Illustrations by Tyler Comrie; typography by Sean & Eve, There Is Studio

A bushy-browed, pipe-smoking, piano-playing Antonin Scalia—Nino—the scourge of the left, knew how to work a crowd. He loved opera; he loved theater; he loved show tunes. In high school, he played the lead role in Macbeth: “I have no spur to prick the sides of my intent, but only vaulting ambition.” As clever as he was combative, Scalia, short and stocky, was known, too, for his slightly terrifying energy and for his eviscerating sense of humor. He fished and hunted: turkeys and ducks, deer and boar, alligators. He loved nothing better than a dictionary. He argued to win. He was one of the Supreme Court’s sharpest writers and among its severest critics. “It’s hard to get it right,” he’d tell his clerks, sending back their drafts; they had that engraved on a plaque. Few justices have done more to transform American jurisprudence, not only from the bench but also from the seminar table, the lecture hall, and the eerie velveteen intimacy of the television stage. He gave one speech so often that he kept its outline, scribbled on a scrap of paper, tucked in his suit pocket. The Constitution is not a living document, he’d say. “It’s dead. Dead, dead, dead!”

Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it. “The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” This is not true. One of the Constitution’s founding purposes was to prevent change. But another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection—the only way to change the fundamentals of government without recourse to rebellion. Amendment is so essential to the American constitutional tradition—so methodical and so entirely a conception of endurance through adaptation—that it can best be described as a philosophy. It is, at this point, a philosophy all but forgotten.

The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.

This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.

The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced. One delegate to a 19th-century constitutional convention in Missouri suggested that a state constitution ought to be rewritten every 14 years on the theory that every seven years, “every bone, muscle, tissue, fibre and nerve matter”—every cell in the human body—is replaced, and surely, in twice that time, every constitution ought to be amended too.

Since 1776, the states have held some 250 constitutional conventions and adopted 144 constitutions, or about three per state. Every state constitution currently in place has an amendment provision. For most of American history, the states have been exceptionally busy holding constitutional conventions, but as with amending the U.S. Constitution, the practice has stagnated. (No state has held a full-dress convention since Rhode Island did in 1986.) Nevertheless, the practice of amendment by popular vote thrives in the states, where constitutional revision is exponentially easier to achieve. Since 1789, some 7,000 amendments formally proposed in the states have been ratified, more than two-thirds of those introduced.

Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.

Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court, and the civil-rights movement adopted a legal strategy that involved seeking constitutional change through the Court too. The Second World War did not awaken Article V, because mid-century liberals abandoned amendment in favor of the exercise of executive and judicial power. From 1961 to 1971, as the United States became engulfed in the Vietnam War, Americans ratified four amendments and seemed very likely to ratify two more. Those that succeeded included the Twenty-Fourth Amendment, which in 1964 abolished poll taxes (generally deployed to suppress the votes of the poor and especially of Black people), and the Twenty-Sixth Amendment (which in 1971 lowered the voting age to 18). Both relied on a broad liberal consensus. Other efforts, such as an amendment abolishing the Electoral College, which passed the House in 1969, failed in the Senate. The Equal Rights Amendment, prohibiting the denial or abridgment of rights on the basis of sex, was introduced in Congress in 1923 and sent to the states in 1972. It fell short of the 38 states needed for ratification before the deadlines set by Congress. Liberals soon stopped proposing amendments, and amendments proposed by conservatives—providing for school prayer, banning flag burning, defining marriage, protecting fetal life, and requiring a balanced budget—all failed, leading conservatives, like earlier liberals, to instead seek constitutional change through the federal judiciary. The amending stopped. The Twenty-Seventh Amendment, which concerns congressional salaries and was ratified in 1992, was one of the 12 amendments sent by Congress to the states in 1789, and then was more or less forgotten; it can hardly be said to have introduced a new idea into the Constitution. The giant has not awoken since, despite half-hearted attempts to rouse it, mainly in the form of presidential political theater. Ronald Reagan supported a balanced-budget amendment. Bill Clinton supported a victims’-rights amendment (granting rights to victims of crime, a law-and-order answer to the defendants’-rights movement of the 1960s), and George W. Bush called for a defense-of-marriage amendment (identifying marriage as between a man and a woman). Neither made any headway. Joe Biden, after stepping down from his reelection campaign in 2024, proposed a constitutional amendment to reverse the Supreme Court’s decision that year granting the president considerable immunity from criminal prosecution. The giant did not wake.

Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, approved none of them. In roughly that same stretch of time, state legislatures introduced almost 5,000 amendments and ratified nearly 4,000. Instead of arguing for amendments at the national level, legislators, lobbyists, and other advocates pursued different means of either securing or thwarting constitutional change: by influencing the nomination and confirmation of Supreme Court justices and by altering the method that those justices use to interpret the Constitution.

The Constitution has not been meaningfully amended since 1971, right when the political parties began to polarize. Polarization would ultimately make the double-supermajority requirements for amending the Constitution impossible to meet. Tellingly, 1971 marked another turning point in the history of American constitutionalism. That year, a method of constitutional interpretation that became known as originalism was put forward by a distinguished legal scholar, the Yale law professor Robert Bork. The word originalism didn’t enter the English language until 1980, and it had virtually no currency before 1987, when Reagan nominated Bork to a seat on the U.S. Supreme Court. The nomination was rejected. Bork maintained that the only way to read the Constitution is to determine the original intentions of its Framers and that every other method of interpretation amounts to amendment by the judiciary. Rather than Bork, it would be Scalia who brought originalism to the Court, trapping the Constitution in a wildly distorted account of the American past at a time when ordinary Americans found their ability to amend and repair a constitution to which they had supposedly given their consent entirely thwarted.

Antonin Scalia, like Felix Frankfurter, came to the Court after a career primarily as a law professor. He’d been a judge for only four years; most of his published writing consisted of law-review articles and speeches, not opinions from the bench. He grew up in Queens, an only child. His father was an Italian immigrant who’d become a professor of Romance languages; his mother, the daughter of Italian immigrants, taught elementary school. He inherited his first gun from his grandfather, who grew up hunting in Sicily and used to take Nino to Long Island to shoot rabbits. Scalia attended a Jesuit military school, where he was on the rifle team; he used to ride the subway from Queens to Manhattan carrying his .22 carbine target rifle. “When I was growing up in New York City, people were not afraid of people with firearms,” he’d say. He went to Georgetown University and then to Harvard Law School. He was a Goldwater conservative—a supporter of Senator Barry Goldwater of Arizona, the Republican presidential nominee, in 1964. He served in the Nixon and Ford administrations and taught law at the University of Virginia and the University of Chicago before Reagan appointed him to the D.C. Court of Appeals in 1982. Four years later, Reagan nominated him to the Supreme Court.

On the first day of Scalia’s confirmation hearings, in 1986, he was welcomed by the 83-year-old committee chair, Strom Thurmond, a one-man timeline of the political and constitutional history of the 20th century: a Democratic governor of South Carolina, the 1948 presidential candidate of the southern splinter Dixiecrat party, a drafter of the segregationist Southern Manifesto, and, in 1964, a backer of Goldwater. No one in the U.S. Senate had more fiercely fought for segregation and against civil rights.

“You have got a lot of children there,” the senator from South Carolina said affably. “I believe you have eight of them here?”

“All nine are here,” Scalia, 50, told Thurmond, beaming. “I think we have a full committee.”

Thurmond asked Scalia about the difference between serving on a circuit court and on the Supreme Court.

“There’s no one to correct your mistakes when you’re up there,” Scalia answered, “except the constitutional-amendment process.”

That process was by then no more than a chimera. The more difficult it became to amend the Constitution, the more politicized nominations to the Supreme Court became. Scalia’s confirmation, though, was a breeze, partly because liberals had decided to focus their efforts on questioning the elevation of William Rehnquist to the chief justiceship, following the resignation of Warren Burger, which is what had opened up a seat for Scalia. Also: Scalia was charming. And he’d been exceptionally well briefed. Aides had peppered him with questions in practice sessions and provided memos with titles such as “Likely Areas of Interest Arising Out of Your Writings,” warning him, among other things, about Roe v. Wade, the 1973 decision that had legalized abortion: “You have probably said a little more on this topic than you think.” (In 1978, Scalia had said that, in his view, the courts, in cases such as Roe, had “found rights where society never believed they existed.”) In a typed list in Scalia’s briefing packet titled “Talking Points,” the No. 1 topic was abortion. Scrawled below in black ink were two tips: “1. Professional, not adversarial” and “2. Don’t get sucked in.”

