For Constitution Day, historian and law professor Jonathan Gienapp delivered a critique of originalism at the Athenaeum. Below is his interview with Forum editor Josh Morganstein.
Jonathan Gienapp speaks to Stanford students in 2021 (credit: Stanford University via X)
Recently, CMC and the Athenaeum hosted Jonathan Gienapp, a Professor History and Law at Stanford University, to discuss constitutional law and originalism. Gienapp is a leading expert on the constitutional history of the Founding-era, and recently finished a new book: Against Constitutional Originalism: A Historical Critique. In it, Gienapp marshals an array of historical evidence to critique originalism, a method of constitutional interpretation that seeks to read the Constitution in light of its original public meaning. Gienapp’s talk at the Athenaeum was sponsored by the Salvatori Center, and we were lucky enough to sit down with the Professor earlier that day. Below is an edited transcript of the conversation between Professor Gienapp and Josh Morganstein, one of our editors:
Josh Morganstein: Thanks for coming in and agreeing to chat with me. I’d like to start off by asking you how you got to where you are; I’m curious about how your interests in legal and constitutional history formed.
Jonathan Gienapp: From a pretty young age, I had a deep fascination with the intellectual and political history of the American Revolutionary era: how the United States came to be—particularly the debates that surrounded the American Revolution—and the next phase, after you've declared independence and had a revolution, how it set up a new system of government, almost top to bottom. I remember reading Bernard Bailyn’s The Ideological Origins of the American Revolution, and then Gordon Wood’s The Creation of the American Republic. And what was so exhilarating and eye opening about reading those books was they showed how the conceptual world that the founding generation resided in, despite the fact it seemed so familiar to Americans, was actually quite distinct, and that you needed to really climb inside their minds to understand what they were doing. It took something that I thought I knew, and made it seem so much more interesting by showing how much richer and more complicated it was. From then on, I couldn’t get enough, and really never left it.
JM: What are some of the ways that the Founding-era conceptual landscape was distinct from how we think about politics today?
JG: I mean, part of what makes Bailyn’s book so great is that there is this fundamental puzzle to the revolution: it is waged against a British government that doesn’t seem to be doing that much—at least not initially. Taxes on paper goods are not particularly onerous (actually, much smaller than the taxes the people in Britain were already paying). So the usual conclusion had either been that the Americans had really overreacted, or there’s some ulterior motive (control of people, power, or slavery). And Baylin did a marvelous job of showing how, based on living on the periphery of the British Empire and absorbing all this literature that was written in Britain that sounded concern about the state of British society and politics—that the complacency and corruption had set in—American revolutionaries were conditioned to be hypersensitive to British intrusion into their affairs after the Seven Years War (not because the things that the British were doing were particularly onerous, but because they were symptomatic of a deeper set of problems that lay lurking on the horizon). It was an entirely different way of thinking about politics and liberty: then, the revolution becomes a preemptive strike before it’s too late, and it’s precisely because the policies seem to be innocuous that they’re so threatening; that view is fascinating to me.
JM: U.S. constitutional history is fraught with certain bumps, but for the most part, many view the Constitution as a successful document that has both lasted and adapted over time. Do you agree with the premise that it has been successful, and if so, what are the factors that contributed to its success?
JG: We would want to sort out whether we think the Constitution truly survives the Civil War. Some say: ‘same system of government, same document, same tradition.’ Others, like Thurgood Marshall, say it was destroyed because it’s replaced with this new birth of freedom. So I certainly accept your premise in a general sense; other countries have gone through so many different constitutions, but they haven’t had the same sort of stability and success. Part of this is what Alexis de Tocqueville said about democracy: that it was less a set of institutions and practices than habits of the heart—that you can’t have a democracy without a democratic people, and that the the right to vote or rule of law are actually downstream from a more essential set of democratic requirements. You can say the same thing with the Constitution. Did the Constitution survive because it managed to set up an intricate, well-designed structure, both by dividing powers in a way that always created the right channeling effects and values so that any stress placed on the system could be absorbed? Or is it because there’s something about Americans more generally—in the supporting culture that was nourished—that allows for that system to work. I think it’s probably a combination of habits and institutional design. Once you put the two together, they engage in a feedback; but yeah, it’s a puzzle, and I don’t think there’s a straightforward answer.
