Constitutional Originalism and History

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Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously.[1] Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year.[2] As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

Since few historians know how originalism has evolved, few appreciate how deeply it has come to challenge all historians, not merely those, like myself, who focus on the history of American constitutionalism and the political and intellectual history of Revolutionary America. Most historians will be surprised to learn that, increasingly, debates over originalism have gravitated away from constitutional history and the eighteenth century and towards the philosophical foundations of historical meaning. In the process, originalists have come to wage a steady war—one whose intensity has spiked in recent years—against the methods of history themselves. If historians care about what their discipline can offer, then they should answer originalists’ challenge. For it is hard to imagine any area of contemporary civic life where historical expertise could play a more consequential role.

1. Originalism 1.0: Doing History

Originalists’ retreat from history was not pre-ordained. Indeed, initially, to do originalism was to know history—at least in theory. Originalism first emerged in the 1970s and 1980s as a conservative response to the perceived activism and abuses of the progressive Warren and Burger Supreme Courts. Those on the political right complained that, under the auspices of a “living Constitution,” judges were substituting their own progressive preferences in place of what the Constitution actually licensed. In so doing, judges, rather than dutifully following the Constitution, were authoring it anew, an activity that subverted the foundational relationship of constitutionalism—that those in power are subject to the Constitution and not the other way around. If justices were to be constrained from legislating from the bench, then they had to be stripped of their interpretive license. And the only way to do that, the thinking went, was to undermine the living Constitution. The document’s meaning could not evolve with the times; barring formal amendments emanating from the sovereign people, its meaning had to remain fixed and constant over time. Combined, these theoretical presuppositions thus mandated that the Constitution’s operative meaning had to be its original meaning. And those who endorsed this constitutional vision began calling themselves originalists.[3]

Privileging original meaning was, thus, at its inception, driven by presentist aims. The theory’s main agenda was to recalibrate how judges, lawyers, and citizens related to the Constitution in the present. But no matter the primary goals, the theory necessarily required a methodological corollary; it was one thing to defend the notion that original meaning ought to constrain contemporary judicial behavior, it was quite another to explain how a committed interpreter might locate such meaning in the first place. Only in identifying original meaning credibly could originalists advance the second and altogether more important aspect of their agenda, one that directly implicated historical practice. For, on its face, recovering something like original constitutional meaning would seemingly require doing history.

And, indeed, in the early years that was more or less true. Whatever else early originalists might have claimed, deciphering the original meaning of the Constitution seemed to turn on the conventional facts of eighteenth-century constitutional history. Straight-forward historical questions seemed to matter, such as: what were the Constitution’s framers, or at least James Madison and Alexander Hamilton, thinking when they wrote it? What were the document’s ratifiers thinking when they voted for or against it? Which political agendas shaped its construction? How did social relations shape people’s understandings and motivations? Accordingly, when Edwin Meese, then attorney general under Ronald Reagan, declared in a 1985 speech that marked the official arrival of originalism as an identifiable interpretive theory for many, that the administration favored a jurisprudence of “original intention,” he supported his position with recognizably historical accounts about what the Constitution’s framers had intended.[4] Others followed suit, and originalism, for a time, was primarily dedicated to recovering the original intent of the Constitution’s framers. Such intent was always conceptualized loosely, but, minus additional critical refinement, it served as the organizing interpretive target. This was Originalism 1.0.

