The more I study Reconstruction, the more I come to reject originalism. The complexity of motives, ambitions, and individual understandings—the aspirations of law and the heartbreak of the real world snuffing them out—all make it impossible to divine any singular public meaning.

Can I offer a comprehensive explanation for why law evolved the way it did? Yes. Does that evolution take into account widely divergent views coming to a head? Yes. Can that deep interwoven relationship between law and politics give us objective constitutional answers? No.

Politics and law are all choices. Some of those choices outlive others. And that’s the real difference between law and what we call bad outcomes.

Where’s my TedTalk?