Against Constitutional Originalism
A Historical Critique
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Narrated by:
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Josh Innerst
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By:
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Jonathan Gienapp
About this listen
Constitutional originalism stakes law to history. The theory's core tenet—that the United States Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past. Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the United States Supreme Court champion originalism, the task of scrutinizing originalists' use and abuse of history has never been more urgent.
In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists' unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern. Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own. They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution's meaning was fixed. In the process, they erase the Constitution that eighteenth-century Americans in fact created. By understanding how originalism fails, we can better understand the Constitution that we have.
©2024 Jonathan Gienapp (P)2024 TantorListeners also enjoyed...
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Worse than Nothing
- The Dangerous Fallacy of Originalism
- By: Erwin Chemerinsky
- Narrated by: Daniel Henning
- Length: 7 hrs and 9 mins
- Unabridged
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Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now a well-accepted mode of constitutional interpretation. Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know the "original intent" of any provision.
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Impeccably Logical, Backed by 100 Specific Example
- By Amy Eaton on 03-17-23
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The Words That Made Us
- America's Constitutional Conversation, 1760-1840
- By: Akhil Reed Amar
- Narrated by: Fajer Al-Kaisi
- Length: 27 hrs and 6 mins
- Unabridged
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In The Words That Made Us, Akhil Reed Amar unites history and law in a vivid narrative of the biggest constitutional questions early Americans confronted, and he expertly assesses the answers they offered. His account of the document's origins and consolidation is a guide for anyone seeking to properly understand America's Constitution today.
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And the words that made Us
- By Anonymous User on 10-17-22
By: Akhil Reed Amar
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American Scripture
- Making the Declaration of Independence
- By: Pauline Maier
- Narrated by: Jonathan Yen
- Length: 11 hrs and 37 mins
- Unabridged
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In Maier's hands, the Declaration of Independence is brought close to us. She lets us hear the voice of the people as revealed in the other "declarations" of 1776: the local resolutions - most of which have gone unnoticed over the past two centuries - that explained, advocated, and justified Independence and undergirded Congress' work. Detective-like, she discloses the origins of key ideas and phrases in the Declaration and unravels the complex story of its drafting and of the group-editing job which angered Thomas Jefferson.
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Outstanding Book. Horrible Narration.
- By Brad Weisberger on 05-24-21
By: Pauline Maier
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No Democracy Lasts Forever
- How the Constitution Threatens the United States
- By: Erwin Chemerinsky
- Narrated by: Daniel Thomas May
- Length: 7 hrs and 23 mins
- Unabridged
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No Democracy Lasts Forever argues that the Constitution has become a threat to American democracy and must be dramatically changed or replaced if secession is to be avoided. Deeply troubled by the Constitution's inherent flaws, Erwin Chemerinsky, the renowned dean of Berkeley law school, came to the sobering conclusion that our nearly 250-year-old founding document is responsible for the crisis now facing American democracy.
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Leftist, but he makes sense to me
- By Mike Liveright on 11-29-24
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The Second Creation
- Fixing the American Constitution in the Founding Era
- By: Jonathan Gienapp
- Narrated by: Kristoffer Tabori
- Length: 20 hrs and 52 mins
- Unabridged
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A stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution? Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption.
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Infuriating Narration
- By David Paquette on 11-02-22
By: Jonathan Gienapp
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Memory and Authority
- The Uses of History in Constitutional Interpretation
- By: Jack M. Balkin
- Narrated by: Jonathan Todd Ross
- Length: 11 hrs and 1 min
- Unabridged
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Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court's current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history.
By: Jack M. Balkin
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Worse than Nothing
- The Dangerous Fallacy of Originalism
- By: Erwin Chemerinsky
- Narrated by: Daniel Henning
- Length: 7 hrs and 9 mins
- Unabridged
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Overall
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Performance
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Story
Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now a well-accepted mode of constitutional interpretation. Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know the "original intent" of any provision.
-
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Impeccably Logical, Backed by 100 Specific Example
- By Amy Eaton on 03-17-23
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The Words That Made Us
- America's Constitutional Conversation, 1760-1840
- By: Akhil Reed Amar
- Narrated by: Fajer Al-Kaisi
- Length: 27 hrs and 6 mins
- Unabridged
-
Overall
-
Performance
-
Story
In The Words That Made Us, Akhil Reed Amar unites history and law in a vivid narrative of the biggest constitutional questions early Americans confronted, and he expertly assesses the answers they offered. His account of the document's origins and consolidation is a guide for anyone seeking to properly understand America's Constitution today.
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And the words that made Us
- By Anonymous User on 10-17-22
By: Akhil Reed Amar
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American Scripture
- Making the Declaration of Independence
- By: Pauline Maier
- Narrated by: Jonathan Yen
- Length: 11 hrs and 37 mins
- Unabridged
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Overall
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Performance
-
Story
In Maier's hands, the Declaration of Independence is brought close to us. She lets us hear the voice of the people as revealed in the other "declarations" of 1776: the local resolutions - most of which have gone unnoticed over the past two centuries - that explained, advocated, and justified Independence and undergirded Congress' work. Detective-like, she discloses the origins of key ideas and phrases in the Declaration and unravels the complex story of its drafting and of the group-editing job which angered Thomas Jefferson.
