“Against Constitutional Originalism” by Jonathan Gienapp (Yale University Press)
Review by Cass R. Sunstein
September 25, 2024 at 10:30 a.m. EDT
What are the chances that, in 2024, a new book could fundamentally reorient how we understand America’s founding? Jonathan Gienapp, a historian at Stanford, has written such a book in “Against Constitutional Originalism: A Historical Critique.” You read it, and you get vertigo.
Americans have long shared the following view: The United States Constitution consists of a text. You can find it. You can print it and hold it. It’s an object.
Sure, we argue about how to interpret it. Some people, including Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett, are “originalists.” They believe that the meaning of the text should be settled by reference to its “original public meaning.” They do not believe in a “living constitution,” whose meaning shifts over time. Over the last generation, originalism, as an approach to constitutional law, has been elaborated and developed (and promoted) with great care.
Other people, including Justice Sonia Sotomayor and retired Justice Stephen G. Breyer, think that the Constitution contains broad language (“the freedom of speech,” “due process of law”) whose meaning is not frozen in time. Freedom of speech, for example, might include blasphemy and libel now, even if it did not include blasphemy and libel in 1791. The due process clause might forbid racial segregation now, even if it did not forbid racial segregation back then. “Nonoriginalists,” as they are sometimes called, share a belief in something like a living constitution, though they come in different varieties. Some emphasize long-standing traditions and norms, postdating the founding; others emphasize the goal of democratic self-government; still others point to new or evolving values.
Whatever their differences, all sides agree that the Constitution is a text, a thing, and that its words are the object of interpretation. Against this background, Gienapp’s book comes as a thunderclap. It is directed above all at originalists, who, in his view, misunderstand the founding — not a little, but a lot. And although contemporary nonoriginalists are not Gienapp’s target, he has a lot to say to them as well.
It is important to emphasize that Gienapp’s enterprise is one of history, not politics. He is not claiming, for example, that Roe v. Wade was right, and that the Court was wrong to overrule it. He is arguing instead that the past is a foreign country, and we have a lot of trouble understanding it. He thinks that originalists (and most of the rest of us) haven’t got a clue.
Gienapp’s most striking claim is that the founding generation had a much broader understanding of “the constitution” than we do, one that wasn’t limited to the written document. To the founders, “constitutions consisted of both textual provisions and the preexisting principles of fundamental law.” In the words of John Quincy Adams, “The Constitution of a country is not the paper or parchment upon which the compact is written, it is the system of fundamental laws, by which the people have consented to be governed.” Gienapp says that the founding generation did not sharply distinguish between written and unwritten sources of law. “Reared in the British constitutional tradition,” he writes, the founding generation “assumed as a matter of course that all governments were automatically constrained by the fundamental principles of liberty that experience and reason had independently identified and established.” It followed that the constitutional text was “neither an exclusive nor comprehensive repository of fundamental authority.” For many people, those principles were rooted in natural law. Thus, Judge Jacob Rush wrote, in 1796, that “the natural and moral law” is “that law which is founded upon the eternal reason and fitness of things, and enjoins those duties, which, as dependent creatures, we owe to our Creator.”
Consider, in this light, the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Originalists insist that we should follow the original public meaning of those words. In striking down a New York law that required people to show “proper cause” to obtain a license to carry a gun outside of the home, Justice Clarence Thomas, writing the majority opinion for the Supreme Court in 2022, endeavored to do just that. In an originalist opinion emphasizing constitutional “text and history,” Thomas wrote for the Court that the law was invalid because it “prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”
Jonathan Gienapp (Misha Bruk)
Gienapp thinks that “the Founding generation did not share any of the thinking on which” the Court’s decision depends. For the founders, fundamental rights were not created by the constitutional text, but “preceded textual enactment.” For the founders, rights were not designed to limit government, but instead “to ensure legitimate and robust self-governance.” For the founders, “rights were to be defined, not principally by judges, but by the ‘people themselves’ acting through the institutions that most readily spoke for them.” The Court’s decision “is thus squarely at odds with the essential premises and logic of the original Constitution.”
Given those premises and that logic, most rights, including the Second Amendment, could “be regulated by the people’s representatives in the interest of the public good.” Gienapp argues that at the founding, the broad declaration of the Second Amendment “did not mean fixed determinations of that … right.” It would be specified over time not by courts, but by representative institutions, such as state legislatures and Congress. By the way, that’s true of the First Amendment as well.
Gienapp transports us to an unfamiliar world, in which natural law plays a defining role; in which rights are determined by elected officials far more than by courts; in which the text of the Constitution declares rights, but is understood as an incomplete list. (See the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)
Gienapp has a lot to say about the authority of the national government as well. Contemporary judges and lawyers agree that Congress has limited and enumerated powers. But in Gienapp’s view, that was not at all the consensus in the founding period. People disagreed about what kind of union the new government was, with prominent voices arguing that, because it was a “national polity,”, it had broad powers, not limited to those enumerated.
Gienapp is aware that defenders of originalism might want to ignore all this and simply insist that judges should follow the original meaning of the text. He replies that the original meaning “was inextricably tied to a broader vision of constitutional rights.” If judges take the text apart from the vision that produced it and the unwritten context that surrounded it, they will “rewrite the original Constitution into a modern one they prefer.” In Gienapp’s view (and this is tough talk), originalists turn out to be living constitutionalists. They obscure the 18th-century Constitution they purport “to recover, all while pretending that a faulty image is in fact the real thing.”
Gienapp has written an important book, and it will take a long time to come to terms with it. If he is right, originalism, as many now live and breathe it, ends up producing a set of constitutional understandings that the founding generation would deplore and find unrecognizable. Originalists are likely to have a host of responses, but some of them might ultimately concede. On the history, Gienapp knows what he is doing (and is supported by distinguished work from other scholars, including Stanford law professor Jud Campbell and University of Chicago law professor Richard H. Helmholz).
Gienapp does not take sides on contemporary constitutional disputes. He does not tell judges what to do. He is a historian, not a lawyer. He paints a picture; he does not offer a path. But this brilliant book is, I think, the most forceful objection to originalism to date, and it offers a radically new understanding of the intriguingly unfamiliar territory that is our nation’s past.
Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School.
Against Constitutional Originalism
A Historical CritiqueBy Jonathan Gienapp
Yale University Press. 350 pp. $35
Source (Archive)
