Challenging Originalism: Putting the Electoral College, Presidential Immunity, and Recent SCOTUS Decisions into Historical Context

Jonathan Gienapp: That seems to be what the Court wants to do. They want to talk about originalism and look to history when they think it leads down a road that they think is productive. They want to look at other things like consequences, precedent, doctrine, and structure when they think that’s more productive. That’s just straightforward pluralism.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan, along with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today, we are joined by our colleague Jonathan Gienapp, who is a professor both in the history department here at Stanford and a professor here at law school. I think it’s fair to say that he is the leading historian right now in the United States writing about originalism, which, as you point out in your work, Jonathan, has taken o over as a dominant theory of how to interpret the Constitution. But in your work, first in a series of shorter articles and posts, and now in your 2024 book Against Constitutional Originalism, you kind of explain that although they identify as originalists, they’re not originalists in the way that you, as a historian, look at original understandings. Can you lay out how you think about that?

Jonathan Gienapp: Yeah, thanks so much for having me on. You’re quite right. I’m a historian who spends most of my time in the American founding era trying to understand where the Constitution came from, what it originally meant, and how people originally talked about it, which seems of central relevance to what originalists are after. They’re trying to recapture the original meaning of the Constitution as it was understood at the time it was made and ratified. And what’s interesting, as you were alluding to, is the extent to which they try to bracket or minimize a lot of historical context that one might think is quite relevant to the originalist endeavor. They seem to think, or at least repeatedly stress, that they can recapture things like the original public meaning of the Constitution’s words or maybe its original legal meaning based on a particular kind of doctrinal understanding, without considering doing the sorts of things that an intellectual or legal historian would find pertinent.

Primarily what my critique is that I don’t think this makes a lot of sense. If you want to recover original meaning in the ways they’ve described, you need to understand how that meaning was embedded in a way of thinking about constitutionalism, law, and the various concepts that define it—like what a constitutional right is, what liberty is, and what governance is. You have to understand those things to understand the more specific meanings that show up in the Constitution. You can’t just have one without the other. Because all you’re going to end up doing is reading those provisions in light of modern understandings of rights, liberty, governance, and law, which might be acceptable but isn’t truly originalist, in my estimation, because it updates the Constitution in all the ways that a living constitutionalist might. And originalism was designed to do anything but that.

Rich Ford: The originalist project, at least as it’s described by originalists, is to fix meaning. It’s to constrain judges and provide some determinant meaning. And yet, in one of your interesting articles, you noted that sometimes it’s original intent—in the sense of the intent of the drafters—but sometimes it’s original legal meaning, and then sometimes it’s original public meaning. And so right away, we have three perhaps theories or ideas, and I struggle to see whether they are pursuing any one of those three in the way a historian might, because a historian might help us actually fix the meaning, or even what any of those three actually would entail if taken seriously as a historical project.

Jonathan Gienapp: Yes, there’s been an enormous amount invested in theorizing what originalism should be about. The dominant transition from the ‘70s and ‘80s into the ‘90s and 21st Century was from “original intentions originalism” to “public meaning” originalism. Rather than worrying about what the framers intended or asking questions like “what would James Madison do if faced with this question today,” Instead just imagine that the constitutional text fell from the sky. You have these words, these words are saying something and you ask yourself what an average hypothetical reader would have taken those words to mean at the time the Constitution was written. Now, this can seem like a sharp difference in theory, but when you actually get into practice, the two bleed into each other at almost every point. And the reason being: When we’re talking about the kinds of things we’re trying to figure out the original meaning of, concepts like freedom of speech or executive power or keep and bear arms, the whole reason we’re trying to figure this out is because these terms don’t have an obvious meaning that springs to life.. We see some indeterminacy there, and you jump into history, finding that people have said these terms mean different things.

Pam Karlan: Yeah, like “the president has to be 35 years old.”

Jonathan Gienapp: Exactly.

Pam Karlan: We all understand what that means.

Rich Ford: We’re not arguing about that one, right?

Jonathan Gienapp: Yes, it’s not hard to see the fixed meaning. As I often tell my students, in a letter that James Madison wrote to his father about what crops to plant at Montpelier, we understand what he was talking about. There’s not much dispute. But that’s not what the Constitution lends itself to. It’s not obvious what freedom of speech means and what that entails. So when you go back to figure out its “public meaning, you have to look at the usage of the term, which invariably just ahs you looking  all the kinds of things an original intention originalist would look at. You look at the Constitutional Convention, what they said about the words in question, how they used them in ratification debates, and early interpretations.

