The Journal of Things We Like (Lots)
Select Page
Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 Law & Hist. Rev. 321 (2021)

In the 1980s, when conservative scholars first rallied around originalism, their questions often mirrored those of historians. Back then, originalists were interested in original intent, and traditional historical methods provided the most obvious means of discovering it. But intent-focused originalism encountered devastating critiques. Paul Brest noted the frequent impossibility of identifying a single coherent intention among the Constitution’s framers. Jefferson Powell argued that originalism itself was not originalist, as the framers did not intend for the Constitution to be interpreted in this way. Such critiques led most originalists to eschew intent and focus instead on original public meaning: how the Constitution’s words would have been understood at the time they were written. This shift has increasingly driven a wedge between originalists and historians, as originalists turn to tools such as electronic corpora to elucidate the meaning of the Constitution and reject historical inquiries not focused on textual meaning as irrelevant or an obstacle to valid interpretation. Originalist Randy Barnett suggests “[y]ou don’t need a PhD. in history” to discover the semantic meaning of words, even in the distant past. Historian Jonathan Gienapp claims originalism today “is an affront to all historians.”

Gienapp’s new article takes aim at contemporary public meaning originalism. It levels a critique that, if correct, has the same foundational impact on today’s originalism that Brest’s and Powell’s critiques had on earlier versions of the theory. Gienapp’s central claim is that the framers’ “conception of constitutional writtenness was worlds apart from” the conception of constitutional writtenness originalists now take for granted. No assumption is more foundational to contemporary originalism “than the idea that the Constitution is essentially a written text: that the Constitution just is the document written during the summer of 1787.” On this view, the Constitution had no content before it was written; it acquired its content only through express addition; and its text is the exclusive and comprehensive repository of such content. By assuming the Constitution just is the written text and nothing else, Gienapp observes, “originalists enable originalism to appear as an intuitive way to interpret it.”

The problem, Gienapp argues, is that to treat the Constitution as exclusively written “is to give it an identity.” He argues that the framers did not believe the entire content of the Constitution was encapsulated in its text. They understood writtenness differently than today’s originalists because they did not believe that fundamental law, of which the Constitution was a critical part, consisted only of the positive enactments of lawmakers. They believed that foundational legal principles pre-existed the written law, lay substantially beyond the control of human actors, and were discoverable, like the laws of mathematics, through observation and reason. Some parts of the Constitution had no existing referent in fundamental law and needed to be positively stipulated. But, Gienapp argues, “just because some constitutional content was constituted by text did not mean all of it was.” The framers presupposed that the Constitution “effectuated, elaborated on, and harmonized with the general principles of fundamental law.” They did not believe that “writing constitutional principles down . . . erected sharp textual boundaries between what was in and what was outside of” the Constitution, nor that it was possible to reconstruct the Constitution’s entire content solely from its text. Scholars such as Akhil Amar have shown that our written Constitution depends on and interacts with unwritten sources of constitutional law. But Gienapp makes the problem for originalists more acute, offering evidence that the framers rejected the core understanding of “writtenness” originalists now advance.

Gienapp’s evidence will not be easy for originalists to surmount. In 1791, John Quincy Adams asserted that “the Constitution of a country is not the paper or parchment upon which the compact is written,” but rather, “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.” Gienapp argues that the framers’ different conception of constitutional writtenness is apparent in much of their writing, including early Supreme Court decisions. The first Justices regularly appealed to the law of nations and general jurisprudence to elaborate the meaning of the Constitution. They understood those sources as different ways of accessing the same fundamental law that the Constitution recognized and sanctioned, and thus as important guides to constitutional meaning not fully incorporated in the text. Even more strikingly, Gienapp shows that, as bitterly divided as Revolutionary-era Americans were over the scope of federal power, they agreed that the federal “government’s power was a function, not of what had been written into the Constitution, but of the nature of the underlying union.” Both sides “presupposed that the Constitution’s meaning could not be reduced to or recreated from its written content”—that, for instance, “Article I was not constitutive of federal power but merely an expression of what many of those powers happened to be.”

This is not a friendly amendment; it is a foundational challenge. Gienapp argues that “[s]tipulating that the Constitution’s meaning is the meaning of its words, is not to passively interpret it, but to construct it”—”wrenching it into the present just as any living constitutionalist might.” It is not clear how originalists will respond to this challenge. Gienapp argues—correctly I think—that standard attempts to disaggregate the Constitution from the subjective intentions of its authors will not work here. His critique is not focused on Founding-era views of interpretation, but on original understandings of what was being interpreted. If Gienapp is right about the framers’ approach, then the original Constitution was simply a different entity, with different content, substance, boundaries, and meaning, from the more modern, exclusively-written Constitution constructed subsequent to 1787.

Originalists could respond by conceding that their Constitution is purely stipulated—a modern legal fiction that has little to do with the actual Constitution that existed in history. In fact, Gienapp writes, “[o]ne gets the sense that they might move in this direction, especially when they claim, as they increasingly do, that originalism is a theory of law, not history, and that history cannot decide what the law is.” Given how much originalists have conceded over the years, this is not beyond imagining. As Larry Solum has suggested, at least some versions of originalism could in theory be compatible with accepting some unwritten sources of constitutional law. But it seems highly improbable to me (and to Gienapp) that originalists will actually concede that their written Constitution, with its special privileging of the text above all else, is a contemporary legal fiction. It’s too fundamental a concession; it undermines the entire premise of originalism and its core claims to distinctness and legitimacy.

Thus, I think originalists are left with two choices. They can ignore Gienapp, or they can try to refute his history. That latter, more honest, path would require arguing that he’s gotten the intellectual history of his period wrong—that he’s misunderstood the framers’ mindset and that they understood constitutional writtenness in essentially the same way originalists do today. Originalists’ preferred tools aren’t going to be much help with this: dictionaries, electronic corpora, and whatever other ostensibly objective tools originalists rely on to detect the semantic meaning of the Constitution cannot answer deep questions about the implications of writtenness and the essential nature of our founding document. To answer those questions, we’re going to have to conduct the kinds of historical inquiries originalists have increasingly dismissed as subjective, unreliable, and an obstacle to proper constitutional interpretation. We’re going to have to enter the distinctly foreign territory of late eighteenth-century America and try to recover ways of thinking potentially quite different from our own. A PhD in History may not be strictly necessary for this project, but it sure would help.

Download PDF
Cite as: Cary C. Franklin, The Construction of an Originalist Constitution, JOTWELL (December 20, 2021) (reviewing Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 Law & Hist. Rev. 321 (2021)), https://conlaw.jotwell.com/the-construction-of-an-originalist-constitution/.