Does a New Critique of Originalism by a Historian Neglect the Constitution?

Over at Law & Liberty, Professors John O. McGinnis and Mike Rappaport review a new book by Professor Jonathan Gienapp, a history professor at Stanford. Gienapp’s book is entitled Against Constitutional Originalism, and it purports to bring historical expertise to bear on the case against originalism. But McGinnis and Rappaport find the argument wanting, concluding:
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.
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