Supreme Court Justice Antonin Scalia, seen here in 2006, was the court's most prominent originalist. Chip Somodevilla/Getty ImagesThe U.S. Supreme Court returns from summer break Oct. 5, 2026, and begins hearing a new year of cases.Soon after what’s known as the “first Monday in October” among court watchers, we will start to see stories in the media about something called “originalism.”Originalism is the judicial philosophy followed by most current Supreme Court justices, but it is not well understood outside legal circles. I am a law professor who worked for the most famous originalist of them all, Justice Antonin Scalia. He called originalism “the lesser evil.” Let me explain why.Ascendant approachOriginalism is a philosophy of interpreting the U.S. Constitution. It holds that the Constitution means whatever people reading it thought it meant when it was written.The opposing view is known as “living constitutionalism.” It holds that the Constitution’s meaning can be reinterpreted by judges to keep up with the needs of the times.Originalism has been around since the very beginning of the country. But it fell out of favor during the 20th century, especially after Earl Warren left the governorship of California to become the chief justice of the Supreme Court.During this time, it became popular to find new rights in the Constitution that no one had previously thought were there. For example, in 1973 the court first recognized the constitutional right to an abortion. For 200 years, laws prohibiting abortion had coexisted with the Constitution. Yet, in Roe v. Wade the court held that these laws were now invalid.Things began to change in 1986, when President Ronald Reagan appointed Scalia to the court. He was a uniquely skilled advocate for originalism and changed many minds.Today, most of the Supreme Court justices follow originalism at least to some extent, including one of Scalia’s former law clerks, Amy Coney Barrett. Among the originalists on the current Supreme Court is Justice Amy Coney Barrett, a former law clerk to Antonin Scalia. Olivier Douliery AFP/Getty Images Myths about originalismPerhaps the most common myth about originalism is that it holds that the Constitution can never change.For example, some people accuse originalists of “trapping the law in amber.” But originalists think the Constitution can change; they just disagree with who can do the changing.Originalists think the Constitution can be changed only by the American people through the amendment process. Conversely, living constitutionalists believe it can be changed by judges through reinterpretation of the existing document.Another common myth is that originalism is just a smoke screen for conservative judges to reach the results they personally prefer. But there are plenty of examples of originalists reaching results that they personally disagreed with.For example, Scalia famously cast the deciding vote in 1989 to hold unconstitutional a law criminalizing burning the American flag despite being a big patriot and despising such activities.Clarence Thomas wrote in 2003 that he thought laws criminalizing sodomy were “silly” but could not rule that they were unconstitutional; like abortion, they had coexisted with the Constitution for hundreds of years.Barrett recently said that she is morally opposed to the death penalty but has no choice but to go along with it: Not only has it been around since the beginning of the country, but the Constitution explicitly says that “life” can be taken.Arguments for and againstYet originalism has many detractors.Perhaps the most common criticism is that it is often difficult to glean what people thought the Constitution meant when it was written. Most of its provisions were written a long time ago, and the language is often vague.In order to understand what people thought it meant, judges need to consult history. But judges are not trained as historians, and history is often ambiguous.For example, sometimes we do not have a tradition of laws back to the founding of the country like we do with abortion, sodomy and the death penalty. Laws prohibiting the possession of assault weapons, for example, are of recent vintage.How do you know what people hundreds of years ago would have thought about a law they didn’t have? It isn’t easy, and originalists disagree among themselves on how to figure that out.But originalists say everything is relative: Even if originalism relies on history that will sometimes be ambiguous, what do living constitutionalists rely upon? As originalists see it, living constitutionalists rely on whatever outcome they think is a good idea. But originalists say this is undemocratic because judges are unelected and have life tenure: If the Constitution is to change, we, the people, should decide how. This is why they think history is “the lesser evil.”Another criticism is that most of the Constitution was written when Black people and women were unable to participate in U.S. democracy. That leads to the question: How can originalists assert it is more democratic to rely on what people long ago thought about a document that is itself undemocratic?This is probably the criticism of originalism that most resonates with my own students.One response given by originalists is that we have now expanded the electorate and it has since altered very little of the Constitution. Doesn’t that mean what is left is democratically legitimate?Not necessarily. Because it takes a supermajority of the electorate to change the Constitution, it is possible that there are still provisions in place that would have never commanded majority support but fall short of supermajority opposition.Again, however, originalists respond that everything is relative. Even if the Constitution is democratically tainted, what is the alternative? To let nine unelected judges do whatever they think is best? How is that more democratic?Moreover, originalists say, even if it is possible that there are some provisions still in the Constitution that would have never been adopted with an expanded electorate, what are they? It may be impossible to identify them.Who’s right?There is little doubt that originalism is on the rise – and not only on the Supreme Court. It is increasingly popular among lower court judges, lawyers and even law professors. But as more and more people practice originalism, more and more people disagree about how to do it right.In other words, originalism may be more complicated than Scalia made it sound. Moreover, even Scalia admitted the amendment process is a burdensome way to incorporate change.But what’s the alternative? Originalism still may be “the lesser evil.”I was a law clerk to Justice Scalia.