Overview

A detailed and compelling examination of how the legal theory of originalism ignores and distorts the very constitutional history from which it derives interpretive authority Constitutional originalism stakes law to history. The theory's core tenet—that the U.S. Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past. Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the U.S. Supreme Court champion originalism, the task of scrutinizing originalists' use and abuse of history has never been more urgent. In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists' unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern. Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own. They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution's meaning was fixed. In the process, they erase the Constitution that eighteenth-century Americans in fact created. By understanding how originalism fails, we can better understand the Constitution that we have.

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9780300265859

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Reviews

“Just when you thought that surely there is nothing new or interesting to say about originalism, along comes Jonathan Gienapp. Against Constitutional Originalism is a must-read.  For anyone new to the debates, it provides a comprehensive presentation of the arguments on all sides. For those already familiar, he takes the debate in a new direction that is a level deeper and more foundational. In so doing, he puts advocates of the theory into a conundrum that must force some kind of reconsideration.”—Larry Kramer, author of The People Themselves “Professor Gienapp offers a new and devastating critique of originalism. Approaching originalism as an historian, he powerfully shows that originalism is a “contrived modern legal fiction” that cannot be justified based on the original Constitution.”—Erwin Chemerinsky, author of Worse Than Nothing

“What are the chances that, in 2024, a new book could fundamentally reorient how we understand America’s founding? Jonathan Gienapp . . . has written such a book. . . . You read it, and you get vertigo. . . . Gienapp’s book comes as a thunderclap.”—Cass Sunstein, Washington Post “Just when you thought that surely there is nothing new or interesting to say about originalism, along comes Jonathan Gienapp. Against Constitutional Originalism is a must-read. For anyone new to the debates, it provides a comprehensive presentation of the arguments on all sides. For those already familiar, he takes the debate in a new direction that is a level deeper and more foundational. In so doing, he puts advocates of the theory into a conundrum that must force some kind of reconsideration.”—Larry Kramer, author of The People Themselves “Professor Gienapp offers a new and devastating critique of originalism. Approaching originalism as an historian, he powerfully shows that originalism is a ‘contrived modern legal fiction’ that cannot be justified based on the original Constitution.”—Erwin Chemerinsky, author of Worse Than Nothing

Author Information

Jonathan Gienapp is associate professor of history and law at Stanford University. He has published widely on the Constitution in American life and is the author of the prizewinning The Second Creation: Fixing the American Constitution in the Founding Era.

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