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The Constitution and Historical Rupture
Gienapp, Jonathan
Gienapp, Jonathan
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Abstract
I wrote Against Constitutional Originalism: A Historical Critique in hopes of speaking to and across several disciplines that are often divided. My ambition was to better illuminate the space where they intersect and, if possible, refashion debate within it. I have long been convinced, and remain convinced, that the debate over constitutional originalism belongs neither to law, nor history, nor political science, nor philosophy, nor any other particular subject or discipline. Instead, it implicates a set of conceptual problems and challenges that necessarily fall between them. That is, in fact, what makes it so compelling, even if in practice the debate of ten falls short of its full potential. Rather than situating originalism at the intersection of several intellectual traditions, as some assuredly have, participants in the debate too often confine originalism to a particular way of thinking and its corresponding methods and problems. This tendency is especially common among legal originalists, who have erred in treating originalism as a problem exclusively within law (or at least comfortably confined to conventional legal analysis, methods, and problems). What makes originalism interesting, and what drew me to it long ago, is how it necessarily melds the authority and imperatives of law with the interpretive problems central to history, above all by implicating the problem of conceptual change across time.