History v. Originalism

Constitutional originalism stakes law to history. The theory’s core tenet—that the U.S. Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past. Now that a majority of justices on the U.S. Supreme Court champion originalism, history is being called upon more than ever to decide urgent questions of constitutional law. Yet originalist engagement with history raises as many questions as it answers. In its pursuit of modern legal answers, it often fails to appreciate the distinctive characteristics of the American constitutional past. Jonathan Gienapp, Associate Professor of History and Associate Professor of Law at Stanford University, will explore how originalists use constitutional history and what they too often overlook about the past.