Document Type
Article
Publication Date
7-2026
Abstract
What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.
Recommended Citation
Sukhatme, Neel U., Victoria Nourse, and Kevin Tobia. "Is Originalism Orthodoxy?" Journal of Legal Analysis 18, no. 1 2026: 243-278. DOI: https://doi.org/10.1093/jla/laag001
Included in
Constitutional Law Commons, Legal History Commons, Supreme Court of the United States Commons
Comments
© The Author(s) 2026. Published by Oxford University Press. DOI:https://doi.org/10.1093/jla/laag001 This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial License (https://creativecommons.org/licenses/by-nc/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited. For commercial re-use, please contact [email protected] for reprints and translation rights for reprints. All other permissions can be obtained through our RightsLink service via the Permissions link on the article page on our site—for further information please contact [email protected].