Originalism

Originalism and the Law of the Past

Steve Sachs and I defend originalism against charges of "law office history."

|The Volokh Conspiracy |

There is a well-known gulf between the way many originalist scholars and jurists think about constitutional law and the way many credentialed historians do. (This conference at the Stanford Constitutional Law Center a few years ago (1, 2, 3, 4, 5) is a great introduction.) Why do so many legal scholars rely on Founding-era history even when historians say they shouldn't? How can responsible legal scholars expect to find answers where historians find ambiguity and disagreement? And how can we apply any of what we find in the Founding era to today's legal problems, given that the basic facts of modern life would have been beyond the ken of even Hamilton and Madison and Jefferson?

In Originalism and the Law of the Past, a short piece forthcoming in the Law and History Review (a peer-reviewed history journal), co-author/co-blogger Steve Sachs and I try to provide some answers. Here is the abstract:

Originalism has long been criticized for its "law office history" and other historical sins. But a recent "positive turn" in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday's "no vehicles in the park" ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

And from the introduction of the piece (without footnotes):

In 2011, a federal appellate court rejected the United States's claim to own a parking lot on the Alexandria waterfront. According to the court, the plot in question used to lie in the Potomac riverbed, which was granted by Charles I to Cecilius Calvert in 1632 and then ceded by Maryland to the United States in 1791. Because it lay past the old high-water line, the plot remained in the District of Columbia after the rest of Alexandria was retroceded in 1846. At some point the reclaimed land was transferred to the Old Dominion Boat Club, which claimed title under Maryland's rules of riparian ownership—not as they stand today, but as they stood in 1801, when Congress fixed in place the law governing Maryland's portion of the District. "Thus," the court concluded, "despite the fact that the plaintiff is the United States, the defendant is a private club in Virginia, and the year is 2011, the district court correctly held that '[r]iparian rights within the District of Columbia are governed by Maryland law as it existed in 1801.'"

What is striking about this episode is precisely how ordinary it is, notwithstanding its unusual facts. Tracing a chain of title or a chain of legal authority decades into the past is normal lawyers' work. The kind of research necessary to adjudicate claims to riparian land in Maryland is also necessary to identify the scope of modern intellectual property rights, to interpret our civil rights statutes, and more. Courts solve today's cases through the application of yesterday's laws—not out of admiration for their ancient wisdom or fealty to the dead hand of the past, but simply because those old laws remain good law today.

Episodes like this one shed useful light on the debates over constitutional originalism. Much has been written about the special historical problems that originalism poses. Yet at its core, originalism demands no more of the past than ordinary lawyering does.

The recent "positive turn" in originalist scholarship takes the theory as a claim about positive law, something that varies from one society to another. Today's law is equally free to rest a claim to property on an old conveyance or this morning's bona fide purchase. Similarly, today's law is free to rest a claim to government authority on older legal instruments. An executive-branch agency might trace the authority of its regulation to a prior statute, which traces its own authority to a constitutional grant of legislative power to Congress. Determining the regulation's validity requires looking to what law that statute made in the past, which might in turn require looking to what power the Constitution vested in the past. Viewed in these terms, originalism is unexceptional, no different from our law of property: it simply reflects a decision by today's law to grant continuing force to the law of the past.

This brief article suggests that this form of originalism may help explain the proper domains of history and law. Whether and how past law matters today is a question of current law, not history. This may be easier to see in the case of property or statutes, but constitutional law is no different: giving current force to past rules is simply our way of allocating authority in the present.

To be sure, applying the law of the past requires knowledge of the past, and lawyers must often defer to historical expertise on the relevant questions. But we should also recognize that the legal inquiry is a refined subset of the historical inquiry. It looks to legal doctrines and instruments specifically, rather than intellectual movements more generally. It interprets these instruments in artificial ways, properly ignoring certain facts about their historical authors and audience. And when there is uncertainty, law also has various evidentiary principles and default rules that can give us confidence about today's law, even when yesterday's history remains obscure.

Applying this old law to new facts may seem daunting, even anachronistic. Yet here, too, originalism demands no more than ordinary lawyer's work. Deciding whether a "no vehicles in the park" ordinance forbids motorized wheelchairs and reviewing warrantless GPS searches under Founding-era trespass doctrines differ only in degree. Such reasoning is part and parcel of any system that treats prior rules, not as mere curiosities, but as current and operative law.

It's short, so if you're interested, please do (as we used to say in the blogosphere) read the whole thing!

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111 responses to “Originalism and the Law of the Past

  1. After the Belesilles scandal, I stopped having so much interest in what the historians had to say. The evidence that he was a fraud was ample BEFORE they gave him that award, and Emory never did acknowledge the full scope of his fraud.

    Too many historians are political first, and historians second. That provides some context to their complaints about “law office history”; “Law office” history is often just politically inconvenient history.

    1. Brett,

      Historians are actually quite ashamed of Belesilles. He was discussed extensively in Charles Hoffer’s “Past Imperfect: Facts, Fictions, Fraud American History from Bancroft and Parkman to Ambrose, Bellesiles, Ellis, and Goodwin” and John Weiner’s “Historians in Trouble” as well as my Issues and Methods and History Class in undergrad by my very liberal professor.

