History professor Jonathan Gienapp criticized constitutional originalism for its insufficient understanding of the period in which the Constitution was written at his Tuesday talk, titled “History and Originalism: A Troubled Relationship” and following the release of his new book, “Against Constitutional Originalism: A Historical Critique.” 

Constitutional originalism is a legal theory that advocates for a judicial interpretation of the Constitution as it was understood and written at the time of its creation. Conservative Supreme Court justices have often applied originalist reasoning in their decisions, including the current 6-3 supermajority of justices appointed by Republicans. Originalist thinking has guided recent decisions such as the overturning of Roe v. Wade and the relaxation of rules on carrying firearms in New York State.

Gienapp spoke with law professor Michael McConnell, a leading scholar and proponent of originalism. The Constitutional Law Center hosted the event, drawing 200 students and fellows to the Law School.

Gienapp emphasized the importance of understanding the historical period in which the founding fathers operated, highlighting the failure of originalists “to appreciate the differences between the past and present.” 

“Too often, originalists fail to take seriously the history they have pledged to follow in looking to the past to define the nation’s constitutional law,” Gienapp said. 

The discussion of constitutional originalism comes at a time “of great urgency,” where the federal judiciary and Supreme Court are both dominated by self-identified originalists, Gienapp said. “Those who have rallied behind this theory, which now controls a majority of the Supreme Court, have elevated history to this place of this enormous prominence in constitutional interpretation.”

He pointed to controversial rulings in the last several years and the public’s increasing investment in issues such as abortion rights, gun rights, presidential power and climate change. Decisions on these fronts will be made in the coming years by “people looking to the past,” he said.

Gienapp outlined three points central to most forms of originalism: the idea that the constitution is written, that the constitution’s meaning is fixed and that it is a conventional form of law. He argued that originalists view these three aspects in an overly binary way. 

Originalist investigation is often cast narrowly, fixating on the constitution’s contextual meaning and imagining a Constitution that the framers did not envision, Gienapp said. 

McConnell critiqued Gienapp’s argument, saying the title of Gienapp’s book was misleading and that Gienapp’s emphasis on history actually made him a “very good originalist.” McConnell added that Gienapp’s book was not only an attack on originalism but “an attack on every species of constitutional interpretation that is based upon the process of judicial review.” Gienapp clarified that his criticism of originalists centered their denial that ways of thinking can evolve, which differs from the process of judicial review. 

Originalists “need to come to terms with a much different way of thinking about constitutionalism, otherwise they won’t be recovering a historical constitution as they claim, but they’ll be creating a modern one anew without owning up to it,” Gienapp said.

Gienapp specializes in 18th-century history and recently became interested in the debate over originalism. He explored the differences between how historians and lawyers think, considering how plausible it was to recover the original meaning of a document from the 18th century.

“Lawyers tend to approach the constitution as a distinctively legal object,” despite the fact that constitutional law did not exist when the founding fathers wrote it and much of what it includes falls “more in the domain of political theory,” Gienapp said.

Henry Bagenstos J.D.’25 thought the talk was a “great event” and found Gienapp’s book “really interesting.”

Michael Honey, a retiree who lives in Sunnyvale, said he “always finds the talks here brilliant and fascinating.” 

“In law, there can be 100 different interpretations,” Honey said.