John Mikhail (Georgetown University Law Center) has posted Does Originalism Have a Natural Law Problem? (Law and History Review, Vol. 39, No. 2, pp. 361-367 (2021)) (7 pages) on SSRN. Here is the abstract:
This invited commentary for Law and History Review discusses Jonathan Gienapp’s new article on originalism, “Written Constitutionalism, Past and Present”. Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does it follow that originalism's whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do. This commentary critically examines Gienapp’s thesis, noting some potential challenges, and suggesting that perhaps the bigger problem with contemporary originalism is not that it takes the written Constitution too seriously, but that it doesn’t take the entire instrument seriously enough.
Professor Gienapp's article Written Constitutionalism, Past and Present also appears in Law and History Review and is available here (but will cost you $25).
ANDREW HYMAN COMMENTS: The founders of the U.S. were believers in natural law. They had much faith in the ability of elected legislatures to find same. That’s different from supposing the founders meant for judges to strike down all statutes that the judges say violate natural law.
Posted at 6:01 AM