With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist enterprise. For those attracted to the originalist project, however, the book is unlikely to persuade. On the contrary, it highlights the persistent difficulties historians face when they venture into constitutional interpretation. Gienapp neglects the most primary of sources—the Constitution—its text, structure, and self-referential nature. He compounds this oversight by privileging mere disagreement among historical actors over rigorous evaluation of their arguments, a hallmark of legal reasoning. He also confuses objections to originalism as an interpretive method with objections to particular readings of the original meaning. Finally, Gienapp often fails to situate the Constitution in the transformative historical moment of its creation, particularly the Founders’ disillusionment with the unwritten British constitution. These deficiencies weaken his case and, ironically, reinforce the intellectual strength of originalism, which at its best rigorously takes account of text and context.

The Nature of the Constitution

Gienapp’s most critical mistake stems from his argument that substantive constitutional principles were not confined to the Constitution’s text at the time of its framing. He acknowledges that the Framers understood the Constitution as a written document but claims they simultaneously operated under a broader, unwritten “constitution” informed by natural law, common law, and custom. This supposed tension between the written and unwritten creates the foundation for his critique of originalism.

But this is mistaken. It is true that there was an older tradition that viewed the English Constitution as manifested in various written and unwritten ways. But the Americans rejected that tradition. Of course, that does not mean that those unwritten laws are irrelevant to the Constitution; it might incorporate common law through its terms, or its provisions might be interpreted against the background of natural law. But it is a confusion to view those norms as part of the Constitution itself.

The written document that is the Constitution makes clear that it is the document that is the sole constitution. The preamble announces with clarity and precision: “We the People do ordain and establish this Constitution.” The document is self-referential, defining itself as the instrument that follows the preamble, not some set of preexisting principles. The Supremacy Clause reinforces this self-definition, declaring the Constitution—and only the Constitution—alongside laws and treaties made pursuant to it, as “the supreme law of the land.” The Constitution also provides that as “all Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Thus, specific provisions of the Constitution rely on references to the document as the Constitution for their operation. This mound of textual evidence undermines Gienapp’s claim that the meaning of the Constitution was unclear.

Gienapp correctly observes that some individuals in the runup to drafting and ratification believed that a constitution extended beyond the document itself. But the Philadelphia Convention rejected that understanding. Once the Constitution was ratified, advocates and jurists argued primarily from its text. Gienapp’s treatment of Alexander Hamilton is emblematic of this mistake. He cites Hamilton’s famous line—“the sacred rights of mankind are not to be rummaged for among old parchments”—to suggest skepticism about written constitutions. Yet Gienapp omits critical context: Hamilton made this remark in 1775, long before the drafting of the Constitution, and as part of an argument against British parliamentary supremacy. By the time of the Founding, Hamilton’s views, like those of his contemporaries, had evolved. As a Federalist author and Secretary of the Treasury, Hamilton embraced the Constitution as a written, fixed standard. Gienapp’s omission here is not merely an oversight; it exemplifies his tendency to employ understandings from much earlier or later than the Constitution’s enactment.

Another of Gienapp’s critiques—that statements from the Founding era that appear to endorse originalism partake of a “mythology of origins” and thus do not mean what they seem to mean—rests on shaky ground. He claims that originalism as practiced today is disconnected from these early expressions of fidelity to original meaning. But he offers no compelling evidence of such discontinuity. On the contrary, these early statements often align closely with modern originalism. For instance, Gienapp complains that early endorsements were limited to the commonsense view that the original understanding of the text was relevant to its meaning but did not constitute the exclusive source of its meaning. But as evidence of this claim, Gienapp strangely quotes a statement from Madison about the original understanding of the Constitution—“in that sense alone is the legitimate Constitution”—which is a clear endorsement of fixed meanings as the interpretive touchstone.

Perhaps most egregiously, Gienapp suggests that the Framers’ lack of historical experience with societal change undermines the propriety of taking their venerable commitment to originalism as opposition to today’s living constitutionalism. But, as Philip Hamburger has demonstrated, the Framers were acutely aware of the problem of social change. This awareness shaped their choices as they drafted the Constitution. They often wrote at the level of principles whose application, although not their meaning, changed as the nation grew. For instance, as interstate commerce became more important to the nation’s economy, the Commerce Clause naturally allowed the federal government’s power to expand over the greater domain of commerce. They also included a more flexible amendment process that avoided the unanimity requirement of the Articles of Confederation and so was amenable to addressing social transformation—not by changing the meaning of the Constitution but by changing its text. Gienapp’s failure to engage with this evidence reflects a broader failure to reckon with the depth and sophistication of the Founding generation’s constitutional vision.

It is puzzling that Gienapp, as a historian, also neglects the Framers’ historical experiences which would subvert his thesis. The colonists’ long struggle with Britain highlighted the perils of an unwritten constitution—because much of the debate with the British turned on what was the basic content of the unwritten British constitution. This instability shaped the Framers’ insistence on a written Constitution. They sought something less ambiguous, a fixed standard that could serve as a foundation for governance. The meticulous drafting process, involving the Committee on Detail and the Committee on Style, underscores this intent. Every word was weighed, every phrase scrutinized, to create a document that was as clear-cut as possible. Furthermore, the use of special conventions for ratification in both state and federal contexts demonstrates the Framers’ concern with making a written constitution the people’s fundamental law. Gienapp’s failure to grapple adequately with this context weakens his argument and leaves his critique unmoored from the realities of the Founding.

