This week, the ladies react to the ransacking of the federal government by Elon Musk and his fleet of DOGE dorks. Then, Kate and Leah speak with Jonathan Gienapp, professor of law and history at Stanford University and author of Against Constitutional Originalism: A Historical Critique, about what originalists get wrong about history and how the founders thought about the law.

 

TRANSCRIPT

Leah Litman [AD].

 

Show Intro Mr. Chief Justice, may it please the Court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren. Is that they take their feet off our necks.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. And with the Supreme Court still in between sittings, we have a non-news segment coming your way today. It’s a break from the news cycle that is a deep dive on a fabulous new book about originalism. The book is called Against Constitutional Originalism with author Jonathan Gienapp.

 

Leah Litman Before we do that, we did want to do a quick newsy segment, but because of time constraints, we’re only going to be able to focus on one crazy thing. Maybe the craziest thing that happened this past week.

 

Melissa Murray Now, to be clear, we are going to reserve all of the other crazy things, developments that happen this week for the show that we’re going to be recording at Fordham Law School for the Levine Lecture that will air next week. And we know many of you wrote in on The Crooked Discord or elsewhere to request that we cover certain issues. We are going to get there and we’re going to get there with a live audience at Fordham. So stay tuned. All right. So what’s the one thing from last week that we thought was just so out there that we absolutely had to talk about it? And no, it was not Noah Feldman’s. Everything is fine. The system is working just as it’s supposed to column in Bloomberg. Leah will have more to say about that particular intervention next week. Instead, we want to talk about something else.

 

Leah Litman It’s hashtag personal growth that I can even keep my thoughts on that column holding for a week. So just want to note that. But the thing we had to talk about.

 

Melissa Murray You know what that is? Growth.

 

Leah Litman Exactly. Exactly. The thing we have to talk about is the takeover of the infrastructure of the federal government by an unelected billionaire and his small army of pimply virgins, a.k.a. the DOGE Bros, a.k.a. the friendless libertarians you knew from college.

 

Melissa Murray I believe the Pod Save Boys are referring to them as DOGE bags, which also seems right.

 

Leah Litman That’s really good.

 

Melissa Murray Very good. Wish I thought of it.

 

Leah Litman Yeah. DOGE bags. Another possibility is like edge lords who are subject to lifetime bans that like Xbox Live or Fortnite. Right. Like that’s also the category.

 

Kate Shaw Okay. We are going to you know workshop.

 

Melissa Murray You’re actually taken aback.

 

Kate Shaw We will workshop some of these you know potential labels slash quips. But before we do that a little bit of background and some details. So at the time that we recorded our last episode, there were some very preliminary reports about how Elon Musk and these DOGE bags, DOGE bro is still working on what to call them, were seeking access to the Treasury Department system for issuing disbursements. That is the way the federal government pays out billions, nay trillions of dollars. So the highest ranking career official at the Treasury Department was so concerned about this requested access that he resigned. He was essentially forced out after butting heads with Elon Musk over this access question.

 

Melissa Murray This seems as good a time as any to remind our listeners that DOGE, which is known as the Department of Government Efficiency, is not an actual department of anything. The term department has a very specific meaning within the federal infrastructure. It refers to an agency that has been approved by Congress and whose budget is appropriated by Congress by law. And so again, when you use terms like department to refer to whatever this clusterfuck is, you are not using the term correctly. So do not give DOGE and the DOGE bro’s and the DOGE lords and the DOGE coins the legitimacy they do not deserve. That’s not what this is. In any event, since our last episode, things have only gotten worse with regard to DOGE. Not only did Elon Musk and company get access to the Treasury Department’s payment system, they’ve actually gotten their fingers into a bunch of other cookie jars as well. And what they are doing, I have to say, is creating an enormous security risk. So these are the payment systems where you feed all of your personal information, your address, your Social Security number. And we have no idea who these DOGE bro’s DOGE lords are. I don’t even know. Nobody knows because there’s no transparency in this, because they are not actual officials of the federal government. And all of this is to say that this kind of access is a huge security risk, wildly illegal in monumental ways.

 

Kate Shaw And as Melissa said, we don’t know via any official channels who these people are. But some, you know, enterprising journalists actually have learned quite a bit about some of these brokers. Wired actually did a profile on what it was able to learn about at least some members of this team. It turns out that they are six young men, all apparently between the ages of 19 and 24. And actually, side note, if you are not already subscribed to Wired, you really should be. They are doing fantastic journalism right now and it is critical. And it’s kind of the only way we really know who these people accessing our most important national information really are.

 

Leah Litman And not to say we called this, but I am going to say it anyways. We did say that things seemed like they were being run by a bunch of 18 to 25 year olds who had been red pilled in the Manna sphere and were like men’s rights activists or incels or grope gropers. Right? Like some combination thereof.

 

Kate Shaw Can I just say a word about that? So the three of us, I feel like kind of identified the seeds of a lot of this in a book review we did last year of Josh Hawley’s Manhood, subtitled The Masculine Virtues America Needs.

 

Melissa Murray We don’t actually need them. Spoiler alert.

 

Kate Shaw That was the TLDR of the book review.

 

Leah Litman Last few weeks have kind of underscored that.

 

Kate Shaw They definitely have. And when we were preparing that book review, we had to spend some time in the online Amanda sphere, to which Leah just referred. But I don’t think at least I realized at the time how quickly we would all be residing in the actual mano sphere. That is, they are turning the United States Treasury and the government writ large into an actual Mojo dojo Casa House. But that’s. Three weeks in. Where we are.

 

Leah Litman If only the patriarchy were about horses.

 

Kate Shaw Okay, so what has this Wired reporting told us? Well, one of the six engineers, I guess I’m using that in quotes.

 

Leah Litman Edge Lords. Edge Lords, Kate.

 

Kate Shaw Okay, well, one of them, whatever they are, is a freshman at Northeastern University.

 

Melissa Murray Wait, wait. Do you mean like someone who just last year.

 

Kate Shaw Was in high school.

 

Melissa Murray Was in high school?

 

Kate Shaw Yeah. Yeah.

 

Melissa Murray Has it? Has our information.

 

Leah Litman Cannot legally drink.

 

Melissa Murray Right? Or rent a car. But does have access to the payment systems.

 

Leah Litman Cannot be a contestant on the Bachelorette.

 

Kate Shaw Would they make would they.

 

Melissa Murray There’s no democracy here? There is no voting here. We did not elect these people, whether with roses or with actual ballots.

 

Kate Shaw No. We also know that several of these individuals have ties to Peter Thiel. They worked in a I or in musk world in some fashion. So again, these are the people who are arguably among the most powerful, non-elected players in our national lives right.

 

Melissa Murray Now, not even non-elected, lawless players. Speaking of Lawless.

 

Leah Litman Speaking of Lawless, before I speak of Lawless, though, I thought some people had a problem with like a headless fourth branch of government. I guess that was only true when we were talking about people actually appointed through Senate confirmation and accountable to the public via reason giving, i.e. administrative agencies when it’s an unelected fourth branch that’s a bunch of tech bro billionaires and college freshmen. It’s fine. What?

 

Melissa Murray I mean, Leah, who needs the deep state? When you have the sheep state, it’s like, follow it. Just go there.

 

Leah Litman Back to the lawless tee up that Melissa attempted to give me. I know, I know. I appreciate you, girl. So someone on Good Reads wrote in a review that they were reading this book Lawless and didn’t realize that it was Leah Littman from strict scrutiny or that she had a book. And I feel like this is a failure on my part. I do have a book coming out. Lawless How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. And also it relates back to Mojo Dojo, Casa House. There is a Mojo Dojo Casa House reference in the very first chapter to it. So if you would like to hear the equivalent of my pimply virgin edge lord friendless libertarian DOGE bro reads but four Supreme Court justices, you should preorder it now and again. It is called Lawless How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. As RuPaul said, never be afraid of a shameless plug.