And what you often find with originalists too much of the time, I think, is a kind of pick-and-choose quality. You can claim that a particular interpretation or debate from 1793, well, is good evidence of original public meaning. But if you don’t like the evidence you find there, you can just say well, that’s no original public meaning. The same applies to original practice. We might say it’s unclear what these words meant. Why not look at how the first first, second third, fourth fifth Congresses engaged in constitutional practice? This is crucial in the non-delegation doctrine debates. We see a lot of delegation from the first through fifth Congresses to the executive branch. So you can either claim oh, this is good evidence of original public meaning, or you can say that the first Congress betrayed the original public meaning —which is not evidence at all.

I think the big theoretical games sometimes leave us in a place that is really unclear what we’re even looking for.

Pam Karlan: Yeah, I thought last term at the Supreme Court, one of the most interesting critiques of originalism was by Justice Amy Coney Barrett in the United States v. Rahimi case, which was a case about whether it was consistent with the Second Amendment to make it a crime for people who have domestic violence restraining orders against them to possess guns. You know, one of the questions was that our understanding of domestic violence differs greatly now from back then. That is, we didn’t think it was unconscionable for male heads of households to physically abuse women in their household. I thought one thing you did in one of our articles is at least we know that domestic violence in the Constitution didn’t refer to that; it referred to insurrection and the like. One of the things she says is you can’t assume from the fact that nobody regulated this stuff in 1789 or 1791 or or 1861 or whatever, that they thought they couldn’t. All you can assume is that they didn’t think it was necessary to do it. That really complicates figuring out whether they understood they had this power or didn’t they.

Jonathan Gienapp: Absolutely. That’s one of the curious features. Rahimi comes in the wake of the Bruin decision, which began the work after Heller of expanding what the Second Amendment scope is. The implications seem to be that to be constitutional, a law must show some analogous law at some point closer  the founding, not exactly at the founding but perhaps extending into the 19th century. Part of that analysis is well, if legislatures in 1810 or 1830 didn’t regulate something in a particular way, then that apparently signals they thought they couldn’t. And that’s a strange way to read that, as many have pointed out. Because it could just mean that a social problem hadn’t yet come to exist. Absence of legislation doesn’t necessarily indicate a conscious intent of constitutional limits.

Pam Karlan: Yes, it seems so obvious, and yet many originalists on the Court seem to think otherwise. It’s the old “is” and “should” conflation. One thing we might want to talk about here is the opinion from last term that was probably one of the most consequential, was also one of the least originalist in decades. There was virtually no discussion of anything from the founding era or even from the text of the Constitution, and that’s the Trump against United States case.

Jonathan Gienapp: Absolutely. It was striking for a lot of reasons, but from the standpoint of originalism, as you just said, here was a sort of self-described originalist court with a lot of dyed in the wool originalists on it, who basically ignored the history that would seemingly have been relevant to an originalist analysis. 

All they pretty much say, the originalist analysis can be captured in arguably one sentence when they quote Federalist 70 written by Alexander Hamilton and say, “See, the founders imagined that the executive of the United States would be ‘vigorous and energetic.’” And that creates this leading principle from which one can conduct, presumably the rest of the separation of powers analysis. You would think that the kinds of things that were in the historians brief that I was a signatory on, that were people from the founding generation actually talking about the possibility of whether a president could be criminally prosecuted for conduct while in office after the fact, would be of some relevance, but perhaps the problem there was most of the evidence, if not all the evidence, cut directly against the kind of rule the court was interested in making, so maybe they had to be anything but originalist because they read our brief. Who knows?

Pam Karlan: Tell us, tell our listeners a little bit about that brief and about your work as a historian who is both a historian and a leading academic, but also somebody who’s taking part in these public debates. 

Jonthan Gienapp: Sure. Yeah. And I’ve found that work energizing and think it’s really important to try to bring to bear that expertise on these legal questions, at least because the court claims this should be the leading standard of law.

So the brief we filed makes a variety of different arguments, but basically underscores the basic fact that there was broad consensus at the founding among people who were interested in having a strong president and those who were very wary of a strong president. Those people generally agreed. That what would define the presidency was that the president would not be a monarch, that there was a general rejection of the kinds of things that defined monarchy above all that monarchs had special privileges and were immune from ordinary legal accountability.

This was a pretty straightforward proposition, and you can see this in a lot of different ways. You can see this early in the state constitutions, which dramatically limited the scope of executive power in the United States. The state governors, starting in 1776, were really circumscribed. And there was lots of accountability, and it was pretty clear from a lot of the state constitutions that these sorts of executive magistrates could be criminally prosecuted for certain kinds of action.

