Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism (8 pages) on SSRN. Here is the abstract:
Jonathan Gienapp’s book, Against Constitutional Originalism, provides excellent critiques of some features of academic originalist theory, but the title is a misnomer.
From the introduction:
Despite its combative title, Against Constitutional Originalism: A Historical Critique, Stanford historian Jonathan Gienapp’s new book is a sober and insightful work that should be read by originalists as well as their critics. What’s especially praiseworthy? First, Gienapp’s critique of originalism is not based on partisan or ideological disagreements. Never does the author say that the problem with originalism is that it leads to particular results that the reader is expected to deplore. That is the most common line of attack upon originalism. Many works criticizing originalism give the impression that if only originalism produced results that the critics would like, they would become originalists — because all they really care about is the results of the cases.
Instead of assailing originalism on those grounds, however, Gienapp provides a historical critique based upon his expertise as a historian of the American Founding. He argues that originalists misconceive the Constitution in historical terms. Specifically, he maintains that “originalists unthinkingly impose familiar terms, doctrines, and questions on a past that might not have shared them” (42). In all too many cases, he is right about that. Some originalists are not very good historians, and therefore not very good originalists. And while he may not regard it as a compliment, Gienapp is quite a good originalist. He is relentlessly concerned that we understand “Founding-era constitutionalism on its own terms” (3). That is what originalists profess to do. Gienapp claims they fall short. This is a serious and non-ideological critique, and the book deserves compliments for that.
And after substantial praise:
In short, Against Constitutional Originalism is a marvelous book. I urge my fellow originalists to read it with an open mind, and not just read it; learn from it. But there are also flaws, beginning with the title, which is highly misleading in two important respects.
First, is Gienapp really against constitutional originalism? That is by no means clear. His complaint is that originalists – or at least the dominant academic strand of originalists – do not follow their own premises. Specifically, he maintains that they are not historical enough: They project modern theories of linguistics and jurisprudence back onto the Founding, when – if we are to be serious originalists – we must focus instead on Founding-era constitutionalism understood in terms of Founding-era conceptions. This is a fair point, but it is not an attack on the idea of originalism. If you are an originalist, and if Gienapp is right about the history, you will change the way you do originalism. Contrary to the title of his book Gienapp is not recommending that we cease to strive for the original understanding. He is saying originalists
have done a bad job of it. A better title for the book, therefore, would be: Against Bad Originalism.
Second, and perhaps more important: Is the thing the book is against really constitutional originalism? Is originalism really the target? At page nine of the introduction, the book identifies what it deems to be three foundational principles of originalism. “At bottom,” the book says, originalists “presume that the Constitution is a text (that its content is derived from its words), that its meaning is fixed (that the meaning of its words cannot change unless it is formally amended), and that it is a species of conventional law (that it is to be understood and interpreted like other kinds of law)” (9). If that is not clear enough, Chapter One, entitled “Originalist Assumptions,” has three subparts, entitled “Writtenness,” “Fixity,” and “Law.” The central theme of the book is that each of these three originalist assumptions is mistaken.
There is room for disagreement about the mistakenness of these claims, but for now that isn’t the point. The point is that Gienapp’s target is not originalism. Originalism is not the only approach to constitutional interpretation that is premised on writtenness, fixity, and law. In truth, his target is the entire tradition of constitutional judicial review in the United States, beginning with Marbury versus Madison. Gienapp’s three foundational premises of originalism are the explicit foundations of Marbury, which is the foundational text of American constitutional judicial review.
Posted at 6:03 AM