 

Melissa Murray Never. One of the DOGE pros that was profiled by Wire was actually fired after The Wall Street Journal did a little digging, apparently not too much, and uncovered that he had maintained an X account that said unbelievably racist crap like, quote unquote, You could not pay me to marry outside of my ethnicity, unquote. News flash friend. You could not pay me to marry you. So also fine. He also said on this X account, quote unquote, normalize Indian hate. End quote. The account also advocated repealing the Civil Rights Act, which incidentally prohibits discrimination on the basis of race and gender and advocated for, quote unquote, eugenic immigration policy, end quote. Which is why we actually had at some points in our not too recent history. So, again, let’s take it all the way back to the 1920s. This seems like modern government in its best iteration.

 

Leah Litman This is my surprised face that I am making that one of the DOGE bros would have these views. And quick update JD Vance took to X to call for the reinstatement of said DOGE bro writing that his social media posts should not disqualify him or ruin a kid’s life.

 

Melissa Murray Okay I am old enough to remember Neera fucking Tanden. Do you remember Neera Tanden and her snarky tweets? And she couldn’t get confirmed by the senate?

 

Leah Litman Woman. Woman. Sorry. Different rules.

 

Melissa Murray What. Oh God. Well, we’re not allowed to speak.

 

Leah Litman Boys will be boys.

 

Melissa Murray Boys will be boys. The sea witch stole her voice and should.

 

Kate Shaw He said Indian hate? Normalize, Indian hate. And Vance said that’s okay.

 

Leah Litman Well, he said, I obviously disagree with some of the posts, but I don’t think stupid social media activity should ruin a kid’s life.

 

Kate Shaw Whoa.

 

Melissa Murray So what exactly are these DOGE bags? DOGE bros doing? Well, as wire reports, one engineer had and to be clear here, the precise parameters and timeline aren’t entirely clear. But this engineer had administrative privileges over the source code that controls Social Security payments, tax returns and more. I don’t even know how much more there could be when you have Social Security payments and tax returns, but there’s apparently more and they have it. And Wired and Talking points memo continue to explain that these are not quote unquote read only privileges despite what they may have told at least one federal judge about what they were doing. These are administrator level privileges that allow someone to get in there and change the code to delete or modify files and to give others access and more. So is anyone like a little scared about their crap floating around on the dark web?

 

Kate Shaw We all should be. For sure.

 

Leah Litman Terrified. And now feels like a good time to mention that one of the DOJ’s pros unclear what kind of access this person has or where, but one of them calls himself big balls.

 

Melissa Murray Seems right.

 

Leah Litman A 19 year old who goes by big balls is in the system or close to the system that determines whether people will get their Social Security and Medicare payments. Big Balls also founded a company, Tesla Dot Sexy LLC, which controls some web domains, including Russian registered domains.

 

Kate Shaw And just to continue, Wired also reported that he previously worked at a startup that has hired convicted hackers and that someone who was using a telegram handle associated with him. So careful language, but at least associated with him, solicited a cyber attack for hire service. Now, this all sounds alarming and it very much is. But we should say that some of this, at least at Treasury, has been stopped. So in the case Alliance for Retired Americans, a district judge issued an order preventing Elon Musk and any additional DOGE connected people from accessing sensitive Treasury data while the lawsuit proceeds to a hearing. The order restricts two Musk connected men to, quote, read only access and prohibits them from sharing any information with Musk or anyone else outside the Treasury Department. That case was filed by Public Citizen. The DOGE brothers have also been preemptively blocked from going into the Department of Labor, at least for now, in a case brought by democracy Forward. There, the defendants agree that they would not allow DOGE access to Labor Department information until the court rules on a request to restrain DOGE from doing so. So people are fighting in addition to these groups, Public Citizen and Democracy Forward, we have the State Democracy Defenders and the Institute for Constitutional Advocacy and Protection. And those fights are generating friction and it is really important. It is slowing all of these efforts down and it is meaningful. It is actually generating public information and importantly, outrage. And it is very much worth keeping all of these litigation efforts up.

 

Melissa Murray Asked. The Department of Labor case suggests these DOGE Bro’s are not just in the system that controls 95% of federal expenditures. They also and this was also reported in Wired and in other outlets, they also have access to the U.S. Office of Personnel Management server and database, i.e., access to information about federal workers. That’s 22 million records, including 5 million digitized fingerprints and sensitive background records, which they may have been downloading. We just don’t know. And all of that seems a little bit like straight up theft.

 

Leah Litman I mean, pretty close. And because we are truly living in the most unhinged and dangerous of times, they have reportedly, again, according to Wired, taken over the General Services Administration, which manages federal offices and technology, they have access to the National Oceanic and Atmospheric Administration, an expert agency that forecasts and predicts climate and weather. You know, their research is used for weather forecasting, hurricane modeling and any other number of things.

 

Kate Shaw And in a bit, that might give Leah an actual aneurysm. Transportation Secretary slash Road Rules contestant Sean Duffy has announced on Twitter slash ax that quote, The DOGE team will aim to make rapid safety upgrades to the air traffic control system after, quote, plugging in to the air traffic control system.

 

Leah Litman No, no, no. Like I do not want big balls slash the CEO of Tesla Dot Sexy LLC to be in the air traffic control system while my safety is at their fingertips and in their hands like the thought is making me ill.

 

Melissa Murray But DEIA. DEIA.

 

Leah Litman Right. One quick errata slash omission on Sean Duffy. In addition to his qualifications about being on road rules in the real world, listener wrote in that Sean Duffy was also a champion lumberjack, so.

 

Melissa Murray We regret the error.

 

Leah Litman Yes.

 

Kate Shaw He is qualified, actually. Never mind. I mean.

 

Leah Litman Take it all back.

 

Melissa Murray Who among us hasn’t seen the secretary of transportation felling trees?

 

Kate Shaw And I actually want to say one more word on the topic of air travel and airlines. So last week we mentioned that on the D.C. bound commercial flight that collided with a helicopter over DCA was a young civil rights attorney. And I wanted to mention another young attorney who was also on the plane and who was also killed in the crash. And that is Sarah Best, who was a 2021 Penn Law School graduate, who from everything I have heard, and I wasn’t at Penn yet when she was a student, so I did not have the pleasure of knowing her. But she sounds like just an extraordinary human being. She was a public school teacher and credible law student, did a clerkship on the sixth Circuit and then two district courts and was just starting her career at a law firm this past fall. So our heart goes out to Sarah’s friends and family. And it’s just really important to remember that these are at the human costs of government error. So, you know, to turn back to those getting access to that nation’s aviation system, slash air traffic control, giving access to non-governmental employees who are apparently, again, according to news reports, sometimes using their personal Gmail to engage with government business.

 

Melissa Murray Whoa whoa. I remember a blonde lady had an email server that was her own private email server.

 

Kate Shaw Yeah, she was a lady. That was different.

 

Melissa Murray And it was a really big deal.

 

Kate Shaw No, no. these are bros.

 

Melissa Murray Because ladies aren’t allowed to have anything.

 

Kate Shaw No.

 

Melissa Murray Gmail anything. Not allowed to have anything.

 

Kate Shaw No, but definitely not.

 

Melissa Murray Not a problem when a guy has a personal.

 

Leah Litman No rights. No email. No private emails.

 

Melissa Murray Just checking.

 

Kate Shaw Entirely different.

 

Melissa Murray Bad for ladies. Good for douche. Good for DOGE BROS.

 

Kate Shaw Melody leave that in there.

 

Melissa Murray Yeah. Yes. Fair. Fair.

 

Kate Shaw Yeah. So, you know, huge security risks, whether we’re talking about the kind of mainframe for federal spending or the nation’s air traffic control system, our personal information, our funding system, and, you know, maybe air traffic control are now potentially vulnerable to human error or to hostile foreign adversaries. And just to layer the country’s air traffic system atop what we’ve already seen in the last couple of weeks is profoundly dangerous.

 

Melissa Murray Did you hear what he just said? Kate just made a Freudian slip. She referred to them as human errors.

