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Against Constitutional Originalism: A Historical Critique
A detailed and compelling examination of how the legal theory of originalism ignores and distorts the very constitutional history from which it derives interpretive authority
Constitutional originalism stakes law to history. The theory’s core tenet—that the U.S. 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 U.S. 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.
Constitutional originalism stakes law to history. The theory’s core tenet—that the U.S. 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 U.S. 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.
368 pages, Hardcover
Published September 3, 2024
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510 people want to read
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Displaying 1 - 17 of 17 reviews
May 23, 2025
By far the best book I've read in a long, long time.
January 16, 2025
The book, Against Constitutional Originalism: A Historical Critique, posits that originalism fails because it makes three faulty assumptions:
That the Constitution only contains the written text of the document;
That the Constitution’s meaning is fixed; and
That the Constitution is to be interpreted the same way all law is.
However, this critique suffers from a failure to recognize what the rule of law requires. If his goal was to blow up certain historical assumptions made by many originalists, he has succeeded. If his goal was to blow up originalism, as the title suggests, he has failed. Contrary to Gienapp’s premise, originalism’s strongest argument is not that the Founders were originalists in the same way as those of modernity. Rather, it’s a common sense understanding of the rule of law.
Gienapp anticipates some of the responses I have laid down here but does little to grapple with them. Instead, he merely identifies them and dismisses them as watering down originalism to nothing, or he retreats to his conclusion that originalists are wrong about what the original Constitution was. Gienapp conflates intent with meaning without knowing it. He argues that you cannot separate the Founders’ conception of constitutionalism from the Constitution's original meaning. But that just isn’t true. Words have meanings. Those meanings might depend on certain constitutional contemporary understandings, but the words are still what matter.
On a side note about how the book is written: It is repetitive. The author writes over and over again in different ways that in his view, the original Constitution was different than what modern originalists believe.
Nonetheless, I recommend originalists read it as it makes a valuable historical contribution and may blow up some of their historical views.
For a more complete analysis: https://open.substack.com/pub/alexxen...
That the Constitution only contains the written text of the document;
That the Constitution’s meaning is fixed; and
That the Constitution is to be interpreted the same way all law is.
However, this critique suffers from a failure to recognize what the rule of law requires. If his goal was to blow up certain historical assumptions made by many originalists, he has succeeded. If his goal was to blow up originalism, as the title suggests, he has failed. Contrary to Gienapp’s premise, originalism’s strongest argument is not that the Founders were originalists in the same way as those of modernity. Rather, it’s a common sense understanding of the rule of law.
Gienapp anticipates some of the responses I have laid down here but does little to grapple with them. Instead, he merely identifies them and dismisses them as watering down originalism to nothing, or he retreats to his conclusion that originalists are wrong about what the original Constitution was. Gienapp conflates intent with meaning without knowing it. He argues that you cannot separate the Founders’ conception of constitutionalism from the Constitution's original meaning. But that just isn’t true. Words have meanings. Those meanings might depend on certain constitutional contemporary understandings, but the words are still what matter.
On a side note about how the book is written: It is repetitive. The author writes over and over again in different ways that in his view, the original Constitution was different than what modern originalists believe.
Nonetheless, I recommend originalists read it as it makes a valuable historical contribution and may blow up some of their historical views.
For a more complete analysis: https://open.substack.com/pub/alexxen...
November 24, 2024
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.
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.
September 17, 2024
I will need to listen (audible) to this several times as legal language in not natural to me. Priceless though to understand a triad of textual errors we battle. We have many who read historical documents and the Bible as only text while ignoring historical context. Bad history, bad law and even worse theology.
December 29, 2024
This book makes important points that undermine the fundamental philosophical tenets of originalism. However, it is very abstract and theoretical, at least to me. I found Erwin Chemirinsky's book to be more accessible as a non-political theorists or con law scholar. I could have used more court case studies to illustrate his arguments as well as a little more historicization of originalism itself, which is a fairly modern phenomenon. I also found the writing to be a little clunky at times, with sentences that had the word constitution or constitutionalism in them 4 or 5 times.
I'll explain a bit here about what I took to be the main arguments of his book (note: I'm probably missing a good deal): JG argues that one of the big problems with original readings of the Constitution is that they misunderstand it in historical context. In other words, they misrepresent or misunderstand how founding-era people thought about constitutions in general and the Constitution.
Originalists insist that the Constitution is a pure text and is fixed in meaning. The original originalists in the mid-20th century argued that it should be interpreted today based on the original intent of the founders. The problem with this is that the original intent of the Founders varied depending on the person and the context, so originalists shifted to a doctrine of original public meaning, which is supposed to look at the plain meaning of the words in the Constitution at the time. This is all part of the originalists' search for a purely objective reading of the Constitution that captures its timeless essence. It has led them (oddly for a conservative movement) to become almost like linguists, parsing the meaning, syntax, etc of the Constitution.
But JG argues that originalists get several big things wrong about the Constitution its original context. Few of the founders and successive generations agreed on what the Constitution even was: a compact of states or a creation of popular sovereignty that created a modern nation? They did not view the Constitution as something fixed in meaning but expected later generations to interpret it differently as the context evolved. They also didn't see the Constitution strictly as a text; they thought of constitutions in that era not just as written documents, but more like accumulated regimes of law and practice that varied from country to country.
