The Founders Don’t Get the Last Word
Women, Originalism, and the Dangerous Fiction of a Constitution Frozen in Time
There is a peculiar trick we play in American political culture.
We call something historical, and suddenly it sounds neutral.
We call something traditional, and suddenly it sounds legitimate.
We call something original, and suddenly we are expected to stop asking questions.
But history is not neutral simply because it is old.
And tradition is not automatically virtuous simply because someone practiced it before we were born.
Most importantly, the past does not get to speak for itself.
People speak for the past.
Judges. Lawyers. Historians. Politicians. Activists. Scholars. Textbooks. Media outlets. And, increasingly, courts invoking something called originalism.
That matters because the fight over originalism is not actually a fight between people who care about history and people who don't.
It is a fight over what history is for.
Is history a resource?
A warning?
A record of human mistakes?
A map of how constitutional principles developed?
A collection of voices—some powerful, some silenced, some deliberately excluded—that we must examine in context?
Or is history a locked box containing the correct answers to questions the people of 1787 never imagined we would ask?
That question becomes especially uncomfortable when we examine the constitutional status of women.
Because once we actually look at the history, something becomes very clear:
Women were there.
But they were not treated as fully autonomous political people.
And if we use the political assumptions of that world as the measuring stick for constitutional rights today, we are not simply “returning” to history.
We are choosing which parts of history deserve to control us.
That is a very different thing.
History Is Not a Vending Machine
The Brennan Center's Countering Originalism is refreshingly blunt about the problem.
Originalism has become increasingly common in constitutional litigation, with courts invoking “original public meaning” and “history and tradition” to resolve major questions involving everything from reproductive freedom and firearms to separation of powers and civil rights. The Brennan Center's guide does not argue that historical research is irrelevant. Quite the opposite.
It argues that history is important—but that originalist arguments can rest on flawed historical assumptions, selective evidence, inadequate context, and the mistaken belief that there is one singular original meaning waiting to be excavated.
That distinction is crucial.
Because history is not a vending machine.
You do not insert “1787” and receive a constitutionally authoritative answer.
You have to decide:
Which documents?
Which people?
Which communities?
Which laws?
Which practices?
Which political debates?
Which voices?
Which omissions?
Which constitutional moment?
The Founding?
Ratification?
The Civil War?
Reconstruction?
The Nineteenth Amendment?
The New Deal?
The civil-rights movement?
The present?
And perhaps the most important question of all:
Who wasn't allowed into the room when the supposed “original meaning” was being created?
That question takes us directly to Mary Beth Norton's The Constitutional Status of Women in 1787.
And suddenly, the supposedly simple story gets much more complicated.
The Constitution Said “People.” Society Said “Men.”
Norton's historical examination begins with an uncomfortable proposition.
It would be easy to say that women simply had no constitutional status in 1787.
But the actual text complicates that story.
The Constitution used terms such as “person,” “persons,” and “people.” It did not simply use “man” or “men” whenever referring to members of the political community. On the surface, that language could suggest a broader conception of citizenship and personhood.
But constitutional language does not exist in a vacuum.
It exists inside a society.
And eighteenth-century American society was profoundly structured around gender hierarchy.
Norton explains that the prevailing social and legal organization of the period often treated the household, rather than the autonomous individual, as the fundamental unit. Within that household, the husband was understood as its head. Women's legal and political independence was consequently constrained in ways that are difficult to reconcile with our modern conception of individual citizenship.
And then there is Abigail Adams.
In March 1776, Abigail famously urged John Adams to “Remember the Ladies.”
She was not asking for a cute little footnote in the revolution.
She was asking for structural change.
She challenged the legal and social arrangements that subordinated married women, including the common-law system governing women's property and marital status.
John Adams did not exactly respond with a revolutionary feminist manifesto.
He dismissed the request.
That exchange is useful precisely because it destroys the fantasy that women simply appeared in American constitutional history when someone finally decided to notice them.
They were already thinking.
Writing.
Arguing.
Working.
Owning property under certain circumstances.
Participating in political communities.
And, importantly, demanding recognition.
They were not absent from history.
They were frequently excluded from power within it.
Those are not the same thing.
And Then There Was New Jersey
Here's another inconvenient historical detail.
For a period after the founding, some women in New Jersey were legally able to vote if they met the applicable property requirements.
The state's language concerning eligible voters referred to “free inhabitants,” rather than explicitly limiting voting to men.
Women who met the property qualifications participated.
And then, in 1807, New Jersey restricted voting to free white male citizens.
So what happened?
Did women suddenly become less capable of political judgment in 1807?
No.
The political community changed its definition of who counted.
That distinction matters enormously when we talk about “tradition.”
Because history is not one straight line.
It is full of contestation, expansion, contraction, resistance, backlash, reinterpretation, and change.
The past does not contain one single American tradition.