Thurmond, after a friendly chat with the nominee, yielded the floor to Senator Edward Kennedy of Massachusetts, who, without so much as a hello, jumped in:

Kennedy: Judge Scalia, if you are confirmed, do you expect to overrule the Roe v. Wade [decision]?

Scalia: Excuse me?

For a long time, the overruling of Roe had appeared most likely to come in the form of a constitutional amendment. Even before the Court issued its 1973 decision, the right-to-life movement had worked, unsuccessfully, to defeat abortion by amending the Constitution to guarantee a “right to life” beginning at conception. But by the time Kennedy confronted Scalia, right-to-lifers had decided there was one other way to overturn Roe. In 1980, the GOP had vowed in its party platform to appoint “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”

During the confirmation hearings for John Paul Stevens in 1975—the first justice named to the Court after Roe, and by a Republican president, replacing the most liberal justice, William O. Douglas—no one asked him even a single question about the abortion decision. That changed under Reagan, who, in his two terms in office, appointed more than 400 federal judges, amounting to half the federal judiciary. All were screened for their views on abortion. (Reagan’s influence on the judiciary has had a long afterlife: Supreme Court Justices John Roberts, Clarence Thomas, and Samuel Alito all worked in his administration.)

Screening judges in this way was, at the time, both novel and controversial. Members of Reagan’s Justice Department defended the practice by insisting that they were screening, instead, for originalism. As an assistant attorney general put it in a memo to the attorney general, “The idea of ‘original intent’ must not be marketed as simply another theory of jurisprudence; rather it is an essential part of the constitutional framework of checks and balances.” He emphasized that, “contrary to allegations, we are not choosing judges who will impose a ‘right-wing social agenda’ upon the Nation, but rather those who recognize that they, too, are bound by the Constitution.”

In 1981, Reagan nominated Bork to the D.C. Court of Appeals. “Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority,” Bork had written in a statement. To opponents of abortion, Sandra Day O’Connor’s Supreme Court hearings a few months later were far less reassuring. O’Connor, at 51, said she was personally opposed to abortion but then added, “I am not going to be pregnant anymore, so it is perhaps easy for me to speak.” This response alarmed pro-lifers and greatly contributed to the movement’s decision to abandon constitutional amendment in favor of influencing the judicial-nomination process. “The intensity of right-to-lifers on the issue of judicial power should not be underestimated,” a Reagan adviser had reported.

Republican strategists had been hoping to make the GOP the party of the pro-life movement as a way to expand its base, bringing in Catholics and white evangelicals. This realignment happened very slowly. Not until 1979 were Republican members of Congress more likely to vote against abortion than Democrats. That year, Jerry Falwell helped found the Moral Majority, and a new evangelical-Christian right joined the crusade against abortion. Only after Republicans in Congress began aligning with the pro-life movement did the rest of the party follow, but again, they did so gradually: Republicans were more pro-choice than Democrats until around 1990. And only during Reagan’s presidency did this effort begin to involve attacking the legitimacy of the Court’s decision in Roe.

Reagan’s alliance with the New Right proved crucial to his landslide reelection in 1984, after which he appointed Edwin Meese as his attorney general. Meese’s Justice Department would soon fill up with young lawyers who were members of a new organization known as the Federalist Society, formed by law students at Yale (studying with Professor Bork) and the University of Chicago (studying with Professor Scalia). Keen to avoid the word conservative, they chose instead to emphasize the original intent of the Framers, and, in naming the organization, they honored both the original Federalists and a Reagan doctrine known as New Federalism, which sought to transfer power from the federal government to the states. The first meeting of the Federalist Society, at Yale in April 1982, featured 20 invited scholars and jurists, including Bork and Scalia. Some Yale law students perceived the meeting to be hostile to both reproductive rights and civil rights. A poster objecting to the symposium warned New Federalism means Old Bigotry—Support Civil Rights. The legal scholar Mary Dudziak, then a second-year law student, was among those who picketed. She carried a handwritten sign with the feminist slogan If men could get pregnant, Abortion would be a sacrament.

