For or Against Constitutional Originalism?: A Debate
Oct 15, 2024
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Jonathan Gienapp, an associate professor at Stanford and author of "Against Constitutional Originalism," teams up with Harvard's Stephen Sachs, a noted constitutional scholar, for a spirited debate. They unpack the historical roots and assumptions behind constitutional originalism, contrasting it with the notion of a living Constitution. The conversation dives into critical cases like Fletcher v. Peck and the implications of originalism on contemporary issues, particularly regarding the Second Amendment and the evolving understanding of rights in governance.
The debate on originalism highlights the tension between understanding the Constitution's historical context and contemporary societal values in judicial interpretation.
Critics of originalism assert that a rigid adherence to the Constitution's original meaning may overlook the need for evolving interpretations based on societal changes.
The discussion emphasizes popular constitutionalism, arguing for greater democratic engagement in constitutional rights versus an exclusive reliance on judicial interpretation.
Deep dives
Defining Originalism and Its Variants
Originalism is a theory of constitutional interpretation that emphasizes understanding the Constitution according to its original meaning as intended at the time of its enactment. This approach differs in its various interpretations, with some types focusing on the framers' intentions, while others stress the public meaning of the text. Those who defend originalism argue that historical context is essential for accurately interpreting constitutional provisions, often prioritizing historical facts over contemporary societal values or precedents. The distinction among various forms of originalism highlights the debate on what aspects of historical context should be given precedence in judicial interpretation.
The Emergence of Originalism
Originalism emerged as a formal theory of constitutional interpretation in response to perceived judicial activism by the Warren and Berger Courts in the latter part of the 20th century. Critics of these courts contended that they were expanding constitutional rights beyond what was explicitly documented in the Constitution, effectively acting as legislators rather than judges. This led to a rallying cry for the idea that the Constitution’s original meaning should guide judicial decisions strictly, allowing for change only through formal amendments as specified in Article V. The assertion that the Constitution's meaning is fixed marks a significant departure from living constitutionalism, which allows for evolving interpretations based on contemporary societal needs.
Historical Context and Judicial Interpretation
A critical aspect of originalism is its relationship with history, focusing on how originalists utilize history in their constitutional interpretations. Some argue for a narrow approach, concentrating on the specific text of provisions, while others advocate for a broader historical understanding that includes context and the intentions of the framers. The challenge lies in reconciling the original public meaning of the Constitution with how contemporary society understands those meanings, as historical interpretations can differ significantly. Originalists must therefore engage with historical scholarship comprehensively to remain faithful to the principles they seek to uphold.
Popular Constitutionalism Versus Judicial Interpretation
The concept of popular constitutionalism at the founding highlights the belief that the Constitution is rooted in the authority of the people, contrasting with the idea that judges should have the final say in constitutional interpretation. Many founding figures viewed the Constitution as a living document that was inextricably linked to the consent of the governed, enabling the people to actively engage with its enforcement. This perspective is critical when evaluating modern constitutional issues, as it calls into question the authority judges claim when interpreting the Constitution. The resurgence of interest in popular constitutionalism emphasizes the need for a more democratic engagement with constitutional rights and their application.
Reconstruction and Its Impact on Constitutional Rights
The Reconstruction era brought about significant changes, particularly with the 13th, 14th, and 15th Amendments, which sought to secure the rights of formerly enslaved individuals and redefine citizenship and civil rights. While these amendments are recognized as a second founding, they also reflect an attempt to integrate existing constitutional frameworks with new principles of equality and liberty. Scholars are increasingly exploring how these amendments relate to originalism, as their provisions require an understanding of both the historical context of the Civil War and the contemporary implications of civil rights. This intersection of history and constitutional law during the Reconstruction period is crucial for interpreting the ongoing evolution of American constitutional rights.
Stanford University professor Jonathan Gienapp, author of the new book, Against Constitutional Originalism: A Historical Critique, is joined by Stephen Sachs of Harvard Law School to discuss Gienapp’s challenge to originalists’ unspoken assumptions about the Constitution, the history of originalism as a constitutional methodology, and its role in constitutional interpretation today. Thomas Donnelly, chief content officer at the National Constitution Center, moderates.
