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01/17/2019

Ilan Wurman on Jonathan Gienapp on Originalism
Michael Ramsey

At the Claremont Review of Books, Ilan Wurman (Arizona State): Originalism's New Critics, Part 1: Fixing Fixity (reviewing The Second Creation: Fixing the American Constitution in the Founding Era by Jonathan Gienapp).  Here is the introduction: 

Brett Kavanaugh’s ascension to the United States Supreme Court is sure to thrust originalism center stage in the debates over constitutional interpretation. Two well-timed new books—Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era and Eric Segall’s Originalism as Faith—challenge originalism’s legitimacy and coherence. But though they present some new evidence and arguments, both books essentially resurrect two older, and still unconvincing, critiques.

When H. Jefferson Powell’s law review article, “The Original Understanding of Original Intent,” appeared in 1985 it was considered a fatal blow to originalism. Powell argued that the founders didn’t think their intentions should govern in the future, and therefore a method of constitutional interpretation privileging such intent was self-refuting. Powell’s article is still cited for the proposition that because the founders were not originalists, originalism refutes originalism.

Yet originalism overcame this attack. Today, originalism means we are bound by the original meaning of the Constitution’s text, not by any secret intentions of the framers. Of course, the framers’ intent is good evidence of what the text means; after all, most people deploy words to accomplish specific objectives. Thus the historical practices of earlier times are also evidence of the text’s meaning. But such intent and practices are not dispositive. Under this version of originalism, all of the founders were originalists. Even the nonoriginalist professor Segall (whose book I will review in the second installment of this essay) acknowledges that the founders “viewed constitutional interpretation ‘as an exercise in the traditional legal activity of construing a written instrument’ and thought that the usual ‘methods of statutory construction’ would be used by judges in constitutional cases.” For this proposition he cites Powell, who acknowledged that the founders expected the Constitution to be interpreted the way all legal texts are interpreted.

Jonathan Gienapp, in The Second Creation, doesn’t dispute that the founding generation expected constitutional meaning to be fixed over time and interpreted with the usual modes of statutory construction. Gienapp, an assistant professor of history at Stanford University, instead argues that the founders only came to this view some years after the Constitution’s ratification in 1788. Although by the mid-1790s members of the founding generation came to believe that the Constitution’s meaning would be fixed, it did not have to be this way. If we are originalists all the way down, then we must look to the very moment of founding; and, at that time, whether the Constitution’s meaning would be fixed, and whether it would be confined to its words, were widely contested and contingent propositions. And if they were contingent then, they are contingent now.

And from later on:

More important than the Constitution’s words [says Gienapp] is the government’s structure, the empowering of “the right kinds of counterforces.” It is not enough to delineate power “on paper”; according to Gienapp, “[r]educing constitutionalism to the mode through which it was written reflected a misunderstanding of the tasks inherent to such a project.” Constitutionalism “meant balancing powers and interests,” not “policing linguistic barriers.” Gienapp concludes that Madison “openly disparaged” the use of “constitutional language.” Other founders similarly worried about “a mere paper security” sought to “construe the object they were constructing in avowedly nontextual ways.” It is deeply misguided, writes Gienapp, “to assume that a constitution could ever by reduced to its language, that its constituent powers could be established via ‘paper discriminations.’”

These observations miss the mark. True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. As the late Justice Scalia was fond of saying, any tinpot dictator can have a bill of rights. What really matters is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

And for a specific example:

The removal power debate [of 1789], however, revolved around the meaning of the Constitution, not about its nature. The Constitution doesn’t explicitly mention the removal power, true enough; but that does not mean that, as a matter of textual interpretation, the removal power does not exist. Madison argued the power belonged to the President as a matter of the Constitution’s text. How did he reach that conclusion? By the very structure of Article II. Unlike Article I, which gives Congress only the legislative power “herein granted,” Article II vests “the executive power” in the President. This vesting of executive power is subsequently limited by other parts of the constitutional text. For example, Congress is given the power to declare war and issue letters of marque and reprisal (two historically executive powers), and the Senate is given a share in the appointment and treaty powers through advice and consent. If removal is an “executive power” not otherwise limited in the Constitution’s text, then it is “vested” in the President.