Against Against Constitutional Originalism: A Critique of a Critique
Peterson, Mark
Peterson, Mark
Abstract
Among the panelists at the Yale Journal of Law & the Humanities symposium on Jonathan Gienapp’s Against Constitutional Originalism, I was an outsider in a room full of legal specialists, the only participant without a law degree or law school credentials after my name.
Nevertheless, throughout my career as a historian of early America, I have taught courses on the making of the United States Constitution, beginning as a graduate teaching fellow in Bernard Bailyn’s 1987 lecture course at Harvard, prepared for the bicentennial of the Philadelphia convention and taught to a combined audience of undergraduates and law school students. Later, I began to offer my own courses on the subject at Iowa, Berkeley, and now Yale. My approach has been strongly influenced by my interest in political economy, always with a heavy emphasis on the material conditions underlying and shaping the political and ideational, an approach I learned as Bailyn’s student. Much to my surprise, I have recently completed a book on the history of the United States Constitution, a social history of Anglo-American constitutionalism beginning in medieval England and extending to the present day—a book that emerged from years of teaching the subject in this fashion.
From my perspective, Professor Gienapp (whom I know and admire as a fellow member of the historian’s guild, though he now has an appointment at Stanford Law School) has written a compelling and persuasive book, a book deeply learned in the history of the eighteenth century, a book that (from the viewpoint of the legal academy, judging by what the other symposium papers say) brings a remarkable new degree of historical perspective and context to the question at hand—the validity and integrity of “originalism” in its various forms as a method for legal interpretations of the Constitution. But as a fellow historian, it strikes me as a very peculiar work of history, peculiar in the manner indicated by its subtitle: “A Historical Critique.”