But the method of Originalism 1.0 was subjected to powerful criticisms. For one, it was challenged on conceptual grounds, most famously by the constitutional lawyer Paul Brest, who claimed that it was nearly impossible to recover the framers’ intent because of the inherent complexity of group authorship—of the fifty-five delegates who had convened in Philadelphia in the summer of 1787, whose intent was to be privileged?[5] The same question applied to the nearly 1,700 Americans who gathered in the special state ratifying conventions. Historians, themselves meanwhile, were quick to highlight this particular complexity. A careful look at the multitude of voices involved in the Constitution’s creation pointed only to “original meanings” in the plural.[6] And then there was the matter of the Anti-Federalists (the Constitution’s earliest opponents); did their original understanding also merit consideration?[7] Meanwhile, legal scholar Jefferson Powell, in one of the most cited law review articles of the decade, challenged originalism on empirical grounds, contending that the framers’ original intent was actually that the Constitution not be interpreted in accordance with original intent.[8] Originalism, if followed faithfully, thus canceled itself out. In yet another line of attack, historians lambasted originalists’ shoddy historical work, for engaging in what was derisively called “law office history,” a term used to describe what lawyers did when they both cherry-picked evidence and otherwise ripped it from its operative historical context. The past, historians insisted, was deeply complex, requiring more careful study than originalists were willing to dedicate.[9] Against the backdrop of these penetrating academic critiques, Judge Robert Bork, President Ronald Reagan’s appointment to the Supreme Court in 1987 and an outspoken originalist, was rejected by the Senate. Originalism 1.0 teetered on the brink.[10]

Source: Wikimedia.

2. Originalism 2.0: Escaping History

But, contrary to the predictions of many, originalism did not pass quietly into the night. Instead, partly in response to these initial setbacks, originalism evolved. A prominent subset of its supporters, including Justice Scalia, began altering the theory’s methodological focus by abandoning original intent. Rather than attempting to recover the subjective intent or understanding of real eighteenth-century individuals—be it the framers who drafted the Constitution, the ratifiers who approved it, or the broader public who made sense of it—originalists began targeting the document’s so-called public meaning.[11] Public meaning has been understood in various ways, but, to quote leading originalists John McGinnis and Michael Rappaport, it references “how the words of the document would have been understood by a competent speaker of the language when the Constitution was enacted.”[12] In singling out public meaning, interpreters no longer had to worry about parsing multiple intents or pinning down the elusive relationship between the Framers’ personal thoughts and what they wrote in the Constitution. There would be no more “channeling the Framers”—an inherently subjective exercise. Originalists could instead focus on deciphering something they claimed was “objective”: what the constitutional text would have meant to an average reader when it first went public.[13] Ever since this conceptual transformation, what is variously called public meaning originalism, the “new originalism,” semantic originalism, original meanings originalism—or, for our purposes, Originalism 2.0—has been ascendant.[14] Even though not all originalists subscribe to Originalism 2.0, and even though important differences divide its followers, unquestionably it is the theory’s dominant mode.[15] Not only was Scalia a fierce partisan during his time on the Court, but so too are a vaunted array of leading constitutional lawyers who command significant influence within and beyond the profession as well as a bevy of federal judges, Neil Gorsuch among them.[16]

In changing the target of originalist interpretation, public meaning originalists also fundamentally altered the method of originalism. With an eye towards respecting only what the sovereign people locked into the Constitution, they have dismissed most eighteenth-century historical evidence as irrelevant to their quest.[17] Deciphering public meaning, according to originalists, requires simply elucidating what the Constitution’s words would have communicated to an ordinary reader at the time of enactment. And contrary to other kinds of historical inquiry, as leading originalist Randy Barnett has put it, “You don’t need a PhD. in history to discover this.”[18] Since linguistic meaning is conventional (predicated on the arbitrary rules that determine the appropriate usage of words), to grasp what the Constitution originally communicated all one needs to pin down are the linguistic conventions operative when the Constitution or any of its amendments were constructed. And because these conventions are embedded in linguistic usage, discovering them only requires studying word usage in the aggregate—by consulting period dictionaries or grammar manuals or by running keyword searches in digitized document databases to perform so-called “corpus linguistics.”[19] For instance, if the goal is to know what “commerce” meant in the original Constitution, say, one should not consult the intellectual debates prior to or during the Philadelphia Convention about government regulation of interstate commerce, nor should one investigate the broader intellectual culture that informed such a concept; one should simply collect all evidence of word usage at the time to decipher the public meaning of the word.[20] If, after consulting such linguistic usage, the meanings of certain words remain ambiguous, then such ambiguities can be resolved through context—context that can be supplied in two ways. First, one can look to the “publicly available communicative context” at the time the Constitution was written to understand what ambiguous words actually referenced. Such context—which in originalists’ hands is persistently vague and seems to amount to little more than common sense—that would supposedly enable an eighteenth-century reader to know that Article IV’s pronouncement that the government could protect against “domestic violence” originally referenced internal uprisings rather than spousal abuse. Second, by probing the nature of language itself, and in particular a very narrow brand of philosophy of language with which originalists have become uniquely obsessed, one can understand how ambiguity works generally in language use.[21] More important, though, is what it does not require—knowledge of the broader contexts of eighteenth-century constitutionalism. Whether it be the various political, social, or economic contexts from which the Constitution developed, the motivations of the participants involved in its construction, or the broader purposes that constitutional partisans hoped to achieve through its enactment, none of these have much bearing on the Constitution’s purely linguistic public meaning.