It contains competing traditions.
The tradition of exclusion.
The tradition of expansion.
The tradition of hierarchy.
The tradition of resistance to hierarchy.
The tradition of slavery.
The tradition of abolition.
The tradition of women's subordination.
The tradition of women demanding political equality.
All of those things are American history.
So when someone tells us that “history and tradition” require a particular constitutional result, the appropriate response should be:
Which history?
Whose tradition?
The Women Were Never Actually Outside the Constitutional Story
This is where the relationship between Norton's historical work and modern originalism becomes particularly fascinating.
If you define the Constitution by the assumptions of the political community that ratified it, then you inherit not merely its ideals—but also its exclusions.
And women were not treated as fully independent political actors within that founding-era framework.
Norton ultimately points toward the significance of the Nineteenth Amendment, which formally incorporated women's voting rights into the constitutional order in 1920.
That matters because constitutional history did not end in 1787.
It didn't even end in 1920.
The Constitution has been interpreted, amended, contested, expanded, and transformed through generations of political struggle.
That is not a bug in the American constitutional system.
That is the American constitutional system.
And this is precisely where the Brennan Center's critique of originalism becomes so important.
One of its arguments is that originalism can falsely assume that there is a single original meaning capable of resolving contemporary questions. But even the people participating in the founding did not necessarily possess one unified understanding of every constitutional provision. The delegates, ratifiers, and broader public held competing perspectives.
In other words:
There was never a single historical brain called “the Founders.”
There were people.
Lots of them.
They disagreed.
They fought.
They compromised.
They excluded.
They contradicted themselves.
They changed their minds.
And they left enormous questions for future generations.
Enter Originalism
Originalism has an attractive sales pitch.
It says, essentially:
Don't let judges make up whatever they want. Go back to the Constitution's original meaning.
Honestly?
That's a compelling concern.
Judges should not simply invent constitutional rules because they personally prefer them.
But here's the problem:
Who gets to decide what the “original meaning” actually was?
And what happens when the historical record is complicated?
What happens when there are multiple meanings?
What happens when the historical actors themselves disagreed?
What happens when the historical record excludes entire categories of people?
What happens when the people whose rights are being debated were not politically empowered enough to leave behind the same volume of written evidence as the men who governed them?
And what happens when the past contains practices that the constitutional order later decided were profoundly wrong?
This is where the Brennan Center guide makes an important methodological point: originalist arguments can encourage lawyers and judges to use historical materials without the context historians consider necessary to understand them. It also challenges the premise that history necessarily provides one fixed answer and notes that the Constitution can be understood as a dynamic document whose meaning and application were not exhausted by the founding generation.
That doesn't mean history doesn't matter.
It means history requires historians.
And lawyers need to listen to them.
Enter the Historians
That is what makes the Brennan Center's September 2026 event, Reading the Past: Historians and Lawyers in Dialogue, such a fascinating companion to these readings.
The premise of the event is almost deceptively simple:
What happens when lawyers and historians actually work together on the historical claims being made in constitutional litigation?
The answer is: potentially, better history.
The event brought together historians and lawyers specifically to examine originalism, historical evidence, the recent judicial use of “original public meaning” and “history and tradition,” and ways history can inform constitutional interpretation without simply becoming an originalist commandment.
That distinction is everything.
Because fighting originalism does not require abandoning history.
In fact, I would argue the opposite.
If originalism says:
The past controls the present.
Then the answer cannot simply be:
Fine. Forget the past.
The answer should be:
No. Let's do the past properly.
Let's widen the lens.
Let's interrogate the evidence.
Let's examine context.
Let's identify whose voices were preserved and whose were erased.
Let's examine competing traditions.
Let's investigate what happened after the founding.
Let's ask what subsequent amendments were designed to accomplish.
Let's stop pretending that the only historically relevant Americans were white male property holders who happened to leave written records.
Because those people were not the whole country.
They never were.
The Problem With “History and Tradition” Is Not History
Serena Mayeri pushes this argument even further in her scholarship on constitutional interpretation after Dobbs.
Her argument is not that progressives should abandon history because history can be ugly.
Quite the opposite.
She argues that history can be an extraordinarily powerful resource for constitutional interpretation—precisely because history can reveal the errors, exclusions, coercion, and struggles that shaped the constitutional order.
In her analysis of Dobbs, Mayeri points out that the majority relied heavily on the number of states restricting abortion in 1868—a period when women and people of color were excluded from meaningful political participation. Her objection is not simply that the Court looked backward.
It is that the Court asked the past the wrong question.
And that distinction is devastating.
Because imagine applying this method to women.
If women were excluded from political power in a particular historical moment, does the exclusion of their political voice become evidence that women were constitutionally meant to remain excluded?
That is circular reasoning dressed up as tradition.
