Welcome to tonight’s slightly longer than usual constitutional conversation. Instead of having a single speaker you have two. The principal speaker, though, is my Our friend Jonathan Gienapp, who’s going to be basing his remarks on his recent and I won’t give any adjective books, his book against constitutional originalism, and I’m going to be giving some response and he probably doesn’t, he doesn’t need much of an introduction because so many of you are students from his class.

One of the things that I really love is having him over in the history department teaching about constitutional history at the founding and my doing the same thing here. And we have so many students who take both and that makes me happy. So another thing that makes me happy is just to welcome him here tonight.

So he’s going to start off.

Should I stand? Yeah, why don’t you stand? Alright.

All right, great. Thank you, Michael and Morgan for putting this event together on my new book. I really appreciate it. The Constitutional Law Center has been one of my formative intellectual homes since I got here. The very first talk I gave at Stanford was at Michael’s invitation, and he generously chose my first book for the Publius Symposium, so he’s done a great deal to make me feel extraordinarily welcome, and I’m excited to have this opportunity to chat with you all tonight about my new book and especially to chat with Michael about it and engage in some nice back and forth on some of the ideas within.

I’m gonna try to keep my remarks very brief so we can have a lot of time for discussion between the two of us. So to give an overview of my book, it presents a historical critique of the theory of constitutional originalism, the theory, of course, which contends that the Constitution should be interpreted Today, in accordance with its original meaning, the meaning it had at the time it was adopted.

Now because the Constitution has been amended several times sometimes that compels interpreters to look at the more recent past, especially the extraordinarily important Reconstruction period that follows the Civil War when the 13th, 14th, and 15th Amendments. were added, but more often than not, it sends interpreters back to the late 18th century, to when the United States Constitution was written and ratified and first interpreted, which is of special interest to me because this is the primary area period of history that I spend time studying.

So among all candidates for interpreting the Constitution, what sets originalism really apart is how it invests a story history with really unparalleled All theories that propose some way to interpret the U. S. Constitution regard history as important some of the time. What distinguishes originalism is that it elevates history above all other constitutional criteria.

It establishes it as the dominant determinant in constitutional decision making. That is, it transforms history from a resource into a command, from something we might consider Some of the time to reach a constitutional decision to the thing we must consult in all cases or most all cases in order to decipher what the Constitution commands.

And this is especially important these days because Right now the use of history in constitutional interpretation is more prominent than it has arguably ever been, which is thanks to the fact that the federal judiciary is now stacked with self identified originalists, many of them on the United States Supreme Court, which of late has been turning to history quite regularly to decide major and controversial questions of constitutional law.

So originalism stakes law, modern law, to history. It turns modern constitutional interpretation into an exercise in historical recovery. And yet, as my book argues, too often originalists fail to take seriously the history they have pledged to follow in looking to the past to divine the nation’s constitutional law.

Too often, originalists fail to appreciate the differences between past and present and the difference those differences make. The primary issue, I suggest, is what often goes unsaid or unexamined. Originalist investigation is often cast quite narrowly, obsessively focused on the category of original textual meaning.

This is especially because of the rise of the theory of public meaning. Originalism, the most dominant form of originalism, which says we should interpret the Constitution not based on what its authors intended or what people might have expected to follow from it, but what the words of the Constitution would have objectively meant to an average reader at the time they were.

Originalists, but especially public meaning originalists, really focus obsessively on the Constitution’s textual meaning. The questions, therefore, that fuel originalism almost always zero in on discrete particular constitutional Provisions, phrases or words in an attempt to figure out what these words originally meant to people at the time they were adopted.

So most originalist inquiry takes the form of questions like what was the original meaning of executive power or what was the original meaning of freedom of speech or what was the original meaning of The right to keep and bear arms. But what I suggest is that these standard questions bypass something even more fundamental.

They usually take for granted the object holding that meaning, the Constitution itself. Originalists believe that the Constitution’s meaning might have changed over time. That’s the entire point of originalist interpretation. But while its meaning might have changed, the Constitution itself has remained largely unchanged since 1787.

The Constitution is just the Constitution, essentially the same now as it was back in 1787. What is what you get. But if we take the history seriously, I think it shows that the Constitution was not. If we return especially to the American founding and allow it to speak for itself, approaching it on its own terms, we find a very different way of thinking about constitutionalism and based on that a very different understanding of the constitution than modern originalists often take for granted.

The constitution that originalists hold in their mind was not the same in a lot of respects as the constitution that the founding generation held in theirs. Or related, and every bit as important. There was deep division at the founding over how to think about core areas of constitutional law law and constitutionalism.

The constitution’s essential characteristics were neither clear nor settled. Now all of this can be very easy to miss, I think, because superficially, it can seem as though the founding generation talked about constitutionalism more or less like we do today. But in reality, if you get past that, I think you find the conceptual foundations undergirding their constitutional thinking were in many ways quite different.

And to understand their constitution and what it originally meant, we first need to learn how to think about constitutionalism like they did through their lens and based on their premises and paradigms. So these differences between constitutional thinking past and present. I think become especially clear when we compare, as I do in the book, three crucial aspects of constitutionalism that I think are especially central to most forms of originalism that often unite a lot of forms of originalism that might otherwise disagree on important matters.

These are one, writtenness, the idea that the Constitution is written, that it’s a written document, that it’s a written text. Two, fixity or fixation, the idea that the Constitution’s meaning is fixed and does not evolve over time. And three, law, the idea that the Constitution is a conventional form of law.

Originalists often assume that the Constitution is exclusively written, it just is the text. That its meaning is fixed, and that it is a conventional form of law. But in so doing, often they assume that there is but one way to think about these three ideas or categories. Either the Constitution is written, or it’s not.

Either its meaning is fixed, or it’s not. Either the Constitution presupposed the categories and logics of modern constitutional law and jurisprudence, or it wasn’t really law after all. But I think this assumes too much. These sharp binaries, all or nothing, make it hard to see the founding generation’s constitutionalism.

Founding era legal thinkers didn’t reject these aspects of constitutionalism, they simply thought about them differently. They had different understandings of what it meant for a constitution to be written, to have fixed meaning, and to be fundamental law. So the bulk of my book explores the history of 18th century constitutionalism to illustrate the crucial ways in which it differed from originalist constitutionalism.

And I spend a lot of time on written constitutionalism, which I know is coming from seeing Marbury v. Madison here. So prominently set up on the slides, because this idea that the Constitution is written, that thing you can go see in the National Archives, that you can pull out of your pocket in pocket form, that we’ll soon hear John Marshall talking about in 1803, is very central.

To originalism and how originalists make a lot of arguments. Indeed it’s hard to argue that any assumption, any sort of claim about the Constitution’s core characteristics is more important, and especially public meaning originalism which predominates and has, and long has. The fact that the Constitution is written is often believed, therefore, by originalists to tell us something very significant about its boundaries.

And where its content comes from. The Constitution’s content, because it’s written, is created by text, and communicates that context through text. That’s why the Constitution’s meaning is its textual meaning. And this is why originalism is so often conflated with textualism in so many circles, most famously by Justice Antonin Scalia, who was the public face of originalism on the Supreme Court for three decades.

But the founding generation, I argue, did not see it this way. They did not believe that writing constitutional principles down automatically altered their legal status, transformed constitutional content into linguistic content, or erected sharp textual boundaries between what was in and thus outside of a constitution.
And that was largely because of how they thought about fundamental law and the foundations of constitutional government. They thought that lots of fundamental law Was created through enacted constitutional text. Absolutely. But they also thought that a lot of fundamental law was grounded in other sources, such as custom and reason, and did not need to be enacted in constitutional text, in order to enjoy fundamental status.

For instance, it was widely believed that most fundamental rights did not need to be enumerated in a written constitution to enjoy Fundamental status. And that was not simply because fundamental law or natural law was out there free floating, but rather because people at the time believed that these principles had been entrenched through the establishment of political society based on the premises of social.

Compact theory, which was an essential language or paradigm of constitutional thinking in the 18th century that is largely disappeared that understood Constitutionalism in two steps that you left the state of nature to one form a political community or a social compact you could call that Constitution one that is not written and then having formed that political community you then established a form of government Or a constitution which was constitution Two, a lot of things, and especially fundamental rights were understood to have been entrenched in the social compact constitution one rather than the constitution of government, which came later, which was why so many of the original state constitutions did not have declarations of rights.

You didn’t have to enumerate or entrench rights in texts for them to have constitutional status. It was why the original constitution. didn’t have a Bill of Rights, and why, when anti federalists complained that it lacked one, federalists responded, Of course, you know that we don’t need to include those for them to be of constitutional status.

And when the federalists decided to eventually add what we now call the Bill of Rights, James Madison and others, who were the architects of that project, made it very clear, We are merely making explicit what is already implicit. We are not In a dramatic way, changing the content of the Constitution. The rights provisions that were added were declaratory in character.

They weren’t creating constitutional rights or giving rights constitutional status that they previously lacked, but announcing what was already part of the fundamental law of the United States. And this way of thinking is a sharp departure from today, where it is assumed readily that constitutional rights are constitutional rights precisely because they have been enumerated.

So at the founding, I argue, constitutions were at once the fundamental law created through textual enactment and the fundamental law that was left in place. Written constitutions effectuated, elaborated on, and harmonized with general principles of fundamental law. This meant that interpreting the constitution’s meaning involved far more than parsing the constitution’s words.

Since so much of the constitution lay beyond the constitution’s words. Interpretation required knowing how fundamental law worked, not how language and text communicated semantic meaning. To just give one quote that illustrates this way of thinking, John Quincy Adams in 1791, shortly after the Constitution is ratified, said, The Constitution of a country is not the paper or parchment upon which the compact is written.

It is the system of fundamental laws by which the people have consented to be governed. And of which the written or printed copies are nothing more than the evidence. This was not textualism, and it was also something that produced a very different understanding of fixed constitutional meaning.

Because unwritten principles were what were fixed in many instances, rather than linguistic meanings, that meant that fixed constitutional content was more readily compatible. With various forms of constitutional change that are now regarded as at odds with the idea of fixed meaning. Finally, very briefly was the Constitution’s status as a legal instrument.

Today, a lot of originalists, like a lot of modern constitutional lawyers, tend to approach the Constitution as a distinctively legal object that’s supposed to be interpreted by the familiar canons of legal interpretation and enforced by judges. That is they more or less assume the essentials of modern constitutional law, the paradigm of modern constitutional law, but things at the founding were more complicated.

The genre of modern constitutional law at all, did not exist. People at the founding had a much more capacious view of law and constitutionalism, and as a result embraced A far more robust understanding of constitutional politics in which things that we consider often outside of law either more in the domain of political theory or something else were believed to have interacted with law and were to interact with law over time to dynamically work out a lot of what the Constitution meant.

This was why popular minded people in the early republic thought that popular sovereignty, this radical idea that the people were truly sovereign, In America that the American Revolution had been based on that was odds was at odds with what was called legalism or the notion that the Constitution was a technical instrument written in the language of law, a large swath of the population, many of them who rallied around the Jeffersonian party expressly denied this principle.

But a lot of political elites who are far more comfortable with legal interpretation also saw things differently. It was often said that constitutions were primarily to be enforced by the people themselves through republican politics. And that’s why, something that I think is really important, so many of the most important constitutional disputes in the early republic Never ended up in court.

The most famous example of this being what is arguably the most famous constitutional debate of the early republic, certainly the 1790s over Alexander Hamilton’s proposed national bank. Is debated extensively in the two houses of Congress and then is sent to George Washington to consider as a veto.

And nobody thought that based, that after this was resolved that it would then be handed over to the courts. Of course, it doesn’t take very long for things to begin working their way into courts. But the point is, there’s certain assumptions about how Republican politics will interface here with constitutionalism that I think are really important.
American constitutionalism has been marked by important paradigm shifts over time. Constitutional assumptions have changed a lot since the founding. The founding generation’s constitutionalism was not ours. Past and present have been marked by, I think, a significant amount of historical rupture.

And I suggest that this really matters to originalism, to originalists who are trying to recover the original meaning of the original constitution in the 18th century. And I think it especially matters. Because too often, originalists have been fond of drawing a sharp distinction between law and history and saying what is necessary to engage in a historical interpretation of the Constitution is very different than an originalist legal interpretation.

They have often suggested that a lot of what historians stress about the founding era, a lot of the historical context that they deem important, is simply not that relevant. to the very different legal exercise of interpreting legal meaning. But I try to suggest in the last part of the book, that if you take seriously the ways in which founding era constitutionalism was different you can see that in a lot of respects A lot of originalists often impose a brand of constitutionalism and law and legal thinking onto an 18th century that did not share it.

And this is problematic because it undercuts originalism’s core claim that it merely interprets a constitution rather than creates one anew, that it alone among interpretive theories objectively and neutrally takes the constitution. As it is. If originalists are committed to recovering the constitution’s original meaning, then before interpreting the constitution, I suggest, they first 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. A new without owning up to it, and I will stop there, and I invite Michael’s spirited response.

Thanks. Thanks a lot, Jonathan. I’m not going to begin with a spirited response, but rather with some spirited compliments. I consider this a very interesting, insightful. I really a great book and let me be specific about that. I’m not just gonna say this is a good book. What’s especially good about it?

And comparison and contrast with a lot of The many attacks on originalism that we see. The first point is that Jonathan’s book is not, his critique of originalism is not based on partisan or ideological disagreements. It is not based upon the fact that he disagrees with the results that originalism brings.

I don’t think there’s a single point in the book. Where Jonathan says the problem with originalism is going to lead us to do, it has led us to do X, Y, or Z, which is the most common, I think, attack upon originalism. I often with the other attacks, I often get the impression that if only originalism produced the results that the critics would like, they would become originalists because that’s all they really care about, is how the cases come out.

Jonathan’s like instead, Jonathan doesn’t Critique originalism on those grounds. Instead, he he gives a historical critique based upon his perch as, as an actual living historian, which many of us law professors are not. He argues that, as he just did, you heard him in real life, in real time, arguing that originalists misconceive the Constitution in historical terms.

And this strikes me as a very serious and non ideological and non partisan critique, and Compliments for that. Now a second is that although he makes a number of very specific critiques each chapter is basically a particular theme of critique. Mostly his critiques are along the lines that originalists root there, or maybe I should say our interpretations that, more on linguistics and sort of modern jurisprudential logic than on actual history. And the and I think in many cases, he’s right. A lot of originalists are not very good originalists. And indeed, one compliment that I didn’t write down in my notes, but maybe the nicest compliment that I’m going to give him all night.

I think Jonathan is a very good originalist. A third thing that I wanted to compliment is Jonathan’s emphasis upon the non court centered nature of constitutional interpretation in the early republic. And as was expected by the founders. He is so right about that. And so many of our constitutional law courses today just overlooked this fact.

They did not think that every constitutional question was going to go sprinting up to the nine, or at that time, five and sometimes six justices for an answer. They thought they would debate the constitutional questions themselves, maybe on the floor of Congress, maybe among the cabinet members in Washington’s cabinet maybe in newspapers, maybe through passing memorials in state legislatures to protest the acts like the Alien and Sedition Acts.

This is how they expected constitutional argument to take place and it is so forgotten. Today, if you look at most constitutional case books, I like to think maybe not mine but if you look at most constitutional case books, you’d think that it’s all just what does the Supreme Court think about this?

What does the Supreme Court think about that? And that’s what constitutional law is about. And he reminds us that is not and this is a really, a very good book. And I think originalists, not to mention the people are going to be attracted by the title but the originalists should read this book.

Not only read it, but they, and maybe I should say we, should learn from it. And maybe sometimes we should change our ways as a result of reading it. So it’s a potentially extremely constructive and valuable book. I do have some problems with it though and beginning with the title, Against Constitutional Originalism.

Now, I have two big problems with these three words. The first is he really against it? It’s by no means clear. That Jonathan is against originalism. His complaint is that originalists are not originalist enough. That they don’t follow their own premises. That they are not historical enough. That they get the, that that they misunderstand the nature of the Constitution historically.

Now, if you are a, an originalist and you believe that the constitution should be interpreted in the way in which it would have been understood by those who who enacted it, and if Jonathan is right, You’ll just, you will follow Jonathan’s path. It’s not a, it’s not a critique of originalism.

It is a critique of some originalists. And I think the conclusion, if you believe, if you’re persuaded by the book, is you should be more serious about history, you should be more serious about originalism, you should do your originalist homework better. So it’s not, I think not, I think the title is misleading.

What he really should have called it is something like, for a more originalist, originalism, or something like that. How many books do you think he would have sold? So I can see why he went with this inaccurate title. But okay putting aside the first word, against What is it, is the thing that he is against really constitutional originalism?

Is that what he is really against? We I’m gonna be repeating a little bit of what he said to us just a few minutes ago but just to call attention to it. At page nine in the intro he tells us three things. That are foundational to originalism at bottom. He says, originalists presuppose, presume that the constitution I’m quoting here, by the way, page nine that the constant because his book is a text, by the way that the they presume that the constitution is a text just like his book, that it’s meaning is fixed.

And that it is a species of conventional law to be understood and interpreted like other kinds of law. And this is not just a throwaway line on page nine of the intro. Chapter one, which lays out the basic theme of his of the book has, is entitled Originalist Assumptions. And it has three subparts.

Not numbered. The three sub parts are Writtenness These are his actual words. These are the, the words at the beginning of each of the sub sections. Writtenness Fixity and Law And he says, originalists get all this wrong. Each of these things, writtenness, fixity, and law are misconstructions of how a constitutional constitution would have been conceived by folks at the time of the adoption of the Constitution.

Now, my point about this is not that he’s wrong. I might actually disagree with some of that. But the point isn’t that he’s wrong. The point is that his target is not originalism. If this is the problem, Jonathan’s target is the entire tradition of constitutional judicial review in the United States, beginning with Marbury versus Madison.

Hence the quotes. These are all from a couple of pages in Chief Justice Marshall’s opinion in Marbury. That the people have an original right to establish for their future government such principles as, in their opinion, should most conduce to their happiness, is the basis on which the whole American fabric has been erected.

The principles, therefore, so established are deemed fundamental, and as the authority from which they proceed is supreme and can seldom act, they are designed to be permanent. Is permanent a synonym for fixed, for fixity? I think so. So if you object to fixity, you’re not objecting to, Larry Solom and Randy Barnett and Justice Scalia and Michael McConnell.

You’re objecting to Marbury versus Madison. This is the, this is a fundamental principle. Of, it’s of it’s the basis on which the whole American fabric has been erected. What else did he say? This is, this theory, Marshall says, is essentially attached to a written constitution. And is consequently to be considered by this court as one of the fundamental principles of society.

Okay written ness is also. Fundamental. In fact, a little bit later in the opinion, Marshall says that a written constitution is quote, the greatest improvement on political institutions. That’s written ness. What else did Marshall have to say? This is about law. About whether the constitution is to be understood and interpreted and enforced as law.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, if necessity, expound and interpret that rule. If two laws, that’s of course the statute in the Constitution, if two laws conflict with each other, the courts must decide on the operation of each.

If a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case.
This is of the very essence.

Law, what was it that, so the misunderstanding of originalists on page 9 of the intro is that it’s a species of conventional law to be understood and interpreted like other kinds of law. Now, again, my problem with this right now. It’s not that Jonathan is wrong about all of this. Marbury versus Madison, for all I know, is like flagrantly inconsistent with the principles of the founding.

Who knows? But this is not an attack on originalism. This is an attack on every species of constitutional interpretation that is based upon the principle of judicial review. The title of this book is extremely misleading. I’m not sure he’s against it, but the thing that he’s against is not constitutional interpret originalism.

The thing that he is against, the thing that is fundamentally misconceives the nature of constitutionalism at the founding. is the American tradition of judicial review that applies just as much to people like Thurgood Marshall and William Brennan as it does to people like Nino Scalia or Neil Gorsuch on these points.

They are all in support. Marbury is not a small case. I remember once Marbury I was actually arguing in the Supreme Court, and one of the justices asked me, Is Marbury v. Madison still good law? Of course the answer to that is, of course it is justice, right? Because it is indeed fundamental, whether it’s right or wrong.

Now we should talk about whether it is in fact right or wrong. It’s not obvious to me that it is wrong. But that requires getting into many more of the details. I’m going to sit down because I think I’ve been up here long enough. I’m hoping that a topic that we may engage in at a somewhat more granular level than all of this has to do with the status of the writtenness of rights.

The interesting question here is, what were the framers doing when they added a written bill of rights to the Constitution? Now, Jonathan correctly points out that quite a few people thought we didn’t need one for one reason or another but we’ve got one. And if we want to understand why the Bill of Rights is there, the question isn’t what were the people thinking who didn’t think it ought to be there.

The question is what were the people thinking who did think we needed a Bill of Rights. And Madison is a great example here because he originally argued that we did not need one. But by the way, John, if this is history point, not a law point, I, am I getting this wrong? Your book, and then again in your talk, you said that the reason why People, like the early Madison, many people thought that we didn’t need to add a Bill of Rights was because the fundamental either customary or natural rights backdrop was good enough that the rights would survive.

I’m not persuaded that’s the re, that’s doesn’t, isn’t the reason they gave why. A bill of rights wasn’t wasn’t needed. The reason they gave was that it isn’t needed because we’re talking only about the federal government, not the states, and the federal government is a, sets up a government of only limited powers.

Those limited powers apply Almost exclusively to matters as interstate commerce and relations with the foreign with foreign governments, it we were not setting up a government that was of a primary government that regulated behavior and property and family law and that sort of thing out among it was a limited government and he, and they argued that these because the, these federal powers did not extend to things like, violating freedom of the press or freedom of religion or whatever we’re talking about.

A bill of rights was simply not necessary, right? And then they went on to argue that in fact, not only was it not necessary, it would actually be dangerous. to add a Bill of Rights because you can never list them all. You can never list them. In the debate, somebody mentions the right to wear a hat or decide what time you’re gonna get up.

A man is gonna get up out of bed in the morning. You can never list them all, right? And, the danger is that if you list some and not others, There’s going to be the principle of expressio unios, exclusio alturius which would seem to be broadly accepted, would, at least it costs doubt on the ones that aren’t listed.

If you list some and you don’t list others, maybe, and the word that they often used was maybe you, this meant we are relinquishing or disparaging. The rights that aren’t listed. The Bill of Rights, the people who opposed the Bill of Rights had good reasons, but the reasons were the ones I just stated.

Maybe we can find a quote or two about how natural law based rights or customary rights would be good enough, but the very language of the Bill of Rights seems to contradict that. How about the Ninth Amendment, which says, which is directly about this because it was added in order to refute the danger that I just mentioned.

And what it says, and what it says is that is that the enumeration of some rights It’s the first amendment. It says the first amendment of the first amendment should not be taken to deny or disparage the existence of other rights. Why do you need a ninth amendment? Because without a ninth amendment, the partial, the enumeration of some but not all would be taken, or might be taken to disparage or deny the others.

That’s the whole reason we need a ninth amendment. I was going to point, though to the language of the first amendment, which begins, the most important words of it are Congress shall make no law and then goes on to say abridging the freedoms of speech or press, et cetera, et cetera. So what is that stat?

So the freedoms of speech and press were pre existing nat, some combination of natural rights and customary rights. I don’t think we need to disaggregate which of those boxes, it’s probably both, right? But, what the First Amendment does is it makes sure that Congress can’t take them away. If Congress if they were strong enough of their own to withstand the Constitution without being enumerated, Congress couldn’t take them away anyway.

If it, if the worry is Congress can abridge, in the absence of the First Amendment. Congress might abridge the freedoms of speech and press then that suggests to me that Jonathan’s point that that the natural, customary and natural law rights are strong enough without a written list, it didn’t persuade the authors of the.

Of the Bill of Rights and the and Madison gives an explanation, right? So he changes his mind, or at least he he begins he starts to support a Bill of Rights and he, and there were several other people who made arguments along these lines, he specifically says in his speech introducing the Bill of Rights on the floor of the House of Representatives He specifically says that we’re guarding against especially the necessary and proper clause.

So the necessary and proper clause gives Congress the power to pass all laws necessary and proper in order to carry into effect the powers that have been granted to Congress and other officers. What might be necessary and proper? Here’s an example that they gave. We are going to have taxes on imports.

How do you enforce taxes on imports? One thing that might be one way to do that might be to send revenue collectors into the warehouses of merchants in order to make sure that they haven’t been smuggling goods without paying taxes. Oh that’s why we need a fourth amendment, right?

Because Congress might, through its necessary and proper power interfere with that right. Similarly, I think this was Hamilton’s example he said that we might need to, and also a tax example, he says we’re going to have taxes and it might be thought necessary and proper to censor newspaper editors who, or encourage people to violate the law.

So we need a a press clause. Some of these are pretty fanciful examples, but you have to think about them conceptually. Conceptually, what they indicate is that the written ness of the Bill of Rights did have an actual legal effect. It did entrench the rights. It did have the effect of preventing this new National government, which was potentially highly unrepresentative and so forth from potent, from from violating those rights under its powers in Article one, section eight.

And I think, Jonathan, you disagree with that? I do. So I’m gonna sit down and maybe we can find out why.

Alright.

Thanks, first of all, Michael, for both the compliments, which were very we should put those, some of those on the paperback, especially Jonathan Gienapp is a very good originalist. Perfect. Perfect. I, in fact, predicted last night, I have witnesses that you would say that precisely. So I win the bet.

And also for the thoughtful engagement. These are exactly the things we should talk about. Some of them I think we’re perhaps talking past each other a little, so it’s worth sorting it out. And some of them are important areas of potential disagreement that are precisely what we should discuss.

So first off as I make, as I try to make clear, if not on page nine yeah. Get the text to go away. No, it’s totally fine. It’s totally fine. Sure, sure.

It is not simply that originalists are attached to written constitutionalism, fixed constitutionalism, a notion of law. It’s that there are particular conceptions of them that are different than the kinds of conceptions that predominated at the founding. So it’s not as though people at the founding went around saying.

We don’t have written constitutionalism, or constitutional meaning is not fixed, or the constitution is not a kind of law. It’s that they could say all those things and not presuppose the particular conceptions of thinking about writtenness, fixity, and law that are often taken for granted originalists, modern constitutional lawyers that preclude us from seeing the different ways in which they were talking about that.

For instance the idea that the Constitution would be permanent and its essential features would be fixed, every American revolutionary said that about the British Constitution from the day where they were born until the day independence was declared. They grew up assuming that fixed constitutionalism didn’t in any meaningful sense have to presuppose a written Constitution.

They didn’t accept for one minute the notion. If an unwritten, customary British constitution was not fixed, if anyone ever suggested that they would say, you know exactly nothing about constitutionalism. Now, it could be that 1776 is a sort of big bang moment that wipes the slate clean and all that thinking disappears.

But if you’ve been speaking a language fixed constitutionalism, the meaning of the constitution is fixed. And here they’re talking about a constitution that is largely customary in character. It has a lot of textual features. A lot of the rights have been entrenched. not given constitutional status in documents like Magna Carta and the English Bill of Rights, but reinforced as declaratory provisions of immense significant monuments that everyone would see so they would not forget.

You could potentially draw a different conclusion on the other side of 1776 or 1777, 1787 of what it meant to talk about a constitution having fixed content. That didn’t see it on the terms of that I took you to be laying out. So what I want to see is not either written constitutionalism or not.

I think you can see a lot of what Mar Marshall is talking about here in Marbury as consistent with a different way of thinking about those concepts. Or we need to see how at the founding different people had different ideas of those con concepts and were in contention. And here with Marshall, I’d say one way to read his quote could be that what I said about general fundamental law and social compact theory that created notions of unwritten constitutional principles that interfaced with and effectuated written constitutional provisions, that he is announcing that is no more.

That here in 1803, maybe we did it that way in 1777. Maybe that’s why half the state constitutions don’t have declarations of rights, but we’re going to do it differently now. But then I wonder why the Marshall Court appealed to general principles of jurisprudence and general fundamental law and social compact theory and all of those standard unwritten principles all the time.

As an intellectual historian, that suggests to me Marshall is saying something different and doing something different. And here I think it gets to one of your compliments that we strongly agree on, which is. The standard assumption about constitutional interpretation was not that it would be in the Supreme Court, that major constitutional controversies would automatically be settled there.

We live in a world of strong judicial review where that is assumed. The founders really couldn’t imagine our world. When Alexander Hamilton said it was the least dangerous branch, in a lot of ways he meant it because he said it as neither the sword nor the purse. How are judges going to be the sort of leading edge of big decisions?

As Madison said. I don’t think strong judicial supremacy is Republican, but it’s also not really worth talking about because it’s so impractical. People, if judges really are going to weigh in aggressively on something controversial, people just probably won’t follow it. They have no way of coercing people.

Marshall’s living in a world where judicial power is not especially strong, where debates over judicial review in the 1770s and 1780s and 90s took took a form that we can barely recognize where James Iredell and. Richard Dobbs Spate, as the Constitutional Convention is happening, are debating whether Baird v.

Singleton, one of the several cases that seemed to indicate a kind of judicial review at the state level prior to Marbury, was legitimate. And in this case, the legislature had violated the Constitution as clearly as they possibly could. No one disputed that. Think here about a Constitution that says you get 12 jurors, and the legislature has drawn up a statute that says you get 9.

So we have clear conflict. And Iridel says, in a case of this clear conflict, can’t the judge act and nullify the statute? And Richard Dobsbate says, obviously the legislature has violated the constitution. I just don’t think that the unelected judges can be in the position of laying aside statutes.

If you want to get rid of the legislature, you have to have an election. So I don’t know how many people supported each side, but Richard Dobsbate clearly had a constituency. If it wasn’t 50%, it was a lot of people out there who were wary of judicial power. Marshall is telling is devising a way of thinking about American constitutionalism here where he’s not reporting what he thinks is the case.

He is trying to create a narrative that makes judicial review seem more obvious and non threatening than it is in a world where a lot of people have issues with that. And again, I think part of the evidence of that is he doesn’t immediately turn around and say all of those state constitutions that didn’t declare rights, suddenly those rights don’t exist because I’ve just announced that stuff no longer matters here.

I think reading it in context shows a very different way of thinking about constitutionalism generally where the central question here was less what is the nature of the constitution but who gets to enforce it and take control of it. I see the same thing in in The famous dispute between Chase and Iredell Calder v.

Bull in 1798. I don’t take them to be arguing, as many people often interpret it, as I argue in the book, that Chase is saying if a state legislature violates principles of the social compact or natural law, we can set it aside, and Iredell says, no, we have to stick to the written constitution. I see Iredell as saying customary constitutionalism is a thing, it’s part of our constitution.

The question is, we as judges. Can we enforce that stuff? That’s a very different question. That’s not saying the Constitution is just the written stuff. That’s saying, what can we as judges rightfully enforce? And he said, this awesome power of nullifying a statute. I think we should only really be doing that when we’re super clear, and clear written text is usually an indication of that.

As for whether I’m attacking, the entire tradition of American constitutional law and judicial review, part of the reason I’m emphasizing originalism here is if one is not an originalist and assumes that our constitutional paradigms, assumptions, ways of doing business and thinking can evolve and change as we debate and sort things out, there’s plenty of room for the Marshallian view, which is day one learning and con law.

You would judge that based on whether it works for us and we like it. But if the idea is a lot of people have been interpreting the Constitution based on evolved opinion and changing social practice and we should go back to the founding and Get back in touch with our roots. Then I think that brings into sharper relief than other people making that claim.

Is this consistent with how people thought at the time? And it emphasizes that question anew, so I’m not sure it is as threatening. As you are suggesting, I think it is saying that if our point is we should be conceiving of constitutionalism as the founders did and therefore is the kind of judicial review that we take from Marbury consistent with it, you already said the expectation was that most constitutional interpretation would take place out of courts.

We don’t live in that world anymore. So I think already there’s a disjuncture there. And that’s only a problem if you have a particular approach to originalism. , a particular approach to constitutional interpretation that emphasizes the Constitution as laid down in an original moment. Lastly, to the claim that I’m not original that my argument is that originalists are not originalist enough.

This is the book should have been entitled for a more Originalist, originalism, , which I like that title. . I think there is a difference here between originalism as recovery and originalism as adjudication. Originalism is recovery, recovering the original meaning of things in the past. That’s what historians do.

That’s our essential task. And I’m trying to argue there is a way to recover, in a very real way, what 18th century constitutionalism was about. The question is, can we take that stuff that we find in the 18th century and use it to decide our cases today? And precisely because I’m trying to suggest this, these really important differences in constitutional thinking between then and now.

We have to, in the words of my friend Larry Lessig, translate that meaning. We have to take something that, is like plugging into an outlet in Europe, and change it into something that can be plugged in the United States. And in the process, that often requires significant updating, discretion, all sorts of things.

Which isn’t necessarily a problem, but to me becomes a very different form of adjudication. than most originalists emphasize and think is what makes originalism so good. So in that regard, I think there’s more to it than just for a more originalist originalism, I guess the subtitle would be, and why learning the history in a deep way suggests that enforcing original meaning today raises as many questions as it delivers answers or something.

We can come up with a title that does this. I’m happy to get into text versus rights at great length with you. I think everything you said was really stimulating. You said I, I’ve done so much for Jud Campbell’s career when we sat down. I should be his agent. That is certainly true. For people who are also interested in this work, they should read his path breaking work that I rely heavily on in the book.

But I’m happy to talk about that if you wish. So I’d love to talk about that, but why don’t we put that, let’s just complete this conversation. Where I think we are, we, there is a great deal of agreement between us. Judicial review was not, this is a new thing. Almost a new thing.

There were certainly precursors of various sorts and precedents that they drew upon. But it isn’t as if constitutional judicial review was a familiar practice. I think Madison, for example, when he writes early about how are the, these boundaries of the Constitution going to be enforced, and he gives us this elaborate structure from Federalist 10 and 51 about, the clash of factions and separation of powers.

Judicial review isn’t even on his roadmap. He’s not thinking about it. By the time of of the Bill of Rights debate in 1789 he specifically says, oh, and it isn’t the first thing that comes to his mind, but he does in the course of talking about a written Bill of Rights say, oh, and this the judges will be the peculiar custodians of these written rights.

So by now, it’s dawning on him that judicial review is going to Part of the system, not maybe the most important part. There is that lovely debate with Spate, William Dobbs Spate, as I he does say what he says. I think he’s by then, I think he’s already been a pretty serious minority. You say we can’t count how many people believe these various things, and that’s true.

But we can count them at the Constitutional Convention, and there are five delegates who presuppose the existence of some kind of judicial review, mostly this comes up in the context of arguing against Madison’s idea of a Council of Revision and there are two delegates If people say that judicial review is a bad idea, they don’t necessarily say it doesn’t exist or that it wouldn’t follow from the Constitution, but they say it’s a bad idea.

There is nobody who says it doesn’t exist. And so I think they are thinking about this. And you may say in Hamilton’s world, the idea of a strong judiciary kind of taking over is so fantastical, why would anybody even worry about it? He’s writing. That Federalist essay, a direct response to two essays by Brutus, 15 and 11, in which Brutus, one of the most prominent of the anti Federalists, spells out exactly what he fears judicial review is going to be.

Now he’s saying, he’s predicting this is what our Constitution will do, and he says That the judges, because the judges are both independent and final, and because the Constitution is written in a way which is not precise enough, it could never be precise enough to suit Brutus, because of that, and because the judges are part of the federal apparatus, not state judges, if this were being done by state judges, it might be okay but because of all of this, We’re going to have, the judiciary is going to be taking over, and they’re going to be doing it in the interest of an all powerful national government.

When you read Brutus, you see The modern, the future. If you see the future, you see the present , you see the present. So it isn’t, it wasn’t so fantastical. And Hamilton’s arguments are, he says impeaching the judges is the most important. Check. I don’t think so. And when Jefferson tries that strategy, it doesn’t work.

He says he he says, precedent will tie the judges down. I think so. What? Precedent can tie them down, but oftentimes one precedent is nothing but a launching pad for the next president. That’s the way how these things seem to work, and I think if you actually line up Hamilton’s protestations that the.

Judiciary is not very dangerous against Brutus’s claims that it will be. Brutus, I think Brutus gets the better of the argument on every point. But this is, the idea that judicial review is going to be a big thing is not is not unknown to the founders. And, but I do think they’re working it out.

I don’t, I don’t think it was something that everybody understood at the beginning. They are working it out. Marbury is just one thing, 1803. It’s not even the first case in the Supreme Court of Constitutional Judicial Review. That title belongs to United States v. Hilton, which is what, six or seven years before Marbury.

And it’s a straightforward argument over whether the carriage tax is constitutional or not. With Alexander Hamilton arguing for one side and Luther Martin, a prominent Anti Federalists are arguing for the other side, and the principal Supreme Court opinion being written by William Patterson, who is a delegate to the convention and the proponent of the New Jersey plans.

You have these luminaries in Hilton against the United States. How many people here have heard of Hilton versus the United States? I think Jack’s just gone to sleep or he would have his hand up. So Marbury, for some reason, has taken central stage, but judicial review was not created by Marbury versus Madison.

It’s just that when he explains the way in which judicial review relates to the most fundamental principles the nation he refers to, writtenness, fixity, and and legal interpretation. Now, maybe what those things mean has shifted in some way. I I think we have to get into somewhat more detail about exactly how have they shifted and why does it matter for real cases.

I’d like to know, is there, give me a case where proper originalist interpretation in a constitutional question should be different because of a change in the understanding of the writtenness of the Constitution. Maybe there is such a thing. But actually, originalists recognize the backdrops of the Constitution.

They recognize that a lot of the terms of the Constitution are references to common law which Is unwritten outside of the Constitution. I’m just not sure that the that the gulf between what modern day originalist practice is about and and the, and that’s quite as large as you how you imply you may do a little bit too much reading of some of the highly academic ized originalists who don’t know much history and don’t know much law.

Who are you talking about? I’m about to go to the San Diego Originalism Works in Progress conference this coming weekend and they’ll be around the table. Excuse me if I don’t name any names. This is actually a ground in which we totally agree that this style of originalism, I think. It’s not free historically, but we’re taught that we’re now talking about one last point.

You mentioned that the court not infrequently refers to general laws meaning sort of background principles that don’t belong to any one state. It’s fair. It’s, this is extremely similar to common law. It, and I think the best way to understand it is that these are common law principles that are held as a kind of consensus around the nation, that they’re not like conceptually particularly, distinct from from that, but the main difference is if the legislature passes a law which is explicitly contrary to the general law.

The legislature wins. But if it’s constitutional law, as in written in the constitution, and there’s a conflict between what the legislature, the statute, and the constitution the constitution wins. That’s why general law and written constitutional law are different. And why general fundamental law is different than general law.

Well, general fundamental law too. I don’t think there’s a difference between general fundamental law and general law. We disagree on that. But I can’t think of any examples, with the possible exception of Calder against Bull, where where general fundamental law is held to trump a statute.

So could I speak to, do we want to turn it over to Q& A? Absolutely. Because I think a very concrete example that helps sharpen this up is general fundamental law was an integrated set of principles that were deemed fundamental, drawn from nature, custom, reason, all sorts of things, and they were believed to have been protected, entrenched in the social compact that underlay the constitution of government.

What this meant was, you leave the state of nature, you have a set of natural rights, like a natural right to self defense. You retain that right in political society, the constitution recognizes that, it might even declare that, as it does in the second amendment. But the way in which it is retained is through Republican representative politics.

That nobody can interfere with this right, can abridge it can do anything with it other than the people’s own representatives. So it has to be an institution that, that represents them in a very serious way and in the interest of the public good. But it is up to that Republican, those Republican politics.

To decide where you draw the clear lines pertaining to the legal determinations that inform the right. For instance, in Heller and Bruin, the modern Second Amendment cases, here I see the approach as being anachronistic. Because they entrenched it in the Second Amendment, they took what wasn’t a constitutional right.

It might have been a pre existing important common law or natural right, and they made it a constitutional right. And in so doing, they made a balanced determination that we have to respect between the common good and individual rights. And I think by the premises of general fundamental law and how people thought about how unwritten constitutional principles informed written constitutional principles, what the founding generation would have said is no, it has created a right that will now be protected, cashed out, determined through the people’s representatives, through the people themselves, most paradigmatically through legislatures, will make the tough Choices about how you balance the needs of the public against the rights of the individual.

Legislatures aren’t always good. They can very much be unrepresentative. They can self deal. They can be engaged in class legislation. There are all sorts of ways in which legislatures can do things that are unconstitutional. But it creates a burden where they’re not presumptively unable to touch the right.

They are the custodians of the right. And that to me is a very different way of, that gets back to our, I think what is our disagreement about text and rights at the founding. This is where I think we are talking past each other. So I don’t disagree with any of that. But I think the topic that I thought we would be talking about is not debates on representative institutions over the common good.

I think we’re talking about the thing which is the, emphatically, the province and duty of the judicial department to do. That is not the same thing as how he’s debating. Should we open it up? Okay, let’s do it. Come down to the microphones. And please do speak into the microphones because that’s necessary to be on the tape.

Oh, so it works. Hello, for

the discussion. The question I have first did not mention in the beginning on part of it in the book that Another momentous time in history is the Reconstruction Amendment. I’m wondering, a lot of the discussion is about that we had today was about colonial America. But with America undergone such a momentous shift, which has relation with the federal government and state government, and addition of three additional amendments, how does that, I’m just curious, like in general, how does that, shouldn’t we be discussing more about that fundamental shift where then, We did before the Civil War, if that makes sense.

Absolutely. Thank you, Andrew. So we certainly could. And you could imagine an argument that takes the form of Constitutionalism worked this way, the nature of the Constitution was understood this way at the founding, and the Reconstruction Amendments fundamentally changed that. I do not see any originalist that has yet argued exactly that.

In fact, originalists usually downplay the revolutionary character of the Reconstruction Amendments. They say they added things of immense significance, but they don’t believe that. That what Thurgood Marshall said was true, that the Constitution was destroyed during the Civil War and didn’t survive it.

There’s a real sense of legal continuity. But more important than that, I think it’s really quite striking that so many originalist academics spend so much time on the Reconstruction Amendments now. But not many of the judges. They really spend less time focused on that. And they’ve had a lot of cases recently trying to sort out the history and tradition standard that they’ve unleashed, where it seems only Justice Amy Coney Barrett, who’s very thoughtful about these things, keeps saying, When we say the Bill of Rights were incorporated through the 14th Amendment, do we mean their meanings in 1791?

Do we mean their meanings as they evolved over the course of the 19th century and 1868? At some point we’re going to have to figure this out. And usually, as it happened in, say, Heller versus D. C., there’s a real desire among the judges to focus on the founding and not emphasize the sort of transformative significance of the later period.

And I think, so we’ll see what happens. But part of the reason I emphasize the founding is because I think it is crucial to how originalists think in that particular way. It doesn’t have to be, but I think it is. All that’s true, including Jonathan’s provocative comment about judges not bringing originalist thought into 14th Amendment cases, at least not very much.

You can’t blame the academics for that. And let me advertise, I teach two courses that are relevant to this conversation. Which everyone should take. Creation of the Constitution, which is the original founding, and the Reconstruction Amendments. I call it Reconstructing the Constitution. You should take both of those courses, and they’re both cross listed in the history department, so those of you who are not law students are very welcome.

Thank you both. I have two related questions, both about rights. The first one, because I was sitting up there eagerly awaiting a discussion to happen, but then it didn’t. So I hope to prompt it and hear Professor Gienapp’s account of what is going on. And 1791. What is the Bill of Rights for, what is Madison thinking it’s for, what are Madison’s colleagues thinking it’s for, and how did the opponents of the Constitution who said a Bill of Rights was so essential feel about the one that was actually created what role did they think it would play, what role did anybody think it would play.

Second, I was perusing some responses to this book and found A point about rights that I think, discussion of which would help clarify the sort of fundamental level of the criticism, it was that the point by McGinnis and Rappaport, was that originalists have always thought that maybe there are different founding era conceptions about what a right contains about its contents and therefore about its meaning.

And they thought that you were pointing to a lack of sensitivity you and Professor Campbell were pointing to a lack of sensitivity to that sort of content in your book. It seems to me like you’re more talking about the nature of a right in general. You’re not so much saying originalists aren’t sensitive to what free speech might have meant, but more the role of rights in a political and legal system.

I was wondering if you wanted to talk about that. I can say a great deal. I think those two are essentially intertwined, which is part of why efforts to disaggregate them grow so complex. So the first one on what Madison was doing with the Bill of Rights. Jack is here. He has a few thoughts on it that I think everyone should consult because they’re essentially right.

So it’s a complex thing. Madison makes campaign promises. He’s super concerned about a second convention movement that anti federalists need to be appeased or else everything they’ve worked for. And he’s also convinced by Thomas Jefferson, among others, that even if James Wilson and others were right, that not, that, that declaring rights was not essential, they could still serve an immense pedagogical value.

No different than how Magna Carta and the English Bill of Rights had worked. That they would be these monuments that everyone could turn to that would inculcate in people the right sort of habits of mind of what their rights. I think I disagree with Michael. It sounded like we, we did disagree about exactly what Madison was talking about when he makes his comment about how judges could be the peculiar guardians of rights.

Here I think what Madison is saying is by writing, by putting certain rights in text, particularly certain, well settled common law rights, it would help encourage judges to protect these rights that they already could. But didn’t really have the guts to do at this time. It would help them.

It would help give them the right sort of incentives. I don’t think he was saying, and I don’t think it makes sense given things he earlier said, that only if we add these can they be constitutionally enforceable. And I suppose that’s partly an answer to your second question, that these things are entangled.

How they thought about the nature and content of rights was bound up with how they would understand its enforcement. In a lot of cases, it was, we have a declaratory right, the details of which are not worked out. You can write very specific things that tell you what you can or cannot do against speech.

Or you can just declare we have a freedom of speech. The implication being, it will be left to the people themselves through the institutions that best represent them to make the crucial legal determinations about whether or not certain kinds of things violate the freedom of speech in a particular way.

So it’s very hard to separate what would be called the meaning from the logic of how constitutionalism works. And I think an overly linguistic sense of originalism that says what did the, what was the semantic meaning of freedom of speech is already off on the wrong foot for that reason.

And I think that’s what those critics that you mentioned miss. Except the, that’s exactly the kind of discourse That they, including Madison, engage in the 1790s when freedom of press and speech become contested. Maybe, almost for the first time and they say we know what the freedom of speech means.

It means what Blackstone said it means. And Madison writes this quite brilliant the report of 1800, I consider to be a really masterful legal argument. He has this brilliant legal argument about why, notwithstanding. Blackstone we should not interpret our freedom of press as being limited to those things that Blackstone said.

And they are not, the arguments are not about what he wanted the freedom of press to be. They were not philosophical arguments. They were not they were legal arguments about why under American legal circumstances those words. We’re different. And the leading point being that America is a republic where and the idea of freedom of speech, not press, but speech in the English Bill of Rights was the right of parliamentarians who are part of the sovereign and the British constitutional theory.

Parliament, the king and parliament is sovereign. You cannot restrict it. The powers of the sovereign to be able to deliberate over what the common good entails. In the United States, Congress is not sovereign, the people are sovereign, and thus the exact same political theory that drives Blackstone to the, to a limited right in Republican America.
Cashes out for a broader right. I call that a legal argument, not a and it’s all about the meaning of freedom of the press.

And can I ask you, I do too, but I also want to throw one other thing out. You keep Emphasizing did the word declaratory and declarations of rights and whether some states had didn’t lack something that was called a declaration of rights. This is a question, but in, everybody knew the English Bill of Rights and the English Declaration of Rights.
They were both added at the same time with as a result of the glorious revolution. And the declaration, and they’re very similar, but not quite. They have and the difference between them is that the Bill of Rights changes the customary law, whereas the Declaration of Rights restates what the understanding was of what the customary law required.

And the king’s assent was required for the Bill of Rights because it was a law. And it was not required for the Declaration of Rights because it was simply a declaration. When they called our thing a Bill of Rights, weren’t they saying we are actually speaking in we’re replicating the act of the British Bill of Rights and it isn’t merely declaratory.
It’s actually law. They mostly called them the amendments, and to Baird’s second question, most anti Federalists said, we asked for a declaration of rights, and we got this thing that we don’t like.

