Knowing How vs. Knowing That: Navigating the Past

1

In response to my essay on originalism and history, I am glad that Georgetown Professor Randy Barnett applauded me for getting originalism right. As he sees it, I am the first historian to criticize Originalism 2.0 who correctly sketched the object of critique. In one sense, Barnett is wrong—historians Jack Rakove, Saul Cornell, and Helen Irving have all correctly identified the key features of Originalism 2.0 in their own work.[1] But in another sense, Barnett certainly is right. Most historians, like most Americans, have not grasped what originalists claim to be doing. So I am glad that all the time and effort I spent coming to terms with Originalism 2.0 was not in vain. I am also deeply appreciative that Professor Barnett eagerly awaits my forthcoming book and has extended a generous invitation to discuss it with his students once it is in print. I hope to take him up on this offer. Clearly we have much to discuss.

For even if he thinks I get originalism right, Professor Barnett otherwise finds most of my essay’s claims mistaken, particularly those centered on the relationship between originalist method and historical interpretation. In my initial post, I primarily sought to acquaint historians with the current state of originalism and to explain why they ought to care about these debates. Accordingly, my discussion of historical method was relatively brief, in part, because I hoped historians would already grasp a good bit of what I was suggesting, but also since I had already plotted out much of the methodological relationship between historical practice and Originalism 2.0 in a prior published article in the Fordham Law Review, one to which I directed interested readers in the footnotes.[2] In order to answer Professor Barnett’s critiques, however, I will need to change course—from explaining to historians what originalists do, to explaining to originalists what historians do. For it is plain that this is the primary area of confusion: much of what Professor Barnett thinks I was getting at in describing what historians do was not in fact what I was getting at. (Accordingly, much of what follows draws upon my aforementioned Fordham article and readers interested in a more detailed sketch of some of the arguments presented here are encouraged to consult it.)

To move forward, then, it is helpful to return to the core claim of my initial essay: that historians’ methods are needed every bit as much to discover the original public meaning of the Constitution (the target of Originalism 2.0) as to discover any other kind of original constitutional meaning (the various targets of Originalism 1.0). I have no doubt that certain kinds of original meaning are unknowable. I grasp that many parts of the Constitution are open textured and thus not easily subject to historical analysis. And I appreciate that Originalism 2.0’s favored figure—the so-called average Founding-era reader—is a highly problematic construct, one that Jack Rakove has skillfully critiqued in “Joe the Ploughman Reads the Constitution.”[3] But, at the same time, I think that plenty of original meanings are knowable (historians primarily claim to know things about the past, after all) and that something roughly akin to Originalism 2.0’s public meaning is often, if certainly not always, targeted by historians. The pioneering work of intellectual historian Quentin Skinner, for instance, seems to demonstrate as much.[4] In making my core assertion, then, I intended to cast doubt on originalists’ claim that the focused object of their investigation alone freed them from historical techniques—that somehow historical methods are critical for finding original intent, but not original communicative content. I was hoping not to elevate the category of public meaning but, rather, to deflate it, by casting doubt on the notion that it is distinct in kind. I did so by contending that the distinction at the heart of Originalism 2.0 was largely predicated on an incorrect understanding of what historians do, specifically, that historical knowledge is primarily a form of knowing that rather than a form of knowing how. That is, originalists assume that historians’ primary contribution is that they know that something happened or that a word had a certain meaning in the past. Historians, meanwhile, tend to believe that their principal skill is in knowing how to decode historical utterances in all their guises. The knowing that is thus built on the knowing how, or, better put, the knowhow. To refute my argument, Professor Barnett would have needed to explain either why my conception of knowing how did not, in fact, describe what historians do or that such knowhow was not needed to discover original public meaning. He instead accused me of imbuing historians with priestly authority to preside over all mysteries of constitutional interpretation, which was certainly not my goal. In other words, despite numerous protests that he and other originalists do in fact grasp what historians do, in his response Professor Barnett seems inadvertently to have proved my point. To refocus this debate (one that far transcends Professor Barnett’s critique), we must better understand the character of historical knowhow—and how different it is than what Originalism 2.0 demands—in order to then grasp whether historical methods are indeed essential, as I strongly believe, to any originalist inquiry.