In short, Originalism 2.0 was a neat trick: it had the imprimatur of history without the actual work and, in fact, asserted that the work was wholly unnecessary. This turn towards public meaning has enabled originalists to claim, as they now frequently do, that they and historians, by targeting categorically distinct kinds of meaning, are simply engaged in fundamentally different tasks. The Constitution’s legal and historical meaning are simply different in kind. If historians claim otherwise, it is because they are guilty of conceptual confusion; because they have made—not a historical error—but a philosophical one.[22] Rather than pledging to do history—as Originalism 1.0 did—Originalism 2.0 claims instead to have escaped history.

In other words, originalists have stopped trying to beat historians at their own game—by rewriting the very rules by which that game is played. They seem to have realized that they will never know as much as historians about the Constitution’s origins or historical development, so instead of fighting a losing empirical battle why not stake out different conceptual foundations altogether? That way, most disputes can turn on philosophy of language, interpretive method, and legal doctrine (as they now do) without dwelling on the details of the historical past. And if historians wish to object, they dare not mention the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century; they must, instead, offer a series of methodological and philosophical arguments targeting originalists’ conceptual formulations. In other words, historians must fight originalists on their own non-historical turf. So even while those few historians who have engaged Originalism 2.0 have leveled a persuasive bevy of criticisms against it—Jack Rakove has correctly called it “tone deaf to the past” and Saul Cornell has appropriately labeled it “thin description”—champions of Originalism 2.0 have easily sidestepped such assessments.[23] For, in appealing to precisely the kinds of historical materials that originalists have studiously circumvented, historians have played into originalists’ hands. Originalists have not engaged this historical work on its merits, but simply dismissed it as irrelevant, mocking historians’ conceptual confusion in the process. After being criticized by historians for years, originalists have built Originalism 2.0 such that no amount of historical empiricism can ever challenge it. It has enabled them seemingly to speak with authority about the past without being subject to historians’ judgment. Charges of “law office history” no longer apply. In fact, not only is it inapt when historians level them, but it actually reveals what originalists claim is the more pressing issue: historians’ penchant to practice “history office law,” or what happens when historians weigh in on legal matters without a law degree.[24]

How originalists have exploited their new fortifications to repel historical expertise is best captured in their reaction to the so-called historians’ amicus brief filed for the Supreme Court in conjunction with the controversial Second Amendment case from 2008, District of Columbia v. Heller.[25] That case—which centered on a D. C. handgun ban—ultimately turned on the original meaning of the amendment. And historians reached the diametrically opposite conclusion from the one advanced by Justice Scalia in the Court’s majority opinion.[26] Since, public meaning originalists have not so much disputed the historical arguments advanced in the historians’ brief; instead they have dismissed the historians for failing to understand what constitutes original meaning in the first place. In probing the amendment’s drafting history and the deeper intellectual and political context from which it arose, and, relatedly, by not dwelling on the conventional, semantic meaning of the amendment’s words, historians simply missed the point.[27] This was Originalism 2.0 personified.

3. Rising to the Challenge: Historians’ Obligation

The battle between originalists and historians has thus evolved from an empirical to a methodological one. The dispute is no longer over historical knowledge of the Founding era. It is now over what methods are needed to identify the original meaning of a historical text. And it is particularly over whether champions of Originalism 2.0 are right that historical methods are, as originalist Lawrence Solum has put it, merely “supplementary and complementary to the methods employed by originalists.”[28] Are originalists justified in claiming that, in targeting a certain kind of historical meaning, they are in fact immune from historical critique? Is it true that historical methods are not useful for discovering the original public meaning of a historical text?

