A Review of Johnathan Gienapp’s Against Constitutional Originalism
In court, one of the sharpest weapons defenders of the American Republic have is the Founders Constitution. That said, while it’s very easy to write off our modern present as distinct from the past of the American Founding, we fail to appreciate just how profound these differences are. To quote L.P. Hartley’s famous adage, “the past is a different country. They do things differently there.”
Johnathan Gienapp’s “Against Constitutional Originalism” provides a compelling case showing how originalism as an approach to constitutional recovery is steeped in modern positivist assumptions about law, text and language which color our understanding of the founding. As a result, there is much originalism takes for granted and gets wrong about our founding Constitution. If recovering the founding Constitution as a matter of history and law matters to us, we need to come to terms with Gienapp describes as the historicist Constitution of the founders. What we find at the founding isn’t just an uncertain constitution driven by historicity and change, but one that was consistent with those same eternal truths we find in the Declaration of Independence.
Gienapp thinks there is much that originalists get wrong about the Constitution beginning with its starting assumptions, principle among them being that the Constitution was “fixed” in its meaning the moment it was written and ratified. As Gienapp demonstrates, while may seem simple enough to take out a pocket handbook Constitution and read its words, this act too is shaped by our conceptions of what a constitution is:
no one could just look at a constitution’s text or words and make sense of what one was reading independently of the essential fact that one was reading a constitution and all that implied. Only by understanding what one was reading and why it mattered that one was reading that sort of thing could someone decipher what it was saying…If we want to know what the Constitution originally said, we need to know how it originally acquired and communicated content, which requires understanding how constitutionalism itself was understood to work. (205)
To get at the founding Constitution is to get at the conception of what Constitutions were understood to be. At the founding, Constitutions were understood to contain written and unwritten content. We see this in the conception of the unwritten British Constitution the American Colonists appealed to as their source of their liberties, liberties which they thought were commensurate with the written state Constitutions drafted upon independence.
The founding generation took the Constitution to be a form of government, but also “fundamental law”, which as James Wilson expounded to be both comprised of positive civil law and non-positive natural law, of which the Constitution’s text was “but a node of a broader Constitutional order.” Incorporated into this fundamental law was the English common law as an articulation of the eternal truths of natural law held constant through time. To the founders, Gienapp writes, the common law was not just comprised of “positivist legal materials; it was as much logic and principles revealed by those decisions, customs, and practices as the logic and principles derived from the study of experience and historical development.” This fundamental law was in harmony with and was part of what a constitution was. As observed by John Quincy Adams:
The constitution of a country is not the paper or parchment upon which the compact is written… It is the system of fundamental laws, by which the people have consented to be governed, which is always supposed to be impressed upon the mind of every individual, and of which the written or printed copies are nothing more than the evidence.” (91)
Rights were also not understood to be created by written Constitutional text, but as declarations of unwritten rights already found in the common law and nature. As Hamilton declared, these rights were found on the “sunbeam” of human nature. The content of these rights was grounded in social contract, and to the degree that the common law was supposed to contain those rights derived by nature through consent over time.
This understanding of the Constitution as fundamental law consisting of unwritten and written law was reflected in Constitutional litigation at the founding. In Rutgers v. Washington, Hamilton argued before the New York City Mayor’s Court that a recent statute had violated the state Constitution because it had violated a peace treaty with Britain, peace treaty which by participation in the natural law, violated the same principles which were found in the common law that participated in the fundamental law of the New York Constitution. Judge Duane interpreted the statute narrowly to be consistent with the law of nations but accepted the thrust of Hamilton’s argument. According to Gienapp:
Duane was not merely disambiguating positive law; he was challenging a narrow view of positive law by defending a more capacious and muscular conception of general fundamental law. His creative interpretation of the Trespass Act offered a glimpse into how Founding-era legal assumptions often worked.(103)
Famously also in Calder v. Bull, Judge Chase grounds the origin of the prohibition of ex pos facto laws in the principles of social contract, and while Justice Iredell disputed with the use of natural law as the sole basis for striking down a state’s expos facto statute, Iredell did concede that it was invalid based on longstanding common law practice in the state. In other words, both Judge Chase and Iredell located the Constitution within a web of natural law, social contract and common law, and as part of the fundamental law the Constitution was. Echoing the claims made by Oliver Ellsworth and James Wilson at the Constitutional Convention, they saw no need for textually enumerating a prohibition against ex post facto laws, as they would have been rendered invalid in themselves. Or, more principally, they would have already been invalidated by what the Constitution was understood to be. Not as a paper parchment whose authority stopped at the dot and iota, but as an extension of the fundamental law the Constitution participated in.
In fact, one of the contentions during the ratification debates was on the inclusion of the bill of rights. To Federalists like Hamilton, rights were created not by positive law, but on the “sunbeam” of human nature. To the degree that various state Constitutions contained declarations of rights, they simply declared in text what was already understood to be rights they already possessed, rights that could be litigated as matters of fundamental law irrespective of their existence as enumerated positive law.
