Are historians ignoring the history of originalism?

Historians in the News
tags: Supreme Court, originalism, Gorsuch



Jonathan Gienapp is an assistant professor of history at Stanford University. He is currently writing a book that explores the history of the earliest understandings of the United States Constitution.

Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously.[1] Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year.[2] As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

Since few historians know how originalism has evolved, few appreciate how deeply it has come to challenge all historians, not merely those, like myself, who focus on the history of American constitutionalism and the political and intellectual history of Revolutionary America. Most historians will be surprised to learn that, increasingly, debates over originalism have gravitated away from constitutional history and the eighteenth century and towards the philosophical foundations of historical meaning. In the process, originalists have come to wage a steady war—one whose intensity has spiked in recent years—against the methods of history themselves. If historians care about what their discipline can offer, then they should answer originalists’ challenge. For it is hard to imagine any area of contemporary civic life where historical expertise could play a more consequential role. ...




comments powered by Disqus