Originalism 1.0 was an affront to Founding-era American historians. But Originalism 2.0 is an affront to all historians. For its advocates contend that they can acquire exactly what they would like to know about history without behaving like historians; they insist that historical methods are only incidental to their chosen historical inquiry. Here originalists make a common mistake, one that all historians should challenge: they fundamentally fail to understand what historians do. They effectively concede that if other forms of original meaning mattered (like those important to Originalism 1.0), historical expertise would indeed be relevant; but they also presume that historical expertise has little bearing on the recovery of public meaning.[29] They draw this distinction because they assume that historical knowledge is a form of knowing that rather than a form of knowing how. They assume that historians know that this or that happened in the past in this or that way; they assume that historians’ contribution is that they have scoured the archives and have assembled and organized the relevant facts; they assume that what historians principally offer is empirical knowledge. But this characterization largely misses the mark. Of course, historians have vast empirical knowledge of the past and, of course, it is critical to what they do. But, at base, historians’ expertise is that they know how to read historical sources and properly decipher their historical meaning—that is, the meaning such sources had in their original historical context. The foundational skill of historical practice is knowing how to think historically. As all historians appreciate, this gestures towards something far greater than mastery of facts; it means knowing how to abstract oneself from the present to navigate an alien, past world. It means knowing how to bracket the assumptions, values, and logics that shape contemporary consciousness in order to replace them with the assumptions, values, and logics that framed the very different mental universe of those living in a different time and place. No matter the text in question (be it a formal treatise, a law, a novel, a painting, a riot, a slave’s freedom suit, a political speech, or a material object), the skill is common to all historical investigations. This knowhow is the defining attribute of historical expertise, organizing the profession and guiding its training.

No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage—such as, for instance, the authorial intent that shaped a text’s production, the intellectual purposes that a text served, or the broader intellectual or cultural context from which a text emerged. But that choice is irrespective of knowing how to think historically. If the goal happens to be deciphering the public meaning of a historical text, then this foundational historical skill remains every bit as essential. The reason why is what originalists’ favored keyword searches (detailed above) fail to take into account: that, as Bernard Bailyn has put it, “the past is a different world.”[30] Words and concepts that appear in historical sources often bear a superficial similarity to our own, but grasping what they actually meant in their original historical context requires first reconstructing the foreign conceptual world from which they issued. Keyword searches can never disclose this world (in fact, such searches presuppose that this world is immediately accessible and virtually identical to our own). But, as all historians know, bringing this world into focus requires a much deeper level of immersion. It requires a version of what is needed to decode early modern French cat massacres, crowd activity in eighteenth-century Britain, or early nineteenth-century New York ordinances on pig-keeping.[31] It requires taking up residence with the natives of the historical past, engrossing oneself in their logics, tracing the patterns made by their thoughts and meanings, and learning how to think and reason as they once did. In the case of the American Constitution, it requires knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have. It requires learning how to speak eighteenth century. It requires knowing how to think historically. It requires, in short, behaving like a historian.[32]

* * * * *

Historians should keep all of this in mind when Neil Gorsuch—the latest spokesman for Originalism 2.0—answers questions in the United States Senate about his interpretive approach to the Constitution. As citizens or interested residents, historians should ask whether originalism makes sense as a constitutional theory. But specifically as historians, they should appreciate that Gorsuch speaks for a powerful and growing intellectual movement whose goal is to decipher the Constitution’s original meaning and whose assumption is that historians have little to contribute to that enterprise. Champions of Originalism 2.0 assume they have escaped history because they fundamentally misunderstand what historians do. If, as historians, we fail to explain why this is misguided, unless we articulate and defend the value and applicability of our unique scholarly knowhow, then the discipline of history will be weaker for it. Because it would be hard to find a better example of the practical consequences of history than the practice of constitutional originalism. It is the stuff of power, in the deepest sense; and people’s lives are fundamentally impacted by the rulings made in its name. If those judgments are based, in part, on the interpretation of historical sources and reached through methods that violate historians’ accepted practices, then historians must respond. For this debate transcends mere method. It is ultimately about authority, legitimacy, and integrity—about who can credibly explicate the meaning of a historical text and why. And the answers to these questions impact the character of our civic culture. Historians should not cede the ground.