* * * * *

What do historians do? What does it mean, as I say, to know how to think historically? Because of the constraints and aims of a post like this, it is necessary to paint with a broad brush (as I was forced to do in my first essay). Historians might well question my exact rendering or its relative emphases or find it limited and parochial. Historical thinking is, by its nature, eclectic, historians being interested in gaining access to the past through whatever subjects and sources they can find, drawing evidence not only from the careful reading of individual texts but from images, artifacts, social behavior, and the natural environment. They draw upon quantitative methods and material sources as often as they scrutinize linguistic artifacts. So, given my own training and the kind of historical object that the United States Constitution is, my account surely skews towards the study of Anglophone intellectual and cultural history. Thus, if and when I refer to “historians” I do not mean to distort or to paper over crucial disagreements or differences or to imply that all historians would consent to the precise features of my account.[5] I only hope to be able to elucidate, if not the lowest common denominator that unites historical practitioners, then at least some defining features of historical knowhow. If nothing else, the features I hope to highlight are precisely those that originalists seem persistently to miss. There is an added difficulty here for it is tricky to reduce historical knowhow to a formula or set of comprehensive components. Like a more common form of knowhow—riding a bicycle—one can know how to do it without being able to describe the underlying mechanics. Surely example teaches better than principle, so the best way to see what historians do is to study them in action. But that has not gotten these debates very far. And it seems clear they cannot move forward until historical investigation is afforded a clarity it has seemingly lacked. So, as silly as it seems for me to assume this mantle, I will do my best to distill some working principles from historical practice.

Toward that end, in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within. Writing decades later, Stanley Elkins and Eric McKitrick compellingly added,

…the mind and sensibility of the founding generation—more inclusively the Revolutionary generation—has been exceedingly difficult to recover: substantial portions of that mentality have long since ceased to strike echoes and resonances….[Theirs was] a society sufficiently different from ours that though we may, in a manner of speaking, “see” it, we do not report what we see in the manner of easy recognition.[9]

Only by first recognizing this vast incommensurability, has it been possible for historians to decipher the original meanings of the period’s countless texts, to actually understand what political and constitutional writers were talking about, and to be able to reconcile the endless array of apparent paradoxes that, from our skewed contemporary perspective, seemingly defined the period’s thought. This last point has been especially critical. For why did Founding-era Americans care so deeply about representation but largely ignore voting? Why did they obsess over mixed constitutionalism but often ignore the separation of powers? Or why did so many of them assume that protecting liberty meant, not restraining political power, but giving the right sort of political institutions power? Such questions cannot be answered without a healthy appreciation for the period’s otherness. Revolutionary-era historians have disagreed over a great deal, but few if any have rejected this insight.[10] Grasping this period on its own terms requires crossing the conceptual chasm that separates us from citizens of the eighteenth century. It requires, in short, a deep brand of historicism.[11]

Because the past is so foreign to us, because historicism is so essential, the object of translation must follow in kind. Followers of Originalism 2.0, likely because they implicitly deny the foreignness of the Founding era, tend to be fond of what might be called atomistic translation: they believe that the past can be translated into the present through term-for-term substitution. Originalist investigations thus often focus on specific words or phrases that appear in the original Constitution. But if the past is indeed so foreign, then a different form of translation is required: holistic translation. This is about far more than putting meanings in context. Originalists have always been interested in context. This is about putting them in complete—or as-complete-as-possible—context. And contextualizing meanings holistically requires situating individual linguistic components in the whole conceptual vocabulary of which they were initially a part. If we more or less share a conceptual vocabulary with those in the past, such holistic translation is unnecessary—and originalists’ atomistic translation assumes as much. But if the past is a foreign place, understanding the meaning of historical words requires interpreters to first translate the whole language of which the words were mere components.[12] When influential historians Quentin Skinner, J. G. A. Pocock, or Keith Baker defended the essential importance of first reconstituting the whole discourses in which political texts and arguments appeared before processing individual meanings or arguments, they had this kind of holism in mind.[13] When historian Eric Nelson so skillfully showed how understanding the constitutional phrase “executive power” within the context of the American Founding required first resuscitating the languages of Whig and Royalist constitutionalism, he was making much the same point.[14]

