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This Book Could Change the Way Conservatives Read the Constitution

“Against Constitutional Originalism” by historian Jonathan Gienapp could fundamentally reorient how we understand America’s founding.

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 Supreme 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 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 the home, Justice 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.”