Review: "How Originalism Killed the Constitution"

 Marcus Alden Meredith
October 25, 2025

“How Originalism Killed the Constitution”

A review of an article from The Atlantic, Oct. 2025

I have stayed away from reviewing other writer’s works, but in the current times I find that there’s a lot of good writing on timely subjects and that they need to be highlighted and brought into the greater discussions in our society of today. So, I made the decision to start with Jill Lepore’s article from the October 2025 issue of The Atlantic titled “How Originalism Killed the Constitution.” Ms. Lepore’s CV at the end of the article states that she is the David Woods Kemper’41 Professor of American History at Harvard University as well as a professor of law at Harvard Law School and a staff writer for The New Yorker. The CV also states that her article in The Atlantic was based at least in part on her book We the People: A History of the U.S. Constitution. It is a major article spanning some 15 pages of The Atlantic but I will do my best for give the major points important in her writing of the article but with the recommendation that you read it. This last part is a must! 

The article is replete with the history of a movement in jurisprudence that really began to take off in the late 1970’s and early 1980’ - Originalism. She does an in depth look at this movement which basically states that one should not interpret The Constitution but look for the original intent and purpose that the Founding Fathers would have stated was the meaning of the sections of The Constitution as they would have seen them at the time. This Constitutional outlook found it’s greatest advocates in the persons of Robert Bork and Antonine Scalia… yup, that Bork and that Scalia. Scalia was fond of saying that The Constitution is not a living document, he’d say “It’s dead. Dead, dead, dead!” This P.O.V. on The Constitution was formulated in the halls of the Yale Law School by Bork, and it’s interesting to note that later in the article it’s also the Yale Law School which gives us the concomitant and supporting organization that so vociferously advocated for this outlook and interpretation: The Federalist Society. 

The article is structured so that the history of how this new school of Constitutional interpretation comes about is the first third, almost half, of the article. It does a great deal to lead the reader to understand the slow, inexorable climb of these originalism through successive Republican administrations, the combining of anti-abortion forces with Federalist help to place Conservative-Originalist jurists on the bench, and the eventual addition of 2nd Amendment forces like the NRA to the eventual goal of reversing the rulings of Roe v. Wade all the while gathering more support from far-right evangelical forces. The reasons become abundantly clear that this was the game plan of the forces because the response to any amending of The Constitution was stalemate and stagnation. She notes that there has been no meaningful amending of The Constitution since 1975 and that what was once a document that was being revised to be mor fitting with the times was more and more being seen as semi-holy text that should not be touched. 

Ms. Lepore does a great job of telling use the story of the forces fighting for control of the Judiciary through the successive administrations, the gains, the loses on both sides of the arguments but the utter lithification of the process of amendment and how that restraint and fighting has virtually paralyzed our ability to keep The Constitution growing as was intended by the Founding Fathers. She also does great job of telling the historical story of how the amendment process has gone through a series of fitful surges of amendments throughout the history of the Republic. Right after the ratification of The Constitution we get the first 10 amendment (The Bill of Rights), then a pause until after the Civil War, another pause then periods of reflection and amending after WWI and WWII. She then talks at length about the machinations that went first in the Regan administration followed by the two Bush administrations, culminating in the justices put on the Supreme Court by Trump. But in all the history and the behind the scenes politicking the constant presence is that of Scalia. It seems to be almost undeniable that if it were not for him (but also Robert Bork) the situation we see ourselves in would not be what it is. 

Another impression I get from the article is that much of this has been a slow, steady, calculated burn that began as the ‘counter reformation’ of the Conservative movement against the progress that had occurred in the 1960’s and 1970’s where Civil Rights was concerned. In a very substantial way, the forces responsible for our increase in Civil Rights and the Democratic party and the forces of democracy in general just dropped the ball. All too often the victories in Civil Rights for minorities and women have been seen as a zero-sum game that working class people and men in particular have been losing. Here in lies the focal point that the Far Right, Conservative, Fascist, Christian Nationalists have latched on to to make their points seem more “main stream” and palatable to the great mass of people in the body politic. Ms. Lepore makes it a point to state that, “Scalia brought Originalism to the Supreme Court, tapping The Constitution in a wildly distorted account of the American past.”

The last few paragraphs of the article are most chilling. In them, Ms. Lepore states, “In an exceptionally candid interview near the end of his life, he speculated that me might be despised for his legacy, adding, ‘And I don’t care.’” The then goes on to quote how Scalia played Macbeth onstage when younger and quote from The Scottish Play:

Life’s but a walking shadow, a poor player

    That struts and frets his hour upon the stage

And then is heard no more.

and then she ends the article with the line: “The Constitution limps along, a walking shadow.”

This article I see as one of the seminal journalistic efforts that all Americans should read for a better understanding of the times we find ourselves in. It is detailed, quickly explanatory yet dense in it’s pointing to the main players, and it gives us a much better picture of the responsible parties and forces that need to be confronted for The Republic to survive. Read it… now.