 

Kate Shaw Yes, I said susceptible to human errors. Okay. Yeah.

 

Melissa Murray Well, I think you said it. You did say that. It’s on the record.

 

Leah Litman Just plant a seed now while I have a platform. If I go down in a fiery plane crash, I just want to note that it’s John Roberts fault, or at least partially so have that.

 

Melissa Murray Also Brett Kavanaugh.

 

Leah Litman Right? Yes. No, all of them. The majority in the immunity case.

 

Leah Litman [AD].

 

Leah Litman So a complaint filed in federal court alleges that one of these guys, quote, walked into a government building and plugged in an email server to our network, end quote. That’s apparently the source of the emails federal employees were getting, which some number of them thought was phishing. Like that literally sounds like something that would happen in a season of 24 Homeland and we would all say no to unrealistic. That would never happen.

 

Melissa Murray We should also note that giving Elon Musk and his compatriots access to federal grantees and their information basically gives him information about his competitors. It gives him a competitive advantage in his business. But again, apparently there are no conflicts of interests here that we should be concerned about. And I know we’ve been talking a lot about the potential for grift corruption in this administration, but apparently it seems there’s nothing to see here, so don’t worry your pretty little head about it. They are also doing so much of this reportedly to implement the Trump slash co-president Musk plan to slash government spending. So it was bad enough when the president himself was saying, I’m going to freeze money that Congress has allocated that was illegal because Congress appropriates money and that is its job. This thing is called separation of powers, and it is actually a thing. Now we have a bunch of college kids, maybe not even college graduates, and an unelected billionaire co-president apparently poised to do the same thing, to override Congress’s spending determinations and to impose conditions on it in violation of all of the spending clause jurisprudence. There’s just so many layers of unlawfulness illegality here. I mean, it’s just like a stinky, stinky onion that we continue to peel back. I mean, it’s not even like a nice onion, like a chalet. It’s just like a crap onion, moldy and rotting.

 

Leah Litman If you find yourself tearing up or crying, this is why. And the consequences of what they are doing would be devastating. You know, a lot of people programs run on a paycheck to paycheck, disbursement to disbursement basis, Head Start programs, health care clinics. You know, preschools were apparently contemplating shutting down temporarily. You know, if they pause disbursements, even temporarily, it could be catastrophic.

 

Kate Shaw This is what is reportedly happening with USAID, where Musk has announced they are essentially closing the agency. So on ex, he, you know, bragged about having spent the weekend feeding USAID to the woodchipper, called the longstanding government aid agency an evil and a viper’s nest. Time for it to die, he added. And the human costs of essentially ending almost all of the USAID programs like Overnight are incalculable. So The New York Times has reported on people having stopped receiving medically necessary treatment or, you know, being monitored under experimental treatments because of this. So The Times reported on a woman who had to immediately report to a clinic to have a device that was designed to minimize the risk of HIV transmission during pregnancy removed because the program pursuant to which she had received it was done overnight. Other trials and treatments that were interrupted include malaria treatment for kids, treatments for cholera, a screen and treat method for cervical cancer in Malawi, food aid, flooding and other disaster aid. I mean, the list goes on and on.

 

Melissa Murray You know, obviously shuttering USAID feeds into this MAGA trope that all of your tax dollars are going to fund foreign aid and other countries. I want to just make clear, a big part of USAID, which was started in the 1960s when the threat of communism was proliferating across the world, was that we would come in and help these fledgling democracies get a foothold by providing this kind of aid, providing food, providing health care so that they could get on their feet, form functioning democracies, and basically have functioning societies. Who was excited by the shuttering of USAID? I’ll tell you autocrats, people in those countries who would prefer not to have the United States as a partner in their work because they would prefer not to have democracy as part of their institutions. So again, if you there is any suggestion that this is about helping American people, helping democracy that is firmly, firmly undermined by what this is actually doing, this is exactly what autocrats across the world have been looking for, shuttering the United States as a partner, as a model for their countries.

 

Leah Litman And it is terrifying to give Elon Musk big balls and any dobro operational control over whether people, hospital roads get public money or health care. And as we’ve been alluding to, it is wildly illegal. It is hard to communicate the many different ways this is illegal. You know, the Trump 1.0 administration ended with an attempted coup and Trump 2.0 has, in my view, begun with a coup. Right. Where they are basically allowing these private individuals, unelected, with no accountability to just take over government, violate the laws and appropriate Congress’s constitutional powers. And it is wild. And, you know, these as most had said, agencies, departments are created by statute. The executive branch and their billionaire buddies are not the ones who have the power to. And these agencies. Or modify their authority. Spending is appropriated by Congress, not the world’s richest man who was elected to nothing and represents no one.

 

Kate Shaw And I think it’s important to just kind of remember the layers of illegality that we have alluded to include an assault on the constitutional notion of separation of powers. And they go from the kind of big and broad to the narrow and specific, including a number of statutory protections for the privacy of individual data that feel like they are being flagrantly violated If these outsiders are getting access to without any real controls, this data. And so I do want to just underscore, again, the lawsuits are really important. They are not the answer. Like this is enormous damage that is already being done and that will be almost impossible to undo. But to continue to tell the courts and the public that none of this is permissible is, I think, critical work and kind of needs all of our support.

 

Melissa Murray And it should be complemented by actual organizing, like the stuff that’s going on. Our members of Congress need to be out there. You know, the leadership of the Democratic Party have to be there. You know, I just want to note, Hakeem Jeffries is always wearing sneakers with his suits. It’s because he needs to run. He needs to run fast and get to this problem. And I hope he and the rest of Congress are sort of thinking about how they are going to address this and do so effectively and assiduously and over and over again, because this will not stop.

 

Kate Shaw And I will just say like one thing that actually you can do and that feels kind of meaningful and cathartic is just literally pick up the phone and call your representative. There are apps out there. There’s one called five Calls that I think is pretty good that you just put your address in and it tells you hear representatives are and gives you some call scripts. And if you have 5 or 10 minutes and you were just like feel paralyzed by kind of impotent rage, just maybe pick up a phone and call. I mean, it makes a big difference if you get if your members are getting calls from tons of constituents who are as incensed as we are. So I think that is something very actionable.

 

Leah Litman Yeah. And just to underscore, like these are not like technical legal violations, right? Like the reason why you are not supposed to be able to distribute government personnel information is imagine whose hands it could fall into. Right. We just went through the tick tock ban where we were concerned about the possibility of blackmail from a foreign adversary. And now you’re just using non-secure information to collect all of this data on every federal grant recipient, every federal contractor, every federal employee. It is just a recipe for a national security disaster, I think, waiting to happen.

 

Kate Shaw So, as we said, we are going to come back to these outrages and that the additional ones that will no doubt accumulate in the next week at our live show at Fordham Law School. But for now, we’re going to take a quick break before our interview with Jonathan Gienapp. But before we do just a couple of things. First, there is a ton of rage bait in the news right now. It is meant to distract and overwhelm us, but we want to focus on something positive as we did, you know, at the end of our conversation. And that is the work that is being done to fight back and what you can do to help. So here is one idea. This month, Vote Save America is making donations as part of their anxiety relief program to black led organizations and candidates of color, helping us gain ground at the state and local level, like Janelle Bynum, Oregon’s first black congressmember who won her district by less than 12,000 votes in 2024 and is in a must win reelection bid that could determine whether Democrats take back the House in the 2026 midterm elections. You can set up a recurring donation at any amount that feels right for you, and Vote Save America will use it to build progressive power in 2025 and beyond. Go to Vote Save America dot com slash donate to donate. Now this ad is paid for by Vote Save America. Vote Save America dot com not authorized by any candidate or candidate’s committee.

 

Leah Litman Second note Strict Scrutiny has merch. You can pick up a strict scrutiny if you want to rep the pod or you want to match me. I’m often wearing my Strict Scrutiny merch. Personally, I love my I respectfully dissent with the respectfully cross out T That’s one of my favorites kind of projects. The general mood right now. I do wish it wasn’t quite so relevant right now, but better to have it out there. So head to Crooked.com/subscribe store to shop.

