For decades, critics have argued that originalism as a doctrine cannot resolve contemporary questions of constitutional law. However, now that the majority of the Supreme Court is decidedly originalist, the criticism has shifted. In the wake of Bruen, there has been a common refrain: the conservative Court cherry picked history to support its result. After all, professional historians support Justice Breyer's dissent.
I am grateful that the narrative has evolved. Historians cannot simultaneously argue that originalism is bunk and that originalism supports a particular position. They have to pick one side. And those historians who argue that originalism supports a particular position undermine those historians who maintain that originalism is not a valid jurisprudence.
Yet, many historians claim that they are uniquely qualified to engage in constitutional originalism. And, by contrast, untrained, non-professional historians lack those qualifications. Allison Orr Larsen, for example, criticizes the conservative Justices for relying on amicus briefs written by "motivated groups that are pressing for a particular outcome," while disagreeing with "the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately."