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.

[1] Regarding originalism’s endurance in the face of such pronouncements, see Jack N. Rakove, “Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism,” San Diego Law Review 48 (May 2011), 575-576; and Randy E. Barnett, “An Originalism for Nonoriginalists,” Loyola Law Review 45 (Winter 1999), 611-620.

[2] For an entry point to recent scholarship, see two prominent, oft-cited law review forums, “Symposium: Original Ideas on Originalism,” Northwestern University Law Review 103 (Spring 2009), 491-1006; and “Symposium: The New Originalism in Constitutional Law,” Fordham Law Review 82 (Nov. 2013), 371-826. For arguments that originalism pervades American constitutional culture and judicial reasoning, see William Baude, “Is Originalism Our Law?,” Columbia Law Review 115 (Dec. 2015), 2349-2408; and Randy Barnett, “The Gravitational Force of Originalism,” Fordham Law Review 82 (Nov. 2013), 411-432.

[3] The best historical account of the emergence of early originalism is Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore: The Johns Hopkins University Press, 2005); also see Daniel T. Rodgers, Age of Fracture (Cambridge: Harvard University Press, 2011), 232-242; and Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2008). The crucial early work that paved the way for originalism included, Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (Fall 1971), 1-35; William H. Rehnquist, “The Notion of a Living Constitution,” Texas Law Review 54 (May 1976), 693-706; and Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977). The term “originalism” was coined by Paul Brest in an influential law review article otherwise critical of the theory, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (Mar. 1980), 204-238.

[4] Edwin Meese, III, “Speech Before the American Bar Association,” in Originalism: A Quarter-Century of Debate, ed. Steven G. Calabresi (Washington, D. C.: Regnery, 2007), 47-54, quote 54.

[5] Brest, “Misconceived Quest for the Original Understanding.”

[6] For the leading work of constitutional history that explicitly engaged originalism, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996).

[7] Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America (Chapel Hill: University of North Carolina Press, 1999).

[8] H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review 98 (Mar. 1985), 885-948. Powell’s findings were subjected to vigorous criticisms from many sides. But, the merits of his conclusions withstanding, they played a profound role in recalibrating the defense of originalism.

[9] For the leading work of constitutional history that explicitly engaged originalism, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996).

[10] For a good compilation of early originalist arguments and criticisms, see Jack N. Rakove, ed., Interpreting the Constitution: The Debate over Original Intent (Boston: Northeastern University Press, 1990).

[11] On the rise of public meaning originalism and what has differentiated and defined it, see the recent introductions, Lawrence W. Solum, “What is Originalism? The Evolution of Contemporary Originalist Theory,” in The Challenge of Originalism: Theories of Constitutional Interpretation, ed. Grant Huscroft and Bradley W. Miller (New York: Cambridge University Press, 2011), 12-41; and Keith E. Whittington, “Originalism: A Critical Introduction,” Fordham Law Review 82 (Nov. 2013), 378-387.

[12] John M. McGinnis and Michael Rappaport, Originalism and the Good Constitution (Cambridge: Harvard University Press, 2013), 8. For other representative, influential definitions, see, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, updated ed. (Princeton: Princeton University Press, 2004; 2009), 393; Lawrence B. Solum, “District of Columbia v. Heller and Originalism,” Northwestern University Law Review 103 (Spring 2009), 952; Jack M. Balkin, Living Originalism (Cambridge: Harvard University Press, 2011), 6-13; and Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: West, 2012).

[13] Barnett, “Gravitational Force of Originalism,” 412, 415.

[14] On the “new originalism” and how it emerged out of so-called first-wave originalism, see Keith E. Whittington, “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (2004), 599-614; and Barnett, “An Originalism for Nonoriginalists,” 620-629.

