Originalism has been subjected to a variety of searching critiques. The most common focuses on the difficulty—or even the outright impossibility—of discovering what a constitutional clause might have meant centuries ago, based on a thin, fragmentary, sometimes puzzling, and often contradictory historical record. I’ve made the same point about the constitutional amendments passed after the Civil War. But that critique, though it’s quite compelling, is by now well-trodden ground. The historian Jonathan Gienapp’s new book, Against Constitutional Originalism: A Historical Critique, injects a fresh, powerful new argument against originalism into the debate.
The book is careful and thorough—chock-full of historical evidence—but Gienapp’s argument is ultimately straightforward. Founding-era Americans didn’t think of the Constitution as the kind of thing that had a fixed meaning. Therefore, it wouldn’t have made sense to look for unchanging original meanings that were fixed for all time in the Constitution’s text. So if one would like to be an originalist, that original history says not to be an originalist. “When we recover Founding-era constitutionalism,” Gienapp writes, “we discover how deeply at odds originalism is with the history it claims to recover.” His book reveals “how un-originalist originalism turns out to be.”
Before digging into that critique, it’s worth spelling out what originalists currently say. Since the 1980s, the theory has multiplied in a truly head-spinning number of directions. As Gienapp observes, it feels like “originalism has entered a baroque stage in its life cycle, marked by excessive and increasingly esoteric theorizing.” Moreover, while the originalist justices do cite academic literature, Gienapp rightly notes that “originalist academics often seem to be peddling a much different theory” than jurists are. Nevertheless, the public deserves to know how it’s ruled—ideally without needing a philosophical decoder ring. So let’s take a quick tour through the originalist landscape.
There are various ways to map out contemporary originalism. The leading originalist Lawrence Solum offers one framework, though he concludes that any “quest for agreement on a single definition of originalism is likely to prove Quixotic.” Gienapp provides a slightly different framework in his book. There are forms of progressive originalism, too—but that’s a topic for another day. For our purposes, it’s most useful to trace four major strands of originalist thought.
The first wave of originalism focused on original intent—what Meese called “a Jurisprudence of Original Intention.” For these interpreters, the Constitution means what its authors intended it to mean. But this model faced withering criticism, including from later originalists, because it’s hard to pin down someone’s subjective intent, let alone the intentions of the dozens of different people who helped compose the text.