Jonathan Gienapp

Much appreciated! This is high praise. I’m very glad you identified and grasped the central point too.

The Constitution and Historical Rupture Jonathan Gienapp*

Despite what they sometimes say about recovering the history of past law, Baude and Sachs have insisted that "ordinary lawyer's work" handles history in "artificially limited" and often "anachronistic" ways. 318 That is the law's story about itself. Rather than return to the past in earnest to unwind the ruptures that have transformed our law, this approach exploits the law's fiction of continuity to minimize the relevance of those historical changes to our legal consciousness. This strategy would create a different problem, however, and one no less severe. It would sever originalists from the constitutional world that the Founders knew and force them to admit that they are doing something other than faithfully reconstructing the past. Doing so would essentially revive the old common-law style, and, with it, collapse originalism into something indistinguishable from living constitutionalism. If the past is remade on the terms of the legal present, it can no longer credibly serve as the neutral source of adjudication that originalists have always claimed it to be. It instead would become the artificial creation of our living law.

this, from prof @jgienapp.bsky.social, is the most devastating criticism of originalism i’ve ever read. i truly hope that scholars don’t miss the radical nature of his *conceptual* rupture claim. i look forward to reading the book. papers.ssrn.com/sol3/papers....

See what the Dean doesn’t understand is that I really have two jobs: my job job, and then answering email

No. 25-365 IN THE Supreme Court of the United States ____________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v. BARBARA, ET AL., Respondents. ____________________ On Writ of Certiorari Before Judgment to the United States Court of Appeals for the First Circuit ____________________ BRIEF OF CHINESE AMERICAN LEGAL DEFENSE ALLIANCE AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS ____________________ JUSTIN SADOWSKY Counsel of Record CHINESE AMERICAN LEGAL DEFENSE ALLIANCE 4250 N. Fairfax Drive #600 Arlington, VA 22203

vi Anna O. Law, Migration and the Origins of American Citizenship: African Americans, Native Americans and Immigration 41 (Oxford University Press) (pub. forthcoming 2026) ................................... 5, 6, 7, 13 Annuaire l'Inst de Droit Int'l , xiv (1877) [1994] .................................................................. 16 Bernadette Meyler, The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, The Law of Nations, and Mutual Consent 521, Georgetown Univ. L.J. Vol. 15 (2001) .................. 8 Brief Amici Curiae of Senator Ted Cruz, et al. in Support of Petitioners, Trump v. Barbara, No. 25-365 (U.S. Jan. 28, 2026). .......................................... 2, 29, 32 Brief for Petitioner, Trump v. Barbara, No. 25-365 (U.S. Sep. 26, 2025) .............. 2, 26, 32 Brief of Respondents, Trump v. Barbara, No. 25-365 (U.S. Oct. 29, 2025) ..................................................................... 9 Brief for the United States, United States v. Wong Kim Ark, 169 U.S. 649, No. 132 (1898) .......................... 18, 20, 30, 32 Caroline Jordan, Remaking Life: The Culture of Chinese Transcontinental Railroad Workers 1, The Purdue Historian Vol. 12, art. 3 (2025) ............................ 6 Cong. Globe, 1st Sess. 39th Cong. (1866). ............................................

In a first, my book Migration and the Origins of American Citizenship is cited in the amicus filed by the Chinese American Legal Defense Alliance in defense of birthright citizenship. The scholarship of Lucy Salyer, Sam Erman, and Nathan Perl-Rosenthal among other historians are also cited.

Wow! Thanks so much! This is really meaningful.

Pictured: The cover of Jonathan Gienapp's "The Second Creation". Not pictured: The pages with filled with margin notes and highlighted quotes from primary sources, or great turns of phrase from Gienapp.

Hard to oversell how incredibly good @jgienapp.bsky.social's "The Second Creation" is. Just incredible, subtle, mind-altering constitutional history.

1/x Really excited to say that my job talk paper, “Remembering Congress in the Myers-to-Humphrey’s Interregnum,” is coming out through the Pennsylvania Law Review. I am dying to work with Penn’s outstanding editors to bring this paper to the finish line. Thanks, y’all!