JM: Turning to why you’re here tonight—constitutional interpretation—you recently wrote a book arguing against originalism. One of the things that I appreciate about your prior work, such as your 2017 blog in Process, is that you distinguish between ‘Originalism 1.0,’ which you say focused on original intent and evolved as a response to the perceived excesses of the Warren Court, and ‘Originalism 2.0,’ which was a shift to focus more on original public meaning. Why did the shift occur, and what kind of originalism are you cautioning against?
JG: Yeah, so ‘Originalism 1.0,’ as I describe it, talked about recovering the framers’ original intent, but it was speaking in pretty general terms. It was saying that we shouldn’t be living constitutionalists. We should instead try to figure out what was fixed at the time of the making. But in talking about intent, two big issues emerged among many, the first being the problem of multiple intents. What do you do with the fact that there’s no original intent? There are original intents. There were 55 framers at the Constitutional Convention, around 1700 ratifiers in the state ratifying conventions, and way more people in the political community; they didn’t all agree on what was intended by the constitution. So what do you do? You have to pick and choose, and that seems to be problematic. The second issue is the problem of moral taint: that the original intent was of people who did not share our moral values. Many of them supported or practiced slavery. They clearly disenfranchised all women. So why would we be beholden to an intent that has failed so dramatically by our standard of normative democracy?
Originalism, 2.0—public meaning originalism—emerged and did a really good job of neutralizing these problems by saying that the value of looking at just the words of the Constitution is to find the public meaning, regardless of intent. Where there had been plural meanings, you could now find a unitary meaning. And then you were also less beholden to their bad morality; even if slaveholders wrote the First Amendment or set up Article Two, it doesn’t mean that slavery is codified there. For some 30 years plus now, public meaning originalism has been the dominant form of originalism. But in moving to public meaning originalism, originalists have been really eager to bracket, ignore, and minimize certain kinds of historical context, claiming that it is evidence of original intent, expected application, or political theory, but none of that is the original public meaning of the Constitution. The public meaning of the Constitution, rightfully understood, is entangled with a much wider network of historical contexts, beliefs, and evidence than they allow. And I’m trying to bring that back into focus. There was a desire to kind of remove history from originalism, in a way, and I’m trying to bring it back.
JM: It seems like there are multiple uses of history, and some are more accurate or in depth than others. Sometimes, these uses of history appear to conflict. In D.C. v. Heller, for example, you have perhaps what the framers intended around using a firearm conflict with a tradition of possessing a gun for self defense. When ‘history’ conflicts, what would you say the Court should be prioritizing to most faithfully read the Constitution?
JG: Yeah, that’s a great way of putting it. At a minimum, you need to start with an appropriate understanding of what a provision implies, what fundamental assumptions it rests on, and what people in the past thought about those things. So if it’s—let’s say—an eminent domain case, there are underlying assumptions people have about property rights and the relationship between rights and government intrusion. I think it’s really difficult to just pull out a dictionary and start looking at words without ever thinking more broadly. I mean, property is property. But clearly you can conceptualize the nature of property and what it means to have a right to it in very different ways. And that is not going to be answered by a dictionary. We’re not talking about a world of easy questions. We’re talking about the hardest questions. Genre matters. The President, Article Two says, is vested with the executive power of the United States. What does that mean? It’s not surprising that such a question requires a much deeper form of analysis to try to sort out. If you want to understand the public meaning of executive power, you can try to look at usage at the time. Not surprisingly, most of the usage was in the context of reading the Constitution and supporting legal documents. So, you end up looking at much of the same evidence that original intent originalists look at. So, I think public meaning originalism didn’t tend to provide the escape from deeper historical analysis.
JM: Yet you have originalists—for example, Justice Scalia in “Originalism: The Lesser Evil”—admit that originalism is a task better suited for historians than lawyers, but that at the end of the day, the ability of the Supreme Court to engage in judicial review is based on reading the Constitution like a legal document, which necessitates us to read it with a fixed meaning. So, while the work of historians may be important, when you’re deciding a court case, you need a final legal answer. How would you respond to that type of challenge from originalists? Also, along those lines, is it possible to both believe that the Court is the ultimate arbiter of Constitutional disputes and that we must go beyond originalism as a matter of interpretation?
