Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique does not come to praise originalism but to bury it. Far from a polemic or a screed, however, Gienapp has produced a profoundly considerate, sustained, and critical attack upon the methodology of public meaning originalism. The result is arguably the most important book written against originalist methodology. Originalists in the academy have little choice but to pay attention to it and respond to its charges.

Gienapp, a specialist in eighteenth-century history at Stanford University, is no stranger to critiquing originalism. In recent years, he has emerged as one of its ablest critics. His first book, The Second Creation, focused on eighteenth-century constitutionalism and sought to recover the Founders’ constitutional thinking when they created written constitutions, and the 1787 Constitution in particular. He argued there that the essential meanings and understandings originalists associate with the Constitution emerged from the political conflicts of the 1790s rather than pre-existing in the decades before 1787. Against Constitutional Originalism is Second Creation’s spiritual successor. Unlike that first book, however, Gienapp’s focus shifts to intellectual history and historical methodology; Against Constitutional Originalism is more a discussion of historical methods and how they help recover the past interpretations compared to originalist methodologies.

For Gienapp, the most significant flaw of public meaning originalism is ontological. Originalists believe the “Constitution’s essential nature is clear and obvious:” It is a legal text whose words and phrases became fixed at the time of its writing. All originalists must do is simply recover and apply linguistic meaning to a particular issue. This approach reduces the Constitution to only the words on the page. It forces originalists to conjure an eighteenth-century everyman to defend how their explanation comports with how the eighteenth-century public would have understood those words. Hence, their ontological mistake created an epistemological error, providing them with a false knowledge of what the Constitution means. At the same time, understanding the Constitution allows originalists to claim an objectivity supposedly missing from other types of constitutional practice. As originalists claim, they only find and interpret the law rather than make it.

In essence, originalism makes historical claims without engaging in the past. Originalists insist that the legal meaning of words and phrases of the eighteenth century has continued unabated, thereby forging a continuity of the past with the present. They fail to realize or refuse to accept that such connections ignore the dramatic and always constant nature of change over time. They flatten and oversimplify the complex and rich historical record. In other words, and to borrow the cliche, originalists fail to realize how the “past is a foreign country.” The consequence of ignoring the actual history of eighteenth-century constitutionalism leads to an irony lost to originalist practitioners. As Gienapp explains, the “Constitution that originalists interpret is not the one that existed at the Founding, but one that has slowly emerged over time.” Thus, and without even realizing it, “originalists are, in fact, no less committed to informal constitutional change and evolution than their intellectual counterparts.”

To demonstrate the flaws of originalism’s methodology, Gienapp points to the two most important Second Amendment decisions: District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen. In those cases, the Supreme Court asked if the Second Amendment protected a collective or individual right and what relationship existed in 1791 between the amendment’s prefatory and operative clauses. Gienapp contends that these questions are anachronistic and lead to a myopic focus on textual analysis and exploration of syntax. They all but ignore the underlying context that gave meaning to those words. Anachronistic questions, therefore, will lead inevitably to anachronistic conclusions. He contends the “only remedy” against such anachronisms “is to ask different questions and approach the amendment as an inhabitant of the eighteenth-century would have.” Applying this historical approach leads him to argue how the meaning and inclusion of “free state” was “the most important feature of the original amendment.” The text and syntax of the Amendment “was not written for judges or with legal remedies in mind” but “for the people and their governance.” Because the Supreme Court ignores the historical context surrounding the Second Amendment, it forces our modern constitutionalism into older and foreign understandings.

As his example of the Second Amendment points to, the central theme throughout Against Constitutional Originalism is all too familiar to historians: context is king. Gienapp devotes the bulk of his book to recovering the context of the legal mind of the Founders and then comparing that world with originalist positions. What he details (some of which he covers in more depth in Second Creation) is a mentality with “complex synthetic views on law.” Words and phrases like ”constitution,” “fixity,” “fundamental law,” and “rights” contain a rich contextual set of meanings and assumptions that cannot be found in originalist methodology.

