An Important Difference Between Historians and Originalist Law Professors
Linda MacPherson/Shutterstock.com.The Importance of Experts
The U.S. Constitution (Derek Hatfield / Shutterstock.com)Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand. In these cases, one might expect that the skills of the professional historian would be the most valuable. Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians. Instead, originalists have a made a large number of important advances in this area. Thus, even in the hard areas, one cannot dismiss the…
Historians and Originalists Part II: The Adequacy of Originalist Scholarship
In a prior post, I discussed some of the disagreements between historians and originalists. I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation. Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task. Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th…
Historians and Originalists Part I: The Context of the Debate
In recent years, there have been acrimonious debates – both formal and informal – between these two groups. Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented. Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is. It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences. Most of the historians tend…
Mary Bilder on Constitutional Originalism
There have been a couple of blog posts on Professor Mary Bilder’s op ed (link no longer available) on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis. I don’t mean to pile on, but there are some important questions that remain to be addressed. Mary Bilder is an important law professor who is also a legal historian. Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention. I should say that I have enjoyed Bilder’s work in the past. Her article on the Corporate Origins of Judicial…
Originalism, Changing Meanings, and Stable Meanings
One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time. In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed. Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken. If some originalists assume that word meanings were stable, then that would be an argument against those originalists. But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…
Barnett on Historians and Originalism
Given my recent post on historians and original meaning, I thought I would recommend a post by Randy Barnett covering the same subject. Randy summarizes the argument powerfully: Briefly, lawyers are experts in identifying the meaning of language in legal context; historians are not and, to their credit, don’t even try (unless they are submitting amicus briefs to the Supreme Court). In addition to describing past events, historians are particularly interested in explaining why what happened in the past happened, why people did what they did; as a result, they are very concerned with identifying motives, or other causal influences. Historians…
Historians, Originalists, and Pauline Maier
One of the continuing disputes that originalists have is with historians. Very few historians are originlists, and many have no respect for the enterprise at all. It is telling that Gordon Wood, some years ago, defended originalists by saying something to the effect, their theory is mistaken, but many of them are nice people. With friends like that . . . .
Historians often criticize legal scholars, including originalists, for doing “law office history,” by which they mean the legal scholars cherry pick historial information simply to support their case. This is sometimes true, even of originalists, but all originalists recognize that this is bad practice and criticize one another for doing so. Law office originalism is bad originalism, but that does not mean there is not good originalism.
Originalists, however, also criticize historians – for what originalists call “history office law.” History office law can involve a failure to understand and be careful about legal issues. But perhaps it most often involves a mistaken understanding of the enterprise of interpretation as practiced by originalists. There are various originalist methodologies and the differences are important. But to take just one originalist methodology, the original public meaning approach asks what the meaning of a provision would have been to a reasonable and knowledgeable person at the time. Historians often do not understand or apply this correctly. And they often make statements that originalists would strongly disagree with, without any strong reasons backing them up – statements such as, because there was disagreement at the time of the Constitution on a provision, that means there was no original meaning.
