Against Constitutional Originalism

In Against Constitutional Originalism, Jonathan Gienapp argues that the Constitution as ratified had no fixed meaning to guide and constrain constitutional interpretation. He paints founding era constitutional thought as imbued with unwritten fundamental law that overshadowed written instruments. Rather than placing stock in textual pronouncements, Gienapp contends that the founders were drawn to natural law, tradition and custom of the British constitution, social contract theory, and broad conceptions of sovereignty. Any orginialist effort that begins with the text and what the words meant to the framers, ratifiers, or general public, he contends, is misplaced because the founders did not conceive of constitutions the way we do today.  

A good example of Gienapp’s arguments relates to Congress’s delegated powers under Article I, section 8. “The federal government would be able to exercise only those powers delegated, but that, of course, begged the question of how power was delegated under a constitution like the one proposed” (p. 131). By asking “how power was delegated” Gienapp rejects an approach that looks to Congress’s enumerated powers and then interprets what the founders understood, say, “commerce” to mean or encompass. Instead, we should look to “wide swaths of general fundamental law” (p. 205).

The problem Against Constitutional Originalism encounters is that the Federalists—the proponents of the proposed constitution—did not appeal to wide swaths of general fundamental law when answering their Anti-Federalist opponents. For example, the Anti-Federalists protested that the Constitution contained no bill of rights protecting liberties such as freedom of the press. James Wilson, in his famed Statehouse Yard Speech, denied that an additional safeguard was needed because nothing in the enumerated powers even hinted at such authority. “If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications,” Wilson explained (Collected Works of James Wilson, Liberty Fund, 2007, p. 172), “it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate.” A specific guarantee protecting the press, Wilson continued, would be dangerous because it would imply that Congress possessed some degree of power over newspapers. Alexander Hamilton made the same argument in Federalist No. 84. In addition, Hamilton (The Federalist, Liberty Fund, 2001, p. 445) inveighed against the addition of a bill of rights because the proposed constitution “is merely intended to regulate the general political interests of the nation” and not “the regulation of every species of personal and private concerns.” In other words, Wilson and Hamilton pointed to the constitutional text, observed that no power over the press was delegated, and further assured Anti-Federalists that Congress’s powers were limited to great national concerns. 

Not surprisingly, Gienapp avoids the ratification debates and the representations of the Federalists. The Jeffersonians, according to Against Constitutional Originalism, in the 1790s argued for strict construction “by pressing the Constitution’s writtenness into service” (p. 133). He implies that prior to Jefferson’s argument with Hamilton over the national bank “writtenness” was not a key element of constitutional thought. But anyone familiar with debates in the state ratification conventions and the pro-ratification newspaper essays must know that Gienapp is wrong. The Jeffersonians did not invent writtenness and strict construction. In the face of a power grab during the Washington administration, they appealed to Federalist assurances made in 1787–88. 

Gienapp further distorts matters by characterizing the discord of the 1790s as primarily a dispute over the nature of the union. If the union was a compact, as Jefferson insisted, then federal power was restricted. If the United States was a unitary state, as the nationalists insisted, then the general government was unlimited. But this either/or proposition framed by Gienapp is incorrect and ignores popular sovereignty. The Philadelphia convention wanted the Constitution to rest on the highest authority: the people themselves. Whether “the people” are the amalgamated mass of the American people or the people of the several states, they may delegate (or withhold) certain powers from their agents in the general government. Rejection of the compact theory does no damage to the doctrine of enumerated powers; however, it would inhibit the states from judging breaches of the compact as its parties, nullifying offending provisions, or seceding from the union. The Jeffersonians insisted on the compact theory because of the remedies it provided, not because it was essential to strictly enumerated congressional powers. 

Gienapp also argues that because Jeffersonians and nationalists endorsed competing views of the union, there was no consensus among the founders on the basics of the Constitution; therefore, a search for original intent is hopeless. He refuses to consider that pro-ratification arguments of the Federalists expressed a consistent theory of the Constitution whereas Hamiltonian/nationalists arguments just a few years later were significant departures from earlier representations. 

Consequently, James Madison (Liberty and Order, Liberty Fund, 2001, p. 73), aghast at Secretary of the Treasury Hamilton’s broad construction of the enumerated powers that would allow for creation of a national bank, urged colleagues in the House of Representatives to be guided by “the meaning of the parties to the instrument” as found in “[c]ontemporary and concurrent expositions” of the ratification debates. North Carolina’s Nathaniel Macon, who served as speaker of the House from 1801–07, similarly appealed to Federalist representations in the state ratifying conventions as he inveighed against the Sedition Act of 1798. Macon observed (Annals of Congress, 6th Congress, p. 403, January 1800) that almost all the Constitution’s advocates in 1787–88 “declared explicitly that no power was granted to Congress whereby they could pass any law abridging the liberty of the press.” Based on these representations, Macon challenged constitutional interpretation that permitted the general government to criminalize political speech. Both Madison and Macon realized that nationalist arguments in the 1790s were incongruent with nationalist promises in the late 1780s. Gienapp refuses to accept this fact of history. 

Gienapp does offer sound criticism of modern orginialist doctrine. Modern originalists, he notes, no longer seek to limit federal power: “Originalism can now seemingly permit . . . the broadest of broad construction” (p. 190). Comfortable with a puissant national government, modern originalists have abandoned the Jeffersonian doctrine of strict construction. St. George Tucker, who wrote the first full-length exposition of the Constitution in 1803, set forth the north star of constitutional interpretation (View of the Constitution, Liberty Fund, 1999, p. 105): “that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.” Absent such a rule, Tucker predicted (p. 103) that “gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all [the Constitution’s] intended limitations.” Modern originalism, however, cares nothing for Tucker’s principles and instead advocates for a constitutional interpretation that has more in common with a caricature of medieval scholasticism (“how many angels can dance on the head of a pin?”) than the Constitution as ratified.

While Gienapp offers a fair critique of modern originalism, he gives Jeffersonian strict construction originalism short shrift. The Federalists of the ratification debate were clear that Congress’s powers were limited to the written enumeration of powers. They never hinted that a broad swath of unwritten fundamental law was the real source of federal power. Against Constitutional Originalism ignores the representations of the ratification debates and creates a constitution foreign to that of 1787–88.