Against Constitutional Originalism by Jonathan Gienapp

Author:Jonathan Gienapp
Language: eng
Format: epub
ISBN: 9780300280364
Publisher: Yale University Press

From Past to Present

Appealing to the past has always been profoundly important to American constitutional interpretation, and it was especially so in the half century following the Constitution’s inception. But we shouldn’t misunderstand what all that talk of history supposedly signaled. Despite its dominance, it didn’t offer any consensus on how to interpret the Constitution but rather channeled disagreement no less fierce that what we now know. We shouldn’t lose sight of the extent of those earlier disagreements.

As we’ve seen, both Jefferson and Marshall appealed to the history of the founding moment. Yet they violently disagreed over how to approach that history and what one could claim to find there. And that was in large measure because they simply disagreed about the character of constitutional interpretation itself—a disagreement that was far simpler than anything that hinged on the use history. Jefferson championed strict construction and Marshall broad construction. Long before the originalism debate swallowed everything up, that’s actually what Americans fought over. And as obvious as it may seem to remind all of us of that earlier fault line, it’s one that is surprisingly hard to place in our modern debates.

The “were the Founders originalists?” obsession has proved so hard to suppress, in large measure because it’s not clear how the “strict construction versus broad construction” debate maps onto the “originalism versus living constitutionalism” one. Because originalists have needed to solve so many interpretive dilemmas and have been happy to take the theory in so many different directions, originalism can now seemingly permit the strictest of strict construction or the broadest of broad construction. The imperative is to recover original meaning, however strictly or broadly that recovery entails. Consequently, the theory now happily accommodates a host of interpretive moves and impulses that, in Jefferson and Marshall’s time, were sharply and irreconcilably opposed. This state of things has bred considerable confusion. Do a strict-construction originalist and a broad-construction originalist agree on interpretive method? Few would have thought so in the nineteenth century. Do a broad-construction originalist and a living constitutionalist disagree on interpretive method? It often is hard to see exactly how, much as originalists insist otherwise.

We can begin to make sense of this muddle by coming to terms with how we got here—by appreciating the sheer contingency of the originalism–living constitutionalism divide. If certain early twentieth-century Americans faced with the modernist predicament hadn’t chosen to defend the idea that the Constitution’s meaning had evolved, we likely never would have lost touch with the “strict versus broad construction” debate. If we still found ourselves in something like that world, it likely wouldn’t matter who claimed fidelity to the original Constitution (be it the Constitution’s intent, text, spirit, or purpose), but whether they were committed to the Jeffersonian or the Marshallian side of the earlier debate. The Jeffersonian likely would recoil no less at the modern originalist defense of Brown v. Board of Education than at President Franklin Delano Roosevelt’s defenses of the New Deal as consistent with the guiding principles of

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