I am not suggesting answers to these various questions about the text of the Second Amendment or that Heller’s outcome was wrong, but rather I am claiming that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really a disguise for personal preferences, but his method is pure and neutral and keeps out personal predilections. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be. (Jack Rakove in his Pulitzer-Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, after giving reasons to doubt originalism as a viable theory of constitutional interpretation states, “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”)

The Constitution does not allow for a merely mechanistic method of interpretation that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. The Constitution itself makes it impossible. That document contains broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . “ (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” in the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I lists specific congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstance as to what is “necessary and proper” or what is an “executive power.” What does “due process” or “equal protection” mean.  And so on; and so on; and so on. The Constitution cannot just be read and mechanistically applied. Constitutional decisions require contemporary interpretations of the words and phrases written centuries ago, and in spite of what some conservatives say, that will always permit personal values to affect the outcome. We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method, including trying to fix its meaning in the amber of 1787 or some other time, will eliminate the opportunity for personal values to affect the outcome. (The distinguished and learned conservative judge Richard Posner has stated, “It is questionable whether there has been anyone in the history of law who could really divorce his jurisprudential views from his personal and political ones. . . . It’s hard to get excited about judicial conduct that violates principles unless it is bringing about results you don’t like.”)

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with an unchanging meaning. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted. When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure. This really addresses the most fundamental question about our fundamental charter. Is our Constitution only backward looking giving true sovereignty over us to the people of 1787 or did the framers of the Constitution, in the words of the recently retired Justice Anthony Kennedy at his confirmation hearing, “make a covenant with the future”? Are the framers to be admired because they thought they had the answers to whatever might arise, or should they be admired because they were trying to build a nation that would endure for generations?

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and supposedly removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

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Some justices now seem to have morphed originalism even further to lessen a reliance on the old dictionaries. They simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention a year or so ago. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.” Breyer was allowing personal values to control the constitutional right. Alito, certain that he knew the “proper” interpretation of the text, claims an unbiased conclusion.

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. He implies that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. The provision, however, does not expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) Or perhaps it would have been even more clear if the Second Amendment read: “Every person has the right to own and use firearms.” But it does not make these more unambiguous assertions. Instead, on its face, the provision grants a collective right, not an individual one.

The text also does not grant a right to “own.” Instead it says there is a right to “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I might keep a boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are “borne,” which seems a narrower word than “use.” And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? If I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the spouse and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution, only that the right “to keep and bear arms” shall not be infringed. The scope of that right is not actually in the Constitution’s text, and we must have to look outside the document to find it.

(Concluded August 29)

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Original public meaning at a superficial glance is a more promising method of constitutional interpretation than original intention and original understanding. It would have the Supreme Court use the original meaning of the words and phrases in the Constitution to interpret it. This interpretive method has judges jiggling off to ancient dictionaries to find that original meaning, but problems still appear. Perhaps Samuel Johnson’s dictionary, published in 1755, was the most well-known one in the founding era, but Johnson’s definitions were often as prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

Other difficulties with the ancient dictionary approach have also emerged. The Constitution includes the word “emoluments,” but what does that mean? In a lawsuit involving that seldom-considered part of the Constitution, the Justice Department said that it applies to benefits to the President from services rendered by the President in his official capacity. Georgetown Law Professor John Mikhail along with student Genevieve Bentz examined forty regular dictionaries and ten legal dictionaries published from 1604 to 1806 and concluded that 92% of the dictionaries had a broader definition of “emoluments” than what the Justice Department contended. But the remaining ones did have the definition that favored the president. How then should we determine the original meaning of “emoluments”? Do we say it was what the majority of the dictionaries say? Would we come to that same conclusion if the split had been 60-40? Are seventeenth century dictionaries really relevant? And language is always in flux. Was that true for “emoluments”? In a summary of Mikhail’s research, no dictionaries define the word as a benefit, profit, or advantage without linking it to an office, as the Justice Department sought to do, until 1759. But in that dictionary and ones published in 1761 and 1774, the definitions specifically say an “emolument” is a “profit from an office or employ.” Around the time of the Constitution, the meaning of the word might have been narrowing. Indeed, 20% of the dictionaries published between 1759 and 1787 when the Constitution was written had the definition of “emolument” Trump’s Justice Department favors. Can we really be positive that the office-linked definition was not the one being used in the Constitution? It turns out that even using a comprehensive set of dictionaries does not eliminate choices, and when choices must be made, personal values, predilections, and experiences may influence a judge’s selection.