Historicism and holism mutually reinforce one another. Appreciating the foreignness of the past, and thus why historicism is essential, means recognizing why linguistic translations much be holistic in character. On the flip side, seeing the wider discursive structures in which individual meanings were embedded allows one to grasp the foreign character of founding-era language. Appreciating historical distance lets one appreciate the extent of translation required.

In furnishing their atomistic translations, originalists have gravitated towards a single kind of philosophy of language that I disparaged in my original essay. But Professor Barnett is entirely mistaken about what I meant. I was not questioning the value of language philosophy to the originalist enterprise, I was questioning why originalists had fixated on one philosopher—Paul Grice—at the expense of a large field of study and a vast array of more useful tools. To be sure, Grice is a towering figure in the history of philosophy whose reputation is well-deserved, but none of that necessarily means that his work is helpful in discovering the original meaning of the Constitution. For one, Grice’s model presupposed two interlocutors observing a set of conversational maxims aimed at making communication maximally efficient.[15] Why the United States Constitution and its inter-generational readers fit the pattern of two people having this kind of conversation remains unclear. Moreover, and much more importantly, Grice never tackled the phenomenon of historical difference in language use—the issue at the heart of originalism—and thus offers no tools for translating the historical Constitution.[16] But others have. Running from the classical American pragmatists—William James and John Dewey—through the first major wave of post-positivist analytic philosophers that followed World War II—chief among them Ludwig Wittgenstein, W. V. O. Quine, and Wilfrid Sellars—to more recent neo-pragmatists like Richard Rorty, Donald Davidson, Huw Price, and Robert Brandom—is a common approach to language and meaning that offers a bevy of tools for approaching historical language. Most critically of all, these tools reinforce the precise kind of historicism and holism I have thus far sketched.[17] Such an approach also shares much in common with those advanced by influential non-historians Thomas Kuhn, Michel Foucault, and Clifford Geertz, all of whom dramatically advanced historicist understanding in the human sciences by stressing the holistic, and thus contingent, character of human concepts and all of whom have widely influenced historians.[18] Hence, I was certainly not dismissing philosophy out of hand; in fact, I think a much deeper, wider, and more apt examination of language philosophy actually reinforces the basic historicist-holist approach that otherwise inform so much historical practice.

So historians, working in concert with historicist philosophers of language, tend to think that the object of historical translation is whole languages—rather than simply words and phrases here and there—and they think this because they believe the past is a deeply foreign place requiring vast translation. But with the object of translation now in focus, how do historians actually conduct this translation? This is where the fundamental distinction I drew between knowing how vs. knowing that really comes into sharp relief. For grasping the original meaning of a historical text means first acquiring a kind of knowhow, namely knowing how to speak the language in which the text was originally written and, thus, knowing how to play the so-called language games—as the influential philosopher Ludwig Wittgenstein famously put it—in which the text was originally embedded. Wittgenstein’s pioneering concept of a language game was built upon the holistic principles already laid out (that the meaning of the part is determined by situating it in the context of the whole), but with the addition of a crucial ingredient: tacit knowhow. Linguistic meaning is not isomorphic, he suggested; it is always embedded in the activities that surround its usage. Thus, knowing how to generate and interpret meaning requires a kind of irreducible practical knowhow; it means knowing how to play language games.[19] If we wish to fathom what an average eighteenth-century reader (no matter how difficult such a figure is to conjure) would have understood the Constitution to mean, then at minimum, we need to learn how to speak, reason, and argue within the foreign idioms with which such a reader would have been acquainted. We need to recreate whole debates, reconstitute arguments, and trace logical connections.[20] We need to resuscitate a very different kind of conceptual skillset. Only then could we substitute that reader’s tacit knowhow for our own. Upon doing so, we would soon learn that such a reader would likely have serious doubts about whether the Constitution was a conventional legal text; in fact there is a good chance such a reader would recoil at the very idea that it might be understood as such. But only by seeing what this reader saw, and not what we see, might decipher whatever sort of original meaning we might dream up.

