Document Type

Article

Publication Date

2026

Keywords

originalism, text history and tradition, traditionalism, factfinding, constitutional doctrine

Abstract

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. Most fundamentally: How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them?

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Library of Congress Subject Headings

Constitutional law, Court decisions and opinions, Judicial review

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