February 4, 2025
By Nicholas Mosvick
For all the laments over the failures of Americans to take on the demands of civic republicanism and to know their founding documents the way our forebears did, Americans still routinely reach to constitutional text and precedent to understand the most pressing political issues of our time. In the social media era, observers can see the unique American constitutional culture that Alexis de Tocqueville witnessed nearly 200 years ago. For conservatives, these debates also show that for all the success of the Originalism movement, there is still robust internal debate over how to best understand our fundamental charter. After President Trump on his first day signed a slew of executive orders, including one on Birthright Citizenship, the libertarian former Representative Justin Amash, in asserting that the text of the Fourteenth Amendment plainly protected “birthright citizenship,” tweeted, “If you’re a constitutionalist, what matters most is the text.” His view is countered by rising scholars like Ben Crenshaw, whose argument rejecting the Amash position goes beyond the text and the history of the text’s framing to the traditional distinction between territorial and political birthright citizenship alongside an argument about what the Constitution, via its preamble, is and what political community it seeks to sustain.
In his latest book examining the problems with the originalist methodology and its use of history, Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique sets out to show both the ahistorical and decidedly modern assumptions baked into the originalist method and that a thorough understanding of the distant constitutional past can lead to a better of what the Constitution really is. Gienapp presents a serious and in many respects, persuasive challenge to the today’s crop of originalist scholars and judges. He takes issue not just with the methodology, but with the underlying presumptions that original public meaning originalism is predicated upon. Since its rise in the 1980s, originalism has always had critics of its methodology and use of history, but Gienapp here offers one of the more compelling assaults upon the historical method of today’s originalists.
In a National Review essay in 1990, William F. Buckley Jr. laid out the stakes for American conservatives in offering originalism to refute progressive constitutionalism: “We are self-governed, or we are governed by the courts. A commitment to circumspect behavior by the courts does not, one mentions in passing, endorse a court system instructed only by legal realism, according to which the legislature can ordain the suicide of individual freedom, in contradiction of the implied covenant given us by the Declaration, and the Constitution.” Originalism, the dominant method of constitutional interpretation among conservatives for over four decades, has successfully ascended high enough that progressive Justice Elena Kagan famously admitted at her confirmation hearing that, “We are all originalists now.” Given its dominant intellectual position among constitutional interpretive methods and the reliance it places upon a historical investigation of textual meaning, Gienapp’s purpose is clear—to recover the past and the Constitution's true, elusive original meaning and to, therefore, show why we must move on from originalism as it has long been understood and practiced.
In his first book, The Second Creation: Fixing the American Constitution in the Founding Era, Gienapp asked what the Constitution was during the period of ratification and the early republic—whether it was fundamental law, a kind of treaty, a legal document, or something entirely unique and new. Gienapp reminded his reader of the great conservative scholars Willmoore Kendall and George Carey had in 1970’s Basic Symbols of the American Political Order, who argued that the practice of self-government as seen in early state constitutions and colonial charters showed that early Americans depended on a general will or social contract for governing. In Second Creation, Gienapp noted that not only was “written constitutional consciousness” new in the 1770s and 1780s, but the declaration of rights in the early state constitutions were “merely reminders, not sources” of an existing organic constitution. In the words of Alexander Hamilton, the “sacred rights of mankind” which were not to be “rummaged for, among old parchments, or musty records” because they were instead written “as with a sunbeam, in the whole volume of human nature.”
For Gienapp, constitutional nationalists like Hamilton viewed the Constitution as a set of permanent general provisions that gave the national government extraordinary authority while incorporating the law of nations and wide swaths of unwritten general law. Further, they did not see a distinction between right reason and textual content and they asserted, as did their leading opponents like Madison, that the “nature of the polity determined the scope of the Constitution’s content.” Gienapp points this out to show that while written constitutions were seen in the founding period as an improvement over the British Constitution, providing “unique and substantial benefits and securities” as the first and fundamental law of the State, this also did not mean that non-textual constitutional content disappeared.