To extend the metaphor of language mastery, champions of Originalism 2.0 seem to think that the Constitution is written in a dialect. To them, it is like reading British English—it seems quirky, it is sometimes a bit precious, but on the whole, it can be easily rendered in American English by making simple substitutions, changing “underwear” to “pants” and “trunk” to “boot.” Historians, on the other hand, are more inclined to believe that the Constitution, like any historical text, is written in another language altogether. For them, it is like reading French—simply memorizing the vocabulary will not get you far, you must actually learn how to speak and use the language. To originalists, it seems, using a translation machine is the functional equivalent of learning a language. But as any language student can tell you, such programs often produce a hackneyed or imprecise meaning, and sometimes simply generate nonsense. Actually reading a text written in a foreign language requires knowing how to read the language in question. This is why the various methods of Originalism 2.0—the keyword searches, the atomistic translations, or the lightly contextualized analyses that predominate so many leading originalist writings and that dictated the analysis in the Supreme Court’s majority opinion in District of Columbia v. Heller—can never suffice on their own if original meaning is the goal.[21] Without first acquiring the foreign language mastery that is so essential, such efforts will only ever inadvertently set eighteenth-century words and phrases within twenty-first century language games. They will fall back on modern language skills—for fleshing out meaning, enriching utterances, and drawing implications—rather than relying on Founding-era knowhow. For those inclined to exploit Grice’s philosophy, they will yield modern constitutional implicatures (meanings implied beyond what is literally said) rather than Founding-era ones. They will do everything but locate original meaning.

In short, then, the only way to actually read the Constitution as it was once written is to learn a foreign language, just as one might learn French. You cannot learn how to speak French by following an algorithm; you must immerse yourself, preferably with native speakers, to acquire the knowhow. Decoding the original meaning of historical texts requires much the same thing. To know that you must first know how.

None of this means that large-scale text mining is antithetical to historical translation. In fact, numerous historians have drawn on such resources to extraordinary effect.[22] What it does mean, though, is that such mining, to quote the accomplished digital humanist and historian Benjamin Schmidt, must “begin with a grounding in a theory from humanistic traditions,” otherwise “it will aimlessly reproduce a problematic social world.” The digital humanities can “create new objects for humanistic interrogation”—and suggestive ones at that—but cannot replace the tacit knowledge that informs what kind of objects should be created in the first place.[23] In other words, such techniques can only be deployed in service of acquiring historical knowhow, not as a substitute for it.

Of course, taken to the extreme, this agenda might seem to call upon an impossible level of historical awareness. The difficulty is only exacerbated by the profound limitations of available source material, ones more acutely felt in subfields whose practitioners have far less to draw on than do historians of the American Founding. The key point is merely that such holistic understanding furnishes the shared (if often unattainable) aspiration of historians. All historians can do is immerse themselves as fully as possible, reading as many sources as they can, checking and revising their working assumptions as they proceed. But, even if this approach cannot guarantee complete historical understanding, its great advantage is that it forces the interpreter to first prove, rather than merely assume, that what appears familiar is in fact so. It ensures, to the extent the sources permit, that historians will more readily see how the strange was once normal or the nonsensical was once meaningful. It also happens to be the approach that Founding-era American historians have long used to so successfully clarify the confusing and contradictory features of the period’s intellectual artifacts. So even if total mastery remains elusive, historians strive to get as close as they possibly can to reviving and learning the lost languages of the past.

And indeed, depending on the text under study, more might still be needed. Knowing how to speak the languages of the past does not automatically empower a historian to read any and all texts produced during their period of study. Additional expertise and knowhow has always been needed to read certain philosophical, legal, medical, scientific, or religious texts. But importantly, if the goal is to recapture the text’s historical identity, then much of that expertise and knowhow is of a piece with a more basic kind of historical knowhow. For penetrating the foreignness of eighteenth-century philosophy, science, or law (as so much great historical work dedicated to these technical areas of intellectual history has shown) also requires mastering unusual and often counter-intuitive language games.