The degree to which there was Constitutional disagreement, hinged not on the provisions of the written Constitution’s language, but on the nature of social contract and what kind of people the Constitution was constituted by. James Wilson argued that the Constitution was ratified by a national people, a union brought together at the time of the Declaration of Independence. In this way, there were powers that were delegated by the people to the Constitution beyond those delegated by the state governments, powers most clearly delegated in the preamble of the Constitution.
Opponents of the Federalists, in contrast, put forward a view of the union which came to resemble John C. Calhoun’s compact of states, holding that federal power was strictly enumerated by text as ratified by the people of the several states. Lying in between were people like Madison, who held that the union was a social contract mediated through the states. These founding era disputes were not about the text of the Constitution, but the underlying basis of the polity the Constitution created. As was noted by Madison during the Constitution controversy behind McCulloch v. Maryland, “much of the error in expounding the constitution… has its origin in the use made of the species of sovereignty implied in the nature of government.” What this shows to Gienapp, is that the Constitution “could not be read independently of the terms of the social contract. What the Constitution said was a function of what kind of people and union for which it spoke.” In other words, it wasn’t the language of the Constitution on which the controversy hinged, but a particular conception of natural right which the Constitution was predicated upon.
While originalism today treats the Constitution as essentially a legal document to be litigated in court, at the founding as a question of fundamental law, it was also unclear what right mode of adjudicating the Constitution was. Was the Constitution a form of conventional law that had to be litigated in the courts, or as Madison argued was it the people through juries and their legislatures, who had the final say? The jurisprudence of John Marshall ultimately helped pave the way to the rigid textual instrument we recognize today, but there was nothing about the essence of what the Constitution was that necessitated that understanding.
This is a problem for originalism. A Constitution which begins and ends with the language isn’t the Constitution as the founders understood it, but an anachronistic one, constructed by the imposition of modern presumptions about law onto a founding generation that didn’t possess the same Constitutional conception we do.
By beginning and ending with the language of the Constitution, originalists improperly historicize the Constitution. Gienapp however sees some promise in William Baude and Stephen Sachs original law originalism, which conceives of the Constitution as an accepted body of law stretching from modernity through the founding. By losing its obsession with fixation with textual meaning, it conceives of a much broader conception of the Constitution. Unfortunately, its standing as a modern positivist theory of law plagues itself with historical anachronisms that make it difficult to recover the founder’s constitution.
Original law originalism conceives of identifiable “rules of change” marking the continuity of law going into the past. However, the founders did not conceive of the Constitution’s eternal fundamental principles as being governed as governed by “rules of change.” The nature of this legal continuity is unclear, as the founding was wrought with conflicting conceptions of Constitutionalism as seen in the debates between Federalists and Republicans. While original law originalists would like to bracket off these debates as “external” to the question of law, these “external” debates about social contract informed the logic of what the Constitution was understood to be as law. As Gienapp observes, “A great deal of constitutional change, in other words, has resulted not from the application of the Founder’s own rules of change but our legal consciousness increasingly departed from that of the Founders—as we left the Founder’s legal imagination behind.”
What Gienapp helps show for us is just to what extent originalism draws on a conception of the Constitution which is modern in construction, relying about assumptions about language and the nature of law fundamentally different from the conceptual Constitution at the nation’s founding. Most troublingly, Gienapp charges originalists as promulgating the same living constitutionalism they claim to oppose. More troubling still, is the absence of Constitution “fixed” in text, but rather one which was transformed and “fixed” over the course of the founding generation. In the face of this reality, Gienapp suggests we should “invite and embrace historicism,” as “our claims about the Constitution will always presuppose a set of contingent assumptions about the activity in which we are engaged.” The Constitution was wrestled with as a creature of democratic will, and we have to embrace that Constitutional contingency. Amusingly, this is Richard Rorty’s constitution, and behind him Oliver Wendel Holmes’ Constitution.
Gienapp’s tour de force against originalism is compelling, and in many ways, Gienapp recovery of the history of the American Founding mirrors the projects of Harry Jaffa and Hadley Arkes in recovering the political philosophy of the founding as natural right, even if that analysis is partially shaped by modernity and subtle imprints. If the founding Constitution Gienapp helps recover for us is any guide, the Constitution is more than a bound conception of historicism. Rather, within the Constitution fundamental law, which while plastic through time, apprehended certain perennial maxims of reason speaking across time and place.
A proposition as simple as apprehending the “self-evident truth” that all men are created equal, or for that matter following the logical conclusion that followed from the recognition of enslaved persons as persons in the Constitution, give us a far truer continuity of the founder’s Constitution than Originalism up until now has been able to deliver. What exists equally as a call to embrace the historicist and evolutionary character of our Constitution, is also a call to the truth of natural right. The historicist Constitution we have recovered is more than a creature of democratic will, but in those axioms which existed as fundamental law before and through the founder’s Constitution. This is our Constitution.
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