The Contents of Originalism

Though I did not find it completely persuasive, I must consider Jonathan Gienapp’s Against Constitutional Originalism the best book on constitutional interpretation and methodology I have read in a long time. It is systematic, beautifully written (which is especially refreshing for a work of legal-historical scholarship), and passionately argued, with logic that is easy to follow as it unfolds gradually to form the tapestry of a polemic. The book effectively argues against certain kinds of originalism and ought to sharpen its target, even if it does not discredit the leading interpretive methodology as Gienapp hopes it would. Just as originalism moved decades ago from original intent to original public meaning under pressure from good-faith critics, it will move to its next phase, refined and more durable, thanks to Gienapp, a professor of law and history at Stanford University.

Giving this book its force is its ontological approach to the Constitution. Many theorists have tried to deduce interpretive principles that might apply to the Constitution by analogy: How would you follow a recipe, directions from a spouse, or an ancient scroll found in a time capsule? We might learn about communication and linguistic conventions generally from such analogues. But analogical reasoning will not help us figure out how to read the Constitution, because the Constitution is not a recipe, nor the Framers, your spouse, nor the Bill of Rights, a rediscovered parchment from antiquity. The U.S. Constitution is the national American Constitution. How does that get interpreted? In other words, what is the Constitution?

It is capacious, to say the least. Gienapp maintains a historian’s appreciation for previous eras’ ways of understanding the world that defy today’s fine-toothed categorizations, distinctions, and disentanglements. Is the Constitution the supreme law of the land? Yes. Is it a national charter? Also, yes. Does it incorporate fundamental law, common-law reasoning, and other remnants of British political philosophy? Indeed, it does. That is how it would have been understood at the time, and what authorized it to shape American life in myriad ways, whether through primary rules about permissible conduct or secondary rules about lawmaking and adjudication.

To be true originalists, then, we must learn to appreciate constitutional elements that transcend the written text and incorporate background principles, assumptions, and other eighteenth century habits of mind. (One can already see how this perspective sharpens originalism, or redirects its attention, rather than completely undermining it.) To see what the Constitution was to those who ratified it, we must acculturate ourselves to seeing the world through that generation’s eyes.

This intellectual-historical perspective provides an opportunity for originalists to get off the train. It may be of historical interest to understand how a generation of people thought about certain concepts and issues, a good public-meaning originalist could say, but a legal text is what they left us with. The Constitution, as written, is their compromise embodied; it’s what was ratified. I would caution against fighting Gienapp on this point. The central commitment of originalism is, as it ought to be, that law does not change without being changed by legitimate means (what originalist theorists call “fixation” but Gienapp calls “fixity”; why they are all averse to “fixedness” is beyond me). That principle rejects judicial lawmaking and confines the judicial power to figuring out what the law is, for better or worse, and applying it to the facts of the case at hand.

The relevant question is thus not what the text means in the abstract, but what the Constitution – including its silences, assumptions, and interstices – meant to those who lived by it. In other words, not the subjunctive “what would this provision have meant to the founding generation” based on twenty first century conjecture, but “what did this mean to the founding generation?” Embracing Gienapp’s criticisms can push us to a version of originalism that better identifies the Constitution’s original legal effect, or evidence of what laws, including the Constitution, actually meant to those who observed them.

Those criticisms are at their strongest when they take aim at overly textualist theories of originalism. Discussing the problem of constitutional rights, Gienapp revives the theory, commonplace in the Founding era but esoteric today, that there are different classes of rights that individuals may retain against the state. Some of those, often known as civil or political rights, had to be granted by the sovereign in writing. But many others, including natural law and the principles of customary law that judges had long relied upon to develop the common law, were no less important.

The founding generation held onto a robust conception of “general fundamental law,” which, Gienapp summarizes, “integrated” all forms of law, “picking out and fusing their most essential mandates into a set of general legal principles that necessarily undergirded any sound constitutional system.” Textualist originalism ignores or subordinates these legal authorities that the Framers broadly considered binding and, in many ways, superior to written constitutional law, such that if a constitutional provision were construed to contravene fundamental law, that construction would have to yield. Purely textualist originalism, therefore, “makes little sense” because it anachronistically treats “written words as constitutive of” legal content. “The substance of the underlying right, not the precise textual formulation used to declare it,” writes Gienapp, “was, alone, what was fixed.”