Who can acquire this historical knowhow? Professor Barnett is certainly correct that it is not akin to mastering astrophysics. But, nonetheless, it is the kind of knowhow that must be acquired if one hopes to decipher the original meaning of a historical text. It is what historians learn in obtaining a Ph.D. in history, but such training is non-essential to acquiring the skill. For evidence, we need only turn to the legal academy and note all of the extraordinarily skilled historical practitioners who teach at law schools and write about history without the aid of graduate training in history. Philip Hamburger, Larry Kramer, Annette Gordon-Reed, Michael Klarman, and Jud Campbell are just a few among many lawyers who have published penetrating accounts of the Founding period. All of these lawyers have managed to learn how to think historically, and they have done so because they have more or less acquired the requisite knowhow that I have sketched, by immersing themselves in the past and learning how to speak the foreign idioms of their subjects. In fact, it is precisely because Hamburger and Kramer followed this course that they were able to sketch such powerfully counterintuitive portraits of eighteenth-century American judicial culture. They first had to dispense with much of what they thought they knew about modern judicial practice, assumptions, and culture to better understand the very different unspoken assumptions animating judicial practice at that distant time. They had to learn how to set Article III of the Constitution or Federalist 78 in their original language games, rather than simply setting them against a tacit background of modern presuppositions.[24] That Hamburger and Kramer disagreed about Founding-era judicial culture is not surprising, as thinking historically does not ensure agreement, it merely assures that practitioners will navigate the right neighborhood. Meanwhile, Campbell’s path-breaking work on natural rights, which cuts against the grain of so much ahistorical work on the subject, was achieved in similar fashion. Like Hamburger, Kramer, and so many historians, Campbell immersed himself in the foreign conceptual world of the Founding and from there was able to see patterns, logics, connections, and meanings that otherwise would have remained invisible. He clearly did not need a Ph.D. in history to learn how to do this, but he did have to do it. He had to master the technique. And his work is so exceptional precisely because he learned how to think historically and thus mastered the foreign idioms in which the First Amendment was originally constructed.[25] So, to mix metaphors, this has nothing to do with who is a card-carrying member of the priesthood; this is about who has learned how to ride the relevant bicycle.

And while it takes a good bit of work to master riding this bicycle, historians pride themselves on encouraging as many as are willing to jump on. Hence, history is an open discipline that attracts a diverse range of practitioners and, beneath the shared mission of historicizing the past, encourages methodological experimentation. Relatedly, most history professors (myself included) have their students do history as early as possible, immersing them in primary sources and challenging them to answer important historical questions. The purpose of such exercises is not to mystify the past, leaving students at the mercy of their professors’ special expertise, but to open students’ eyes to the distinct challenges that understanding the past on its own terms presents so that they might begin taking up residence in it themselves.