 

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Kate Shaw The Supreme Court is on its long break right now between the January and February sittings. Usually the court takes a week or two off between sittings, but for some reason, this particular break always spans nearly a full month. So we’re going to use this time to do deep dives on a couple of topics that come up often on the podcast. First up, the word, originalism. You have heard people describe the Trump appointees and Clarence Thomas as originalists.

 

Leah Litman But not all Republican justices identify as originalists. Even those who are celebrated and fettered by the Federalist Society, which of course maintains it’s all about originalism. Here’s a classic clip from an argument in 2010. You’ll hear Justice Scalia grilling a lawyer and then originalist King Sam Alito will jump in.

 

Clip What is that? How are we to sit day by day to decide what else will be made? An exception from the First Amendment. Why is this particular exception? Okay. But the other ones that I just suggested are not okay. Well, Justice Scalia, I would like to highlight the fact that the material at issue and Ginsburg was not obscene under no existing definition of obscenity was the partial nudity that this court allowed states to regulate minors access. So what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?

 

Leah Litman So you’ve heard us like Sam pokes fun at originalism. I think our jobs are better, though, like originalist hot boxing or the originalist case for Lawless Kings. We’ve also done some prior segments that have deep dives on originalism, including most recently with Madiba K. Dennie, the author of The Originalism Trap.

 

Kate Shaw And this episode, we’re going to be in conversation with the author of a fantastic recent book that takes on originalism on its own terms from a historical perspective, and it offers a new critique in the process. So today we are delighted to be joined by Jonathan Gienapp, Associate Professor of History and Associate professor of law at Stanford. And we’re going to be discussing his recent book Against Constitutional originalism. Jonathan, welcome to the show.

 

Jonathan Gienapp Thank you. Thank you so much for having me.

 

Kate Shaw All right. So let’s dive right in and maybe let’s start by doing some definitional work. So what working definition of originalism should our listeners keep in mind for our discussion about the book? And we mentioned this because as your book details there are ever multiplying and proliferating varieties of originalism, original intent, original public meaning, original methods, original law, maybe original contours. The list goes on. So talk to us at the outset about definitions.

 

Leah Litman It’s like an infection in that way.

 

Jonathan Gienapp Precisely. Yes. As I sometimes joke to people, I need a Ph.D. in originalism to write on it. 31 flavors of originalism. So some people say, but if we’re if we’re getting down to what’s at the bottom, the way to think about it, I think, is originalism is an answer to the question, how should we interpret the Constitution today? And its answer to that question is we should return to its original meaning, as originally laid down in originally understood in some fashion. So this sharply distinguishes it from theories of constitutional interpretation that suggests that we should understand the Constitution’s meaning, as in some way changing and evolving over time as any number of inputs change social attitudes, social practices, whatnot. But I think what’s really important here to distinguish originalism is is not simply the fact that it says we should look back to the past, to history. All constitutional interpreters think history is important. All constitutional interpreters look at history some of the time. What makes originalism distinctive is how it elevates history and original meaning or original intent above every other input. So you might look to precedent, you might look to doctrine, you might look to past practice, you might look to public opinion today. All of those potential inputs are knocked down a peg. And the thing that is elevated above it as supreme is the history.

 

Leah Litman So as you noted, that’s kind of the umbrella overarching frame of originalism. But there are so many of these emerging variants. You know, what do you make of the many emerging variants ever multiplying nature of originalism?

 

Jonathan Gienapp Yeah. So I think the way to think about it is originalism was born out of critiquing what a non originalist or what was taken to be a non originalist Supreme Court was doing. So it was a language of critique. It was a way of explaining how we shouldn’t be doing things. But then as you transition to not just saying what other people shouldn’t do, but what we should be doing, you create problems and you have to sort those problems out. So if it begins with the idea, let’s follow the original intent of the people who wrote the Constitution. You have an obvious problem off the bat. A lot of people wrote the Constitution. So if it if you have different evidence of what they thought or seemed to be intending, whose do you privilege and should you even be looking at the people who wrote it, Should you instead be looking at the people who ratified it? Now we’re going from 55 people in the Constitutional Convention to 1700 plus people in the state ratifying conventions. But should we actually care about what the broader public thought, which is a much larger group, even if the political community was circumscribed relative to our democratic lights? So you have to start making judgment calls here about who counts, who doesn’t, and that leads to different flavors of originalism.

 

Leah Litman I should say the book has a really nice, I think, accounting of the propensity of originalism to constantly reinvent itself. Like every year it has a New Year’s resolution or it’s giving itself like a makeover, which in some ways gives the game away and suggests that when we talk about originalism, we’re talking about something that is ever changing, or you could say living or evolving if you wanted to be provocative.

 

Jonathan Gienapp That is certainly a fair point. And a way to simplify all this could be the brown problem in American constitutional life. So the big shift in originalism, which from Justice Antonin Scalia to Justices Neil Gorsuch and Amy Coney Barrett on the court today was original intent. Originalism is bad public, meaning originalism is good. So one would say, what was James Madison? What it was he intending to do by drafting these constitutional provisions. Another one says, Pretend you don’t know anything about how it was drafted. It just fell from the sky and you found it here. What would this text written this way have meant to the average reader? Whatever that might mean at the time it was enacted? And the advantage of this is you could separate meaning from the kind of substantive attitudes or expectations that sat behind it. This became very important as people transitioned, as racial attitudes were evolving in America from thinking. Brown v Board of Education iconic decision says that segregated public schools are unconstitutional in the 14th Amendment. You transition from saying this is a perfect example of judicial activism to in fact, this is the touchstone of our constitutional life and we must get to the right answer. Public, meaning originalism allows you to do that more easily, but that creates the problem of it used to be. How do you get to the right answer in Brown? But once you have through originalism, well, now what can’t you get to? And I think that alludes to what you were referring to.

 

Kate Shaw When you talk a little bit about who the audience for this book is. It is both scholarly and accessible. So who are you hoping will most pick up and read this book?

 

Jonathan Gienapp Well, I really appreciate that you that you say it managed to do those two things because that’s what I was striving for. On the one hand, I was really eager to write a book that was for people in the originalism debate that showed an understanding of all the different moves within it that, as we’ve already documented, can be a very thick forest. At the same time, I was also interested in speaking to people in the historical profession and elsewhere who have heard of originalism or might be interested in it but aren’t versed in the debates. And then on top of that, I was really hopeful that it would connect with citizens in the world because that’s part of what makes the Constitution so important. It is our law. It is our supreme fundamental law, and it’s something all citizens should care about. So I suppose the answer to your question is everybody. But there are certainly challenges with that.

 

Kate Shaw Two quick follow ups on what you just said. The second group you said are professional historians. And I just want to underscore for listeners that implicit in that is that historians don’t know much about originalism because it’s not something historians do. It is just law professors, judges. And it’s something. Yeah. So so I think it can be it can seem like originalism is something that historians do, and that is decidedly not the case. Am I right about that?

 

Jonathan Gienapp It will all hinge on how we define originalism, certainly originalism as an ism, which is bound up with a very with a substantive, normative vision of of modern life and how we relate to the Constitution that is that is thickly embedded in a political context. If it’s that, of course not. But the idea of, well, what did things originally mean in the past is in fact the animating principle of historical scholarship. We are trying to understand methodologically how you would go about doing that. How would you figure out what things meant in a different time and place? And then empirically, how do you actually deliver on that work?

 

Kate Shaw And what you show in the book is that how you go about doing that in a responsible way is not the way originalists do. But just was.

 

Jonathan Gienapp Certainly my argument.