You get to the Constitutional Convention, there is an appetite among a lot of political leaders to create a much stronger executive figure, but importantly, they said time and time again, what is the second half of that formulation that Chief Justice John Roberts left out? They talked about a vigorous and energetic executive, an executive who could actually do things independent of Congress, could vigorously execute the powers of the United States.

But this would lead to more accountability, not less. That vigor and energy, the people would know who was doing it and would be able to clearly evaluate whether or not it was good. And they, so they thought these two things went hand in hand, that  an accountability structure wouldn’t undermine the energetic executive, it would actually promote it. And this was also a reason why they favored a unitary executive in the sense of having one executive rather than three, some people thought we should have three presidents like Edmund Randolph and James Wilson, Governor Morris, Alexander Hamilton, those who favored it said, no.

You have one strong executive and then everyone knows who’s to blame. Everyone knows where the accountability goes. That will be better. If you want limited accountability, have multiple executives kind of cabaling with each other, and then it’s unclear who’s to blame. And then you get into the ratification debates, and people actually asked about this. People said you’ve given this new office, this president of the United States, quite a lot of power. We’re a little concerned. Is this person going to be like a king? Is this person going to be unaccountable? And to the extent anybody weighed in on it, there are multiple instances of this in the ratification debate, they could not have been clearer. The president is very accountable, politically, both through impeachment and elections, the electoral process. And if the president commits crimes, they will be subject to criminal prosecution of the ordinary courts of justice after they leave office. So to the extent the opinion, this question was considered at all, it’s pretty straightforward what they thought.

Pam Karlan: Yeah, and that’s put into the text a little bit as well of the Constitution in the sense that there’s an immunity in the text for members of Congress, for what they say and do on the floor of Congress, which has been interpreted more broadly than just “on the floor.” And then in the impeachment clause, it says, you impeach for high crimes and misdemeanors, but once you’ve been impeached and removed from office, you can be criminally tried. And so I just have always kind of wondered …. the combination of the original understanding of what was going on. And the text doesn’t seem to get you to where the Supreme Court is here. 

Jonathan Gienapp: Yeah. And importantly those immunities that are given to members of Congress, were deliberately not given to the president. They talked about it briefly at the Constitutional Convention. James Madison floated the idea. People didn’t have an appetite for it. And then after the fact, people who had been members of the Constitutional Convention, when called upon to explain it, most famously Charles Pinckney of South Carolina in 1800, when they were talking about the issue, made it very clear that the intent of the Framers had been to create a small set of immunities for members of Congress and to ensure that no privilege of this kind – that’s the direct quote, —would be given to the executive.

So the idea that just, as you said, you can read these textual provisions to somehow point towards broad sweeping immunity for presidents in their official capacity seems very strange. 

Rich Ford: So we have this paradox in one situation where there are many cases where the, whatever you would call it, original meaning, public meaning of the Constitution is not clear. And the Supreme Court says it is clear and it requires acts. And then we have cases where it sounds like it is clear and the Supreme Court says nevermind that we’re going to instead say why. So I have a kind of broad question for you, Jonathan, as someone who studied this period, in such detail, and who’s weighed in on these debates, would it be good if the Supreme Court were just more serious about its originalism? That’s one possibility. Or would it be better if they admitted that originalism as an interpretive theory cannot guide, or at least cannot determine, the meaning of the law. Because right now we’ve got one where they’re claiming it can, but they’re not really being good originalist. Would it be better if they’re good originalist or better originalist? Is that possible? 

Jonathan Gienapp: Yeah. So I think at minimum it should be one or the other. So we have strong originalist rhetoric mixed with cafeteria originalism in practice. And that’s problematic because the rhetoric of originalists is pretty totalizing and aggressive. Originalism is not just a suggestion for how we should interpret the Constitution. It’s a claim that it alone is the faithful, the one true way to maintain fidelity to the Constitution. And importantly, sometimes people think originalism has managed to load the terms of the debate in such a way that to appeal to history at all is to be originalist. And that’s not right. Everybody uses history to interpret the Constitution some of the time. People have been doing that since the Constitution’s been around. People have been doing that in English-speaking constitutional interpretation well before the Constitution was around. That’s what the British constitutional tradition was all about. You look to history. So what separates originalism is in the words of Jack Balkin, it transformed history from a resource into a command. So rather than being one of the modalities, or one of the criteria for legal validity — so you look at text, you look at history, you look at precedent, doctrine, public opinion, past practice, consequences — and you try to put these all together, instead you elevate history or text in history above all of them and say, that’s the ultimate trump card.

