Document Type
Article
Publication Date
2026
Abstract
From the beginning of its operation as fundamental law for the government of the United States, the Constitution has continually operated as supreme and judicially enforceable positive law. This is the principal claim I offer as an “original-law originalist” in response to contrary claims advanced by Professor Jonathan Gienapp in Against Constitutional Originalism: A Historical Critique. Gienapp argues in Against Constitutional Originalism that “[h]istoricizing the original Constitution . . . poses a foundational challenge to originalism as it has long been conceived.”2 Constitutional originalism depends on perceived continuity with the past. But the perception of constitutional continuity turns out to be a “mirage,” Gienapp contends, because “[o]ur Constitution—the one at the center of modern American legal life—is predicated on assumptions that were largely unknown at the Founding.” One of these foundational “assumptions” is that the Constitution has always been understood as a kind of conventional positive law. Gienapp devotes a full chapter—”Before the Legalized Constitution”—to advancing the claim that “[o]nly over an extended period of time, and as a result of considerable constructive work, was the Constitution turned into a common legal artifact. Only at this later moment did something like the genre of constitutional law become imaginable.” Gienapp contends that “[a]t the time it was ratified, the U.S. Constitution was not conventional law in any plain sense.” He identifies “the Marshall Court” as the primary actor in legalizing the Constitution: “treating the Constitution as akin to ordinary law—interpreting it as though it were a statute.” According to Gienapp, “early disagreement over interpretive methods reveals [that] this later development hardly amounted to legal professionals figuring out what the Constitution required from the beginning.
Recommended Citation
Kevin C. Walsh, In the Beginning There Was Positive Law: Section 25, Calder v. Bull, and Constitutional Continuity, 36 Yale J.L. & Human. 524 (2026).
