Against Constitutional Originalism

A Historical Critique

De: Jonathan Gienapp

Narrado por: Josh Innerst

Constitutional originalism stakes law to history. The theory's core tenet—that the United States Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past. Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the United States Supreme Court champion originalism, the task of scrutinizing originalists' use and abuse of history has never been more urgent.

In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists' unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern. Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own. They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution's meaning was fixed. In the process, they erase the Constitution that eighteenth-century Americans in fact created. By understanding how originalism fails, we can better understand the Constitution that we have.

©2024 Jonathan Gienapp (P)2024 Tantor

Title of my review

This was a good book. I liked this book very much. On an axis tracking the goodness of books, where leftward is more bad and rightward is more good, a vector representing this book would need to be placed to the right, if we intended for the vector representation of the book to be accurate with respect to my own assessment of this book. This was a good book. Thank you, I love you all.

Constitutional Originalism is judicial chicanery

Constitutional Originalism is actually a modern theory crafted to prop up right wing judicial chicanery—this is revealed by the exhaustive survey of the Founding era Jonathan Gienapp presents in this book. Gienapp searches out the true sense of what the US Constitution meant to the people who lived in 1787, and the context that guided its practical application in the Eighteenth and early Nineteenth Centuries. Contrary to what modern Originalists would have people believe, the living constitution concept is more original (that is, true to the Founders' intent) than the Originalism theory in our contemporary time.

Gienapp lays bare the contradictory logic employed by Originalists in their attempts to discern the meaning of the Constitution solely from the text itself—the author illustrates repeatedly how Originalists fold their own reasoning back onto itself, and end up themselves unwittingly making the case for a living Constitution. Originalists slights of hand with the text do them no favors, such as their tendency to ignore the Constitution's Preamble and its emphasis on "We the People." Gienapp demonstrates that the text can only be understood in its Eighteenth Century meaning, the context of which Originalists lose altogether by interpreting the words in the Constitution through a modern day perspective that was unheard of in 1787.

Although many significant advancements in human rights were achieved by the Warren Court of the 1960s (over and against recalcitrant legislatures), an opposite Court now is in place—and taking legislative initiative may be the way forward in the 21st Century. As US Courts become increasingly right wing with more judicial benches stacked with Originalist activists, Gienapp's observations that the Founders considered actual policy decisions to be in the political realm of the legislature is a point worth rediscovering—and acting upon.

Turgid Treatise

I found the book pedantic - long on repetition and short on supporting historical evidence or examples.