 

Kate Shaw One more response to what you said about the audience as you talked about just kind of popular audience. And for some reason when I was reading the book, I was called to mind. Did you see this? There was this Saturday Night Live skit, like, I think last year with the comedian Nate Berkus, where you have like George Washington, you know, trying to psych up his troops by reminding them of what they’re fighting for and they end up like identifying some pretty weird features of American life today that are totally unimaginable to them. The British system of measurement and its endurance, the rules of football. It’s just a very funny sketch. And it, you know, in a kind of profound way, it just makes clear they’re talking across these totally different contexts that are unrecognizable to each other. And I was like, if we could just do that, like somehow figure out how to translate this book to a sketch like that, that I feel like maybe people would understand. Does that resonate at all?

 

Jonathan Gienapp Well, I love that idea of if you want to take it on the road as an unannounced sketch.

 

Kate Shaw I think we need to workshop it first. But anyway, I’m glad you feel like there’s something.

 

Jonathan Gienapp There 100% at the heart of what a lot of historians do is the idea. As the saying goes, the past is a foreign country that if you’re going to understand the past on its own terms, you have to take very seriously the ways in which it’s different. And a lot of what I emphasize in the book is the differences between how we think about constitutions and constitutionalism and constitutional law today and how people did in the 18th century. The difference those differences make are not taken as seriously by originalists as they should, that it is seen as a story of continuity. What the founders were doing and what we’re doing today is essentially the same that we can get down to the details without first asking. Was it like that SNL skit? And there’s actually big, big differences here. Yeah.

 

Leah Litman So maybe 1 or 2 more table setting questions before we get more deep into the book. So, you know, one is kind of about the politics of originalism. Of course, hard to separate politics and law theory in this context. But I did want to put this question to you, which sometimes our listeners will ask about, which is whether it takes a theory to beat a theory that is in order to defeat originalism and is a you know, does the left or progressives need to present an alternative theory that has like a one word title or caption with an accompanying slogan that can be easily communicated?

 

Jonathan Gienapp Sure. This is a big part of originalism success. It is a brand. It is something that’s very legible. It’s pretty easy to understand. You can rally around it and there’s aren’t alternatives on the table that have those sort of same sets of features. But what I would say to answer the question is we’re asking the wrong question. This is another example of how originalists have done a very good job of arguing on their terms. So rather than ask, if not originalism, then what? I think we should ask, what have we actually done as Americans in the history of our constitutional life? And if we look at the practice of American constitutional interpretation, I think the only fair description to give it is something like a dynamic pluralism, by which I mean when I got back to the beginning and I said originalism doesn’t just look at history, it elevates history above all the other inputs. Text precedent, past practice, actual constitutional interpretation in this country has always looked to all of those things, and that has varied case by case. The modern Supreme Court that is very originalist often ignores originalism when they don’t want to do it. They’re being pluralist in practice. Sometimes they look at texts, sometimes they ignore texts. Sometimes they really care about precedent. Sometimes they don’t. Sometimes they care about consequences. Sometimes they think consequences are less important. So the question that I would pose back is, given that that’s what we’ve done, why would we do something else, let alone this, which doesn’t mean we shouldn’t? But the burden of proof, I think, is reversed.

 

Kate Shaw So that’s a great segway to actually diving in on some of the specifics of the book. So as you’ve just been outlining, the kind of key overarching critique and thesis that animates the book is that it is impossible to do a constitutional interpretation without figuring out what it is we are interpreting. And in order to do that, we really need to immerse ourselves in the world that the founders occupied. You discuss how originalism, or at least most of the varieties that we have mentioned of originalism, make a few assumptions to justify the theory, and you identify written this and fixity and law, and you show that each of these is a lot more complicated when we are trying to understand them in the full context of the foreignness of the past. So can you say a little bit about what each of these assumptions that I just mentioned really is, in your view?

 

Jonathan Gienapp Yeah. So the governing idea is rather than ask very specific questions such as what did executive power mean? What did freedom of speech mean? Take a step back and say, did they understand constitutions and constitutionalism like we did? And to me, they’re really profound differences here. So in terms of written as it can be, very you can pull out of pocket constitution and say, look, here it is, this is the Constitution. And that carries with it a pretty robust understanding of what’s part of the Constitution and what’s not. But people in the 18th century had a very different way of thinking about constitutionalism and law. They generally thought law was found rather than made. It was it was sort of out there like the principles of mathematics. So as a result, they didn’t see these sharp distinctions between different sources of law that we would consider unwritten law outside the Constitution and stuff that was enacted expressly in the written constitution. They saw these things as bleeding together in important ways. So written this the written constitution was embedded within a way of thinking about fundamental law that drew on a lot of different sources and didn’t see sharp breaks between them and as a result, didn’t think that for something to have constitutional status, it had to be written down. That doesn’t mean written. This is unimportant. It’s a different way of thinking about rudeness. That completely changes how you think about the concept of fixed meaning. Originalism is all about fixed meaning. Is the Constitution’s meaning fixed or is it evolving? But that doesn’t ask the question. How many different ways can you think about it being fixed? Because to a lot of people in the founding generation, they did think the Constitution’s meaning was fixed, but they didn’t think that was incompatible with the notion that it evolved to us. That’s paradoxical. But if what was fixed was an underlying principle outside the text, then how that principle might be cashed out in legal life could change in pretty significant ways and not be seen as a departure from the fixed principle that it was adhering to. And then lastly, law. There is an assumption the Constitution is a legal instrument. It belongs to people in law schools and judges. After all, the Supreme Court is the ultimate arbiter of our constitutional lives, right?

 

Leah Litman No, not right.

 

Jonathan Gienapp Yeah. I think in some ways this is the biggest one. People always asked me, what did the founding generation think about how we should interpret the Constitution? And I say that was the second question and the much less important question, which was not how do you interpret, but who gets to interpret. And they were very committed across all sorts of disagreements to the idea that the people themselves, through political institutions that best represented them, would play the really the major role in enforcing, interpreting and deciding the Constitution. That doesn’t mean law, as we understand it, was unimportant. That doesn’t mean judges were unimportant. But that’s a very different understanding of who decides that that is profoundly different when we think about what the Constitution is.

 

Leah Litman So I think we want to ask a little bit more about each of those three different premises, you know, that you debunk. And I guess I would start with written. Yes. So, you know, when you talk about how this assumption that the Constitution is all written down is oversimplified and doesn’t capture the founders constitution as an example of this kind of omission or misunderstanding, you talk about the nature of the federal union and the fact that it’s a national constitution and, you know, reflects a nationalist constitutionalism, I guess. Could you elaborate on that example and how focusing on the written this miss an important part about like the federal nature of the union?

 

Jonathan Gienapp Absolutely. So to me, this is a great example of how the way you approach constitutional questions and what you think is essential to it makes profound differences. So two people at the time, one way to think about this is they thought there were always two constitutions, because there were two things in in political life. There was the political community that you were a part of, whatever we the people is referring to. And then there was the constitution of government that governed that political community. And you couldn’t understand the Constitution of government without understanding the nature of the political society you were a part of. You needed to understand Constitution one, which is this underlying constitutional compact that explains who we are as a people, what our political community is. And that’s the only way you could interpret the second one. So in the case of American federalism, this was profound because the question what is the United States of America did not have a straightforward answer in 1787 or 17 89 or 1776. Maybe it still doesn’t. So as a result, when they were trying to figure out what powers does the national government have today, you can imagine someone just looking at the written constitution and saying, point to the clauses that give the federal government power. And their instinct was to always say, we can’t answer this question until we first figure out. What actually is the United States. And who’s actually part of it is that we, the people of the United States, a single national people, is that we, the peoples, that actually these individual states came together and created it. Their understanding of whether the powers were expansive or narrow was not based on a reading of the text per se. It was based on an underlying non textual analysis of who we were.

 

Leah Litman This idea of fixity is kind of in contrast to evolutionary change, but as you note in the book, they kind of also worked in tandem in the founders understanding of constitutionalism. So I guess could you explain what originalists understand as far as how things are fixed and what is fixed and how that might diverge from, you know, what the original constitutionalists thought about those issues?