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Outstanding Book. Horrible Narration.
- By Brad Weisberger on 05-24-21
By: Pauline Maier
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No Democracy Lasts Forever
- How the Constitution Threatens the United States
- By: Erwin Chemerinsky
- Narrated by: Daniel Thomas May
- Length: 7 hrs and 23 mins
- Unabridged
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Overall
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Performance
-
Story
No Democracy Lasts Forever argues that the Constitution has become a threat to American democracy and must be dramatically changed or replaced if secession is to be avoided. Deeply troubled by the Constitution's inherent flaws, Erwin Chemerinsky, the renowned dean of Berkeley law school, came to the sobering conclusion that our nearly 250-year-old founding document is responsible for the crisis now facing American democracy.
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Leftist, but he makes sense to me
- By Mike Liveright on 11-29-24
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Original Meanings
- Politics and Ideas in the Making of the Constitution
- By: Jack N. Rakove
- Narrated by: Steven Weber
- Length: 17 hrs and 49 mins
- Unabridged
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What did the US Constitution originally mean, and how can we recover the intentions of its framers? These questions, which resound throughout today’s most heated legal and political controversies, lie at the heart of Jack N. Rakove’s splendidly readable work of historical analysis. In Original Meanings, he traces the complex weave of ideology and interests from which the Constitution emerged and shows how Americans have attached different meanings to their founding document from the moment it was published.
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Epistemological in its approach ...
- By History on 10-24-11
By: Jack N. Rakove
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The Originalism Trap
- How Extremists Stole the Constitution and How We the People Can Take It Back
- By: Madiba K. Dennie
- Narrated by: Madiba K. Dennie
- Length: 7 hrs and 21 mins
- Unabridged
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Lawyers don’t often admit this in mixed company, but Madiba Dennie wants to let you in on a secret: There's no one true way to interpret the Constitution. Americans saw just how subjective it can be when the Supreme Court denied basic bodily autonomy to millions of people in its Dobbs v. Jackson Women's Health Organization decision, suggesting that our rights and liberties are frozen in a cherry-picked version of history. This is a line of constitutional interpretation called originalism—a framework that says we must be constrained by the meaning of the Constitution's text when it was written.
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A ray of hope in a bleak time
- By Emily S. Lakdawalla on 09-20-24
By: Madiba K. Dennie
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American Republics
- A Continental History of the United States 1783-1850
- By: Alan Taylor
- Narrated by: Graham Winton
- Length: 14 hrs and 42 mins
- Unabridged
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In this beautifully written history of America’s formative period, a preeminent historian upends the traditional story of a young nation confidently marching to its continent-spanning destiny.
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Helps the dots of history to today.
- By Tascha F. on 06-26-21
By: Alan Taylor
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Before the Movement
- The Hidden History of Black Civil Rights
- By: Dylan C. Penningroth
- Narrated by: Terrence Kidd
- Length: 12 hrs and 29 mins
- Unabridged
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Performance
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Story
In Before the Movement, Dylan C. Penningroth brilliantly revises the conventional story. Drawing on long-forgotten sources found in the basements of county courthouses across the nation, Penningroth reveals that African Americans, far from being ignorant about law until the middle of the twentieth century, have thought about, talked about, and used it going as far back as even the era of slavery.
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Anxiety
- A Philosophical Guide
- By: Samir Chopra
- Narrated by: Asa Siegel
- Length: 6 hrs and 16 mins
- Unabridged
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Performance
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Today, anxiety is usually thought of as a pathology, the most diagnosed and medicated of all psychological disorders. But anxiety isn't always or only a medical condition. Indeed, many philosophers argue that anxiety is a normal, even essential, part of being human, and that coming to terms with this fact is potentially transformative. In Anxiety, Samir Chopra explores valuable insights about anxiety offered by ancient and modern philosophies. Blending memoir and philosophy, he also tells how serious anxiety has affected his own life—and how philosophy has helped him cope with it.
By: Samir Chopra
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Ungoverning
- The Attack on the Administrative State and the Politics of Chaos
- By: Russell Muirhead, Nancy L. Rosenblum
- Narrated by: Katherine Fenton
- Length: 8 hrs and 15 mins
- Unabridged
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In this unsettling book, Russell Muirhead and Nancy Rosenblum trace how ungoverning—the deliberate effort to dismantle the capacity of government to do its work—has become a malignant part of politics. Democracy depends on a government that can govern, and that requires what’s called administration.
By: Russell Muirhead, and others
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The Framers' Coup
- The Making of the United States Constitution
- By: Michael J. Klarman
- Narrated by: Mike Chamberlain
- Length: 31 hrs and 45 mins
- Unabridged
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Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests.
