[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.
Will writes that “Gordon Wood’s remarks, while mixed, were much more accommodating than [Will] expected.” I agree with Will, that Wood was more accommodating than I expected, but still I have real problems with Wood’s remarks.
Most importantly, I can’t tell exactly what Wood is saying. One possibility is that he is saying that originalists (and law professors generally) use history to buttress their cases and therefore they can’t really be true to the history. But that’s ok, because the two enterprises differ. Historians are after truth, but law professors seek to persuade for political and legal purposes. For example, Wood criticizes Scott Gerber’s view that the Framers were committed to the separation of church and state, noting that there were many established churches and other interactions between church and state at the time of the Framing. But then Wood seems to excuse Gerber on the ground that law professors have different purposes.
Well, if that is what Wood means, I completely disagree. Good originalism should follow the actual history and the claim that the Framers were commited fully to the separation of church and state is simply bad history. Originalists are supposed to make accurate claims and I don’t want Wood making excuses for originalists on the ground, well, these lawyers have different purposes. Thanks, but no thanks.