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Can Originalism Survive Jonathan Gienapp?
Colby, Thomas B.
Colby, Thomas B.
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Abstract
Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique is a tour de force—among the most important books published in the field of constitutional law in a generation. Deep, sophisticated, and tremendously well written, it poses what might well be the stiffest challenge to the originalist project to date. Unlike some other historians who have waded into the constitutional theory debates, Gienapp displays a thorough mastery of the originalist literature; he understands originalism deeply and engages originalist arguments on their own terms. And what he has to say about them—what the history that he so carefully marshals has
to say about them—is potentially devastating.
The question now is whether originalism is capable of returning serve.
At base, Against Constitutional Originalism establishes the core proposition that the founders did not understand the Constitution, or constitutionalism, in the same way that originalists (and most of the rest of us) understand them today. Nor did the founders even agree among themselves about the true nature of those concepts. Most importantly, the founders did not agree that the American Constitution was limited to the fundamental law created by, and enumerated in, the constitutional text. Rather, most of the founders believed that “[a]ll fundamental law was part
of the ‘constitution,’ but only some of it derived from the constitution’s text.” Concepts of natural law, general law, common law, the law of nations, and customary law—preexisting, and often understood to be found rather than made—also pervaded and partially constituted the
Constitution as they understood it. Fundamental rights predated and were not derived from constitutional text. The scope of federal power was less a product of the text of Article I than of the (highly contested) nature of the federal union and the powers that such a union did (or did not, depending on one’s conception of its nature) inherently imply. The founders did not agree about whether the Constitution was a form of conventional law, to be interpreted with legal techniques and enforceable in courts of law. They did not understand fundamental rights to trump democratically enacted laws.