Stanford University professor Jonathan Gienapp, author of the new book, Against Constitutional Originalism: A Historical Critique, is joined by Stephen Sachs of Harvard Law School to discuss Gienapp’s challenge to originalists’ unspoken assumptions about the Constitution, the history of originalism as a constitutional methodology, and its role in constitutional interpretation today. Thomas Donnelly, chief content officer at the National Constitution Center, moderates.
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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. His second book is Against Constitutional Originalism: A Historical Critique. He is a member of the Historians Council on the Constitution at the Brennan Center for Justice and has contributed to a number of historians' amicus briefs to the Supreme Court of the United States.
Stephen Sachs is the Antonin Scalia Professor of Law at Harvard Law School. He previously taught at Duke University School of Law and as a visiting professor at the University of Chicago Law School. Before entering academia, he practiced in the Washington, D.C., litigation group of Mayer Brown LLP, and he clerked for Chief Justice John G. Roberts Jr. as well as for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.
Thomas Donnelly is chief content officer at the National Constitution Center. Prior to joining the Center in 2016, he served as counsel at the Constitutional Accountability Center, as a Climenko Fellow and Lecturer on Law at Harvard Law School, and as a law clerk for Judge Thomas Ambro on the U.S. Court of Appeals for the Third Circuit.
Additional Resources
- Jonathan Gienapp, “Against Constitutional Originalism: A Historical Critique” (2024)
- Stephen Sachs and Will Baude, “Originalism and the Law of the Past” (Law and History Review, 2019)
- Michael Stokes Paulsen and Vasen Kesavan, “Is West Virginia Unconstitutional?” (90 Cal L. Rev. 291, 2002)
- William Baude, Jud Campbell, and Stephen Sachs, “General Law and the Fourteenth Amendment” (76 Stanford L. Rev 1185, 2024)
- Jud Campbell, “Four Views of the Nature of the Union” (47 Harvard J. Law & Public Policy 2, 2024)
- Fletcher v. Peck (1810)
- District of Columbia v. Heller (2008)
- United States v. Rahimi (2024)
Excerpt from Interview: Stephen Sachs explains that originalism has shifted from focusing on the founders' intent to understanding the Constitution's public meaning as a legal document.
Stephen Sachs: So to start with, a lot of the early versions of originalism, early here being once it became an ism, sort of '70s and '80s, were framed in terms of original intent. That's what people thought originalism was. A lot of discussions of originalism, even today, talk about the intent of the founders. And some people see the idea essentially that, if we are following the document that they wrote down, they must have written it down for reasons. So we should know what those reasons are and do what they want us to do. Sort of an intuitive picture. And that can mean different things. It can mean following the rules that they had in mind, even if they didn't write them down all that clearly. It can mean achieving the outcomes that they wanted to achieve, even if the rules they wrote down don't necessarily yield those outcomes. There are also folks who argue in a newer sort of public meaning school that say, look, the Constitution is law.
It's like a parking sign. Maybe the person who wrote the parking sign wasn't really thinking when they said, no parking Tuesday is 5:00 to 7:00, that that was actually allowing parking on Wednesdays. But that's what the sign says. And that's what a reasonable person looking at it would think. And therefore, it'd be unfair to hold them to whatever was in the heads of the person who made the sign. You should hold them to what the reasonable person seeing the sign would think. And so that's the sort of public meaning school. That's probably the majority of originalists today.
But there are also, folks who argue, no, what we really care about is not what the member of the public would think, but what someone who was legally educated or legally well acculturated would think, because after all, the Constitution is operating as a legal document here, and lawyers use words differently than the general public does. And so we need to know, when it says, no, a chamber of treason shall work, corruption of blood, what did that mean to a lawyer? And it probably didn't mean sepsis, it meant something about inheritance. And so there are going to be distinctions there. My own view is that of original law, which is a little bit more general. It says, look, the whole point of all this is to know what the constitution added to the law as it stood in 1788.
And questions of public meaning and other things like that are going to matter for that. So there's a great example in a paper by Michael Stokes Paulsen and Vasan Kesavan, is West Virginia unconstitutional, where they argue that the constitutionality of West Virginia comes down to how people used semicolons for a particular semicolon in Article four. And the constitution could have expressed one kind of rule and it could have expressed another. And we do need to know things about grammar to know what rules it expresses. But those aren't the only kinds of disputes we might have about the Constitution. We also have to know what kind of enactment it was and what else was out in the world in the legal world that it was adding to, and that it was crafted in light of. Those are all things that are part of the corpus era of 1788 and indeed of today, to the extent that we haven't thrown over the law of an earlier era, except in certain kinds of ways.