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Context Matters
- By Keith on 03-18-18
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Rot and Revival
- The History of Constitutional Law in American Political Development
- By: Anthony Michael Kreis
- Narrated by: Peter Lerman
- Length: 7 hrs and 48 mins
- Unabridged
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Rot and Revival is one of the first scholarly works to comprehensively theorize and document how politics make American constitutional law and how the courts affect the path of partisan politics. Rejecting the idea that the Constitution's significance and interpretation can be divorced from contemporary political realities, Anthony Michael Kreis explains how American constitutional law reflects the ideological commitments of dominant political coalitions, the consequences of major public policy choices, and the influences of intervening social movements.
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Major Supreme Court Decisions in American History
- By OpenTheBooks&Listen on 08-13-24
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American Slavery, American Freedom
- By: Edmund S. Morgan
- Narrated by: Sean Pratt
- Length: 14 hrs and 19 mins
- Unabridged
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"If it is possible to understand the American paradox, the marriage of slavery and freedom, Virginia is surely the place to begin," writes Edmund S. Morgan in American Slavery, American Freedom, a study of the tragic contradiction at the core of America. Morgan finds the key to this central paradox in the people and politics of the state that was both the birthplace of the revolution and the largest slaveholding state in the country.
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Explaining the great American contradiction
- By Roger on 09-16-14
By: Edmund S. Morgan
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Illiberal America
- A History
- By: Steven Hahn
- Narrated by: Mitch Crawford
- Length: 17 hrs and 12 mins
- Unabridged
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If your reaction to the January 6, 2021, insurrection at the Capitol was to think, 'That's not us,' think again: in Illiberal America, a Pulitzer Prize-winning historian uncovers a powerful illiberalism as deep seated in the American past as the founding ideals.
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Comprehensive American History
- By Rolando on 08-27-24
By: Steven Hahn
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Ghosts of Crook County
- An Oil Fortune, a Phantom Child, and the Fight for Indigenous Land
- By: Russell Cobb
- Narrated by: Chris Baetens
- Length: 9 hrs and 22 mins
- Unabridged
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In the early 1900s, at the dawn of the “American Century,” few knew the intoxicating power of greed better than white men on the forefront of the black gold rush. When oil was discovered in Oklahoma’s Indian Country, these tycoons impersonated, defrauded, and murdered Native property owners to snatch up hundreds of acres of oil-rich land. Journalist and fourth-generation Oklahoman Russell Cobb sets the stage for one such oilman’s chicanery: Tulsa entrepreneur Charles Page’s campaign for a young Muscogee boy’s land in Creek County.
By: Russell Cobb
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Ghosts of the British Museum
- A True Story of Colonial Loot and Restless Objects
- By: Noah Angell
- Narrated by: Noah Angell
- Length: 6 hrs and 55 mins
- Unabridged
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What if the British Museum isn't a house of learning, but a vast sinkhole of still-bubbling historic injustice? What if it presents us not with a carefully ordered cross section of history but is instead a palatial trophy cabinet of colonial loot swarming with volatile and errant spirits? When artist and writer Noah Angell first heard murmurs of ghostly sightings at the British Museum he had to find out more. What started as a trickle soon became a landslide as staff old and new brought forth testimonies of their inexplicable supernatural encounters.
By: Noah Angell
What listeners say about Against Constitutional Originalism
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- Terrance
- 09-28-24
Title of my review
This was a good book. I liked this book very much. On an axis tracking the goodness of books, where leftward is more bad and rightward is more good, a vector representing this book would need to be placed to the right, if we intended for the vector representation of the book to be accurate with respect to my own assessment of this book. This was a good book. Thank you, I love you all.
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- marwalk
- 11-24-24
Constitutional Originalism is judicial chicanery
Constitutional Originalism is actually a modern theory crafted to prop up right wing judicial chicanery—this is revealed by the exhaustive survey of the Founding era Jonathan Gienapp presents in this book. Gienapp searches out the true sense of what the US Constitution meant to the people who lived in 1787, and the context that guided its practical application in the Eighteenth and early Nineteenth Centuries. Contrary to what modern Originalists would have people believe, the living constitution concept is more original (that is, true to the Founders' intent) than the Originalism theory in our contemporary time.
Gienapp lays bare the contradictory logic employed by Originalists in their attempts to discern the meaning of the Constitution solely from the text itself—the author illustrates repeatedly how Originalists fold their own reasoning back onto itself, and end up themselves unwittingly making the case for a living Constitution. Originalists slights of hand with the text do them no favors, such as their tendency to ignore the Constitution's Preamble and its emphasis on "We the People." Gienapp demonstrates that the text can only be understood in its Eighteenth Century meaning, the context of which Originalists lose altogether by interpreting the words in the Constitution through a modern day perspective that was unheard of in 1787.
Although many significant advancements in human rights were achieved by the Warren Court of the 1960s (over and against recalcitrant legislatures), an opposite Court now is in place—and taking legislative initiative may be the way forward in the 21st Century. As US Courts become increasingly right wing with more judicial benches stacked with Originalist activists, Gienapp's observations that the Founders considered actual policy decisions to be in the political realm of the legislature is a point worth rediscovering—and acting upon.
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