It would be like saying:
Women didn't have political power in 1868, therefore the constitutional meaning of political power in 2026 should be understood through the perspective of a political system that denied women political power.
At some point, history stops being evidence and becomes a time machine for resurrecting old hierarchies.
And that is exactly what we should be suspicious of.
History Can Be a Warning
Mayeri offers a different conception of historical constitutionalism.
History can tell us not only what people once believed.
It can tell us what happened when they believed it.
That is an enormous difference.
History can function as negative precedent.
It can show us what the country once did—and why we should not do it again.
It can also provide what might be called positive precedent: examples of constitutional principles expanding toward greater equality, freedom, and democratic participation.
This is particularly important when examining Reconstruction.
The Reconstruction Amendments did not simply preserve the constitutional assumptions of 1787.
They transformed the constitutional order.
Mayeri's scholarship emphasizes historical evidence that the Reconstruction Amendments were understood as part of an effort to eradicate the legacies of enslavement, including forms of bodily and reproductive coercion. She argues that the experiences and perspectives of enslaved and formerly enslaved people are essential to understanding what those constitutional changes were intended to accomplish.
That creates a rather significant problem for any simplistic “just go back to the Founders” theory.
Because which Founders?
And which constitutional moment?
1787?
1791?
1868?
1870?
1920?
1964?
1965?
Or today?
The Constitution itself contains evidence that Americans can amend the constitutional order because the old order was inadequate.
That is not rebellion against the Constitution.
It is literally how constitutional amendment works.
Women Make the Problem Impossible to Ignore
And this is why I keep coming back to women.
Because women expose the problem with simplistic originalism almost immediately.
If you tell me that the Constitution must be understood according to the social and political assumptions of eighteenth-century America, I have a question:
Do you actually mean that?
Because if you do, we need to have a much larger conversation about married women's legal identities.
Property rights.
Political participation.
Citizenship.
Marriage.
Family law.
Education.
Employment.
Bodily autonomy.
The legal authority of husbands.
And the enormous number of ways women were treated as legally dependent upon men.
We cannot selectively resurrect eighteenth-century traditions.
We cannot say:
“We should return to the constitutional understanding of the Founding.”
while quietly keeping the parts of modern constitutional life that would have been completely foreign to that same society.
That isn't originalism.
That's historical cherry-picking.
And history deserves better.
The Dangerous Fiction of a Frozen Constitution
Here is where I think the debate gets especially interesting.
The Constitution was not designed as a museum artifact.
It is a governing document.
And governing documents have to operate in societies that change.
The Brennan Center's research points out that historians and legal scholars have challenged the assumption that the Framers envisioned a Constitution whose meaning would remain completely static. The Constitution left questions open for later generations to address.
Of course it did.
They couldn't have anticipated the internet.
Artificial intelligence.
Nuclear weapons.
Modern corporations.
Social media.
Biotechnology.
A woman becoming president.
A Black president.
A nation of hundreds of millions of people.
Modern medicine.
Mass surveillance.
Climate change.
Or a thousand other things.
But here's the thing:
Constitutional flexibility does not mean constitutional meaninglessness.
We do not need to choose between “the Founders decide everything” and “nothing means anything.”
That is a false binary.
We can take constitutional principles seriously while recognizing that constitutional application occurs across time.
We can respect history without becoming subordinate to it.
We can study tradition without worshipping it.
We can understand what the Founders believed without pretending that they were omniscient.
And perhaps most importantly:
We can acknowledge that some of the people who created the American constitutional order were profoundly wrong about other human beings.
That's not disrespectful.
It's history.
So What Does Fighting Originalism Actually Require?
Not ignorance.
Not historical amnesia.
Not replacing one simplistic story with another.
It requires better history.
It requires asking questions that originalist analysis may overlook.
Who was allowed to participate?
Who voted?
Who owned property?
Who could hold office?
Who could testify?
Who could bring a lawsuit?
Who controlled property within marriage?
Who could leave an abusive marriage?
Who was legally considered independent?
Who was enslaved?
Who was Indigenous?
Who was excluded from citizenship?
Who was excluded from political participation?
And who was speaking loudly enough that history preserved their words?
What happened after 1787?
If the Constitution's meaning is frozen at the founding, what do we do with the Reconstruction Amendments?
The Nineteenth Amendment?
The Civil Rights Amendments?
The women's rights movement?
The civil-rights movement?
The constitutional transformations that followed?
History did not stop in 1787.
Why should constitutional interpretation pretend that it did?
What does the historical record actually show?
Not what we wish it showed.
Not what a convenient quotation suggests.
Not one dictionary definition extracted from 1791.
The whole damn thing.
Context.
Contradictions.
Competing interpretations.
Changes over time.
Silences.
Power structures.
And evidence that makes our preferred conclusion uncomfortable.
Especially that evidence.
Whose history are we using?