In Against Constitutional Originalism, Gienapp continues to observe that a fundamental problem for originalists in search of original public meaning is that they are assuming that all in the relevant period agreed as to what kind of document the Constitution was and therefore how it should be interpreted. Gienapp’s assertion here ultimately is that originalists are forgetting one of the key aphorisms of any good historian—that the past is a foreign place.
Simply put, in Gienapp’s view, the dominant originalist view is based on three faulty assumptions: a) that that the concept of constitutional meaning presupposes that the Constitution is identical with its words; b) that word meanings are fixed; and c) that word meanings are law because the law of the Constitution was formally enacted. He sums up the flaws as such:
The original Constitution did not initially rest on any of these premises, at least not necessarily so. Nothing about the Constitution simply being written down meant that its content was coextensive with the contextually enriched meaning of its words. The idea of constitutional fixation need not have been correlated with language in the slightest. And because law was still understood as a delicate synthesis of positivist and non-positivist elements, there were no sharp boundaries to be drawn between the Constitution as a textual instrument and the Constitution as preexisting fundamental law. Interpretation was not simply focused on word meanings of textual provisions; nor was it structured by non-existent default methods of constitutional interpretation. The image of the Constitution upon which orthodox originalism depends, and upon which each of these premises relies, was a creation of later times.
Worse, Gienapp says, are the growing set of originalists who are convinced that all which is required to make sense of the Constitution is to figure out language, making originalism as method concerned with understanding the philosophy of language and linguistics. Such corpus linguistics scholars treat eighteenth-century testimony as “fallible, potentially misguided, and likely partisan” commentary, while they assume “we are in a better position today, armed with advanced techniques and refined views, to comprehend what they in fact enacted and what the content in fact communicated.” Perhaps the leading originalist theorist in this regard is Lawrence Solum, who summarizes the utility of such an empirical tool as clarity and precision. “If scholars want to investigate how the public likely understood the Constitution’s words,” Solum argues, “then scholars would benefit from examining the data contained in a large corpus of English from that era rather than only examining the snapshot that a lexicographer took…”
The textualism of Justice Scalia fares no better in Gienapp’s analysis. Scalia and his followers too reduce American fundamental law to written text and assume that the Constitution was created in a way that communicated in a textualist manner. Yet history shows that Founding-era Americans wrote constitutions “in light of what they presupposed about general fundamental law, social contract theory, and the essential harmony between non-positive and positive law” and while they assumed their constitutions communicated much of its content by its text, they also assumed that constitutions communicated content “by virtue of the fact that they were constitutions.” That is, they understood a constitution to incorporate wide portions of existing general and fundamental law and to be based in an existing underlying social compact. To them, the written constitution was rooted in an unwritten and even unspoken one and made no sense without it.
Gienapp’s thesis is not merely that the content of constitutional rights are not reducible to the content of written constitutions, but that this is true as well for the content of constitutional powers. Rather than simply interpreting the words, one must also understand the nature of the Constitution itself and the government that it formed. As Gienapp puts it, the “nature of the polity and the meaning of the Constitution were inextricably intertwined” and the history of the early republic shows the existence of not just competing interpretations of the Constitution, but rival conceptions of the document. He asserts that the best example of the connection between the nature of the federal union and constitutional content is the enduring problem of the relationship between the constitution’s text and the delegation of national power. Statesmen who took different sides of this question weren’t just arguing about words in a way that could be resolved with a sufficiently accurate dictionary. They were arguing about different and sometimes irreconcilable visions of what the Union was.
