Book Review: Against Constitutional Originalism: A Historical Critique
by Jonathan Gienapp
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.