Soon after Meese took office, in 1985, he announced that the official policy of the Reagan Justice Department would be to pursue a “jurisprudence of original intention” as the only legitimate and properly democratic method of constitutional interpretation. Meese hired some of the founders of the Federalist Society and trained them up as a “farm team” (as one Meese aide later put it). He aimed to sell originalism not only to the legal community but also to the public as a form of modest and humble deference to the wisdom of the Framers, in contrast to the unrestrained imperiousness, the judicial oligarchy, of the Supreme Court.

This strategy raised liberals’ hackles, and it raised historians’ hackles, too. Justice William Brennan, in a speech at Georgetown, called the doctrine of original intent “arrogance cloaked as humility” and speculated that proposals endorsing the idea “must inevitably come from persons who have no familiarity with the historical record.” Nothing in history is as clear as originalists pretended, and not even the most skilled historian—which justices were not—could reach such certain conclusions from such fragmented evidence. What really rankled was Meese’s claim that original intent was democratic, because it was quite clear that, having failed in their efforts to amend the Constitution, conservatives had changed course, instead using judicial selection to pursue objectives they could not achieve by democratic means. “The aim is now to accomplish in the courts what the Administration failed to persuade Congress to do—namely, adopt its positions on abortion, apportionment, affirmative action, school prayer and the like,” a political scientist wrote in the Los Angeles Times. Nor did Meese’s jurisprudence escape censure as realpolitik. “Mr. Meese’s version of original intent is a patent fraud on the public,” the historian Arthur M. Schlesinger Jr. argued in The Wall Street Journal. “The attorney general uses original intent not as a neutral principle at all but only as a means of getting certain results for the Reagan administration. He is shamelessly selective.” He was also undeniably effective.

Before Reagan moved into the White House, as the legal scholar Mary Ziegler has demonstrated, the pro-life movement had not been especially interested in originalism, on the theory that there is no “right to life” in the Constitution, at least not any more than there’s a “right to privacy,” the right cited by the Court in Roe. But after Reagan pledged to use opposition to Roe as a litmus test in appointing federal judges, litigation seemed a far better approach than amendment. In 1984, Americans United for Life held a conference under the rubric “Reversing Roe v. Wade Through the Courts.” Two years later, the National Abortion Rights Action League observed in a report on the Scalia and Rehnquist nominations that the pro-life movement, having failed to amend the Constitution, had turned to a legislation-and-litigation strategy.

In 1985, for its brief in Thornburgh v. American College of Obstetricians and Gynecologists—concerning a Pennsylvania law that placed restrictions on abortion—the Meese Justice Department directed the acting solicitor general, Charles Fried, to ask the Court to overturn Roe and to base the government’s argument on original intent; Fried obliged. (A young Samuel Alito, in the Office of Legal Counsel, who had stated his opposition to abortion in his application for the position, worked on the brief.) “There is no explicit textual warrant in the Constitution for a right to an abortion,” Fried’s brief read. The brief elicited considerable protest, including from five former solicitors general. Only narrowly did the Supreme Court decide against overturning Roe. On June 11, 1986, the Court issued its 5–4 decision in Thornburgh, declaring Pennsylvania’s law unconstitutional. Warren Burger, who had joined the majority in Roe, now dissented. Six days later, Burger announced that he was resigning to devote himself to the celebration of the Constitution’s 1987 bicentennial.

And so it came to pass that in August 1986, Antonin Scalia sat before the Senate Judiciary Committee and stumbled over Senator Kennedy’s question.

“Excuse me?”

Kennedy repeated: “Do you expect to overrule the Roe v. Wade Supreme Court decision?”

Scalia declined to answer.

Kennedy had been questioning Scalia while waiting for the committee’s ranking Democrat, Joseph R. Biden, the junior senator from Delaware, to arrive from another meeting. Biden sought a national stage, but when he got one, he often talked for too long and without making a great deal of sense. “Obviously, I don’t know what the hell I’m talking about,” he once said in the middle of remarks at a Judiciary Committee hearing about revising the criminal code. Biden was a devout Catholic, but he was opposed to a constitutional ban on abortion. In 1983, he had considered making a play for the 1984 Democratic presidential nomination. (He would make his first bid in 1988.) As Scalia’s briefing materials warned, Biden had “gradually lived down his early reputation as an enfant terrible.” Biden was affable—goofy, even—and willing to compromise, and Thurmond liked working with him so much that he called him “my Henry Clay.”