 

Jonathan Gienapp Yeah. So because originalism, like so many people in our modern constitutional culture, places such emphasis on the text and the text duality of the Constitution, what is fixed when we say the Constitution’s meaning is fixed is the linguistic meaning of the words. So when we say the content of the First Amendment is fixed, that means the original meaning of those words. But if you have a very different understanding of written constitutionalism and rights in particular as the founding generation did, and you think that rights are entrenched not in the written constitution, but in that first step I sketched out previously that step where we come together and form a political community, then the text is merely declaratory. It is it is announcing, reminding, refreshing of what is already the case. That doesn’t mean the principle at the heart of the First Amendment isn’t fixed. That just means it’s fixed in a pretty under determined general way, and then it leaves it for future generations through the relevant institutions that best speak for them to work out its details and what kinds of legal determinations are going to ultimately govern how that right works in practice. So in this regard, the broad principle that the First Amendment announces is not changing, but there is enormous room for an ongoing democratic process to work out how the line drawing is going to work.

 

Kate Shaw And that, I think, connects perfectly to the third argument that you make about the Constitution’s relationship to law and sort of the legalized constitution. So can you say a little bit more about the Constitution’s relationship to law? And that is, I think in part about but not exclusively about its relationship to kind of interpreters, right? There’s this this idea that comes through in your discussion of the what becomes the legalized constitution that has a lot of echoes of FDR as 1937 Constitution Day address. Right. The Constitution is a layman’s document, not a lawyer’s contract. It seems like FDR was actually channeling something that did resonate in the sort of founding era understanding, as you describe it. Is that right?

 

Jonathan Gienapp Absolutely. FDR’s famous Constitution Day address, is doing exactly that. There are two elements here that are tightly entwined, and you nicely showed how they’re entwined. One is, what are we reading? Is this a conventional legal instrument, different in degree, but not different in kind from statutes, contracts, treaties, what have you, Or is there something special about it? Because it’s this supreme instrument that speaks for the democratic will. And related to that is who gets to interpret it and in what way. And they went together in a lot of people’s eyes because even people who were more drawn to the idea that it’s a kind of law recognized that what the significance of an American Revolution that is predicated on popular sovereignty and Republicanism is that ultimately the people’s elected representatives and the political process would have a central role to play in how the Constitution is interpreted. So just very quickly, I think this shows the difference between past and present. Let’s take the most important constitutional debate of the early republic in the 1790s over whether or not to charter Alexander Hamilton’s proposed national bank, now made famous by Hamilton, the musical czar. This is the first major constitutional debate. Is this within the limits of power of the national government? Huge debate roils Congress activates the public, never goes to court. No one even thinks to take this to court. It is debated in Congress. Congress ultimately approves the bank. It is then sent to George Washington, the first president United States desk. He’s deciding whether to veto it. And you can read Thomas Jefferson, one of the opinions he seeks from one of his cabinet members as basically saying this veto decision is so important because it’s the decision. There’s no sense that having lost the political fight, he can go file a lawsuit in federal court, which is precisely what would happen today. That speaks right. There are two really different assumptions about what it means to resolve a serious constitutional.

 

Kate Shaw Or that does happen by the second bank. Right? So that’s, of course, McCauley versus. So it’s not like you quite have to wait for 2024. But certainly your point is at the moment when this first huge critical action by the federal government is taken, whether it’s permissible is not a question for courts, it’s for other actors.

 

Jonathan Gienapp Yes, Someone like James Madison would say in a in an instance like this, which is really about profound constitutional doubt, this is an ordinary doubt. This isn’t the kind of stuff. That the ordinary legal process can handle. How else can you sort it out except by. A robust constitutional politics.

 

Leah Litman Yeah. And I’m just hearing what you all are describing. And then in my mind, I am recalling, for example, and I know this isn’t a constitutional issue, but just hear me out, Sam Alito’s horror at the idea that no court could decide whether mifepristone would indeed remain on the market, like it was unfathomable to him. Right. That there would not be a case that would make its way to his court so he could make that pronouncement that he wanted. And, you know, so anyways, little, little divorce from the past. But one other modern example, because, Jonathan, you know, the first bank example that you were giving was really a matter of political branches and the political process resolving a constitutional issue. And at the time thinking this was like a perfectly natural way to do this. And of course, that’s not kind of what some people’s assumptions are today. But even when today, if you think about this, in my view, like a constitutional crisis that the Trump administration is provoking about birthright citizenship, you know, it is an assumption that this is going to be resolved by the courts. And I think people are already giving the courts and will give the courts a lot of credit for when they inevitably strike this down. But I think the reality is like we shouldn’t be turning this over to the courts, just like we shouldn’t be turning this over to the lawyers in the Trump administration. It is all of our responsibilities to kind of make our views plain, that obviously it is wildly unconstitutional to deny birthright citizenship. The 14th Amendment makes that very clear.

 

Jonathan Gienapp Yeah, I think so. One might say, what is the value of studying the constitutional past? Some of it could could be to show issues with modern originalism, but a lot of it can simply be a matter of educating us in a different kind of constitutional life and then forcing ourselves to ask, Are we doing the same kinds of things constitutionally? Do we have the same constitutional habits that people once did, if those of enervated? Is that a problem? I think you’re particularly identifying a problem about what happens when citizenship takes a backseat to the notion that particular institutional actors will take care of this rather than whatever you want to say about the founding generation. And there’s plenty to be said on in any direction. One thing they felt intensely coming out of a revolution was this notion that unless the people themselves were vigilant about the health of their republic and the protection of their liberties, nobody else was going to be and that couldn’t be deleted from the equation.

 

Kate Shaw So as I hope is becoming clearer to our listeners, this is a critique that is both really powerful and also quite distinct from other critiques of originalism with which listeners and viewers might be more familiar. So the argument that you are making is not about the way originalism cherry picks the past four favorable utterances or, you know, it was fundamentally about generating different outcomes from those produced by the Liberal Warren Court or even about how it privileges a handful of elite white male voices and allows their views to control life for a far more diverse polity today. Right. It is much more about how originalists just don’t grasp the way the Constitution’s meaning was embedded in what you call a thick conceptual web that they either fail to or don’t try to understand as part of the enterprise of doing originalism. So I am wondering whether your critique is complementary to or in tension with the other critiques that I just listed.

 

Jonathan Gienapp It’s a great question. I think it’s definitely complementary, but it is trying to draw attention to something deeper and more fundamental that we sometimes miss with, I think, a different payoff in mind because the first kind of critique you offered, which I engaged in plenty of that in, in, in my life, not least because the Supreme Court gives us a lot to work with where the matter is. Simply, if you’ve set out to to answer the question, what was the original meaning on this particular question, You’ve distorted the history. You’ve ignored a lot of history, you’ve done all these different things. But that can imply, well, if you just get that right. The theory will work nicely. So we just need to. You would be responsible. Exactly. Exactly. And what I’m trying to call attention to is no, I think if you go back to the past and you really take it seriously on its own terms, you were forced to wrestle with the fact that the legal past, the constitutional past does not speak neatly to our constitutional present. And I don’t think that’s a bad thing. What that encourages us to do is recognize that we can learn a lot from that past and we can draw on it. But in a big and important way, we have to be making decisions about its relevance to the issues that we face today, which is precisely what non originalists have in so many ways emphasized as being essential to making a constitution work over time. So in this regard, I think the real lesson of deep history is that it reminds us that history is not going to provide a neatly packaged command, that if we just listen to it, will give us our law today. If only people weren’t interested in breaking the law or being unfaithful to it or replacing it with something they think is better, which is the metanarrative that originalism has baked into our modern debates, that if we could just be be more humble in the face of that authority, it would work. And instead, it’s no, you still have to answer those complex questions about how you take this thing and move it into this completely different conceptual context and updated and translated and exercise all that discretion which is essential to democratic life that originalism has long tried to eliminate.

