The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Finally, there appears a criticism of originalism that is knowledgeable, and that summarizes fairly the object of its critique. The piece is Constitutional Originalism and History, a blog post by Jonathan Gienapp who "is an assistant professor of history at Stanford University [who] is currently writing a book that explores the history of the earliest understandings of the United States Constitution." I have a hard time trusting the narrative of historians who cannot describe accurately what's happening today. So, judging by his blog post, I look forward to Professor Gienapp's book, which seems very likely to accurately report the sources he has read.
Professor Gienapp's blog post is more than 3700 words (plus footnotes!), 2250 of which are devoted to describing the current state of play among originalists, especially what Keith Whittington has called the New Originalism, which Gienapp calls Originalism 2.0, and another 250 words for a conclusion. Although it is a bit caustic in tone, and I might generate a disagreement with a jot here and a tittle there, the theoretical summary is really very good and I commend it to readers. I believe it fairly quotes and cites my own work.
In this post, then, I want to focus on his critique of Originalism 2.0, which runs a mere 800+ words, and is worth reading in its entirety to preserve its original tenor and context. He begins:
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." 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?
While I generally accept Professor Gienapp's description of originalism, this is a bit of an overstatement. Indeed it overstates the very quote it includes from Larry Solum. True, to the extent historians-especially those who file amicus briefs-claim to be able to get inside the heads of historical figures and tell us how they would, and would not, apply the text of the Constitution to issues confronting the courts today, Originalism 2.0 challenges that idea. But, as Professor Gienapp notes, so too did the original critic of originalism, Paul Brest, the man who coined the label "originalism."
As well-summarized by Professor Gienapp, Brest "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? The same question applied to the nearly 1,700 Americans who gathered in the special state ratifying conventions." Indeed Professor Gienapp then tells us that historians too "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. And then there was the matter of the Anti-Federalists (the Constitution's earliest opponents); did their original understanding also merit consideration?"
So both Brest and these historians agreed: the search for some original framers intent was a fools errand because such a thing was impossible to recover. If this was right, however, then the only amicus brief that an historian can file is one that informs the court that original framers intention is impossible for historians-or anyone else-to recover. And yet, that is not how their briefs read. At a minimum, historians have been inconsistent on this. They often smugly contend that (a) recovering an original meaning of the text is impossible but also (b) let us now tell you what its original meaning really was, as only we can.
My own view is less extreme that Professor Gienapp suggests. I do think the techniques of historians are useful to investigate and reveal the original meaning of the text-provided that is what the historian is looking for. But I also think that more quantitative methods are valuable to screen out the cherry-picking of sources to which even historians can succumb. It was precisely to avoid cherry-picking that, in my University of Chicago Law Review article on The Original Meaning of the Commerce Clause, which Professor Gienapp cites, I surveyed every use of the word "commerce" in the Philadelphia convention, the Federalist Papers, and the state ratification debates. I then reported to the reader on any usage of the terms that even came close to supporting a reading of the word commerce that was broader than the trade and transport of things that had been produced by manufacturing, agriculture or husbandry. In a sequel article, I followed the same protocol with a survey of some 1600 uses of the term "commerce" in the Pennsylvania Gazette between 1715 and 1800. To my knowledge, no historian has contested my findings on the meaning of "commerce," and I would be very interested in reading anyone who has has evidence to the contrary. (As an aside, given the contemporary contestation of the meaning of that word, I fully expected the historical usage to have been similarly divided and was surprised at the uniformity of meaning I discovered. Given that my research methodology was transparent, anyone is free independently to examine the evidence for herself.)
What matters as much as the search tools-that Professor Gienapp calls the "how"-is the object of the search: identifying the communicative content of the text at the time it was enacted. While the hopes, fears, ends, objectives, agenda, and expected applications of the authors or ratifiers may be evidence of this meaning-as are the private papers that historians are adept at locating-identifying these hopes, fears, ends, objectives, agenda, and expected applications are not themselves the object of the inquiry. Professor Gienapp continues:
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. 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.