Biden and Scalia had much in common: middle-aged Catholic men from industrial eastern cities, with young families and thinning hair and big dreams and funny jokes, though Scalia’s humor was more studied. (He once famously began an opinion with this sentence: “This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’ ”) Biden gave the judge his wide smile, told him he’d read all of his speeches that he could find, and said he was pretty darn interested in this “newfound, newly enunciated doctrine of original intent.” He began by asking Scalia about a speech he’d given two months earlier, at a conference hosted by Meese.

Scalia had known when he delivered that speech, on June 14, that he was being considered for a position on the Court. Burger had visited the White House on May 27 to tell Reagan he intended to retire and to give him a list of possible replacements for the chief justiceship, including Scalia and Bork. By June 12, Reagan had decided to nominate Rehnquist for the chief justiceship and leaned toward replacing Rehnquist with Scalia, in part because he was nearly a decade younger than Bork, though there was some concern about the quickness of his temper. Scalia was scheduled to meet with the president on June 16.

Riffing on the flap between Meese and Brennan, Scalia in his June speech had cataloged the weaknesses of the doctrine of original intent, including by pointing out that the early Supreme Court could not possibly have followed it, because James Madison’s notes on the Constitutional Convention, generally cited by originalists as definitive, were not available until 1840. What people who talked about original intent must mean, then, Scalia argued—essentially offering Meese a way out of the box he’d locked himself in—was not the original intent of the Framers but of the Constitution: “It is not that ‘the Constitution must mean this because Alexander Hamilton thought it meant this, and he wrote it’; but rather that ‘the Constitution must mean this because Alexander Hamilton, who for Pete’s sake must have understood the thing, thought it meant this.’ ” The doctrine of original intent, Scalia concluded, just needed a better name; he proposed “the doctrine of original meaning.” (Originalism, perhaps surprisingly, is quite changeable, and originalists have for decades come up with new varieties, so many niceties.)

Illustration by Tyler Comrie. Source: allanswart / iStock / Getty

When Biden seemed baffled, Scalia said he’d be happy to explain the distinction but it wouldn’t be worth it, because, he admitted, “it’s not a big difference.” As for that June speech, in which Scalia had professed his allegiance to originalism, Biden told Scalia wearily, “I just hope you don’t mean it.” But he very much did.

Originalism in the 1970s and ’80s was an outsider’s game. Originalists accused the Supreme Court of amending the law by creating new rights, such as the right to an abortion, and insisted both that Article V amendment was the only legitimate method of constitutional change and that originalism was the only legitimate method of constitutional interpretation. Practically, though, originalism took hold from the failure of conservatives to change the Constitution by democratic means—by means of amendment.

Since the days of the New Deal, social and especially fiscal conservatives had now and again called for constitutional amendments and even for a constitutional convention. Among their more notable efforts was a campaign starting in 1939 to call a convention to repeal the Sixteenth Amendment, which provides for a federal income tax. For the entirety of the Warren and Burger Courts, there had also been calls for a constitutional convention: in the 1950s, to overturn Brown v. Board of Education, which found racial segregation in public schools to be unconstitutional, and in the 1960s, to repeal the Court’s one-man, one-vote decisions. A balanced-budget amendment, first seriously proposed in the ’50s, gained support during the economic malaise and rising federal debt of Jimmy Carter’s presidency. By March 1979, 28 states had called for a convention to adopt a balanced-budget amendment. Richard Rovere, the celebrated Washington correspondent for The New Yorker, believed that the call for a constitutional convention was a bluff and that Congress would pass a stand-alone balanced-budget amendment in order to avoid the terrifying prospect of a convention—which, he warned, might “throw out much or all of the Bill of Rights” and could lead “possibly even to civil war.”

Sixty-five percent of Americans favored a constitutional convention. Scalia, asked at a forum that May whether the prospect was really all that dangerous, joked that it was always possible a constitutional convention might “pass a bill of attainder to hang Richard Rovere,” but said he’d support “a convention on abortion.”