[15] For examples of originalists who have clung to original intent, see, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University of Kansas Press, 1999)—although his account effectively bridges any difference between the two; Larry Alexander and Saikrishna Prakash, “‘Is that English You’re Speaking?’ Why Intention Free Interpretation is an Impossibility,” San Diego Law Review 41 (Aug. 2004), 967-996; William Michael Treanor, “Against Textualism,” Northwestern University Law Review, 103 (Spring 2009), 983-1006; Richard S. Kay, “Original Intention and Public Meaning in Constitutional Interpretation,” Northwestern University Law Review 103 (Spring 2009), 703-726; and Stanley Fish, “The Intentionalist Thesis Once More,” in Challenge of Originalism, 99-119. Public meaning originalists also divide over the issue of construction—the idea that certain portions of the Constitution are irredeemably ambiguous, vague, or indeterminate and thus must be given operative meaning by contemporary political actors. For more on the concept, see Keith E. Whittington, “Constructing a New American Constitution,” Constitutional Commentary 27 (Fall 2010), 119-138; and Lawrence B. Solum, “Originalism and Constitutional Construction,” Fordham Law Review, 82 (Nov. 2013), 453-537.

[16] In addition to those works cited in f.n. 13, for additional leading work see, Antonin Scalia, “Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” in A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman (Princeton: Princeton University Press, 1997), 3-47; Ronald Dworkin, “Comment,” in A Matter of Interpretation, 115-129; Akhil Reed Amar, “Intratextualism,” Harvard Law Review 112 (Feb. 1999), 747-802; and Lawrence B. Solum, “Semantic Originalism,” Illinois Public Law Research Paper No. 07-24 (2008), 1-173.

[17] For why public meaning originalism better accords with popular sovereignty, see esp. Scalia, “Common Law Courts”; Barnett, Restoring the Lost Constitution, ch. 2; and Balkin, Living Originalism, ch. 3. While a great deal of historical knowledge would be needed to elucidate other kinds of constitutional meaning—be it the document’s original intent (what the framers were thinking), original understanding (what the ratifiers were thinking), or original expected applications meaning (what either group thought would follow from the Constitution’s words)—hardly any of that knowledge would be needed, the argument goes, to discover original public meaning. Perhaps historical evidence might be found that a framer applied an idiosyncratic meaning to a portion of the text, but this subjective understanding cannot change the document’s public meaning. And because an average reader would not have had access to the secret proceedings of the Philadelphia Convention and most likely would have been separated by great distances (geographic and contextual) from the document’s authors, all that reader could have drawn upon was the text. See Vasan Kesavan and Michael Stokes Paulsen, “The Interpretive Force of the Constitution’s Secret Drafting History,” Georgetown Law Journal, 91 (2003), 1113-1187; and Lawrence B. Solum, “Communicative Content and Legal Content,” Notre Dame Law Review 89 (Dec. 2013), 479-519.

[18] Randy Barnett, “Another Oblivious Critique of Neil Gorsuch and Originalism,” March 14, 2017 Washington Post, available at: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/14/another-oblivious-critique-of-neil-gorsuch-and-originalism/?utm_term=.a532c13a1828.

[19] Hence originalists’ current fascination with corpus linguistics, see Solum, “Originalism and History,” 12-13; James C. Phillips, Daniel M. Ortner, and Thomas R. Lee, “Corpus Linguistics and Original Public Meaning: A New Tool to Make Originalism More Empirical,” Yale Law Journal Forum (2016), 21-32; Lawrence M. Solan, “Can Corpus Linguistics Help Make Originalism Scientific?,” The Yale Law Journal Forum 126 (2016), 57-64.

[20] Randy Barnett, “The Original Meaning of the Commerce Clause,” University of Chicago Law Review (2001), 101-147.

[21] For public meaning originalists’ multi-step method, see the tidy synopsis in Barnett, Restoring the Lost Constitution, 389-391, quote 390; and for a fuller explication, see Solum, “Semantic Originalism.” For more on “corpus linguistics,” or the searching of databases, see Solum, “Originalism and History,” 12-13. Public meaning originalists endlessly draw upon the language philosophy of Paul Grice, see, e.g., Solum, “Originalism and History,” 14, 25-27; Solum, “Intellectual History as Constitutional Theory,” 1129-1132, 1134-1136, 1137, 1151-1153, 1155; Barnett, Restoring the Lost Constitution, 390; Larry Alexander, “Originalism, the Why and the What,” Fordham Law Review, 82 (Nov. 2013), 540-541; and John Mikhail, “The Constitution and the Philosophy of Language: Entailment, Implicatures, and Implied Power,” Virginia Law Review 101 (Jun. 2015), 1069-1084, 1091-1097.

