With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.
The recent publication of Sometimes an Art: Nine Essays on History by Harvard Emeritus Professor Bernard Bailyn provides a welcome opportunity to reflect on Bailyn the historian and his contribution to the understanding of the 17th and 18th centuries. One cannot always trust the blurbs on the back covers of books, but in this case Jonathan Yardley’s judgment is no mere piece of puffery: “For approximately half a century, Bailyn has been the country’s most distinguished and influential scholar of the Revolution.” The one place where Yardley goes wrong is in limiting Bailyn’s portfolio to the American Revolution. It’s true that…
I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree.
On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.
In the forward to Founding Visions: The Ideas, Individuals, and Intersections that Created America, Gordon Wood writes that Lance Banning (1942-2006) was “no ordinary historian.” The essays compiled in this volume by Todd Estes, one of Banning’s most able students, make Wood’s remark abundantly clear. Known for his graciousness and kindness to students and colleagues alike, and for an unassuming and affable nature, Banning epitomized the idea of the gentleman scholar. These essays will remind readers of Banning’s continuing importance to our understanding of the Founding. For undergraduate and graduate students, they are testaments to how the historian’s craft should…