Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp
By Mark Tushnet (Harvard Law)
Contemporary originalism has two components: a historical component describing the original public meaning/understanding of specific constitutional terms, and a jurisprudential component explaining why the material in the descriptive component has authority over us today.
Suppose we take the first component as an effort to identify the meaning(s) given specific constitutional terms by actual white men in the late 1780s. Jonathan Gienapp shows in “Against Constitutional Originalism: A Historical Critique” that many self-designated originalist inquiries simply can’t identify those meanings. Working in the tradition of Quentin Skinner, Gienapp shows that contemporary originalist inquiries don’t attempt to describe the larger conceptual universe, including the concepts of a constitution and its fixity and law itself, within which the specific constitutional terms are located. But, he shows, those terms took on their public meaning only with reference to that larger universe. And, even more, Gienapp shows that wide disagreement existed about what the larger concepts meant. It would be miraculous, though not I suppose impossible, were the public meanings of specific terms to be widely agreed upon when placed in all the available conceptual universes of larger concepts.
All that is fine, and as someone skeptical of originalism’s claims I’m naturally sympathetic to Gienapp’s critique. There’s another way to understand contemporary originalism, though, which Gienapp addresses but doesn’t fully confront because the self-described originalists who offer it allow him to criticize them by saying things that make it seems as if they were close intellectual relatives of other originalists, which allows Gienapp to subject them to the criticisms he levels at their relatives.
Start with the accurate observation that the actual practice of most originalists isn’t well suited to finding out what actual white men understood constitutional terms to mean, for the reasons Gienapp gives. (I was struck by the extent to which Gienapp uses the word “actual”—properly so—in his exposition.) One might infer from that observation that these originalists aren’t trying to find out what actual white men understood the terms to mean.
What might they be trying to do? Well, flip things around: Let’s say that these originalists are defining “original public meaning/understanding” to be “the material that our methods of inquiry produce.” My personal view is that the Baude-Sachs approach to which Gienapp devotes a chapter is a not terribly well articulated version of this proposition.***
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