JG: Well, I would want those originalists to explain very clearly why some kinds of context would matter for figuring out original meaning, but not original legal meaning. I think there’s a way in which the rhetoric takes place a few 100 feet in the sky, and I’m not convinced that when you get down to it, the kinds of things that historians are trying to emphasize would not be relevant to true original meaning. I don’t see originalists choosing law over history; I see them choosing modern law over past law. They are choosing to read the Constitution as though it’s a modern legal history—the kind that they’re familiar with being modern lawyers, socialized in modern jurisprudential assumptions, and having gone to modern law school. But none of that describes James Wilson, John Jay, John Marshall, and Joseph Story, who were socialized in a very different legal world, understood law to be something very different, and therefore did law differently.
A lot of people think that the Constitution is a legal document, but it’s not obvious why reading the Constitution like a legal document means being an originalist. Other lawyers who are less hospitable to originalism first consider existing precedents, because that’s what lawyers do. So, while I do think judicial review is linked to originalism, in that there’s a lot of logic linking judicial review to a written constitution with a fixed meaning, they’re not logically linked in the way originalists would claim.
Part of the problem is people who were resistant to originalism were not emphasizing judicial restraint. Originalism grew up in the face of living constitutionalism on steroids, in a system of judicial supremacy. It’s fair to ask about that and to think that the Warren Court, which did not exercise judicial minimalism of any kind, was problematic. So maybe the solution is then to eliminate both, or to try to fuse the two somehow—to say, we’re not going to do either originalism or living constitutionalism; rather, because we’re going to do less judge-made interpretation, we’re going to bring back something like departmentalism.
JM: With the way that originalism is currently playing out on the Court, many people view originalism as a conservative ideology, and believe that decisions like Dobbs are activist in a way that originalists themselves should critique. For originalists, how should they balance precedent and tradition that’s existed over time with original meaning? Do you think originalists currently on the Court are doing a good job of that?
JG: It’s a big, good question that the answer to which is not quite clear. People have always complained that originalism is just living constitutionalism dressed up as something more noble, and they would point to the kind of pick-and-choose style of some originalist jurists to prove it. Whether that means the broader proposition is true, however, is an open matter. Whether we’re seeing it now is also an open matter. Justice Kavanaugh, for instance, said that stare decisis is really important, and you have to go through an extended analysis to explain why you’re reversing precedent. He would certainly argue that the Court met that burden in Dobbs. Others would say, ‘no, not at all.’ But what you would want to see from an originalist is analysis of the original means—a demonstration of how a right was not protected under the Privileges or Immunities Clause, Equal Protection Clause, or Due Process Clause in the 14th Amendment. Instead, what the Court did was to look at how abortion was criminalized throughout the 19th century. And that, to me, was a bit strange. Justice Amy Coney Barrett is by far the best here. She was really thinking through how these different ideas fit together, and is taking them very seriously. You see this in her concurrences in Bruen and Rahimi, saying tradition can only matter if it’s serving the broader purposes of originalism—that it’s either reasonable evidence of original meaning, or something like that. It can’t just be that there’s some tradition. I think she’s right to hammer that, and I think hopefully the other justices who agree with her on originalism will follow.
JM: To wrap up, if you could give one takeaway from your book what would it be? What should readers be on the lookout for and come out with?
JG: When we’re talking about the Constitution itself—not its meaning, but the Constitution itself as an object, and constitutionalism more generally—we need to appreciate that it was different back at the Founding. It was different, and that difference makes a difference. If you want to be an originalist, it’s not the kind of thing you can hand wave or explain away. If you want to be committed to this project of recovering an original meaning, you have to take very seriously the different way that people at the Founding thought about constitutions and how that breathed life into the one they made. What the Constitution originally meant was embedded in a way of thinking about constitutionalism that was essential to it.
JM: I think it’s a good message, and I look forward to reading the book. Thank you so much for your time, we really appreciate it.
Comments