Far from embracing a written constitution as a positive writ with fixed and defined meanings, Gienapp claims that the Founders remained committed to decidedly non-positive notions of custom and tradition in English common law. This customary mindset also meant that early Americans did not conceive of fundamental law as being contained exclusively within the written document itself; the British common law itself provided “ample fundamental law … from which to challenge, curb, or empower government.” The creation of written constitutions did not change that idea, nor did it “entail nullifying or remaking existing fundamental law.”

Even the Founders’ notion of rights was unmoored from texts. Americans of the Founding era considered writing down rights as “declarative rather than constitutive,” meaning that rights existed before their writing. Even the concept of liberty contained meaning absent in modern legal thought. Rather than being defined only as freedom from interference, eighteenth-century Americans also described it as being free from arbitrary rule. Finally, the idea of the social compact served a critical role in the eighteenth-century legal mind. The concept of government operating on the prior act of consent shaped the meaning and intentions of governmental power. All this context suggests that, at best, a search for only the linguistic meaning of words and phrases tells only a part of the story and, worse, cannot and does not supply any historical meaning at all.

Of particular importance to Gienapp’s account is his discussion of the unwritten nature of the 1787 Constitution. His description leads him to claim that originalists neglect three interrelated points. First, the written nature of the Constitution, while an undeniable aspect of the document, did not mean that its writtenness made the document “fully.” The older constitutionalism of custom and tradition still held sway. The early struggles over constitutional interpretation thus led to debates over the conception of the Constitution as well as the words of the Constitution.

From these debates sprang the second critical aspect of the writing and adoption of the Constitution. Only “after 1787” and emerging slowly from the arguments of Anti-Federalists and later Jeffersonians over the nature of the Constitution did written constitutionalism transform into an appeal to a text of fixed powers designed to limit governmental authority. Even then, the older norms remained vital. Even as Jeffersonians pointed to the text, Federalists such as Gouverneur Morris, Alexander Hamilton, and James Wilson maintained and defended the older tradition. The relationship between the enumeration of powers and the scope of national power “was not determined simply by the language of the Constitution.” Instead, these more nationalist-minded Founders focused on the “nature of the underlying polity” to explain the nature of the union and Constitution as developing out of a national social compact. This compact, in turn, created ample space for the national government to wield broad, implied powers.

The struggles over defining the nature and meaning of the Constitution and its text led to the third notion overlooked by originalists: the anti-legalist understanding of constitutionalism. Most originalists (and lawyers) consider the judiciary the primary repository for all questions of constitutional meaning. As Gienapp explains, this idea emerged only after John Marshall’s ascension to the bench and, even then, did not become the norm until long afterward. Gienapp’s point here is that debates over the meaning and nature of the Constitution came more often from congressional debates and appeals to popular opinion than judicial decrees.

Gienapp’s foray into the legal mind of the eighteenth century reveals how the search for the meaning of words cannot provide actual meaning to the Constitution. If originalists seek to use the history of the Founding, they must consider all contextual aspects instead of definitional terms. To do otherwise imposes the modern onto the past. Grasping this contextual history is not an easy task since those contexts are messy and more indeterminate than they seem on the surface. In essence, even as “originalism is staked to history … that history proves its undoing.” Rather than embrace what amounts to legal fiction, Gienapp implicitly endorses and encourages originalists to accept Jack Balkin’s “living originalism.” As Gienapp describes it, the Constitution “sets something dynamic in motion, requiring its subsequent users, through an essentially iterative process, to both work it out and work out how it ought to work.”

It is difficult to see how Gienapp’s call for “living originalism” is anything but a sanctioning of the judiciary to fill in the gaps, of wanting the Courts to make the law as much as interpret it. In short, this is just another form of judicial supremacy. But it is of a more pernicious kind. For all its methodological faults, originalism acknowledges some fetters around judicial power, that the judiciary is not the legislature, and that it cannot address all ambiguities. Living originalism does not see those boundaries, opting instead for the Court to often drag the law and nation to its preferred positions.

