Constitutional originalism fundamentally ties the interpretation of law to historical context. At its core, this theory asserts that the U.S. Constitution should be understood and applied according to its original meaning as intended by the framers. This approach leads us to address contemporary constitutional issues by referencing the distant past of constitutional history. However, the manner in which originalists engage with historical context is frequently fraught with significant problems. With a majority of justices on the U.S. Supreme Court now advocating for originalism, the need to critically examine the ways in which originalists utilize—and sometimes misappropriate—historical context has become increasingly pressing.

In his thorough and innovative critique of originalism, Jonathan Gienapp scrutinizes the implicit assumptions that originalists hold regarding both the Constitution and its historical background. Originalists strive to recover the Constitution as it was established during the American Founding, yet they often mistakenly assume that the Constitution is inherently modern in nature. Instead of genuinely uncovering the original Constitution, they tend to project their contemporary understandings onto it, operating under the belief that the constitutional thinking of the eighteenth century closely mirrors their own perspectives.

This misinterpretation leads originalists to overlook fundamental aspects of what it meant to draft a constitution, how law functioned in that era, the origins of legal principles, and the mechanisms by which a constitution’s meaning was considered fixed. Consequently, they inadvertently erase the Constitution that was actually crafted by the Americans of the eighteenth century. By critically analyzing the shortcomings of originalism, we can gain a clearer understanding of the Constitution we currently possess and its intended implications. This deeper insight not only enhances our comprehension of constitutional law but also informs how we engage with legal principles in contemporary society.