Because this may be the most important question of all.
When the Court says “history,” whose history is it?
The wealthy?
The powerful?
The literate?
The lawmakers?
The judges?
The white male property owners?
Or are we also looking for women?
Enslaved people?
Freedpeople?
Indigenous communities?
Workers?
Poor people?
Immigrants?
Religious minorities?
People whose lives were governed by laws they had no meaningful role in creating?
A historical record is not the same thing as a complete record.
Sometimes the silence is itself part of the history.
The Founders Don't Get the Last Word
There is a temptation in American political culture to treat the Founding generation almost as a secular priesthood.
We invoke “the Founders” as though they arrived in Philadelphia carrying one unified Constitution in their heads.
They didn't.
They were human beings.
Brilliant in some ways.
Limited in others.
Visionary.
Contradictory.
Revolutionary.
And deeply embedded in the social hierarchies of their own time.
They gave us an extraordinary constitutional experiment.
They also left us slavery.
They left women politically marginalized.
They left Indigenous peoples outside the imagined political community.
They left enormous questions unresolved.
And subsequent Americans spent centuries fighting over what those promises actually meant.
That fight is not evidence that America failed to follow the Constitution.
That fight is American constitutional history.
Abigail Adams was part of it.
The women of New Jersey who voted were part of it.
The women who demanded property rights were part of it.
The abolitionists were part of it.
The Reconstruction generation was part of it.
The suffragists were part of it.
The civil-rights movement was part of it.
And the people arguing about constitutional equality today are part of it.
So perhaps the question isn't:
“What did the Founders think?”
Perhaps we should ask:
“What did Americans inherit, what did Americans challenge, what did Americans change, and what remains unfinished?”
That is a much harder historical question.
But it is also a much more honest one.
We Don't Need Less History. We Need More of It.
This is the part of the originalism debate that I find most intellectually fascinating.
The answer to bad history is not no history.
The answer is better history.
The answer is not to throw away the past.
It is to stop allowing the loudest people in the past to become the only people in the past.
That is why the conversation between historians and lawyers matters.
And it is why the Brennan Center's Reading the Past event is so important. The event explicitly asks historians and lawyers to work together—not simply to reject historical evidence, but to understand how historical claims are constructed, challenged, contextualized, and used in constitutional arguments. It also recognizes that history can help us understand the Constitution through approaches that are not limited to originalism.
That is the work.
Not erasing history.
Interrogating it.
Not pretending the past was uniformly enlightened.
Understanding its contradictions.
Not allowing 1787 to become a magic year in which everything suddenly became constitutionally perfect.
Following the argument forward.
Because history is not a dead body.
It is a conversation between generations.
And every generation gets to decide what lessons it will carry forward.
The Past Deserves Our Attention. It Does Not Deserve Our Blind Obedience.
Maybe this is where I land.
I don't want a Constitution interpreted by people who don't understand history.
But I also don't want a Constitution interpreted by people who treat history as a commandment.
Those are not the same thing.
I want the uncomfortable history.
The complicated history.
The history that makes everybody a little angry.
The history that forces us to admit that our heroes had flaws.
That our institutions were built by human beings.
That some traditions were cruel.
That some “original meanings” were really the assumptions of people who had the power to define everyone else's reality.
I want Abigail Adams' letter.
I want the women of New Jersey.
I want the constitutional language that said “people” while society simultaneously constrained women's independence.
I want the Nineteenth Amendment.
I want Reconstruction.
I want the voices that were excluded.
I want the evidence that complicates the argument.
I want historians in the room.
And I want lawyers to listen to them.
Because if we are going to invoke history to determine who deserves freedom today, we owe history—and ourselves—the decency of telling the whole damn story.
The question isn't whether history matters.
Of course it matters.
The question is:
Who gets to interpret it?
Who gets remembered?
Who gets erased?
Whose traditions count?
Whose suffering becomes evidence?
Whose exclusion becomes precedent?
And perhaps most dangerously:
Who gets to decide that something was “always” supposed to be this way?
Because women have heard that word before.
Always.
Women were always supposed to be wives.
Always supposed to be mothers.
Always supposed to obey.
Always supposed to depend upon men.
Always supposed to stay out of politics.
Always supposed to accept the world as we inherited it.
And yet somehow, every meaningful expansion of women's freedom required somebody to look at that supposedly eternal tradition and say:
No.
So no, I am not interested in abandoning history.
I am interested in taking it back from anyone who thinks they own it.
The past belongs to all of us.
Its victories.
Its failures.
Its exclusions.
Its contradictions.
Its unfinished promises.
And if we are going to build the future with the Constitution in our hands, then perhaps we should stop asking only what the dead intended.
Perhaps we should also ask what the living are still trying to become.
Because the Founders wrote a Constitution.
They did not write the last chapter.
They don't get the last word.