So for someone like me, if you're looking at a rule like, the Fair Labor Standards Act, say, well, okay, when did Congress get the authority to pass this kind of thing? Was it in 1788? Was it in the 1860s? Was it in the 1930s? What caused it to be the case that Congress can pass this? And so you'd have to have some historical story about American law, which would have a certain kind of continuity to it, where you'd say, this is why that kind of move was legal at the time, or has somehow become legal since. What was it that made that change?
Excerpt from Interview: Jonathan Gienapp argues that Second Amendment jurisprudence misinterprets the founding generation's view of rights as pre-existing and defined by the people, rather than by judges.
Jonathan Gienapp: So what are the fundamental rights of Americans in the United States? And I think this gets exactly to what's going on in second amendment jurisprudence, which helps sharpen up to my mind. What happens when you don't just ask a question, what do the words of the second amendment mean? But you try to recreate a broader form of constitutionalism and ask yourself, what does it mean that the court, if I am correct, has departed from that in a sort of big sentence, is that consistent with originalism? So to boil it down to size and here I, I draw in, in significant ways on my colleague, Judd Campbell's excellent work on this front as well. When the court approached the second amendment, as they have in so many fundamental rights cases in DC versus Heller in 2008, this case about whether this law prohibiting handguns in the district of Columbia violated the second amendment they basically presupposed a variety of things about rights and Liberty that I think immediately got them off track.
They had assumptions about where rights came from, what purpose they served in the constitutional order and who had authority to define their meaning. So there are three answers to this where constitutional rights are created by text. You have constitutional rights because they are codified and enumerated in textual form. So it matters that the second amendment as a textual matter exists and was added. That's what creates the constitutional right. Second, the point of the right is to serve as a counter majoritarian limit on governmental power. And then third, the content of the right is defined by judges. I think you can see these three premises running through Heller, through Bruen, and then being picked up in Rahimi. And to just make things simple, what I would say is the founding generation, generally when thinking about how fundamentals rights worked, departed from all three of these assumptions in big ways. They thought that most constitutional rights, many fundamental rights, existed prior to textual codification, most bills of rights at the founding. And this included the, what we call the federal bill of rights were mostly declaratory in character, not all of it, but mostly they were declaring, announcing preexisting rights that already were part of the social compact and already had constitutional force.
Two, these rights were not limits on government action, but conditions of legitimate governance. So they were not counter-majoritarian in nature. Instead, what they were, were essential broad principles that made it clear that these could only be regulated or infringed by a truly representative government, and in the interest of the public good. So if the government doing the regulating violated either principle, no good, but if they're consistent with both principles, there's nothing inconsistent about the right and you're enjoying it and the regulation of it. And then three, the content of the rights were generally to be determined by the people themselves. Not by judges. Judges could, in different ways, pick up things that were settled in common law. If that was rightfully understood as a representation of what the people's law was, that leads to conflicts in the early Republic about whether judges picking up the common law are actually doing that. I'll leave that to the side for now. But this gets to some things that I think are really thorny and tricky and are part of what I draw attention to in the book. So is the meaning of the second amendment fixed or how should we understand what was laid down?
Well, the broad principle that is being declared is as a general matter fixed. This is one of the sort of essential features of liberty that it is seeking to announce. It is not creating that principle through textual codification. It's calling attention to it, but it's a general declaratory principle. It's announcing a general premise of liberty. The actual legal determinations that will establish the scope of the right will be part of an ongoing process. I mean, it's basically left to them because it's nothing more than a declaratory right for the people themselves through their representative institutions to figure out the contours of that right and what kinds of limits can be placed on it. So it gives the people themselves the capacity through local and national governance to do that more than judges. Whereas in Heller and Bruen, the idea is in the case of Bruen, this concealed carry law that was struck down in the state of New York of the New York legislature has engaged in sort of ends means analysis to try to figure out how to deal with the problem of guns in the state of New York.
The right way to do it is to actually see what kinds of regulations are deeply rooted in the nation's historical traditions. But I think if we take the historical tradition seriously, what we find is this tradition of letting the people themselves flesh out the right through their conventional representative institutions. So again, I think a lot of Steve would agree with 'cause he takes unwritten law and social compact theory and things like this seriously in ways that Justice Scalia and others often didn't, they usually said, well, the right is written down. So it's this area that sort of removed from a certain kind of government regulation or government regulations are now going to be viewed really, really strictly. And we the judges are gonna sort of sort out what the proper limits are that are baked into that provision when I would say, no, not much is baked in. It's a general declaratory principle that leaves to future generations, the capacity to, to develop it. So we see here maybe a kind of originalism and living constitutionalism that work together, which makes it so hard and anachronistic to ask where the founders are one or the other.
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