There Is Something that Our Constitution Just Is

44 Pages Posted: 1 Feb 2022

See all articles by Evan D. Bernick

Evan D. Bernick

Northern Illinois University - College of Law

Christopher R. Green

University of Mississippi - School of Law

Date Written: January 28, 2022

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

Suggested Citation

Bernick, Evan D. and Green, Christopher R., There Is Something that Our Constitution Just Is (January 28, 2022). Available at SSRN: https://ssrn.com/abstract=4020579 or http://dx.doi.org/10.2139/ssrn.4020579

Evan D. Bernick

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Christopher R. Green (Contact Author)

University of Mississippi - School of Law ( email )

P.O. Box 1848
University, MS 38677
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
508
Abstract Views
1,756
Rank
84,771
PlumX Metrics