Gienapp does sow reasons to doubt his historical analysis. He recounts how Americans, particularly anti-Federalists and Republicans who worried that a written Constitution would limit Americans’ freedoms, began to argue that writtenness did imbue the precise text of the Constitution with a special status. “From our perspective, these Anti-Federalist complaints are sound and prescient,” Gienapp writes, “so much so that we often fail to appreciate how innovative (even desperate) they were and how understandably perplexed Federalists were by them.” Yet “Federalist judges,” as early as 1795, “began justifying the exercise of judicial power and review on the basis of the writtenness of the Constitution.” Gienapp dismisses these supposed aberrations or arguments of convenience because they “took shape almost entirely after 1787,” which shows that “they were a product of the development of a written constitution, rather than the mentality in which one had been forged.”

I am wary of small sample sizes and survivorship bias – that is, we are dealing with relatively few writings of a few elites over a few years, much of which we lack access to – making this a thin reed on which to place sweeping claims about generational habits of mind. But I am not a historian and therefore lack the qualifications to question this characterization of the evidence. Certainly, Gienapp’s claim would have been bolstered by showing a clear chronological break between ratification and the advent of now-common textualist arguments. Some acknowledgment at the time that textualism was being wielded as an argument of convenience rather than a recognized principle would have made it nearly indisputable. But I will leave it to competent historians to scrutinize what appears to be a question of historical methodology.

That query notwithstanding, Gienapp’s point about “historicizing” the Constitution to honor the rule of law remains. This analysis speaks to what the Constitution is – not the sum total of the law, but a set of laws within a broader framework for the institution of good government – and therefore how it was actually understood at the time of its ratification. Combined with the principle of fixedness, which Gienapp agrees was considered fundamental to the Constitution and indeed all legal provisions (but argues is not necessarily related to writtenness), the ontological approach pushes us to think like our Founders: What was the law that was fixed?  

To answer that question, we might embrace a mode of legal reasoning that Gienapp emphasizes was crucial to the founding generation: Customary law. Common law judges have long understood that one can infer law and its applications from a political community’s longstanding practices and principles, which over time have gained unquestioned if implicit communal assent. This process culminates in a judicial declaration that a principle already extant in the legal system will now be articulated (“found”), an act necessitated by a dispute that brings the principle’s exact qualities and extent into question. Such a mode of legal reasoning gives full expression to law in its capaciousness because it considers all legal authorities, assuming all have been subsumed into a community’s customs and norms. It privileges “history and tradition” analysis.    

Can customary law, with history and tradition at its heart, be squared with originalism? I believe it can. Emergent custom after ratification, as Americans engaged in legal interpretation, dispute, and settlement, is evidence of original public meaning. Originalists already maintain that some process of “liquidation” – officials’ debating ambiguous legal terms until they are settled – can be squared with core originalist commitments. However, Gienapp tends to argue that those originalists have whittled originalism down to nothing. Extending the process of liquidation beyond official deliberation to examine social practices of all law-abiding and legally competent Americans is justifiable by the same logic. It answers Gienapp’s call to abandon subjunctives and hypotheticals in favor of identifying the law as it was fixed, though it does raise difficult questions, including how we can tell when some behavior was considered a protected right – and which law was the source of that protection – rather than a behavior that merely went unregulated.

If Gienapp thinks customary-law analysis marks a departure in kind, not merely degree, and thus does not deserve to be called “originalism,” so be it. The principle of fixedness, and its corollary that the judiciary may not invent legal rules that contravene long-standing communal practices out of whole cloth, is too important for terminological quibbles. We who believe in originalism because we prize the principle at its heart should, with Gienapp’s help, embrace the nudge to recover a complete understanding of what it demands.

Tal Fortgang is a Legal Policy Fellow at the Manhattan Institute.