Prof. Jonathan Gienapp’s recent article attacking Originalism strikes me as a frustrating mixture of obviously true, question-begging, and straw-manning. I say this as someone who doesn’t consider himself an Originalist and who agrees with Gienapp’s historical perspective so far as I can tell. That makes it the more frustrating that I think he misses the target here.
The part of his article that is obviously true is his emphasis on the fact that the founding fathers did not believe the law was identical with the text. They were smart enough to know that a text cannot validate itself, and therefore that a true positivism (or perhaps this is vulgar positivism?) is not coherent. Gienapp is therefore right to criticize those who seek to defend Originalism by pointing to the phrase “this Constitution” in the Constitution. Anyone who argues that the written text is the true Constitution solely because it says “this Constitution” is indeed begging the question. And it is certainly true that the Constitution was written with a higher-law background—which is not only obvious to anyone who reads the original sources in good faith, but also from the text of the Constitution itself, which refers to this higher-law background. Gienapp points at the phrase “law of nations” as an example of this, and that’s right, but I would point to the word “liberty,” which simply means a natural law concept inherently irreducible to a positivist understanding. Indeed, as Richard Epstein has put it, the Constitution contains no definitions section and we are therefore forced by the text itself to look at the philosophical and common law roots from which it grew. To the extent that Originalists are positivists—and many of them are—this part of Gienapp’s article is a helpful corrective. Of course the text is not the law. The text is only evidence of the law. The law is a promise—an abstraction—whose entire contours as a matter of logic simply cannot be grasped by any particular individual, and which has an identity of its own—an objectivity—which the legal process exists to delineate.
The question begging part of Gienapp’s argument comes in the fact that his argument appears to place no weight at all on the fact that the founders saw fit to go through the ritual of writing and ratifying a Constitution. I can’t see that he attaches any significance to the enormous undertaking of holding a convention that called for another convention, then holding that convention, debating the text for months, writing it down, sending it out to the states, and then having each of the states hold a convention of its own. Surely the founding generation believed that reducing the constitutional promise to writing had some fixative effect. It sounds to me as if Gienapp thinks the Constitution was entirely descriptive instead of prescriptive! It cannot be the case, yet I can’t see anywhere in his article any acknowledgment that the act of memorializing the understanding resulted in some legally significant consequence. And when he says the Constitution’s “meaning might change depending on the kind of polity it happened to represent,” surely that’s an overstatement. I don’t think any founding father ever thought that.
And if we think the act of writing and agreeing to a written text had any legal consequences at all, then doesn’t that put us back at square one as far as the question of Originalism or non-Originalism is concerned? The task of Originalism as I understand it, is to understand the written text, not necessarily to grasp the law in its more abstract dimensions. The Originalist can content himself with expounding the text, so long as textualization itself had any legal consequence. And that puts us back into the argument over whether the Originalist method of understanding that text is the best method. As Gary Lawson would probably point out, we would do the same thing with a recipe. Even if we accept that the recipe does not somehow constitute the cake (which it certainly does not; I have a natural law understanding of baking) then we would still have to grasp the text, and Lawson would argue that we do so through Originalist methods.
That means that Gienapp runs the risk of straw-manning Originalism, to the extent that his article is intended as a refutation of Originalism. Yes, it is true that the text is not actually the law—the law is the underlying promise—and to the extent that Originalists are positivists, they are wrong, because positivism is wrong on the merits. But that metaphysical argument leaves the semantic and normative theses of Originalism unaffected. I get into more of this in my article on Tara Smith’s book, which you can read here.
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