 

Leah Litman Also, some of us are not aspiring to be humble. So speaking of the way in which, you know, your critique both is complimentary to you, but also moves beyond and expands, you know, prior critiques of originalism to date, one critique of originalism has been about this concept of linguistic drift. The idea that we use words differently today than they did in the past. And so we need to kind of figure out what words meant in the past. And that will give us some insight as to what they mean or how they could be applied today. Whereas you identify a phenomenon, you label conceptual drift rather than linguistic drift, and in particular, you say the founders thought about certain concepts in ways that are different than ours. And as an example of this, you give a conception of liberty. So could you explain, you know, what the conceptual drift is distinct from linguistic drift and maybe, you know, apply that to liberty? Justice Just I know it’s like a big part of the book, but just a brief capsule for our listeners.

 

Jonathan Gienapp Yeah, absolutely. It’s so important and something I’m eager to emphasize. So happy to. So linguistic drift would again be what are the meanings of these words? Do we use the phrase domestic violence differently than we did in the 18th century? Conceptual drift says a constitution is a particular kind of thing in the world that implicates these big concepts about what makes people free. How should people be governed? What is the relationship to being governed and being free? And if we go back to the 18th century, one of the things that makes it so important that we recognize the difference between past and present is they conceptualized liberty differently. So we are largely byproducts of the modern liberal rights revolution that has come to define liberty, more or less speaking in general terms as noninterference. I am free when I am free to do things and an external agent doesn’t interfere with me. I want to walk over to that door. Nobody stops me. That’s a certain conception of liberty rights when people interfere with the things you want to do. They violated your liberty. In the 18th century, they didn’t think of liberty, generally speaking, in the English speaking world as noninterference. They saw it as non domination, which is a different concept, which meant is the entity that governs me and makes law that regulates me. Is that meaningfully an extension of my will and my consent, or is it a will alien to me? So then the question doesn’t become am I being interfered with? Am I being regulated? Am I being taxed? Am I being told I can’t carry a gun? No. The analysis is, am I doing that to myself? Because I have a credible theory that the government is me. The institutions represent me in a profound way. So you’re not measuring coercion or interference? A government could coerce you in a way we would think is immense. And you were one of the freest people who’s ever lived. And a government can do basically nothing. But because it has the power without your consent to do it. You were a political slave in the language of the 18th century. Well, this completely changes as a result how you think about what the First Amendment or Second Amendment or, for instance, doing. If you have this different understanding of liberty.

 

Leah Litman Just to take like a quick passage from the book, what really struck me, you know, you say what mattered was whether one was subject to an alien will or a will of one’s liberty could be realized only under truly representative government. And I love that formulation, because what it brought to mind is, you know, it illustrates how this concept of liberty can and should inform. For example, you know, is partizan gerrymandering justiciable? Because when you think about, for example, like is the government representative, is the government representing my own will, asking whether officials are democratically accountable to the people is of course, you know, a key component of that and it just transforms the meaning of give me liberty or give me death. And like so many other things that we use to inform constitutional meaning today, completely.

 

Jonathan Gienapp And this is precisely why the Republican guarantee clause, which has largely become defunct, was such a central feature of the Constitution in the 18th century, because it really meant something to draw this line between a republic and a non republic, because it precisely emphasized the conditions that made for free life that were entirely bound up with the political process and the corruption of it. That would mean that the legislature doesn’t represent the people.

 

Leah Litman Instead, they represent the Broligarchs.

 

Kate Shaw All right, I’m going to resist the urge to go deeper on the antique laws, although I’d really like to because I actually want to ask you to say a little bit more about the Second Amendment, which you mentioned at the end of your last answer in your discussion of the conception of liberty. You point to the recent decision in NYSRPA versus Bruen, which invalidated New York’s gun licensing scheme and announced a sweeping overhaul of the Second Amendment by essentially directing courts to look for type. Rahimi says maybe not super tight, but still tight historical analog.

 

Leah Litman Tight- ish.

 

Kate Shaw Tight-ish. Depending on how odious the contract of a particular person in front of us really was. That’s implicit. But in any event, the justices are supposed to look for historical analogs to modern gun control measures when they assess whether they are constitutional. No matter, you know, the desires of the polity by The New Yorker’s might like to ride around in the subway or, you know, other crowded places and have implemented laws at the state and local level that would restrict in reasonable ways all of that. None of that seemed really to matter to the justices. Right. There’s a very different conception of liberty that animates their Second Amendment opinion, not just Bruen, but Heller as well. But maybe what you say a little bit more about Bruen.

 

Jonathan Gienapp Precisely. And this connects what I said earlier about written ness to this conception of liberty while also tying in the things I’ve been talking about, about who interprets the Constitution, who makes our constitutional rights. So Bruen, which builds on DC versus Heller, which of course laid down the foundation for Second Amendment rights under the original US Supreme Court, starts with all these premises about how we should think about constitutional rights that themselves deserve to be investigated. And in particular, where do rights come from? What purpose do they serve in the constitutional order? And then who has authority to define their meaning? So the idea that animates both is it is so important that the Second Amendment was written into text because by doing that, policy decisions were taken off the table. You you’re elevating something to a constitutional level. You are striking the balancing test. So if we’re trying to do some sort of balancing analysis, as often happens in rights jurisprudence, the founding generation did that. This is what Scalia says in Heller. Well, if you don’t think that rights are codified through text, that that’s not at all what’s going on, that this is a declaratory amendment that is merely announcing an already existing fundamental right. And the mere fact that it’s being put in text does not in any way necessarily determine the contours of its legal meaning. Now, you can write a provision in such a way that it would do that. You can be very precise. You can write in the language of rules rather than principles and standards. But the important thing about what we call the Bill of Rights is it mostly doesn’t do that. The Second Amendment certainly doesn’t. So what it does is it announces this broad, right? That’s very important and leaves it because it’s not meant to stand in the way of majoritarian government. Not at all. It’s meant to be this thing that complements and reinforces based on how they thought about liberty, how democratic government works. It leaves it to the people themselves through their representations to make the more specific legal determinations that this broad declaratory amendment says nothing about where exactly you draw the line between a permissible prohibition and one that so interferes with the right that it violates that trust. And as long as the institution doing it is representative. So this gets back to gerrymandering, right? You could claim the laws don’t have the representative character that makes them legitimate or they’re not actually being done in the public good. There is a compelling empirical case to be made that this is class legislation. It’s helping one group over another. There’s all sorts of ways the Republican political process can break down. And founding generation was very attuned to this. But as long as those conditions are satisfied, this is precisely how the Second Amendment should be worked out in practice. So for Bruen to say means as. His analysis is not the kind of thing we should be doing. When the New York legislature was doing precisely what the founding generation thought should be done to draw these lines that the Second Amendment doesn’t draw, it leaves it to us to draw them.

 

Leah Litman So the oral argument in Bruen, unless there was any doubt with the justices, are transposing the modern world onto what they insist is originalism. It really highlighted that, you know, the justices were approaching the case from a modern perspective. And you can really hear it in this question from Justice Alito, who wrote the wild, separate writing in Bruen, urging us all not to think about or blame mass shootings on the court’s destruction of gun control.

 

Clip Could I, can I explore what that means for ordinary, law abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this. People who work late at night in Manhattan. It might be somebody who cleans offices, might be a doorman at an apartment, might be a nurse or an orderly, might be somebody who washes dishes. None of these people has a criminal record. They’re all law abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus when they arrive at the subway station or the bus stop. They have to walk some distance through a high crime area and they apply for a license. And they say, look, nobody has come, has said, I’m going to mug you next Thursday. However, there have been a lot of muggings in this area and I am scared to death. They do not get licenses. Is that right? That is in general, right? Yes. If there’s nothing particular to them. That’s right. How is that consistent with the core right to self-defense, which is protected by the Second Amendment?

 

Kate Shaw So that’s the Second Amendment. Jonathan, can you think of another example of originalists, kind of anachronistic and contextual assumptions, you know, leading to some questionable results? I’ll just leave it at that.

