A "Pursuits of Knowledge" discussion with Jonathan Gienapp, associate professor of History and Law at Stanford University, from April 14th, 2025.
About the Presentation
This discussion with Jonathan Gienapp presented 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.
About Jonathan Gienapp
Dr. Jonathan Gienapp is Associate Professor of History and Law at Stanford University. He specializes in the constitutional, political, and intellectual history of the American Revolutionary era and his scholarship has focused primarily on the origins and early development of the U.S. Constitution.
His most recent book, Against Constitutional Originalism: A Historical Critique (Yale University Press, 2024), mounts a comprehensive historical critique of the theory of constitutional originalism, now ascendant on the U.S. Supreme Court. It builds from his first book, The Second Creation: Fixing the American Constitution in the Founding Era (Harvard University Press Belknap, 2018), which explored how understandings of the U.S. Constitution transformed during the decade following its ratification. His next book will explore the forgotten history of the Constitution’s Preamble and what it reveals about constitutional thinking past and present.