To continue today's theme of response to Jonathan Gienapp's Against Constitutional Originalism: Stephen E. Sachs, Harvard Law School, and William Baude, University of Chicago Law School, have posted Yes, The Founders Were Originalists, which is forthcoming in the Yale Journal of Law & the Humanities:
Jonathan Gienapp's Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren’t really originalists. But like Jefferson Powell’s similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp’s work may only help along a similar shift, this time from original meaning to our original law.
Gienapp makes four main claims: that the Founders’ Constitution wasn’t conventional law; that the Founders couldn’t agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book’s history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well.
--Dan Ernst