This book helped me understand some of the theory of originalism and its flaws, but it's a tough read that would be hard to recommend for non-experts. I read a lot of constitutional history and I found it very abstract and often hard to follow.
I'll explain a bit here about what I took to be the main arguments of his book (note: I'm probably missing a good deal): JG argues that one of the big problems with original readings of the Constitution is that they misunderstand it in historical context. In other words, they misrepresent or misunderstand how founding-era people thought about constitutions in general and the Constitution.
Originalists insist that the Constitution is a pure text and is fixed in meaning. The original originalists in the mid-20th century argued that it should be interpreted today based on the original intent of the founders. The problem with this is that the original intent of the Founders varied depending on the person and the context, so originalists shifted to a doctrine of original public meaning, which is supposed to look at the plain meaning of the words in the Constitution at the time. This is all part of the originalists' search for a purely objective reading of the Constitution that captures its timeless essence. It has led them (oddly for a conservative movement) to become almost like linguists, parsing the meaning, syntax, etc of the Constitution.
But JG argues that originalists get several big things wrong about the Constitution its original context. Few of the founders and successive generations agreed on what the Constitution even was: a compact of states or a creation of popular sovereignty that created a modern nation? They did not view the Constitution as something fixed in meaning but expected later generations to interpret it differently as the context evolved. They also didn't see the Constitution strictly as a text; they thought of constitutions in that era not just as written documents, but more like accumulated regimes of law and practice that varied from country to country.
This book helped me understand some of the theory of originalism and its flaws, but it's a tough read that would be hard to recommend for non-experts. I read a lot of constitutional history and I found it very abstract and often hard to follow.
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November 29, 2024Jonathan Gienapp’s Against Constitutional Originalism: A Historical Critique (Yale) reminds us that America’s founding generation acknowledged both written and unwritten sources of law, including natural and moral law. This makes the US Constitution much more amenable to change and alignment with present ideas of public good. However, where this leaves Native American Indian treaties, defined as binding within the Constitution as a text, is an open and troubling question. As thinking develops, it matters that Indian treaties are accorded at least the same weight today as on the day they were signed.
Read History Today’s Books of the Year 2024 at https://www.historytoday.com/archive/...
Joy Porter is University of Birmingham 125th Anniversary Chair and Professor of Indigenous and Environmental History
Read History Today’s Books of the Year 2024 at https://www.historytoday.com/archive/...
Joy Porter is University of Birmingham 125th Anniversary Chair and Professor of Indigenous and Environmental History
September 7, 2025
I am not an attorney or a legal scholar. But this book was easy to follow and interesting. I used to think I was an originalist. Now that I better understand the origin and reality of originalism, I no longer think I am an originalist. The concept appears to be based on a false notion. You may read it and come to a different conclusion, but that's in part, what is so cool. It is very open to interpretation.
October 25, 2025
This was a bit of a slog for this non-lawyer non-historian, but worth the effort. Gienapp lays out clearly why the stated justifications for so-called originalism are logically incoherent. He points out (being a strictly logical thinker) that that does not necessarily invalidate it as an approach to constitutional interpretation, but does require its proponents to justify it in the free market of other approaches rather than relying on their usual "clearly objective" claims.
September 11, 2024
Clear well-argued takedown of originalism's core historical claims. Fantastic as early American legal history and a look at the philosophy of history as used (and abused) in modern American law and politics.
January 25, 2025
3.5 stars — this book is very repetitive, but I think it does demonstrate that lawyers should stick to making legal claims rather than presenting their arguments as uncovering historical truth in the manner of originalism
May 15, 2025
Having listened to a lecture very recently by Dr. Gienapp, based on the premise of this book, I was expecting something a bit less pedantic. I felt like he took a very long time, with much repetition, to make his points about the ahistorical nature of originalism.
July 11, 2025
Illuminates some weaknesses and nuances important to keep in mind when dealing with Originalism: the complexity and oft unexpected divergences of the historical attitudes towards the Constitution during the founding eras.
Very interesting, but tiresomely repetitive.
Very interesting, but tiresomely repetitive.
August 17, 2025
intriguing read that acknowledges the corn of this approach to jurisprudence and tells us that perchance it does not slay and is all cap and is a jet2holiday way of reading or interpreting the law or one used by skilamalinks? Period.
September 12, 2024
Jonathan Gienapp's latest is a rigorous and comprehensive critique of originalism that responds to seemingly each and every of the theory's ever-increasing variants and varietals. Critically, he does it from a historian's perspective, showing how originalism's claims about historical facts are wrong and its claims to uncover historical meaning are unsustainable. In the process, this book may destabilize your own thoughts about what the Constitution is--a helpful reminder that the ways we think about things today aren't necessarily the ways people have always thought about them.
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December 30, 2024TL DR
August 25, 2025
An excellent and well-documented critique of the fallacy of "originalism." A great read that should be mandatory for Supreme Court justices.
Displaying 1 - 17 of 17 reviews