There Is Something that Our Constitution Just Is

Abstract

Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context in which the Constitution was framed and claims that the idea of a written Constitution was not prevalent in 1787 or 1788. Indeed, he goes so far as to call it a “myth.”

This Essay critiques Gienapp’s arguments, contending that he is perpetuating myths of his own. It is not true that originalists haven’t seriously investigated what sort of thing the Constitution is. It is not true that there was widespread, fundamental disagreement during the Founding era concerning just what the Constitution was. Finally, it is not true that the idea of a written Constitution emerged only after ratification.

Gienapp does raise important questions about how constitutional theory should address morality, present-day customs, and history. We begin to answer them by investigating officeholders’ promises to obey “this Constitution,” and then propose a research program dedicated to determining what people today think that that the Constitution is and how it binds public officials. We hope that this program will yield insight into contemporary understandings of constitutional obligation, which Gienapp neglects almost entirely.

Keywords: Constitutional ontology, Originalism, Jonathan Gienapp