Knowing how to think historically, of course, is not the only skill one might obtain and it is certainly not the only skill that is useful in most areas of constitutional (or textual) interpretation. I absolutely do not think, as Professor Barnett suggests, that “[o]nly historians…can tell us the meaning of our fundamental law.” Historical knowhow is not even necessarily required to discover the meaning of a historical text. But it is necessarily required to discover the original meaning of a historical text. And this difference could not be more critical. Any historical text will acquire a variety of meanings over time, as it is set in an increasingly diverse array of language games. I see no reason why a text’s original meaning is either its essential meaning or, for that matter, even its most interesting meaning most of the time. Literary critics only rarely care about the original meaning of Hamlet; political and moral philosophers only sometimes care about the original meaning of Plato’s Republic or Hobbes’ Leviathan; and American readers hardly ever care about the original meaning of the Declaration of Independence. But all of these readers care deeply about what each of these texts mean and generate readings that are often credible and persuasive. Similarly, most constitutional lawyers and judges throughout American history have obsessed over the Constitution’s meaning without assuming that the text’s original meaning somehow deserved pride of place in that inquiry. So, no, I do no think that historical knowhow is needed to figure out the meaning of any historical text, and certainly not the Constitution. When Justices Elena Kagan or John Roberts expound upon the Constitution’s meaning, I rarely take objection as a historian. I fully recognize that their training and expertise—their knowhow, if you will—equips them to better weigh in on such matters than I currently can or likely ever will. Things only change when these justices claim to be talking about the Constitution’s original meaning. And this is where originalists come in. For they are not simply telling us what the Constitution means, they are contending (pace most other constitutional lawyers) that original meaning is constitutional meaning. So, unlike others with legal training, they have reduced constitutional meaning to the one kind of meaning a historical text can be said to possess for which historical knowhow is needed. Importantly, historians never told originalists to do this. (Obviously originalists have their own normative reasons for having taken this—ones detailed in my initial essay—but that is a different matter altogether.) Lawyers are trained to read the Constitution’s words embedded in modern language games—which is also how virtually every contemporary American citizen reads them. This is a highly credible way to interpret the document and one that lawyers are surely much better at than historians. It is also a form of reading that might well secure the most interesting, credible, or legitimate kind of constitutional meaning imaginable. But, for better or worse, what it cannot do is locate the text’s original meaning. Locating that meaning requires setting the Constitution’s words within the long-vanished eighteenth-century language games in which they were originally embedded. Doing that requires acquiring the tacit knowhow that original readers steeped in such games would have possessed. And doing that requires cultivating the kind of historical knowhow I have attempted to lay out.

* * * * *

My sketch of historical knowhow—as partial, flattened, skewed, and parochial as it must surely be—has been rendered merely in hopes of identifying what historians tend to do when they set out to understand the past on its own terms. But aside from what historians do, of course, is the question of whether their approach is correct. I certainly think it is, but perhaps historians are wrong about everything I have said. Perhaps they are mistaken that the past is a foreign country or that its texts are written in foreign idioms derived from foreign conceptual worlds. Perhaps people can read eighteenth-century texts, in their original form, without first learning the original languages in which they were written. Perhaps Quentin Skinner, J. G. A. Pocock, Mark Bevir, and Gabrielle Spiegel are wrong about the relationship between historical meaning and context.[26] Perhaps Keith Baker, Lynn Hunt, William Sewell, and Daniel Rodgers are wrong about the methods of intellectual history.[27] Perhaps Gordon Wood, Bernard Bailyn, Joyce Appleby, and Joanne Freeman are wrong about the foreign character of the American Founding.[28] Perhaps historicist philosophers of language are wrong about the historical character of language and meaning and the historicism, holism, and knowhow that is necessary to grasp the meaning of utterances.[29] But then why does Professor Barnett (not to mention virtually all originalists I have encountered) not make that case? Why not first fairly state what historians—especially Founding-era historians—claim to be doing, before explaining why the kind of knowhow they privilege is unnecessary to the discovery of original constitutional meaning? For, if anything I have said is right, then discovering any kind of historical meaning (intent, understanding, expected applications, and certainly public meaning) requires first learning how to speak the foreign language of the past and that requires something much different than what originalists typically insist is required.[30]

It seems there are two ways to proceed. If historians are right about the character of the past, then originalists need to explain why their atomistic translation machine is sufficient. They need to explain why one does not have to do the equivalent of learning how to speak French. Or, if historians are wrong about the past, then originalists need to say so and explain why. Unfortunately, even though these are the exact conversations we ought to be having, we still are not having them. And, what seems clear, is that we will never have them until historical practice is suitably rendered on its own terms.

I relish the opportunity to continue this conversation with Professor Barnett in his seminar and elsewhere as I have no doubt I will continue to learn from it. I believe strongly that what we are doing is important. Historians and originalists ought to engage with and understand one another. I trust he agrees.

Jonathan Gienapp is an assistant professor of history at Stanford University. He is currently writing a book that explores the history of the earliest understandings of the United States Constitution. He wishes to thank Anne Twitty, Greg Ablavsky, Saul Cornell, William Deringer, and Evan Hepler-Smith for helpful thoughts and suggestions on this essay.