So given that other way of thinking about history as one of many modalities and inputs, basically, the kind of pluralism that I think most people have long practiced in the American constitutional tradition, that seems to be what the court wants to do. They want to talk about originalism and look to the history when they think it leads down the road that they think is productive. And they want to look at other things like consequences and precedent and doctrine and structure when they think that’s more productive. Well, that’s straightforward pluralism, right? And if you’re going to be a constitutional pluralist, then you should drop the originalist rhetoric about anything that violates the original meaning is unfaithful.

That’s the way they describe it. It’s infidelity. And if you want to maintain that rhetoric, well, then you need to do the originalism analysis even when it’s inconvenient, you can’t just ignore Section 3 of the 14th amendment because you think the consequences would be dire. You can’t just ignore a certain set of originalist arguments because it might require taking down all these precedents that would be destabilizing. You can’t pick and choose like that. And if you’re going to talk about the Second Amendment and things like that, then you actually have to do a deep analysis of 18th and 19th century understandings of constitutional rights and their regulation, that is precisely what they didn’t do in Heller and Bruin. They presupposed a very different way, a very non-originalist way of thinking about constitutional rights, which isn’t exactly the way to do it. So it has to be one or the other. And I think given their own behavior, it seems they’re probably more comfortable being pluralists in practice, but there’s an irony there because that kind of pluralism, which had long reigned was the thing that originalists attacked as being wishy washy and squishy and not really judging and legislating the bench and engaging in policy decisions and there needs to be a reckoning one way or the other.

Rich Ford: Yeah, Jonathan, one question I’ve always wanted to ask a historian of the period is why thin we have something like the electoral college. It’s a, some people call it America’s worst college. And I, and it’s …

Pam Karlan: Only after Cal.

Rich Ford: But no other modern democracy uses a system like this. It seems very strange. Sometimes, many times, the popular vote in the electoral college vote don’t line up. And so we wind up with a president that most Americans didn’t want. Why do we have this system? 

Jonathan Gienapp: Yeah. That’s a great question. Very straightforward. Why do we have the electoral college and especially motivated by the fact that not only does no other country around the world have one, but none of the states that make up the United States choose Their chief executive this way. So it’s a peculiarity. So it was a very complicated set of questions to sort out at the constitutional convention pertaining to the construction of the presidency. How much power would this person have? How would they be selected? It was all bounded together. And when they struggled to figure out how to select them, the way to think about it is there were really three choices that emerged as possibilities. One was legislative selection. Congress could choose the president.

That was the default method. That’s what a lot of people thought made the most sense. Two, a popular vote of some kind. And then three, this sort of strange system of presidential electors that would apportion electors based on state population, or representation somehow, and would give the states wide discretion to distribute those as they saw fit. The reason we ended up with three was not because anybody thought it was particularly good or thought there was anything special about it, but because the other two options were vigorously criticized. So we got the Electoral College, not because it was the most desirable possibility, but because it was the least undesirable and because nobody had any idea how it would work in practice. You could kind of build consensus around it because there was no clear understanding of what it would be and therefore a basis to critique it. So most of the discussion was about why one and two were bad. The problems with one, legislative selection, were the president will be “a mere creature,” as was often said, of the legislature. This won’t, this isn’t really the recipe for presidential independence. Or accountability or anything like that, the president will just be a creature of Congress and will basically be beholden to Congress. It also ensured that you couldn’t have presidents who stood for re-election because prior to that they would just do whatever the legislature said, so that seemed concerning that you would just have this president who was controlled by Congress.

What about a popular vote? A number of leading framers, James Wilson, James Madison, others, supported this, but the general objections were ignorance. Elbridge Gerry and others said the people were simply too ignorant to make this choice. Two, there were great concerns about demagoguery. If you threw it open, this was a recipe for a popularity contest. It would empower people who are very skilled in the worst starts of politics to drum up demagogic support. But actually the, in some ways, the strongest argument, which was a flip side of the ignorance one was an information gap argument. The United States was this massive country. We think of it as very small compared to now, but it’s this continental republic from New Hampshire all the way to Georgia. And how was it ever going to be possible for voters in different states to actually know anything about the candidates? Yes, they’re going to know things about George Washington when he runs for president. But most likely they’re just going to vote for the local candidate because that’s the only person they know.

There were great concerns here that you wouldn’t actually have continental figures of representation. And then lastly, this was very problematic too: The issue of slavery. If you had a popular vote, that was going to hurt the southern states because their total population and their voting populations were pretty out of whack.

And James Madison drew attention to this. Pennsylvania had fewer people than Virginia. But it might have more voters because it doesn’t have the massive slave population that Virginia did. It was basically suggesting if we really start talking seriously about a popular vote, the southern states are probably not going to accept a scheme that so undercuts their political force.

