Sep 3, 2024

Against Constitutional Originalism

A Historical Critique

Jonathan Gienapp

Hosted by Meghan Cochran

Buy Book

Summary

The legal theory of constitutional originalism has attracted increasing attention in recent years as the US Supreme Court has tilted with the weight of justices who self-describe as originalists.

In Against Constitutional Originalism: A Historical Critique (Yale UP, 2024), Jonathan Gienapp examines the theory and describes how it falls short of achieving the interpretive authority that it claims.

Gienapp asserts that we need to reconstruct 18th century legal arguments as they were originally understood before judging them, while originalists reject historical understanding in favor of a more pliable textualist approach that allows them to impose their modern legal perspectives onto the past.

This "have your cake and eat it too" methodology allows originalists to claim the authority of the Founders while simultaneously discounting anything that those same Founders may have said, done, or understood that doesn't appear among the approximately 7500 words of the Constitution itself.

This book speaks directly to originalists with a challenge to make a fundamental choice between recognizing how our modern constitutional practices distort the original constitution and embrace them for the modern fiction that they are, or recover the original Constitution that the Founders actually knew.

Author recommended reading: