Does Originalism Have a Natural Law Problem?

Abstract

This invited commentary for Law and History Review discusses Jonathan Gienapp’s new article on originalism, “Written Constitutionalism, Past and Present”. Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does it follow that originalism's whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do. This commentary critically examines Gienapp’s thesis, noting some potential challenges, and suggesting that perhaps the bigger problem with contemporary originalism is not that it takes the written Constitution too seriously, but that it doesn’t take the entire instrument seriously enough.