So that leaves this other thing, this system of electors. And it has advantages because it seems to be a middle road. It has some kind of popular input from the ground up, or at least the possibility for that because states could allow. The people through popular vote to pick the electors. It apportions the electors based on the formula that had already been established for Congress that almost destroyed the constitutional convention. So there’s great advantages in saying we already reached one big compromise that determines how much representation each state gets in the, in Congress. Why repeat those conversations? We just get to take the formula and place it again. And it also seemed to create a nice situation with concerns about cabals and demagoguery. 

One of the concerns about Congress choosing the president is it would really be ripe for cabals in Congress. It creates this kind of ad hoc Congress that’s really decentralized and spread across the country. Try rigging the various electoral colleges, you have to control what’s happening in Pennsylvania and South Carolina and Massachusetts all at once–that seemed to be a recipe for avoiding corruption. So this was ultimately why we got the Electoral College. It was not because it was good. It was because the other things were considered worse and nobody really knew how this thing would work in practice. 

Rich Ford: So I’m going to go out on a limb and say several of the reasons for the Electoral College don’t strike me as very good reasons. Particularly the idea that the voters are too ignorant, the idea that the voters won’t know about the candidates may have been true in the past, but it’s certainly not true now. And it hasn’t been true in the age of mass media. And then, of course, the one about slavery–well, I don’t need to say any more about that. So, have there been any movements I know that there have been movements, but there, has there been anything close to a successful movement to reform the Electoral College and replace it with something else in modern history?

Jonathan Gienapp: Sure. Precisely because it had no advocates at the time of its construction, it is this one thing in constitutional history that is mostly known for critiques of it.More constitutional amendments have been introduced in Congress to reform the Electoral College than anything else. And if you look through American history, you find very few defenses of it on the merits, going back to the early republic. The first attempt to change it, which remains a very important one, because people often don’t appreciate that part of what makes the Electoral College problematic and pernicious, actually has nothing to do with what’s formally required by the Constitution. So I mentioned that it, part of its appeal was it gave a lot of discretion to the states. So at a time when states are really wary of more power moving upward to the federal government, well, it says you, the states get to determine with really no checks, how you will allot your electoral votes.

And we’ve ended up in a world where almost every state allocates them on a winner-take-all model. Nothing about this is constitutionally required. And if you take a step back, it’s pretty weird, right? Why would the candidate who wins 51 percent of the vote in Florida or Pennsylvania or Michigan get 100 percent of the electoral votes? That’s not how we allocate representation in most other domains. And the reason why is just naked partisanship in the 1790s, that it was a Byzantine set of practices, how States allocated their electoral votes. And in the election of 1796, it just so happened that most of the northern states had favored a winner take all model.

So when John Adams is running against Thomas Jefferson doesn’t pick up little electoral votes in, say, Western Massachusetts, or parts of Pennsylvania, where he would have if it was a proportional form of representation. Meanwhile, John Adams does pick up an electoral vote in Virginia and North Carolina. And if you just flipped those, Thomas Jefferson would have won the presidency. So now we have a collective action problem. If one side is doing winner take all, you have to do winner take all. So in terms of reforming the electoral college, there weren’t —most of the efforts in the 19th century were not to replace it with a national popular vote. It was to mandate constitutionally that you had to allocate your state’s electoral votes proportionally. So you couldn’t have the situation of winner take all.  James Madison, Thomas Jefferson over and over again said, it’s obvious that this is more just and more fair, but we can’t do it piecemeal because unilateral nuclear disarmament doesn’t work.

So California is not going to move to a proportional representation scheme if Texas isn’t. So initially that’s the effort to change the electoral college, but those amendments fail and it’s worth wondering if we should push for that again. Most of the amendments recently have been to replace the electoral college with the national popular vote. Something like 80 percent of Americans and public opinion polls favored that the 1960s you want a good index on how hard it is to amend the constitution and the problems that causes 80 percent of americans agree with something and that’s not good enough. And in the 1960s and 70s, there’s an attempt to get that through congress and it fails but minus either forcing states either on a piecemeal basis or through Congress to shift from the winner take all model, or an amendment that shifts to a national popular vote, those are the popular ways of changing it, but it’s unclear if any of them have support given our current politics.

Pam Karlan: Our current politics are, if anything, even more contentious than the politics of 1796 or 1800. 

I want to thank you, Jonathan, for coming on to Stanford Legal and sharing your immense knowledge about both the history and the current state of affairs with us. 

This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating, a review on your favorite podcast app. It’ll help us improve and it’ll get new listeners to discover the show. I’m Pam Karlan for Rich Ford. See you next time.