Here Professor Gienapp has it backwards: to the extent historians are adept at dispassionately assembling and organizing the relevant facts and offering "empirical knowledge," they and their methods are relevant to the inquiry into original public meaning, so long as this is what they are looking for, which is rarely the case for reasons that will immediately become clearer. Oh, and nonhistorian originalists have a pretty decent handle on what historians do. Certainly originalist historians know what historians do.
At this point a huge caveat is in order. It is Professor Gienapp who has invoked "all historians" in his call to arms against Originalism 2.0. It is he who is generalizing about historians qua historians. In contrast, when responding to this challenge, "the historians" I am criticizing are not all historians but the small subset of those who, like Professor Gienapp, claim a privileged access to the original meaning of the text, which they claim nonhistorians necessarily lack (again, for reasons that will soon become clearer). And I am also critical of those historians who assert that, because there is no original meaning, but only "'original meanings' in the plural," judges today are not constrained by the original meaning of the text. If you are a historian who does not fit this description, then in what follows, I am not criticizing you. Professor Gienapp continues:
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.
I agree that bracketing the assumptions, values, and logics that shape contemporary consciousness is important in seeking to understand the past. But, as a consumer rather than a producer of the works of historians, I must say that, when they venture into the constitutional arena, historians far too often fall short of this objective. Oddly, for some, the past never fails to disappoint their presentist ideological agenda. (A marvelous counter-example is the book Freedom National: The Destruction of Slavery in the United States, the thesis of which came as a complete surprise to its author, historian James Oakes. Oakes' legal analysis was also particularly astute for a nonlawyer. I spotted no errors.)
This is why I like to check their footnotes. I like to see for myself if they have successfully "bracket[ed] the assumptions, values, and logics that shape contemporary consciousness." But nowadays, such footnotes are often sparse, and are very general in what they do report. All too often we must take their narrative of the "alien, past world" on faith. And as the last paragraph makes clear, Professor Gienapp's explication of how history is supposed to be practiced shares a lot in common with those religions that require their laymen to take the biblical interpretations of their clergy on faith. Call this the vision of historians as spirit guides or priests.
Here is how the "money" paragraph of the critique begins:
No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage [me: and nonoriginalists like Paul Brest too! And the historians Giennapp tells us agreed with Brest!!]-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." 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).
This is false. The reason for "keyword searches" is precisely to avoid the sort of cherry-picking that constitutes "law office history"-the sort of cherry-picking to which historians, as humans, are sadly not immune. I seriously doubt that Professor Gienapp actually believes that "Keyword searches can never disclose this world" of word meaning in the past. I suspect this is incautious hyperbole. If he does, then maybe he can tell me what my "keyword" search of the word "commerce" missed, when it came to assessing what those who used that word in 1787 understood that word to mean. More importantly, though he mentions "corpus linguistics," I doubt he is familiar with how it works, or he would know how it can reveal the context of words usage in a way that simple keyword searches are hard pressed to do. But that's a subject for another time (and for others better qualified than me).
On the other hand, as I have explained, while some questions, like the meaning of the word "commerce" yields to keyword searches, other phrases, like the "rights…retained by the people," do not. As I discuss here, for these types of phrases we need other techniques. But, Professor Gienapp's error here is to dismiss modern research techniques into the empirical facts of word usage-techniques designed to reduce the bias in such research. He continues:
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. 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.
Back before I was an originalist, I disparaged the search for original framers intent to apply to present circumstances as "channeling the Framers" (a phrase Professor Gienapp puts in quotation marks, though without a source. Perhaps he got it from me). As in "Oh Framers, would you think that detecting increased heat emanating from a house was a 'search'?" This is not an empirical inquiry; this is a hypothetical thought experiment; it is quite literally a counter-factual inquiry. And it appears that, according to Professor Gienapp, this exercise and nothing as mundane as "empirical knowledge" is "at base" the "historians' expertise."
But the converse problem with this claim is that some historians seem to think they can investigate the meaning of legal terms and concepts in the past without any legal training. For this it helps to be a lawyer. True, some of the best legal historians do have legal training, but not all who opine on the "meaning" of the Constitution do.
