Over at Law and Liberty, John McGinnis and I have a review of Jonathan Gienapp’s new book Against Constitutional Originalism. As with our review of his prior book, we are strongly critical of Gienapp’s argument:
With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist enterprise. For those attracted to the originalist project, however, the book is unlikely to persuade. On the contrary, it highlights the persistent difficulties historians face when they venture into constitutional interpretation. Gienapp neglects the most primary of sources—the Constitution—its text, structure, and self-referential nature. He compounds this oversight by privileging mere disagreement among historical actors over rigorous evaluation of their arguments, a hallmark of legal reasoning. He also confuses objections to originalism as an interpretive method with objections to particular readings of the original meaning. Finally, Gienapp often fails to situate the Constitution in the transformative historical moment of its creation, particularly the Founders’ disillusionment with the unwritten British constitution. These deficiencies weaken his case and, ironically, reinforce the intellectual strength of originalism, which at its best rigorously takes account of text and context.
As with his previous book, Gienapp fails to recognize that it is the document that is unambiguously the Constitution. While we acknowledge that unwritten law may properly influence one’s interpretation of the Constitution, that does not mean that unwritten law is the Constitution.
We also criticize Gienapp’s reading of the historical record:
It is puzzling that Gienapp, as a historian, also neglects the Framers’ historical experiences which would subvert his thesis. The colonists’ long struggle with Britain highlighted the perils of an unwritten constitution—because much of the debate with the British turned on what was the basic content of the unwritten British constitution. This instability shaped the Framers’ insistence on a written Constitution. They sought something less ambiguous, a fixed standard that could serve as a foundation for governance. The meticulous drafting process, involving the Committee on Detail and the Committee on Style, underscores this intent. Every word was weighed, every phrase scrutinized, to create a document that was as clear-cut as possible. Furthermore, the use of special conventions for ratification in both state and federal contexts demonstrates the Framers’ concern with making a written constitution the people’s fundamental law. Gienapp’s failure to grapple adequately with this context weakens his argument and leaves his critique unmoored from the realities of the Founding.
Further, we maintain Gienapp misunderstands originalism:
Gienapp’s characterization of originalism is shaky at times. He suggests that originalists disregard social concepts of the time in determining original meaning. But most originalists recognize the potential relevance of political concepts to understanding constitutional provisions. The real question is not whether such concepts matter, but how far they bear on meaning—a question originalists resolve through evidence and rigorous analysis.
There is much more in the essay. As they say, read the whole thing.
Posted at 8:00 AM