(In a constitutional area where I have researched and published, Justice Antonin Scalia quoted Noah Webster’s dictionary for a definition of “witness” that supported the conclusion he reached [sought?]. That was only one of Webster’s definitions for that word, and some of the other definitions seemed to require a different result from Scalia’s. Scalia did not address the alternative definitions or explain why he had plucked the definition he had. But, while perhaps pretending otherwise, he had made a choice.)

(Continued August 27)

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With the United States Senate about to consider a nominee to the Supreme Court, we can expect to hear about “originalism,” a philosophy or method for interpreting the Constitution. Conservatives often assert it is the only way to properly interpret the Constitution. The originalism label makes it seem as if this interpretive method was the one our founding fathers mandated. Not so. The Constitution itself does not say how it should be applied to any particular dispute, and those who framed our fundamental charter in the Constitutional Convention and those who adopted it in the states were silent about the “proper” method, if any, for later generations’ constitutional interpretations.

Originalism, instead of being an eighteenth-century doctrine, only emerged in the 1980s when President Ronald Reagan’s Attorney General Edwin Meese started advocating the constitutional jurisprudence of “original intention.” He asserted that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended for it when the charter was adopted. This interpretive method, according to its proponents, gives a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. They believe that judging can and should be essentially a mechanical affair. The judge seeks out the original intention of the constitutional provision at issue, applies that intention to the case’s facts, and an inevitable result will be apparent. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant goes, can judges remain neutral.

The jurisprudence of original intention, however, never passed its beta test. Whose intention or purpose? That was left unstated. Perhaps the original originalist meant those who drafted the document, but problems quickly appeared with that idea. The historical record of the drafters’ intention is sketchy. James Madison kept notes of discussions at the Constitutional Convention, but we have no verbatim transcript. Madison could only record a fraction of what was said, and we don’t know what he left out. Furthermore, his notes were not published until decades after the convention and by then many of the framers had died. Others who might have corrected or added to what Madison wrote could not do so. And the framers’ thoughts had often been affected by readings of enlightenment thinkers—Locke, Hume, Montesquieu, and others. How should this affect any conclusions about original intentions?

Besides these difficulties another fundamental issue arose. The Constitution was written in the Constitutional Convention, but it was not adopted there. The draft was sent to state conventions where upwards of two thousand Americans considered and adopted it. We know little about the discussions in most of these conventions other than, usually, the final votes. Even if we would find more records of the state conventions, however, they would likely say little about specific constitutional provisions. The states were only allowed to accept the Constitution as written or to reject it as written, although many states did suggest amendments which led to the Bill of Rights Discussions of many specific provisions that might now be under dispute were unlikely under these terms. If we are to look at original intentions surely it is the intentions of those who adopted it that should count the most, but finding an “intention” out of the collective will of thousands is, to put it politely, a fiction.

With these shortcomings apparent, originalism morphed. Of course, that it morphed says something about the assertion that this is the only proper way to interpret the Constitution, but now the originalism advocates dogmatically asserted we needed to examine not the original intent but the original meaning (sometimes amended to the original public meaning) or the original understanding of the fundamental charter. Original understanding seemingly refers to the impressions, views, and interpretations of the original readers of the Constitution who were part of the adoption process, including not just those who drafted or voted on the document, but also those who wrote about or advocated for rejection or ratification of it. Seeking a common understanding from this broad group is even harder than finding an original intention out of the delegates to the state conventions.

(Continued August 24)

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In my post last week, I suggested that we be skeptical of those who proclaim a method of interpreting the Constitution that insures judicial neutrality and guarantees that personal values of a judge will not enter into judicial decisions. This cannot be done. The Constitution itself makes it impossible. That document often uses broad or vague words, terms, or phrases, and not all reasonable people will agree on their meaning when applied to a particular circumstance. For example, Congress has the constitutional power “to regulate commerce . . . among the several states . . . (what is often called the Interstate Commerce Clause). Under this provision, can Congress regulate commerce between just two states, or does “among” require the involvement of multiple states? Does the term “commerce” require a commercial transaction? For example, if I take a pleasure trip from Brooklyn through New Jersey to Pennsylvania, has there been “commerce” that Congress can regulate? (Did I really just use “pleasure” and “New Jersey” is the same sentence?) Relying on the Interstate Commerce Clause, Congress prohibits the growing of marijuana, but does the power to “regulate” mean the power to “prohibit”? If I grow wheat and consume it myself, I will no doubt buy less grain from the national market for wheat. Can Congress regulate my personal garden because my wheat cultivation affects interstate commerce? The Supreme Court has addressed questions like these many times, and the answers could not have come from a judicial automaton. They could come only from justices exercising judgments, and those judgments may be influenced by personal values.