[22] See Solum, “Intellectual History as Constitutional Theory,” 1155-1158, 1163-1164; Lawrence B. Solum, “Originalism and History” (unpublished manuscript on file with the Virginia Law Review); and Barnett, “An Originalism for Nonoriginalists,” 621-622.

[23] Jack Rakove, “Tone Deaf to the Past: More Qualms About Public Meaning Originalism,” Fordham Law Review 84 (Dec. 2015), 969-976; Saul Cornell, “Originalism as Thin Description: An Interdisciplinary Critique,” Fordham Law Review Res Gestae 84 (2015), 1-10. Also see, e.g., Rakove, “Joe the Ploughman”; Saul Cornell, “Heller, New Originalism and Law Office History: ‘Meet the New Boss, Same as the Old Boss,’” UCLA Law Review 56 (2009), 1095-1125; and the recent forum, “Forum: Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning,” Fordham Law Review 84 (Dec. 2015), 905-976.

[24] For use of this label, see Barnett, “Another Oblivious Critique of Neil Gorsuch and Originalism”; Solum, “Originalism and History,” 27-29.

[25] “Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois G. Schwoerer et al. In Support of Petitioners,” District of Columbia v. Heller, 554 U.S. 570 (2008).

[26] District of Columbia v. Heller, 554 U. S. 570 (2008). Following the ruling, leading historians subjected the Court’s opinion to merciless criticism, see Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008), 625-640; David Thomas Konig, “Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, UCLA Law Review, 56 (2009) 1295-1342.

[27] See, e.g., Solum, “Originalism and History,” 27-29; and Barnett, Restoring the Lost Constitution, 397.

[28] Solum, “Intellectual History as Constitutional Theory,” 1155.

[29] These assumptions have become clear in a recent exchange between a historian and an originalist. For the historical challenge to originalist methodology, see 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; and for the originalist response, see Solum, “Intellectual History as Constitutional Theory”; and Solum, “Originalism and History.”

[30] Bernard Bailyn, Sometimes an Art: Nine Essays on History (New York: Alfred A. Knopf, 2015), 22.

[31] Robert Darnton, The Great Massacre and Other Episodes in French Cultural History (New York: Basic, 1984), 75-106; E. P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past & Present 50 (Feb. 1971), 76-136; Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law Review (1985), 899-935.

[32] For more on thinking historically and its relationship to originalism, see Jonathan Gienapp, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (Dec. 2015), 935-956.

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  1. I view the Constitution and religious texts (like the Bible and Qur’an) as those in which historical context MUST be taken into account. Example from the Bible is Proverbs 31 which some use to push the issue of stay home mothers. YET, the women in question wasn’t a “work at home mom” in the 21st century sense considering that culturally when written, you lived IN YOUR BUSINESS (not the other way around). This woman also bought land and managed servants. Clearly, she also had money, power, and responsibility well beyond “cooking and baby tending.” SO, if you don’t read the cultural along with this, you miss vital clues. So, too, is our Constitution. The Founders knew there would be needs for alteration over time. That’s why they created the AMENDMENT process. Amendment by definition is a change made by correction, addition, or deletion. Therefore, it IS possible (and always has been) to alter the document. HOWEVER, it was NEVER meant to alter in “real time” and without the approval of the governed. That is why I agree with originalism. Look to the original intent, see if it still applies, and if not AMMEND. Do not just say “that’s no longer applicable and go about your business of change because otherwise, the consent of the governed is circumvented entirely and that is VITAL!

    • The Constitution gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy” but says nothing about establishing an Air Force. Does that mean all American warplanes should be grounded until an appropriate amendment can be added to the Constitution? I think not. Original intent is an important consideration, but it must be tempered by recognition that the world changes over time. Who can doubt that the founders would have authorized an air force had they been able to envision such a thing? Another example is gay marriage, which is admittedly more of a stretch. The framers of the Fourteen Amendment almost certainly would not have sanctioned same-sex marriage even if they had been able to conceive of it. But here again the world has changed so much that I think original intent must yield to common sense. Now that the existence of gay people is recognized, they must be accorded the equal protection of the law.

