes more like academic originalism but survives as a political project anyway. As I’ve said, academic developments have made originalism less distinct from common law reasoning, but some differences remain, including differences of degree and style. Perhaps judging for legal conservatives will feature more normative reasoning than early originalists had hoped, but also more constraint than the living constitutionalism favored by progressives like Professor David Strauss. Maybe conservative common law’s normative leaps will be somewhat smaller, its presumption in favor of existing traditions and political choices more pronounced. Maybe these differences would be recognizable enough to the public, or half the public, to seem worth spending capital to preserve. In that case, the decades-long rhetorical reign of the simpler and bolder originalism of a Bork or Scalia would have made a difference, but not the one they intended, and not one easily captured in a slogan. It would have tamed judges’ instincts and temperaments. That’s not nothing. If what emerges is, more specifically, what I’ve called original-law originalism, then I think this outcome is great. I just wonder if the political conditions will exist to support it in the courts and the public square.
A fifth and final possibility is that originalism is reborn—or rather goes through a kind of adolescence: a major and publicly visible change that preserves its identity and builds its (political) muscle. Originalism’s core commitment is that the law made by the text’s adoption is supreme, and changes to it must be sanctioned by recognized rules of change. No officially unauthorized changes to keep up with the times. And I noted that while its lodestar has been original meaning, it’s now clear that meaning isn’t all that’s needed, or all that’s available. Interpretive conventions matter, too. I’ve also said that research into Founding-era conventions is at an early stage and that I doubt it will restore early originalism’s starkness and political power. But maybe I’m wrong. Maybe it will emerge that under the original conventions for interpreting the text, certain moves were in, and others were decidedly out; that the differences can be captured in terms the public can digest; that those differences promise results not yet realized that real people care about; or that the differences matter to the public in a way that transcends particular outcomes, as the promise of finding, not making law did; and that the method would be distinguishable from policy reasoning even for a public that never reads majority opinions.
Any of the good outcomes would take discipline to develop and sustain. In his book After Virtue, Alasdair MacIntyre closed his study of upheavals in our moral culture with words of uncertainty laced with hope. Alluding to the religious founder whose monks are credited with preserving Western civilization through its dark ages, MacIntyre wrote that “we are waiting for another—doubtless very different—St. Benedict.”[4] Well, with lower stakes (and at some risk of melodrama), we might say that legal conservatives, facing changes wrought by their own success, are waiting for another—doubtless very different—Judge Bork (and Attorney General Meese). Thank you.
Sherif Girgis is a professor of Law at the University of Notre Dame Law School. He was selected as the 2026 Edwin Meese III Originalism Lecturer.
[1] See Yoon-Ho Alex Lee & Daniel Klerman, The Priest-Klein Hypotheses: Proofs and Generality, 48 Int’l Rev. L. & Econ. 59, 59 (2016) (quoting George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud., 1, 20 (1984)). Portions of this paragraph and the ones just before and after it, as well as a few lines in the next section, are drawn from Sherif Girgis, Originalism’s Age of Ironies, 138 Harv. L. Rev. F. 1 (2024).
[2] This paragraph and portions of a few other paragraphs in this section are drawn from Sherif Girgis, Dunwody Distinguished Lecture in law: Originalism’s Difference?, 77 Fla. L. Rev. 1945 (2025).
[3] See Jeffrey A. Pojanowski & Kevin Walsh, Enduring Originalism, 105 Geo. L.J. 97 (2016).
[4] Alasdair MacIntyre, After Virtue: A Study in Moral Theory 263 (1984).