One person who was decidedly unwilling to run that risk was the conservative insurgency’s most prominent political strategist, Phyllis Schlafly. A convention called for the purpose of a balanced-budget amendment might get out of hand and turn its mind to other business—becoming a so-called runaway convention—and very likely undo all her work to defeat the Equal Rights Amendment. She went to war, and she won. Aside from defeating the ERA and “making the Republican Party pro-life,” Schlafly considered defeating a convention in the 1980s her signal achievement.

Herein lie the origins of originalism’s rise to power: in the failures of the right-to-life amendment and the balanced-budget amendment. It was at this very moment that the Federalist Society was founded.

The subsequent history of originalism has everything to do with abortion, and everything else to do with guns. One in three Americans owns a gun; one in four American women will have an abortion. In the 1970s, as partisanship strengthened and polarization worsened, guns and abortion became the defining constitutional issues in the life-and-death, winner-take-all fury of modern American politics. On the left, abortion came to mean freedom and guns murder; on the right, guns came to mean freedom and abortion murder. That none of these equivalencies can withstand scrutiny has not seemed to matter.

In 1975, the District of Columbia introduced a law that all but banned the possession or sale of any handgun. That year, there were two assassination attempts on President Gerald Ford. The National Council to Control Handguns proposed a national ban. In 1976, the California legislature debated a similar bill; opponents proposed a state constitutional amendment guaranteeing a right to keep and bear handguns, rifles, and shotguns. There was no reason to believe that any of these gun-control measures violated the Second Amendment, which the Court had hardly ever paid attention to and in any case had long read as concerning only the keeping and bearing of arms for military purposes—not as a right pertaining to citizens as individuals—and as limiting only the federal government, not the states.

The National Rifle Association, whose motto since 1957 had been “Firearms safety education, marksmanship training, shooting for recreation,” had endorsed the 1968 Gun Control Act. But in the mid-1970s, the NRA began organizing in opposition to handgun-control laws. Ronald Reagan, who had just left the California governor’s office, joined this campaign, too. In an article published in Guns & Ammo in 1975, Reagan advocated for the altogether novel and unsupported individual-rights interpretation of the Second Amendment, maintaining that “it appears to leave little, if any, leeway for the gun control advocate.” In 1977, the NRA abandoned a planned move to Colorado to remain in Washington, where it became essentially a lobbying organization, with a new motto displayed at the entrance of its building: “The right of the people to keep and bear arms shall not be infringed.”

In 1981, Strom Thurmond appointed Senator Orrin Hatch of Utah as chair of the Senate Judiciary Committee’s subcommittee on the Constitution. Hatch had already proposed a right-to-life amendment, and an amendment outlawing affirmative action. Reagan would later consider naming him to the Supreme Court. Amending the Constitution having failed, Hatch was now interested not in a new amendment but in an old one. Upon assuming the chairmanship, he called immediately for a report on the original meaning of the Second Amendment.

While Hatch’s subcommittee was at work, Reagan was shot; his press secretary, James Brady, was also shot. Reagan continued his opposition to gun-control legislation; Brady became an advocate for it. In February 1982, Hatch’s subcommittee published a report called “The Right to Keep and Bear Arms.” The subcommittee maintained that it had found “clear—and long-lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” That November, after the NRA waged a well-funded campaign against California’s handgun-control bill, voters resoundingly defeated it in a statewide referendum.

As the Reagan administration prepared for the Constitution’s bicentennial, a private committee was set up to consider possible constitutional reforms. Its members included present and former elected officials, scholars, and business and labor leaders, and its focus was largely on addressing the growing problems of congressional gridlock and budgetary brinkmanship. In a compilation of working papers published in 1985, it urged Americans not to treat the Constitution as “immutable, like the Ark of the Covenant,” but to be open to changes, such as amendments. It recommended six, including longer congressional terms and bonus seats in the House and the Senate for the party that wins the presidency. None of these ideas made any headway. It wasn’t voters who were opposed to amendments. The hurdle was Congress—and, more and more, conservatives. In 1984, James McClellan, who had left his position as a staff member on the Senate Judiciary Committee to become the president of a newly formed Center for Judicial Studies, urged conservatives to “kick the habit” of Article V. “There is something fundamentally wrong with our system if we are driven to amend the Constitution so as to restore its original meaning,” McClellan wrote. “We should resist efforts to add amendments to our fundamental law to correct misinterpretations rendered by the Supreme Court.” Better to effect constitutional change under the guise of restoring the Constitution’s original meaning. But that would require taking over the Court.