  2. This essay seeks to elevate academic historians to a privileged position, to grant them a monopoly on “credibly explicat[ing] the meaning of a historical text,” without offering much in the way of justification beyond their “behaving like historians” and abiding by “historians’ accepted practices.” This is a dangerous appeal to technocratic partitioning of access to knowledge and claims of authority. Are there no limitations or alternatives to these behaviors and practices that could render them incomplete, flawed, or biased? Are such dutiful adherents capable of seeing such issues?

    This technocratic division, which saw the early church exercise control by limiting access to holy texts to the anointed priestly class, has exploded in modern times. Under the guise of inaccessible expertise, more and more fields of inquiry have sought to insulate themselves from common understanding and external criticism through just such appeals to special divining qualifications. Technocratic authority is a means of control through delineating acceptable thought and intrinsically shutting out challenges.

    With respect to historical study, a major issue derives from the fact that we are all inextricably chained to the present and to our personal worldviews and beliefs. This essay would have us accept that historians possess an ability to “bracket the assumptions, values, and logics that shape contemporary consciousness” through, in part, a “deeper level of immersion.” But how, and with what ballast? Immersion is no panacea for such issues; bias affects every step of the process. Nor are academic methodologies and tools a reliable restraint; they too are forged in the crucible of “contemporary consciousness.” I know many well-educated individuals who are deeply immersed in their personal bubbles of present-day politics with little outside perspective.

    It is misguided to expect a field as ideologically uniform as academic history to adequately control internally for group think and bias, especially when such problems are rife in ostensibly more objective scientific fields. For example, what percentage of academic historians support greater gun control laws? 95+%? At any rate approaching that, how can their collective Second Amendment scholarship be relied upon? Jurisprudence by ideologically-mired academic technocracy is no better than that by unelected, ideologically-driven judges.

    This is not to say that the work of historians has no value. Just as historians seek to understand history in its relevant contexts, their present-day efforts must be understood in their proper political, sociological, philosophical, and other contexts today.

  3. Ironically, I find Prof. Gienapp’s critique of originalism to be narrow and parochial. After all, history can be just as contested as language; the work of history does not get us any closer to truth than the study of linguistics does.
    The problem with public meaning originalism is not that it neglects the methods of historians. Rather, the main problem with originalism as a theory is that there often is no single or obvious public meaning of open-textured words and phrases like “equal protection” or “due process of law.” In reality, the public meaning of such words can still be open to interpretation because there were so many possible readers of the Constitution at the time the words of the founding charter were drafted and ratified. Those same words could have many public meanings, depending on the identity of who was reading them …

  4. This is from a group of people that can’t even explain the “Civil War” properly, yet they propose to lecture us on how the law works because “history”. It isn’t just wrong, it’s rude and obnoxious.

        • Pantless PhD on

          Can I explain the Civil War properly? Yeah. Southern states seceded to protect and expand chattel slavery. Northern states fought a war to preserve the Union. Said war effort was eventually linked to the end of slavery.

          Phew, that wasn’t hard at all!

          • Pantless PhD on

            But if you’re asking if I can bless your heart, sadly I can’t. I’m a pantless PhD, not a pantless priest.

          • Well, Congrats to you for being mostly correct, though clearly not omitting the part where Lincoln, against advice, used an act of war to goad the South into a war he thought he could win easily.

  5. What makes this diatribe simple diatribe is that the one leftist historian dissent is wrong on its face, because the plain language of the 2nd amendment, that “the right of the people to keep and bear arms shall not be infringed”, is 100% counter to their argument. The rationale is separate from the prohibition and the rationale for a law doesn’t limit the law itself. If they had wanted to connect it to militia, they would have said “the rights of militia members to keep and bear arms shall not be infringed”. Instead, they said “the people”. They knew what they were doing and nothing about their writing suggest they were as sloppy as the left thinks.

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