Supreme Court’s Radical Immunity Ruling Shields Lawbreaking Presidents and Undermines Democracy The Court’s opinion in Trump v. United States is a dangerous attack on the rule of law.

The Supreme Court blocked Trump’s tariffs, but don’t forget: The same Court brought us the anti-constitutional abomination of presidential immunity.

www.brennancenter.org/our-work/ana...

University of Michigan: On Friday, come participate in a day-long conference discussing/criticizing my new book *The Oldest Constitutional Question: Enumeration and Federal Power.*

With Profs. Jack Balkin (Yale), Maggie Blackhawk (NYU), Sam Erman (Michigan), Jonathan Gienapp (Stanford)…

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Among the critical points @jgienapp.bsky.social reiterates here is that many early Americans were anti-legalists, but even early lawyers saw the Constitution as different from ordinary law, requiring "a different interpretive style and conceptual toolkit." An important (& highly entertaining) read!

I have been waiting to post about this new essay until the symposium on my book of which it is a part is published (should be very soon!), but until then, you can check out what I have to say in response to some thoughtful esays.

Deep thanks to @evanbernick.bsky.social for this generous promotion.

Thanks so much! This is high praise and very much appreciated. I'm glad you found it to be of such value.

Thanks Chris! And I hope all is well!

Thanks so much Anna! Deeply appreciated.

The Constitution and Historical Rupture 69 Pages Posted: 5 Feb 2026 Jonathan Gienapp Stanford University Date Written: January 24, 2026 Abstract This essay is a response for a symposium on my book, Against Constitutional Originalism: A Historical Critique. It responds to criticisms made against it while further developing the book's central themes. It contends that the problem of historical rupture— that the eighteenth-century U.S. Constitution presupposed a very different way of thinking about constitutionalism and law than reigns today—is the most important problem implicated by the theory of constitutional originalism, and yet remains largely neglected. It further contends that were originalists to finally confront this problem, the theory could not survive that reckoning, not without abandoning its definino features

@jgienapp.bsky.social responds at great length to critics of his criticism of originalism. It’s a tour de force. read it. papers.ssrn.com/sol3/papers....

I had a great time taking part in this conversation on originalism in the lower courts with my excellent colleagues, @orinkerr.bsky.social and Jud Campbell. Thanks to Short Circuit for putting together such a terrific event.

I really enjoyed this podcast conversation about originalism in the lower courts, with experts on originalism @jgienapp.bsky.social and Jud Campbell. Thanks to the Short Circuit crowd for having us.

Short Circuit 415 | Originalism at Stanford - Institute for Justice An all-star conversation among Stanford professors, recorded live before Stanford students, about originalism and how it interacts with recent cases from the federal courts of […]

Our Latest Podcast: Originalism at Stanford

With @jgienapp.bsky.social @orinkerr.bsky.social & Jud Campbell!

ij.org/podcasts/sho...

Preach!

Bruh, they got @jgienapp.bsky.social going for like $12 on amazon. Easiest purchase of your life.

Andrea Katz explained this better than I could/did in this morning’s Times: www.nytimes.com/2026/01/21/o...

(Great also to see shoutouts to the work of Historians Council members @jgienapp.bsky.social and @narosenblum.bsky.social)

Tomorrow, SCOTUS is hearing Trump v. Cook, a case involving President Trump’s attempts to remove Lisa Cook from the Fed. It’s a glaring example of the admin's coercive approach to power. And it could pose BIG problems, even if SCOTUS ultimately rules for Cook.

Walk with me...🧵⬇️@brennancenter.org

Historians’ Amicus Brief in Trump v. Slaughter Professors Jonathan Gienapp and Andrea Scoseria Katz, represented by Kaplan Martin LLP, filed a brief challenging the removal of a commissioner of the Federal Trade Commission.

But this “Fed carveout” is bunk, as a historical matter.

Historians have also shown that the unitary executive theory is operating in a whole space of dubious history.

From @jgienapp.bsky.social:
www.brennancenter.org/our-work/res...

Thank you. I hope you enjoy.

For anyone interested in how to confront originalism, this is an invaluable and FREE resource designed by folks who have been leading the fight. Please give this important manual a read and spread the word! @tomtmwolf.bsky.social @sam-breidbart.bsky.social @cisozaki.bsky.social