When Meese became attorney general in 1985, he announced that originalism would govern judicial selection. John Paul Stevens would later recall that between 1969, when Burger became chief justice, and 1986, when Scalia joined, “no judge or justice expressed any doubt about the limited coverage of the [second] amendment.” But in 1986, Congress passed the Firearms Owners’ Protection Act, which repealed parts of the 1968 Gun Control Act by invoking “the rights of citizens to keep and bear arms under the second amendment.” This was by no means an article of faith among conservatives. To the contrary. Bork, for instance, did not endorse this theory. “I’m not an expert on the Second Amendment,” he said in 1989, “but its intent was to guarantee the right of states to form militia, not for individuals to bear arms.” From retirement in 1991, Warren Burger, appearing on PBS and holding a pocket Constitution in his hands, said that if he were writing the Bill of Rights, he wouldn’t include the Second Amendment, adding that the NRA’s individual-rights interpretation was “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.” The test of originalism would be whether this interpretation—an amendment by fiat—would be accepted by the Supreme Court.

As the Constitution’s bicentennial year began, Meese’s Office of Legal Policy issued a 200-page sourcebook on “original meaning jurisprudence,” containing excerpts from the work of Bork, Scalia, and Meese himself, with Brennan as a counterpoint. It alleged that until the 1960s, original-meaning jurisprudence had been “the dominant form of constitutional interpretation during most of our nation’s history.” Meanwhile, plans were drawn up for grocery-store cashiers to give away free copies of the Constitution; the government was to print enough for every American household. A facsimile of the Constitution went on the road, along with an original of the Magna Carta, in a temperature-controlled, 40-foot trailer that traveled to more than 100 cities. ABC ran a series of “Bicentennial Constitutional Minutes” during Saturday-morning cartoons, featuring characters from Looney Tunes. Professor Bugs Bunny, dressed in cap and gown at the front of a lecture hall, sings, “Our Constitution’s really splendid, but sometimes we do amend it.” Daffy Duck, dressed as a vaudevillian in waistcoat and spats, soft-shoes across the stage, while Bugs belts out, “It was intended! To be amended!”

And it was intended to be amended. But it was no longer amendable. Instead of producing constitutional amendments, liberals achieved landmark legislative gains and rights-protecting Court decisions whose importance was matched only by their reversibility. Conservatives of course were abandoning amendment too, instead seeking constitutional change by judicial appointments and judicial interpretation. Reagan transformed the judiciary; not since FDR had a single president replaced so high a percentage of the federal bench. He nominated Bork to the Supreme Court in July 1987, but the prospects for confirmation were mixed at best: The president was a visibly aging lame duck and reeling, too, from the Iran-Contra scandal; Republicans had lost the Senate in the 1986 midterms, with the result that Biden, not Thurmond, was now chair of a Democratic-run Senate Judiciary Committee. Scalia had replaced Rehnquist, which meant that his appointment didn’t change the balance on the Court. But Bork would be replacing Lewis Powell, often a swing vote. On the day Reagan announced the nomination, Ted Kennedy described “Robert Bork’s America” as

a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution. Writers and artists would be censured at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often, the only protector of the individual rights that are the heart of our democracy.

Bork afterward insisted that “there was not a line in that speech that was accurate,” but it had raised the stakes for the hearings.

Warren Burger wanted Congress to declare Constitution Day, September 17, 1987 (which happened to fall on his own 80th birthday), a onetime national holiday. But, in a speech in Hawaii, Justice Thurgood Marshall declared his refusal to participate in any such celebration. “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” Marshall said. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”

When Constitution Day came, Reagan delivered a bicentennial address at Independence Hall, in Philadelphia, calling the Constitution a “covenant with the supreme being,” and CBS televised Philadelphia’s Constitution Day parade. But on C-SPAN that day, you could watch a very different discussion of the Constitution: Robert Bork explaining his understanding of the nation’s founding document.

[Content truncated due to length…]

From The Atlantic via this RSS feed