McGinnis and Rappaport on Gienapp: A "Frustrating Book" That "Fails to Take Seriously … The Constitution itself."

Recently, Jonathan Gienapp published a new book that challenges originalism as inconsistent with how the Framers understood the Constitution. The title says it all: “Against Constitutional Originalism.” The book has already received extremely favorable reviews. Many of those positive reviews are from people who are not themselves constitutional originalists. For a contrary opinion, I would recommend a critical commentary from John McGinnis and Mike Rappaport, who approach the book from the perspective of originalists.

Here is the introductory paragraph:

With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist enterprise. For those attracted to the originalist project, however, the book is unlikely to persuade. On the contrary, it highlights the persistent difficulties historians face when they venture into constitutional interpretation. Gienapp neglects the most primary of sources—the Constitution—its text, structure, and self-referential nature. He compounds this oversight by privileging mere disagreement among historical actors over rigorous evaluation of their arguments, a hallmark of legal reasoning. He also confuses objections to originalism as an interpretive method with objections to particular readings of the original meaning. Finally, Gienapp often fails to situate the Constitution in the transformative historical moment of its creation, particularly the Founders’ disillusionment with the unwritten British constitution. These deficiencies weaken his case and, ironically, reinforce the intellectual strength of originalism, which at its best rigorously takes account of text and context.

One example about Hamilton stuck out:

Gienapp correctly observes that some individuals in the runup to drafting and ratification believed that a constitution extended beyond the document itself. But the Philadelphia Convention rejected that understanding. Once the Constitution was ratified, advocates and jurists argued primarily from its text. Gienapp’s treatment of Alexander Hamilton is emblematic of this mistake. He cites Hamilton’s famous line—”the sacred rights of mankind are not to be rummaged for among old parchments”—to suggest skepticism about written constitutions. Yet Gienapp omits critical context: Hamilton made this remark in 1775, long before the drafting of the Constitution, and as part of an argument against British parliamentary supremacy. By the time of the Founding, Hamilton’s views, like those of his contemporaries, had evolved. As a Federalist author and Secretary of the Treasury, Hamilton embraced the Constitution as a written, fixed standard. Gienapp’s omission here is not merely an oversight; it exemplifies his tendency to employ understandings from much earlier or later than the Constitution’s enactment.

By contrast, Gienapp does not discuss things Hamilton said after our Constitution was ratified:

The weight of evidence from the Constitution’s proponents also supports the inferences from the document itself that it is legal. For instance, in 1791 Alexander Hamilton wrote the Constitution should be interpreted “according to the usual [and] established rules of construction,” certainly implying he regarded it as a legal document. While Gienapp does quote from Hamilton’s opinion on the bank, he never discusses this observation, which seems much more relevant to the nature of constitutional interpretation than what Hamilton said in 1775.

To a legal historian, it may not matter much what Hamilton said, and when he said it. But for an originalist, these details really do matter.

Here is the conclusion:

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.

I don’t think any one book can settle the debate about originalism. But I think the sustained attacks of this doctrine is, whether critics admit it or not, a reflection of the strength of originalism.

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