[1] See, e.g., Jack N. Rakove, “Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism,” San Diego Law Review 48 (May 2011), 575-600; Jack Rakove, “Tone Deaf to the Past: More Qualms About Public Meaning Originalism,” Fordham Law Review 84 (Dec. 2015), 969-976; Saul Cornell, “Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism,” Fordham Law Review 82 (Nov. 2013), 721-755; Saul Cornell, “Originalism as Thin Description: An Interdisciplinary Critique,” Fordham Law Review Res Gestae 84 (2015), 1-10; Helen Irving, “Outsourcing the Law: History and the Disciplinary Limits of Constitutional Originalism,” Fordham Law Review 84 (Dec. 2015), 957-967.

[2] Jonathan Gienapp, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (Dec. 2015), 935-956. The article was part of a forum, see “Forum: Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning,” Fordham Law Review 84 (Dec. 2015), 905-976.

[3] Rakove, “Joe the Ploughman.” On the ideological and social diversity of Founding-era America and the complications that poses for any “average reader” construction, see Cornell, “Originalism as Thin Description,” 7-9.

[4] Perhaps no historian has been more deeply misunderstood by originalists than Skinner, see Gienapp, “Historicism and Holism,” 946-951. For Skinner’s definitive methodological statements, see Quentin Skinner, “Meaning and Understanding in the History of Ideas” and “A Reply to My Critics,” in Meaning and Context: Quentin Skinner and his Critics, ed. James Tully (Princeton: Princeton University Press, 1988), 29-67, 231-288.

[5] For good examples of the important debates that methodologically-conscious historians have had over the activity of interpreting historical texts, see Dominick LaCapra, “Rethinking Intellectual History and Reading Texts,” History and Theory 19 (Oct. 1980), 245-276; and Peter E. Gordon, “Contextualism and Criticism in the History of Ideas,” in Rethinking Modern European Intellectual History, eds. Darrin M. McMahon and Samuel Moyn (New York: Oxford University Press, 2014), 32-55. I trust, though, that historians of similar intellectual persuasions to these scholars would acknowledge the purchase of my account among historians generally while also assenting themselves to some of its basic features.

[6] Rhys Isaac, The Transformation of Virginia, 1740-1790 (Chapel Hill: University of North Carolina Press, 1999), 5.

[7] Robert Darnton, The Great Cat Massacre: And Other Episodes in French Cultural History (New York: Basic, 1984), 261.

[8] Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), xvi.

[9] Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (New York: Oxford University Press, 1993), 5.

[10] Case-in-point: despite being among Wood’s most vicious critics, Michael Zuckerman described The Creation of the American Republic as “a meticulous exhumation of an ideological world we have lost,” demonstrating that whatever other issues it and Wood’s subsequent work possessed, among its cardinal virtues was its recognition that the Founding was a lost ideological world, Michael Zuckerman, “Rhetoric, Reality, and the Revolution: The Genteel Radicalism of Gordon Wood,” William and Mary Quarterly 51 (Oct. 1994), 694.

[11] On historicism, see Gienapp, “Historicism and Holism,” 942-944.

[12] On holism, see Gienapp, “Historicism and Holism,” 941.

[13] Quentin Skinner, “Meaning and Understanding in the History of Ideas,” History and Theory 8 (1969), 3-53; J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (New York: Cambridge University Press, 1985); Keith Michael Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century (New York: Cambridge University Press, 1990).

[14] Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Cambridge: Harvard University Press, 2014).

[15] Paul Grice, Studies in the Way of Words (Cambridge: Harvard University Press, 1989). On this point, see Andrei Marmor, “Can the Law Imply More Than It Says?: On Some Pragmatic Aspects of Strategic Speech,” in Philosophical Foundations of Language in the Law, eds. Andrei Marmor and Scott Soames (New York: Oxford University Press, 2011), 83-104; and Mark Greenberg, “Legislation and Communication? Legal Interpretation and the Study of Linguistic Communication,” in Ibid., 217-256.