Turning to the sources doesn’t help much in the search for unity. The early constitutional history of the country, from the early Republic through the Antebellum period, occurred mostly at the state level and State judges relied on pre-Constitution concepts. They did not just look to English Common Law for aid, but in search of a royal sovereignty which was pre-constitutional—what were known as the “police powers” of the states. Further, the founders themselves did not even agree on the import of the English Common Law or the relevance of contemporary treatises, like Blackstone’s Commentaries. The Common Law, in short, was broad and fluid. To bind courts today to its discoverable meaning in 1791 is simultaneously futile as a matter of historical inquiry and a profound confusion about what the common law ever was. As an example, Justice Neil Gorsuch in the 2020 case of Ramos v. Louisiana incorporated against the states the requirement under the Court’s Sixth Amendment’s jurisprudence that the “right to trial by jury” includes the requirement of jury unanimity. Gorsuch’s opinion, asserting that “400 years” of English Common Law meant that “always and everywhere meant only a unanimous jury verdict” blithely discards the history of criminal jury trials at English common law, the diversity of thinking on judge and juror conduct in the colonies over time, and American jurists’ views of unanimity paint a far more complicated picture. Professor Gienapp suggests this same tension and set of contradictions befuddles the originalists generally.
Gienapp’s thesis holds strength because the constitutional history of the antebellum and Civil War periods suggest that the dispute over what the Constitution was did not fade after the ratification period. Rather, the most significant constitutional debates of those periods were not merely about constitutional text or the meaning of particular rights in the first ten amendments, but the locus of sovereignty in the constitutional order which was subordinately dependent upon a theory of what the Constitution was. Take, for instance, the debate over conscription during the American Civil War. The opponents of the national draft, almost entirely Democrats and predominantly those of the “peace” faction, did not focus their constitutional arguments upon a theory of individual rights. They instead asserted that the Constitution as drafted and understood in 1787 was not a document that effectively altered the existing sovereignty of the states, whose prerogative legislative powers were historically rooted in the charters of King James and the pre-Glorious Revolution prerogatives of the Crown. In the minds of these critics during the Civil War, citizenship lay first at the state level because the Constitution was not a document which created a nation and a national people which could so substantively shift sovereignty to the national government.
Likewise, the Republican defenders of the national draft in the North relied upon not just a theory of the Constitutional text as understood in 1787—that the power to “raise armies” necessarily encompassed the choice of means—but that the Constitution created a sovereign state which held the various wartime powers of all nations as understood by the dominant theories of sovereignty during the ratification period (particularly Vattel). That is, the Union could not only draft citizens directly because of the powers granted to Congress in Article I, but because the Constitution created a national sovereign state which necessarily must have the means to pursue all necessary policies to preserve its existence.
Both sides in this debate could call on sources in the founding era. Both made plausible arguments. The Republican case won out, and perhaps that was for the best. But Gienapp shows why it’s impossible to determine that they were “right” in the originalist sense.
A founder of particular significance for Gienapp’s argument is James Wilson. During the Pennsylvania Ratifying Convention, Wilson implored his colleagues to “Stop trying to compare the Constitution to those other things, to a treaty or to a statute or what have you. Recognize what it essentially is. It’s a people’s charter, it’s a popular charter and understand what that means.” In an article on Wilson’s importance to American constitutionalism from last year, Gienapp related that he found Wilson to have been very “conscious of the Constitution’s deeper dimensions” and that Wilson “strongly believed that the United States Constitution, like any constitution, was embedded. To understand what the constitution was, to understand what it did, what it required, what it allowed, what it protected was to understand its underlying foundations.”
Conservatives should give great consideration to these criticisms, albeit with several important limitations. For one, Gienapp’s analysis remains embedded in progressive assumptions. When he writes that one of originalism’s most problematic commitments is that it privileges the “dead hand” of the past, what he calls the “understanding and agreements of generations that have long since left the scene,” he takes on an essentially progressive view of history and human nature. Conservatives, from Orestes Brownson, to the modern scholars he influenced, such as Russell Kirk, the idea of an organic constitution and order has remained a significant aspect of the conservative worldview in America. That is, the pre-constitutional order and tradition matter precisely because we are and should be morally bound by the “dead hand” of the past. Originalism may rely on dubious history. But its core assumption, properly understood, is derived from a conservative epistemology and ontology.
