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March 18, 2020|American Founding, Bradley Watson, Historians, Progressisivism, Straussians

Roots of a Revolutionary Ideology

by Richard Gamble|

If we broaden our perspective, we see that the Progressive movement was an effort to undermine much more than just the Declaration and Constitution.

October 11, 2018|consensus interpretation, Historians, original meaning, Originalism

An Important Difference Between Historians and Originalist Law Professors

by Mike Rappaport|

Linda MacPherson/Shutterstock.com.
Objectives in studying the past matter, because there is a difference between the historian's “what the past is telling us” and original meaning.

May 21, 2018|Historians, Madison's Notes, Originalism

The Importance of Experts

by Mike Rappaport|

The U.S. Constitution (Derek Hatfield / Shutterstock.com)
Debates among constitutional experts matter because these debates help shape broader opinion.

April 27, 2017|Historians, Originalism, the 14th Amendment

Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment

by Mike Rappaport|

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…

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April 21, 2017|Historians, jonathan gienapp, Originalism, Recess Appointments Clause

Historians and Originalists Part II: The Adequacy of Originalist Scholarship

by Mike Rappaport|

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…

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April 11, 2017|Barnett, Gienapp, Historians, Originalism, Ramsey, Solum

Historians and Originalists Part I: The Context of the Debate

by Mike Rappaport|

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…

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April 4, 2017|Historians, Mary Bilder, Originalism

Mary Bilder on Constitutional Originalism

by Mike Rappaport|

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…

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August 19, 2016|Changing Meanings, Executive Power, Historians, Originalism, Stable Meanings

Originalism, Changing Meanings, and Stable Meanings

by Mike Rappaport|

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…

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August 21, 2013|Historians, Originalism, Randy Barnett

Barnett on Historians and Originalism

by Mike Rappaport|

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…

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August 17, 2013|Historians, Originalism, Pauline Meier

Historians, Originalists, and Pauline Maier

by Mike Rappaport|

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.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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