The Constitution is filled with terms that are even more open-ended than the Commerce Clause. Article I enumerates congressional powers and then goes on to state that Congress has the power to enact laws that are “necessary and proper” for carrying out the enumerated powers. Article II states that the “executive power” is vested in the President. Not all will agree in a particular circumstances as to what is “necessary and proper” or what is an “executive power.” Today we might ask whether “emolument” is a term so clear that we can’t expect different interpretations of it. And so on; and so on; and so on. The Constitution cannot just be read and applied. Constitutional decisions require contemporary interpretations of the words and phrases, and in spite of what some conservatives say, that will always permit personal values to affect the outcome.

We can hope that a judge will select a reasonable method for interpreting the Constitution, but no method will eliminate the opportunity for personal values to affect the outcome. Moreover, no method is mandated by the Constitution itself. That document is silent on how it should be interpreted. Those who framed it in the constitutional convention and those who adopted it in the states were also silent about the “proper” method, if any, for later generations’ constitutional interpretations.

It is noteworthy, however, that one of the earliest Supreme Court pronouncements about how the charter should be interpreted did not proclaim it as a document with a meaning fixed in the eighteenth century. Having been present at its creation, Chief Justice John Marshall knew as well as anyone how the framers and adopters wanted the Constitution interpreted.  When the Constitution was proposed, he advocated its adoption, and as a delegate to the Virginia convention, he voted in favor of it. When he was on the Supreme Court, Marshall gave his view on how the Constitution should be interpreted. He said it was a document “intended to endure for ages to come, and, consequently, to be adapted to the crises of human affairs.” (Emphasis added.) Constitutional provisions do limit constitutional interpretations, but Marshall recognized that the document has many generalities and interstices that must be refined and filled in by judges. Constitutional meaning was not rigidly fixed in 1787. Rather, that meaning needs to adapt and evolve in light of “the crises of human affairs” if that document is to endure.

The originators did not tell us how to interpret the Constitution. Each generation must decide for itself what method or methods are to be used. This generation of conservatives has concocted a method that supposedly gives our fundamental law a meaning fixed from generations ago and removes a judge’s values from constitutional interpretation. This method is not constitutionally required, and its goals cannot be met. When a judge tells us that he acts merely as an umpire having removed his values from his decisions, he is either delusionally naïve or disingenuous.

Thirty or forty years ago conservatives started maintaining that “originalism” was the only way to properly interpret the Constitution. This meant that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended when the charter was adopted. This interpretive method, according to its proponents, gave a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant went, could judges remain neutral.

Originalism, however, never passed its beta test. Its practitioners quickly realized that uncovering one single intent from the incomplete historical record of the Constitution’s drafting and adoption was impossible. Worse, the ability to ascribe a single intent to the myriad framers and the many more adopters was mere fiction.

With these shortcomings apparent, originalism morphed. Now it was not original intent but the original meaning of the Constitution’s words that should control a constitutional decision’s outcome. This set a jingle of judges jiggling off to ancient dictionaries. They found, however, that the lexicographic business at the end of the eighteenth century was, to say the least, a bit sketchy. Samuel Johnson had published his dictionary in 1755, but his definitions were as much prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.

So, another morphing was needed. Conservative judges now would simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention last fall. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.”

This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. In essence he says that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are Constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)

But how should we interpret the words as written? The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)

For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. First, nowhere does the provision expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) On its face, then, the provision grants a collective right, not an individual one.

Neither does the text state the right to “own.” Instead it says “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I keep my boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?

The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are borne. And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? When I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the wife and I never argue.)

Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?

Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a particular right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution. We have to look outside that document to find it.

I am not suggesting answers to these various questions nor that Heller’s outcome was wrong (well, maybe, but I am warning that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really just a disguise for personal preferencs, but his method is pure and neutral and keeps out personal preferences. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be.