While originalists will probably complain that Gienapp misunderstands their approach, the rest of this review focuses on Gienapp’s history. Although his discussion of historical methods and the constitutionalism of the eighteenth century is excellent, his historical examination is not without faults. First, Gienapp’s discussion of the synthetic nature of the legal mind of the late eighteenth century leads him to suggest a degree of indeterminacy that might not have existed. This indeterminacy, moreover, explains his embracing of “living constitutionalism.” Since the context of the eighteenth century is so radically different from our own and impossible to recapture and replicate, constitutional interpretations should reflect our current era.

In essence, Gienapp commits his own ontological error. For him, the nature of constitution is relativistic; like all forms of relativism, it denies any claims of truth. But eighteenth-century Americans remained committed to the idea that truth remained identifiable. Trying to discover the truth led to several competing arguments on interpreting texts. One maintained that the meaning of a written text was so apparent that it did not need “construction.” It is simply self-evident, much like the self-evident truths of the Declaration of Independence. A second approach, best exemplified in the common law, considered a written text part of a larger tradition and must be interpreted within that tradition to make sense. A third understanding required a final, authoritative interpreter—a sovereign—to give meaning and interpretation of text. While employing any of these three approaches often led to conflict, Americans applied them under the assumption that they offered a knowable, stable, and determinative meaning of a text.

These interpretive traditions are in play in his discussion of a national social compact. Even as he insists on the lack of an authoritative interpretation, Gienapp clearly thinks that the nationalist belief in the national social compact and its teleocratic empowerment of the general government should be considered the accurate interpretation of the Constitution. As Gienapp explains, “What proves striking is not just how powerful this kind of nationalist thinking was at the Founding, but how broadly its underlying premise was shared.” While some Founders certainly held this nationalist understanding, one would think that if their argument possessed such broad popular appeal it would be entirely commonplace in American thought. Yet, Gienapp does not show evidence of broad support for this nationalist mindset nor connect it to anything beyond the thoughts of Morris, Hamilton, Wilson, and a small cadre of Federalists, elevating them as sources of interpretative authority.

Instead, the evidence from the founding era suggests that the Jeffersonian belief that the Constitution resulted from a compact of the people of the several states offers more historical accuracy. From the start of the pamphlet wars of imperial crisis to the Declaration of Independence, the Articles of Confederation, the writing and adoption of the Constitution, and then in the political battles of the 1790s, one of the most persistent beliefs of many Americans held that the colonies and then states maintained their own “freedom, sovereignty, and independence.” To put it another way, the Jeffersonian defense of the compact theory’s interpretation of a limited set of constitutional power reflected a pre-existing constitutional and political tradition of local self-government. The sweeping of the Federalists from power in 1800 suggests a broad, popular support of the Jeffersonian interpretation.

One other historical aspect of Gienapp’s account requires attention: the relatively unimportant role he gives to writing and ratifying the 1787 Constitution. To be sure, he points to Anti-Federalists as the progenitor of the idea of the Constitution-as-text, but the writing and ratification of the Constitution, while perhaps a crucial historical moment, is less important as a constitutional one. Constitutionalism might have begun a change in the decades “after 1787,” but in 1787, Gienapp asserts (here and in his first book) that the Framers remained unsure of just what they were doing in writing the Constitution.

Here, Gienapp tries too hard to prove his thesis. He overlooks the near convention-ending clash between those who pushed for the open-ended national legislative power in section 6 of the Virginia Plan and the critics who claimed that was not the purpose of a federal union. Section 6 of the Virginia Plan stated that “the national Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confederation—and moreover to legislate in all cases to which the separate States are incompetent.” The Convention forced a delay on discussing that provision because “they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.” This leads to a crucial question: Why did delegates believe it necessary to write down those powers? If the Framers remained unsure about what they were creating, why was Article 6 of the Virginia Plan explicitly rejected in favor of enumerated powers? This suggests the importance of the textual nature of constitutionalism not only pre-dated 1787 but directly influenced the writing of the Constitution.

As this critique demonstrates, historians also debate the meaning of the past. And they will continue to do so. While jurists should show more sensitivity to historical context, demanding correctness from them even as historians continue to debate the meaning suggests that calls for the death of originalism might be greatly exaggerated and premature. Nevertheless, Against Constitutional Originalism demands a response. It is too powerfully argued for originalists to ignore. If they do not respond, they will find their approach consigned to the failed theories of the past.