[16] Nor did Grice develop an ethnographic linguistic methodology to deal with complex and divided speech communities as existed at the time of the American Founding (and throughout past eras). Grice’s method presupposed that speakers were part of the same speech community. For more, see Cornell, “Originalism as Thin Description,” 5-10.

[17] Gienapp, “Historicism and Holism,” 944-945, 951-955. Forthcoming work plans to draw out all of the connections between these pragmatist philosophers, historical practice, and constitutional originalism. For an overview of pragmatist themes, see Robert B. Brandom, Perspectives on Pragmatism: Classical, Recent, and Contemporary (Cambridge: Harvard University Press, 2011).

[18] Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962); Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Vintage, 1970); Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973).

[19] Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (New York: Macmillan, 1953), sect. 7, 201. For more, see Gienapp, “Historicism and Holism,” 948-950.

[20] For more, see Gienapp, “Historicism and Holism,” 955.

[21] District of Columbia v. Heller, 554 U. S. 570 (2008). For a compilation of such originalist practices and citations to relevant work, see Cornell, “Meaning and Understanding,” 733-740.

[22] For instance, see the stimulating work in Keith Michael Baker, “Revolution 1.0,” Journal of Modern European History 11 (May 2013), 187-218.

[23] Benjamin Schmidt, “Theory First,” Journal of Digital Humanities 1 (Apr. 2012), available at: http://journalofdigitalhumanities.org/1-1/theory-first-by-ben-schmidt/.

[24] Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford, University Press, 2004); Philip Hamburger, Law and Judicial Duty (Cambridge: Harvard University Press, 2008).

[25] Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal (forthcoming); Jud Campbell, “Republicanism and Natural Rights at the Founding,” Constitutional Commentary 32 (Winter 2017), 85-112.

[26] Skinner, Meaning and Context; Pocock, Virtue, Commerce, and History; Mark Bevir, The Logic of the History of Ideas (New York: Cambridge University Press, 1999); Gabrielle M. Spiegel, “History, Historicim, and the Social Logic of the Text in the Middle Ages,” Speculum, 65 (Jan. 1990), 59-86. Again, see Gordon, “Contextualism and Criticism.” Although, also see new work on the history of originalism that exploits these precise methodological insights, Logan Everett Sawyer III, “Principles and Politics in the New History of Originalism,” American Journal of Legal History (forthcoming), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933746.

[27] Baker, Inventing the French Revolution; Lynn Hunt, Writing History in the Global Era (New York: W. W. Norton, 2014); William H. Sewell, Jr., Logics of History: Social Theory and Social Transformation (Chicago: University of Chicago Press, 2005); Daniel T. Rodgers, Contested Truths: Keywords in American Politics (Cambridge: Harvard University Press, 1987).

[28] Wood, Creation of the American Republic; Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967); Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge: Harvard University Press, 1992); Joanne B. Freeman, Affairs of Honor: National Politics in the Early Republic (New Haven: Yale University Press, 2001).

[29] There is a direct, albeit rather brief, originalist challenge to the merits of philosophical holism in Christopher R. Green, “Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications,” Duke Journal of Constitutional Law and Public Policy (forthcoming), 44-45, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2901153.

[30] Gienapp, “Historicism and Holism,” 955-956.

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1 Comment

  1. If we are worried about philosophy….

    Invoking Quine is absolutely appropriate, but I think you may have underestimated his argument. Quine was not making a a point about historical inquiry, we was making a point about language itself. His holism was not limited to any particularly form in inquiry but was a global claim that logic cannot do the work the logical empiricists were requiring it to do. Epistemology had to be naturalized after Quine as it required a recognition of the pragmatic nature of our theory choice: which choices are “plausible” given our needs, wants, and desires.

    This is a particular problem for Originalist 2.0ers because, not only do they have to wrestle with some deep philosophical problems about language (Underdeterminiation of theories by evidence; Inscrutability of reference, Indeterminacy of translation), but they then need to show that, once they have solved these problems, that the value choices that went into solving them STILL can restrain judges in the way that Originalism 2.0 claims to do. So, once they solve intractable problems in the philosophy of language they need to show that their theory does better to restrain judicial over-reach. It seems doubtful at that point.

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