Challenging Originalism: Putting the Electoral College, Presidential Immunity, and Recent SCOTUS Decisions into Historical Context

Stanford Legal

Is the president above the law? Is the Electoral College democratic? In this episode, historian Jonathan Gienapp critiques the mainstream use of originalism, arguing that it often neglects crucial historical context, overlooking the complexities of original public understanding. The conversation dives into recent court cases, highlighting tensions between historical interpretation and contemporary judicial practices. This is clearly illustrated in Gienapp’s discussion of the Electoral College—a uniquely American invention. He explains the historical roots of the Electoral College, the Framers' intentions, and the criticisms it faces today. He also sheds light on how the Electoral College emerged as a compromise among less desirable options and the historical context surrounding its establishment, including issues of accountability and regional interests. The conversation also touches on ongoing debates about potential reforms, public sentiment toward a national popular vote, and the challenges of amending the Constitution in today's contentious political landscape. Join us for an enlightening discussion that bridges history with contemporary constitutional debates.

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(00:00:00) Chapter 1: Introduction and the Flaws of Originalism
Hosts Pam Karlan and Rich Ford discuss the key issues with modern originalism, focusing on how originalists often overlook the historical context necessary to truly capture the Constitution’s original meaning with historian Jonathan Gienapp. Gienapp critiques the flexibility of originalist interpretations, especially when applied to complex constitutional concepts like freedom of speech and executive power.

(00:04:33) Chapter 2: Public Meaning vs. Original Intent
Rich Ford explores the tension between public meaning and original intent in originalist theory. Gienapp explains how, despite attempts to distinguish them, the two often overlap in practice. The discussion highlights the inconsistency in how originalists pick and choose historical evidence to support their interpretations.

(00:07:47) Chapter 3: Judicial Interpretation in Practice: Rahimi and Trump Cases
Pam Karlan brings up recent court cases, including United States v. Rahimi and Trump v. United States, where originalist judges either struggled with historical evidence or avoided it altogether. Gienapp notes the irony of originalists relying on minimal historical analysis when it contradicts their desired outcomes.

(00:12:04) Chapter 4: The Framers' Vision of the Presidency

Jonathan Gienapp discusses the historical foundations of the American presidency, emphasizing the founding generation's rejection of monarchy and the importance of presidential accountability. He highlights the debate at the Constitutional Convention regarding the balance between a strong executive and ensuring that executive power remains accountable to the people.

(00:17:06) Chapter 5: Originalism and Constitutional Interpretation

Jonathan Gienapp delves into the complexities of originalism as a judicial philosophy. He explains the tension between the rhetoric of originalism and its inconsistent application in Supreme Court decisions. He argues for either a more serious commitment to originalism or a recognition of constitutional pluralism, where history is used alongside other interpretative methods.

(00:21:39) Chapter 6: The Origins and Challenges of the Electoral College

Exploration of the creation of the Electoral College, discussing how it emerged not as a perfect solution but as a compromise to address competing concerns about legislative selection, popular votes, and regional interests. Gienapp examines past and present efforts to reform the Electoral College and explains why it persists despite criticism.