I think that actually leads in relatively well to my next question, which was, yeah, Professor McConnell, you brought up Brutus’ prophetic essay. Is originalism Did you say prophetic or pathetic? I said prophetic, but I actually think it’s a great essay but is originalism just trying to make Brutus worst fears true about judicial supremacy?
I would have said that Chief Justice Warren was the one who was doing that.

I don’t I don’t see why I don’t, I guess I don’t understand the premise. I’m mostly referring to Brutus and Jefferson and other, arguable whether Jefferson’s an anti federalist, but at least initially against the Constitution’s ratification, were very anti strong judicial review.

They were very fearful of that and so using Brutus’s fears to argue for strong judicial review seems somewhat, or strong judicial review using the Bill of Rights. I don’t see originalism as arguing for stronger judicial review than its competitor, which is, goes by a bunch of different names, often living constitutionalism, which is basically judges can do whatever they want.

Originalism says, no, judges can’t do whatever they want. They can only do the things that are actually written in the Constitution as originally understood. It’s a much more confined role for the judiciary than its alternative, its leading alternative.

Thank you so much for your talk. I had two sort of connected questions. Firstly, I guess you both have been debating a lot about different aspects of the Constitution, like written ness or fixity. And I think in defining that, I just wanted to ask whose opinions at the founding do we care about and how are you, yeah, how would you articulate that?

Are we thinking? Like the majority of people, are we thinking about the elites, the common people, how do we understand how people understood the Constitution? And then secondly, I think we’ve also talked a lot about the Constitution as this sort of united document and it’s very composite in that there are all of these different parts and amendments and how much should and does our understanding of something like, how much people thought things should be law, how much should that differ across the Different parts of the Constitution, different amendments.

Small questions. No, not at all. They’re great questions. The first one’s especially important. It’s something I really try to emphasize in the book. A lot of people had substantive views on constitutionalism at the founding that were not simply disagreements over meaning or interpretation, but presupposed different conceptions of the Constitution itself.

And I think too often those things are ignored. So for instance, Michael talked earlier and I agreed with, generally with what he was saying about judicial review coming on the scene and a lot of people recognizing it as both real and important and certainly at the Constitutional Convention. But part of the reason you get the Jeffersonian political revolution is because of a deep anger that judges are interfering with the people’s sovereignty.

So part of the reason they call for codification is not because they think unwritten common law is bad. They think common law is actually quite good if it’s understood properly. It’s this wonderful marker of the people’s law. The problem is judges had increasingly, in their estimation, abused common law principles to basically defend rights of property and contract against local majorities.

Related to that, this is why among other things Thomas Jefferson calls, justices on the Supreme Court this, aristocracy in rows and says they should be the strictest of the strict constructionists. They should do a version of what Michael just said, but in the sense of they should interpret the, they should basically not interpret.

They should only do what the constitution clearly lays out, and if they can’t suss that out, they should leave that to the people themselves. That’s a very different understanding of the constitutionalism than you would get from John Marshall and Joseph Story. So one way to think about this is, there can be a way in which we say the original constitution and its original meaning, but then we’ve actually attached to it a substantive vision of constitutionalism that can take the form of, We’re Hamiltonian on presidential power, we’re Jeffersonian on national power, we’re anti federalists on bills of rights, we’re federalists on Article V change, we’re Marshallian on judicial power and judicial review, we’re Jeffersonian on the importance of text and strict construction, and you’ve created this composite figure that no one at the founding would have been precisely because those were the fault lines that people went to the mat over, so one thing I do in the book is there’s this long running idea. That the founders were originalists, that before living constitutionalists in the twentieth century ruined everything, that was the standard way of doing business. Except as an intellectual historian, I don’t know what to do with the deep debates over how to interpret the Constitution that dominated the first hundred years of the Republic.

It is very common, and I can find you lots and lots of quotes, to say that John Marshall was essentially an originalist and Thomas Jefferson was essentially an originalist. It you, and yet I think you would be hard pressed to find two people in all of American history who more deeply disagreed with each other on how to interpret the Constitution.
So much so that they wrote letters to people saying, John Marshall’s method of interpreting the Constitution is an abomination. It’s horrible. If those two people can share a label that makes them, share a theory of interpretation, I think we’ve missed understanding what they really disagreed over.

One thing that’s changed is we went from debating broad construction versus strict construction to a very different thing that is more predicated on distance from the founding, which is originalism versus living constitutionalism. And in having those debates, we look for versions of ourselves in the past.

And as a result, we can end up missing what actually was driving people at the time. I don’t know what. John C Calhoun and Joseph Story were arguing about if they were both originalists. They pretty explicitly disagreed on how to interpret the Constitution in a very real way and said that. So I think we need to leave room for that.

How did they interpret the Constitution and there’s a lot of disagreement and you can’t just assume some views count and others don’t. You need a theory of that.

I think it’s the people who run around trying to claim everybody is as an originalist are just being silly. It reminds me of the literature that wants to claim that all the founders are Christians. Some of them are. One last question. Sorry, I know that we’re probably running out of time.

I’ll try to be brief. I wanted to focus on the fixity part of the argument a little bit. I saw that in the Washington Post, for example, they praised your book, Professor, that it could prompt conservatives to read the Constitution differently. And I wanted to question that maybe on the fixity argument.

Is it possible to conceive, grant the argument that the original writers of the Constitution conceived of the Constitution differently? And still be logically sound in reading the text according to its original meaning while still having a conception of the Constitution that’s not originalist, if we grant the argument.

Absolutely, and I talk about it in the book that, that’s an argument that can, that, there’s a theoretical coherence to that. Part of the problem is, at that point, you are admitting to creating a past in a sense that didn’t exist, and then you need to justify it. You need to explain, here’s why. for these modern normative or jurisprudential reasons or perhaps other reasons why that kind of approach bears fruit.

And I think there’s been a hesitance to do that for a lot of reasons because it both rhetorically undercuts what originalism is interested in, but also it lacks the sort of conceptual vigor of the idea of legal formalism, of we’re just taking the law As we find it. But still there would be the question.

And here I know, Michael for instance, part of the reason he was, at least, please correct me if I’m wrong, one of the reasons he likes originalism is he’s long been a proponent of judicial discretion and humility and restraint. That the idea that those who are in decision, in power to make judgments of that kind to actually figure out what the fixed meaning is will only act upon that if they have really good reason to think that they’ve actually arrived at a clear conception of its fixed meaning, rather than have found something that’s ambiguous and leaves a lot of room for debate.

So there’s still that secondary question of what you do with the thing you’ve recovered from the past. And that, to me, was precisely what the founders were often so interested in. And I think the dominant question from 1787 to 1840 was not how do we interpret the Constitution, it was who gets to interpret it and how will that process work.

And there was a lot of sense that the other thing was secondary to that. And I think debates over judicial restraint and humility. That were provoked for good reason by Robert Bork and others. I think it’s interesting that now a bunch of liberals run around saying what Robert Bork said back in the day.

And we should take that seriously. We are a little bit over time. And so please join me in thanking Jonathan.