Interpretive Rules and Disagreement

Gienapp is correct to note that the Founders sometimes disagreed on the interpretive rules to be applied to the Constitution. However, this disagreement does not undermine originalism either; rather, it reinforces its intellectual foundations. The Founders debated interpretive rules precisely because they understood that such rules would help fix the meaning of the text. This recognition—that interpretive methodologies serve to anchor the Constitution’s meaning—places their debates squarely within an originalist framework. Contrary to Gienapp’s implication, the existence of disagreement does not preclude the formation of a reasoned judgment about which interpretive rules are best supported by evidence. Indeed, the Founders themselves adhered to a legal norm that directed them to choose legal interpretations that are best supported.

For example, while Gienapp highlights that some Founders, like Madison, at times likened the Constitution to a treaty among the states, the persuasiveness of this interpretation collapses under scrutiny. The structure and language of the Constitution reject the treaty analogy. Unlike the Articles of Confederation, which were styled as a compact among sovereign states, the Constitution derives its authority from “We the People of the United States.” This shift from state-centric to popular sovereignty is not a matter of mere semantics; it reflects a fundamental transformation in the nature of governance. Furthermore, in the famous debates among Washington’s Cabinet over the Bank of the United States, none of the participants, including Thomas Jefferson, relied upon treaty-like interpretation of the Constitution even if that would have helped their cause. Instead, they appeared to accept the premise that the Constitution should be interpreted by analogy to statutes and state constitutions, albeit disagreeing on how those analogies should be applied. Such evidence underscores that the treaty analogy was inconsistent with the broader consensus on constitutional interpretation.

Gienapp often treats disagreement as meaning there is no right answer. Perhaps that approach makes sense for a historian, who is not in the business of determining who had the right view of some historical issue. But when determining the original meaning, a lawyer looks to the stronger argument, recognizing interpreters at the time could be mistaken or adopt the worse argument for political reasons.

The Language of the Law

Gienapp criticizes a central claim of our own scholarship, namely that the Constitution was written in the language of the law. His failure to engage seriously with the Constitution’s text, however, again undermines this critique. The Constitution brims with legal terminology—“habeas corpus,” “naturalization,” “ex post facto laws”—that carry technical meanings beyond the grasp of ordinary laypersons as well as many other words that have both a legal and lay meaning. Its references to preexisting legal rules further underscore its legal nature and demonstrate that the Framers intended it to operate within a framework of legal reasoning. Gienapp’s failure even to discuss this evidence, despite our having presented it at length, is perplexing but reflects his overall cavalier inattention to the Constitution’s text.

Discussions and interpretations from the early Republic also bolster the conclusion that the Constitution was written in the language of the law. Members of Congress and judges frequently invoked legal rules and inferences when interpreting the Constitution, demonstrating their shared understanding of its legal character. Gienapp touts the fact that some contemporaries opposed the legalistic approach to constitutional interpretation, but he overlooks a critical point: many of these individuals were opponents of the Constitution itself. Their fears that the document would be construed according to legal rules were, in fact, a primary reason for their opposition. Thus, their opposition to a legal interpretation of the Constitution was based on their view that the likely meaning of the Constitution was legal. After ratification, only a few continued to challenge legal interpretations, and even Gienapp concedes that some of these were “radicals.”

The weight of evidence from the Constitution’s proponents also supports the inferences from the document itself that it is legal. For instance, in 1791 Alexander Hamilton wrote the Constitution should be interpreted “according to the usual [and] established rules of construction,” certainly implying he regarded it as a legal document. While Gienapp does quote from Hamilton’s opinion on the bank, he never discusses this observation, which seems much more relevant to the nature of constitutional interpretation than what Hamilton said in 1775.

Misunderstanding Originalism

Gienapp’s characterization of originalism is shaky at times. He suggests that originalists disregard social concepts of the time in determining original meaning. But most originalists recognize the potential relevance of political concepts to understanding constitutional provisions. The real question is not whether such concepts matter, but how far they bear on meaning—a question originalists resolve through evidence and rigorous analysis. For example, Gienapp draws on Judd Campbell’s argument that rights in the Founding era were less absolute than they are in modern jurisprudence, more susceptible to limitations justified by the public interest. This is an interesting issue, but it concerns the content of original meaning, not the validity of originalism itself. Originalists, from Scalia to contemporary scholars, have shown a willingness to dive deeply into the historical record—including political and common law contexts—to uncover the meaning and application of a constitutional provision. Gienapp appears wrongly to believe that considering such material is an objection to originalism rather than an important practice by which originalism fixes meaning.

Gienapp also makes an unsupported claim that originalists broadly endorse “judicial supremacy,” a concept he dismisses without defining. For someone so quick to accuse originalists of misunderstanding nuance, Gienapp offers little clarity about what he means by judicial supremacy. Does he mean the idea that judicial decisions bind only the parties to the case as opposed to all branches of government? Or that the judiciary has ultimate authority in constitutional interpretation not subject to challenge? His failure to engage with the concept leaves his critique vague and imprecise. Moreover, the nature of “judicial supremacy,” however defined, is again a debate about the content of original meaning, not its methodological soundness. Originalism has addressed such questions through evidence and reasoned argument.

Ultimately, Gienapp’s Against Constitutional Originalism is a frustrating book. It lectures originalists on the importance of history but fails to take seriously the primary historical artifact at issue: the Constitution itself. Gienapp ignores the historians’ duty to weigh conflicting evidence, often favoring provocative claims over measured judgment. Most surprisingly, he also neglects the Revolutionary experience that led the founders to create, in the words of Justice William Paterson, a fundamental written law of “exactitude and precision” on which to found a new nation.