If this does not seem immediately plausible, consider this: do historians think they can understand the philosophical arguments of thinkers in the past with no training in philosophy? Or, to be more specific, how well can a modern reader who thinks natural rights are "nonsense on stilts" truly understand the Founders references to and disquisitions on natural rights? For this, it helps to have philosophical training. Indeed, it also helps to believe in natural rights in the way the Founders did-to actually be a natural rights theorist-to appreciate the substance of their natural rights arguments. But, though I suspect most historians realize that they cannot fully appreciate philosophical arguments "by taking up residence with the natives," some apparently believe that they, and they alone, can recover the meaning of a law enacted in the Eighteenth Century when they would not be able to understand the meaning of a law enacted in the Twenty-First. That's either hubris or chutzpah.
Perhaps, in part for this reason, historians who opine on constitutional "meaning" or political argumentation (without legal or philosophical training) tend to avoid the substance or merits of legal or philosophical arguments made by their historical subjects and choose instead to focus on the hopes, fears, ends, objectives, agenda, and expected applications of historical figures, groups and movements. If all you have is an hammer, then everything is a nail. If all you have is the historical method-as defined by Professor Gienapp-then the meaning of "meaning" must be reduced to the import or purpose of a constitutional provision, not the communicative content of what it said.
Perhaps it is no surprise then that, in addition to trashing originalist lawyers-and, for that matter, originalist historians though he doesn't even acknowledge they exist-Professor Gienapp also trashes some philosophers of language, who he dismisses in passing as "a very narrow brand of philosophy of language with which originalists have become uniquely obsessed." Philosophy? Philosophy? Historians don't need no stinkin' philosophy.
To repeat, I do not wish to paint with too broad a brush. Some of the best legal historians do have legal training. And law is not rocket science. Some careful historians without legal training like James Oakes (as I noted above) and many others turn out to be good readers of legal texts. (It helps when their agenda is not writing amicus briefs to the Supreme Court to help decide constitutional controversies.) But neither is history astrophysics. It is possible for lawyers without PhD's like Columbia's Philip Hamburger or my colleague James Oldham somehow to pick it up and do creditable historical work.
On the other hand, a PhD historian like former-Emory professsor Michael Bellesiles can write a massive peer-reviewed book like Arming America, calculated to engage directly in the debate over the "meaning" of the Second Amendment, that was based on fraudulently-manufactured evidence. And before his fraud could be exposed, he had been awarded Columbia's prestigious Bancroft Prize. I can personally attest that it was no small feat to expose his fraud as academic historians sympathetic to the political implications of Bellisiles "findings" closed ranks around their colleague. In the end, academic historians and "peer review" did not discover and expose the fraud. That took a law professor and a nonacademic historian to do, over the staunch resistance of academic historians.
I raise this not to impugn the integrity of all historians, or even those academic historians who defended their colleague until compelled to yield, but merely to say that evidence matters, and nonhistorians with integrity can read this evidence without a PhD. And that "behaving like a historian" does not assure accurate conclusions. Neither does it assure that the inadvertant-or even intentional-inaccuracies of other historians will be exposed when the results of the historical method of immersion with the natives are politically welcome.
In his conclusion, Professor Gienapp is very clear about what he thinks is at stake in this debate:
[T]his 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.
"At base," to use his phrase, his claim is that only the priesthood of historians who have taken "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" can "navigate an alien, past world." Only historians, therefore, can tell us the meaning of our fundamental law.
Or-what may even be worse-these historians claim the authority of their discipline to insist that our Constitution has no "original meaning" but only "'original meanings' in the plural," so judges deciding cases today are free to do whatever they deem best. When historians claim the sole "authority, legitimacy and integrity" to deliver the message that judges today are therefore liberated from the text of the Constitution, I agree with Professor Geinapp: this is indeed "the stuff of power, in the deepest sense."
But to conclude on the note on which I began, I really do look forward to Professor Gienapp's book, Fixing the American Constitution: Language and Interpretation at the American Founding. Maybe he will even be willing to come discuss it with my students at my "Recent Books on the Constitution" seminar at Georgetown Law.