This means, too, that Gienapp may miss something crucial about the English Common Law. Particularly in the 17th and 18th century, its basis was a Christian epistemology that saw the judge and jury not as merely relying upon human reason and facilities to craft positive law, but as finders or discoverers of the natural law. Gienapp should likewise consider that wisdom of George Carey, who showed that the concerns of modern secular liberalism for equality, individual rights, and material satisfaction ultimately threatened constitutionalism and self-government because they ignored elements of the American political tradition that was deeply rooted in the mores of the people. Carey’s conservative constitutionalism was a call for ordered liberty based in both tradition and natural law that the founders would have recognized, not an appeal to materialist epistemology and linguistic science to excaverate textual meaning.
Yet Gienapp’s critique, viewed through the works of postwar American conservatism, should be understood as a challenge to conservatives to return to ideals of restraint and judicial humility. Such an approach is not only found in the works of Robert Bork, Raoul Berger, and the more liberal Alexander Bickle, but also National Review senior editor L. Brent Bozell’s 1966 assault on the Warren Court and the rise of judicial supremacy.
In The Warren Revolution: Reflections Upon a Consensus Society, Bozell described what he saw as the four purposes of a constitution: (1) a scheme under which public authority in a society is divided and sets forth who, in the context of public business, shall have power to do what to whom; (2) establish, or attempt to establish, the boundary lines of the public business and what are reserved areas of private freedom to which public authority does not extend; (3) grant certain privileges of a public nature, often called “civil rights” and; (4) embody “an understanding among the society’s members about what kind of society it is.” Of the fourth category, Bozell, following his mentor Willmoore Kendall, suggested that this included the question of whether or not a society was “open” and thus whether it believed in something beyond mere survival or if it included in its organic social compact certain substantive beliefs about the good. Significantly, Bozell observed of the American Constitution that there was much it did not specify by text beyond the division of power between the branches of government and that the written constitution said nothing about our society’s supreme authority—”the one that is meant to construe its Constitution,” a matter left to the unwritten constitution.
As an example, Bozell points to freedom of speech in the United States, which he says could not and was not “apparent from the language of the [First] Amendment, which is recognizably unserviceable as a working constitutional directive.” If Congress did not believe that society had no right to protect itself against manifestly hostile speech and publication, after all, it would not have passed the Alien and Sedition Acts. Bozell concluded that rather than try and distinguish between the “written” and “unwritten” constitutions, it was better to draw the line between “what we shall henceforth call our fixed constitution and our fluid constitution, it being under that while all ‘fixed’ provisions are written, not all written provisions are fixed.” Fluid provisions are those that, like freedom of speech, are fashioned gradually by “society’s organic process” to find a working consensus concerning the particular and concrete application of the text.
Bozell decades ago understood the dangers, as Gienapp shows, of trying to “fix” the meaning of all written constitutional text. But he hardly thought this meant that modern constitutionalism could imagine the constitution as “progressive” either. After all, Bozell’s principal thesis was that the distinction between the “fixed” and “fluid” constitution was largely observed for the country’s first 165 years. It was only beginning in 1954 that the Warren Court crafted a third revolutionary means of constitution-making, one that transferred “the solution of some of the most momentous problems of contemporary public policy from the fluid constitution to the fixed constitution—by judicial decree.” The earlier generation of legal conservatives were right to criticize the likes of Baker v. Carr, Griswold v. Connecticut, Roe v. Wade, and yes, Brown v. Board not for just their results, but first and foremost because the Court, via judicial supremacy, had made itself a roving constitutional convention. Much as today’s legal conservatives should heed Gienapp’s warnings about the uses of history, they should also remember the conservative primacy of restraint in the American tradition.
Originalism has been, in myriad ways, a conservative success, but a movement decades in the making can do well to recall its own history and the first generation of thinkers who first called for a reform of how we think about the Constitution and rejecting the claims to judicial supremacy that have been so deleterious to American constitutionalism. Even if he does not escape progressive assumptions, Gienapp helps show the way.
Dr. Nicholas Mosvick is the Buckley Legacy Project Manager at the National Review Institute.