 

Jonathan Gienapp There are a great many examples that you mention, but one that comes recently to mind. Just because it’s so recent is in the sphere of presidential power and whether or not presidents are immune from criminal prosecution either while in office or thereafter. And an easy answer to this question is one of the reasons the justices didn’t really engage in an originalist analysis was perhaps because there’s so much evidence at the founding of people reassuring people during the ratification of the Constitution that the president would be accountable in these ways. But what I want to emphasize here, which I think is important, is the way that they tended to think about executive power, has disappeared from view. They thought about it in a way that was very connected to what I was just emphasizing in terms of liberty, because they were coming out of a long running debate that dominated 17th century English life, which was basically between the King and parliament and who represented the nation, who could actually speak for the nation, because whoever makes law has to be able to represent the people of the realm. An executive is you know, a mere executive is is language they use. That’s that’s that’s chief executive officer is errand boy. You have no will of your own. You just do what other people tell you. So the big question with presidential power, I think that comes through in the 18th century is can a chief executive like a legislature represent people? And what is often missed is that the people who defended more robust presidential power, most of the state constitutions that are made in the wake of independence completely neuter their state executives. They think the proper principles are the American Revolution. Our legislatures have all the power. Executives just carry out that power. They have no discretion of their own. They won’t be able to veto legislation. They won’t have appointment power. They don’t have any meaningful prerogatives. Well, people who begin defending prerogatives are not doing so because they’re channeling monarchy or trying to bring it back. They actually have this Republican idea in mind, which is why are the people only to be represented by one institution? Can’t they also be represented by the president? Which is exactly why people like James Wilson and Governor Morris, who really emphasized presidential power at the Constitutional Convention, call for something like a national popular vote, because they think actually the way this works is you give power and then you create an accountability structure. Right. So the Supreme Court’s notion there was you can’t have an energetic executive if they’re too accountable. And the whole logic here was power and accountability were two sides of the same coin because that was exactly how you constituted power in a Republican space. So they definitely thought the president should be powerful and way more powerful than a lot of their peers thought who were really interested in a very weak executive. But nothing about that commitment to.

 

Kate Shaw Ensuring that days there is like the Wilson. The more it’s like the contingent of the drafters who because there were they had lots of different views about executive power. But your point is even the maximalist sort of in defending executive power would have been horrified at this notion that power can come without the other side of the coin, which is representation and accountability.

 

Jonathan Gienapp And in fact, that not just those things are needed, but those things will it will enhance that right, that a more accountable executive will be more powerful in certain respects because they’ll be acting within law. And there’ll be a clear sense of the democratic process that has both put them there and can remove them and so on and so forth. So that’s just a completely different way of packaging the idea of executive power.

 

Leah Litman So you’re telling me that the founding generation didn’t think of the executive power as only vested in Republican presidents or all executive power as vested in Republican presidents, not Democratic presidents, because that was the vibe I was picking up from the recent decisions. On a more serious note, though, since you mentioned the royal prerogative and executive power, I did just want to shout out my colleague Julian Davis Mortenson’s work on this, in particular, his articles, the executive power clause, as well as Article two vests, executive power, not the royal prerogative, you know, are obviously speaking to, you know, some of the matters that you are just talking about.

 

Jonathan Gienapp Strongly endorse that recommendation.

 

Kate Shaw And I actually want to endorse something another book of yours, Jonathan. And this only sort of loosely connects to the kind of presidency discussion. But your book, The Second Creation, which is largely about the development of a lot of the kind of meaning of the Constitution in the first and second Congress, when you have all the people who wrote the Constitution now have to actually govern and build systems, and you have this line maybe somewhere that just the word that comes up the most as they’re sort of figuring this out. I think this is both through the convention and in the first and second Congresses system, like they’re making a system of government. And so this kind of hyper fetishized focus on a word or a phrase in the text of the Constitution without ever stepping back to grasp that they were trying to make a workable system of government, you know, resonates through a lot of Elena Kagan’s dissents and some of the recent presidential appointment and removal cases. And again, it’s related to presidential power. So I did want to just shout out that previous book of yours, which I think is also indispensable.

 

Jonathan Gienapp I really appreciate that. And you are underscoring something that nicely connects to what we’ve been discussing, which is before you you determine what the thing we’re reading means. Figure out what the thing we’re reading is.

 

Leah Litman Seems like a good idea.

 

Jonathan Gienapp Is right, Because if people in the founding generation didn’t think they were writing a legal code, they were building a structure with interconnected pieces that would work. That’s a very different you might take a very different interpretive approach to that.

 

Kate Shaw So, Jonathan, I want to come back to something we mentioned at the outset of the conversation, which is that there is this more recent twist on originalism that has emerged, and it seeks to move away from originalism as history or exclusively history and toward originalism as law, which is a phrase that will be used in an article some years ago, but seems to be kind of further developing, like as a full theory in work by both Wilbert and Steve Sacks and then arguably also some judicial decisions like Bruen, although maybe there are some seeds of it in Heller as well. So for the uninitiated, can you just kind of describe this trend?

 

Jonathan Gienapp Yeah. So originalism proliferates and here’s originalism 3.0 or 4.0 or 3.4, who knows?

 

Leah Litman 3.14159

 

Jonathan Gienapp Exactly. Exactly. Where are we in the time? But what’s really striking about original originalism is how deeply it deviates from a lot of the core assumptions that have animated originalism since Justice Scalia laid down its essential features so long ago. It does not start from the idea that the Constitution is the text that was ratified in 1788, and we should just start there and ask ourselves, was there an Article five amendment? That’s how you change it, so on and so forth. Instead, treat it as a system of law. On the one hand, the Constitution creates new law. On the other hand, it leaves a lot of law in place. And the reason we’re supposed to be taking this seriously is not because we have some independent account of what our Constitution is in the right way to interpret it, but rather based on this argument they make that if you actually look at official legal practice today, the law as practiced is a kind of originalism by which they don’t mean people say they’re originalists and reach originalist conclusions. It’s because, you know, in legal theory terms, the rule of recognition is something that is quasi originalist, that people don’t go into court and say, well, the founding generation said of one thing, but we had a constitutional revolution in 1937. So that all changed, that people speak this language of deep continuity that goes back to the founding. They reference legal materials in that way. So the idea is you go back to the founding and you don’t say, what did the text mean? You say, what kind of law was in place and what did people back then who counted as members of the community that could identify law, what did they think the law was? Part of that law is what rules of change were written into that law. And how do you trace that chain of title going forward? So this is very connected to Bruens, potentially Bruens idea of history and tradition because it also leaves a lot of room for constitutional change after ratification potentially, but it also leaves a lot of questions open about exactly how that works. But one thing that that it very much relies on is that there are there are a set of people in the past who can tell us what the law was, which I think getting back to some of my earlier points, if you take seriously the deep, deep contestation at the time. Across the American public, and especially that there was an element of political society that was very hostile to legal elites. And this claim that they could control the meaning of the Constitution, I think poses some issues for original law, originalism that deserve consideration because it’s not as though we go back to 1800 and all the legal officials agreed on everything. They are having deep disagreements about what the Constitution is. And then there are a bunch of people who say, we had this revolution based on the people’s sovereignty so we wouldn’t be controlled by legal elites. That all seems relevant to them.

 

Leah Litman And I think so, too does fixity, because, you know, if we aren’t prohibited from saying there are parts of the Constitution written or not, that have evolved, that is very much part of the Constitution. And so it wouldn’t be this kind of unspeakable break from constitutional law to say and actually there was this revolution in 1937 whereby like we recognize that we have a national economy that can be regulated by a federal government. So.

 

Jonathan Gienapp Yes, and under this understanding, FDR and others become originalists. So then it becomes tricky to know what we’re debating it.

 

Leah Litman Well, we will leave it there. I think we could go on. But thank you so much, Jonathan, for a wonderful conversation. And listeners, again, the book is Jonathan Gienapp, Against Constitutional Originalism and we cannot recommend it highly Enough.

 

Jonathan Gienapp Thank you so much for having me. This was wonderful.

 

Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Edie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matasky, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash strings for any podcast. If you haven’t already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.