Against Constitutional Originalism

Against Constitutional Originalism
Author: Jonathan Gienapp
Publisher: Yale University Press
Total Pages: 361
Release: 2024-09-03
Genre: Law
ISBN: 030028036X

A detailed and compelling examination of how the legal theory of originalism ignores and distorts the very constitutional history from which it derives interpretive authority “What are the chances that, in 2024, a new book could fundamentally reorient how we understand America’s founding? Jonathan Gienapp . . . has written such a book. . . . You read it, and you get vertigo. . . . Gienapp’s book comes as a thunderclap.”—Cass Sunstein, Washington Post Constitutional originalism stakes law to history. The theory’s core tenet—that the U.S. 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 U.S. 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.

Liberty Men and Great Proprietors

Liberty Men and Great Proprietors
Author: Alan Taylor
Publisher: UNC Press Books
Total Pages: 398
Release: 2014-01-01
Genre: History
ISBN: 0807839973

This detailed exploration of the settlement of Maine beginning in the late eighteenth century illuminates the violent, widespread contests along the American frontier that served to define and complete the American Revolution. Taylor shows how Maine's militant settlers organized secret companies to defend their populist understanding of the Revolution.

How the Indians Lost Their Land

How the Indians Lost Their Land
Author: Stuart BANNER
Publisher: Harvard University Press
Total Pages: 353
Release: 2009-06-30
Genre: History
ISBN: 0674020537

Between the early 17th century and the early 20th, nearly all U.S. land was transferred from American Indians to whites. Banner argues that neither simple coercion nor simple consent reflects the complicated legal history of land transfers--time, place, and the balance of power between Indians and settlers decided the outcome of land struggles.

Americanization of the Common Law

Americanization of the Common Law
Author: William Edward Nelson
Publisher: University of Georgia Press
Total Pages: 301
Release: 1994-01-01
Genre: Law
ISBN: 0820315877

Americanization of the Common Law remains one of the standard works on the transformation of law in America from the late colonial period to the end of the early republic. In a straightforward manner, William E. Nelson analyzes the profound ideological movement that grew out of the American Revolution and caused substantial structural change in the legal and social order of Massachusetts and, by extension, in the nation at large. The Revolution, Nelson argues, transformed a hierarchical and communitarian legal and social order into an egalitarian and individualistic one. For this edition, Nelson has written a new preface in which he discusses the book's initial reception and the relevant historiographical issues that have arisen since it was first published in 1975.

Essays in the History of Early American Law

Essays in the History of Early American Law
Author: David H. Flaherty
Publisher: UNC Press Books
Total Pages: 547
Release: 2014-01-01
Genre: History
ISBN: 0807839892

This collection of outstanding essays in the history of early American law is designed to meet the demand for a basic introduction to the literature of colonial and early United States law. Eighteen essays from historical and legal journals by outstanding authorities explore the major themes in American legal history from colonial beginnings to the early nineteenth century. Originally published in 1969. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.