Tinhatting the Constitution: Originalism as a Fandom

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves around celebrities instead of the Framers.

This Article seeks to interrogate originalism through a fandom lens, viewing it as a type of RPF. Doing so can provide a different perspective on some of the criticisms that have been leveled at RPF, including its lack of neutrality and diversity. This Article finds that originalism is actually a particular RPF phenomenon known as “tinhatting,” in which those engaging in the imaginative exercise believe their conclusions to be the truth. Tinhatters are maligned in fandom, leading to query why originalists are not so easily dismissed.