      Of course you already knew that. And you also know that you are not just taking one discredited ex-historian as an exemplar of the entire historical profession to bolster your pre-held beliefs and that
      your assessment of the entire historical profession is based on your own extensive archival research and mastery of historiography across all fields.

      1. Look, the problem with Belesilles isn’t Belesilles. The problem with Belesilles is that he was given the Bancroft award AFTER it was clear there were problems with his book.

        NOT before. After.

        Belesilles writing that book discredited Belesilles. The community of historians giving him a prestigious award for a book even interested laymen could tell had problems, and giving it to him AFTER people were pointing out problems with it, that’s on the community of historians, not him.

        The Emory investigation just underscored that, by ignoring the problems that were immediately obvious, (Like his altering widely known texts, or taking things seriously out of context.) and focusing like a laser on the probate data fraud, which could be argued to have slipped past reviewers.

        1. You’re correct that was a problem. A problem that the profession has reckoned with and continues to reckon with in the ensuing 19 years. You offer no useful commentary on the present state of the historical profession beyond this one politically charged incident. What is the last work you even read by a professional historian?

          It also is interesting that you single out the one related to a pet interest of yours, guns, rather than say Stephen Ambrose to discredit the profession.

          1. For a more recent example that follows the pattern almost exactly (she didn’t suffer the same fall from grace), take Nancy MacLean’s “Democracy in Chains”. Much of it was fictionalized writing about what “might” have happened, but flying in the face of actual historical evidence that was readily available to her on her own campus. She cut quotes apart with a scalpel and rearranged them to fit the narrative. She has been excoriated by writers, especially economists and historians, for her ideologically motivated and fraudulent writing. Much of the book consists of trying to paint Buchanan as a segregationist but the few things he had written on race point to exactly the opposite.

            She claimed a Koch conspiracy was intent on disparaging her book and refused to interact with any of her critics. Then Democracy in Chains, already roundly refuted, was announced as a finalist for the 2017 National Book Award. It thankfully didn’t win but she also didn’t plummet like Belesilles.

            1. She has been excoriated by writers, especially economists and historians, for her ideologically motivated and fraudulent writing.

              How is this a reason to criticize historians?

              1. It’s not and I didn’t say it was? It’s a response to “You offer no useful commentary on the present state of the historical profession beyond this one politically charged incident.” This incident is recent and shows that historians aren’t always getting the push-back they deserve from the community. It’s not just left-wing authors. Lost Cause historians are just as tolerated, though at least they aren’t as respected.

            2. This is a good point, and I’ll have to look into how the profession is responding to her book some more.

              1. I think part of the problem is that quite a few subjects are pretty insular or niche. The problems that do happen just aren’t visible enough and they stay confined to academia. Hoaxters often write about contentious political issues so they get more attention.

                In this case, there are a rare few historians who aren’t also economists who would be at all familiar with Buchanan and his theories in connection with the goings-on of the Kochs. She thought that gave her wide latitude to write whatever she wanted, but it turned out there are a good number of economist-historians.

                I don’t know why she didn’t see professional difficulties like previous bad authors, though. It’s a complete mystery to me. It could have something to do with it being niche and that historians who are interested already lean pretty far left and wouldn’t want to dwell on it.

                1. It also could be we will never know the full extent of the professional criticism, “on the ground” at universities. How many historians assign it in their classes? Or only assign it for the purpose of looking at it through a critical lens? What are they saying in graduate seminars? What do they tell students (or others) who ask about it the criticisms they don’t have they don’t have the time to write or publish?

                  It’s like with Jared Diamond (who is not a historian by training, but I think is a useful example from my experiences). Pretty much every history professor has an opinion on him, but the vast majority won’t ever publish it in any way.

            3. I doubt gormadoc has read Democracy in Chains. His own account of the criticism is badly flawed—although on point about excoriation, it fails to note the intensely partisan character of the critics. Nor did MacLean fail to reply. Her reply to one of her leading critics garnered a partial apology, and an admission that the critic had read very little of the book.

              And MacLean proved beyond any possibility of doubt, from Buchanan’s own archives, that Buchanan, at a critical moment in the Virginia schools crisis, offered to take sides with some of the worst segregationists in the nation. The only defense possible is a wan supposition that although Buchanan was not himself a racist, he was ready for opportunistic professional reasons to make common cause with racists, and offer his work as a means to promote racism—which he did. Whatever other comments Buchanan may have offered on racism have to be weighed alongside that, not without mention of it.

              I note this as someone who also criticized MacLean, principally for her unorthodox citation methods, which did amount to a sufficient flaw to warrant skepticism about whether she had her story straight in every particular. But at least I did read the book.

              1. If you’re talking about Russ Roberts then you’re absolutely mischaracterizing everything about the exchange. This is the apology: “Perhaps I misinterpreted your line that Buchanan didn’t “start out as a shill for billionaires.” I took that to mean that he ended up as a shill though he didn’t start out that way. If you meant something else, I apologize.” No mention of not reading the book and certainly not an apology for criticizing MacLean. As far as I know that’s the only substantive response she gave to anybody that wasn’t just “you don’t know what you’re talking about.” The non-substantive response was to whine on Facebook and to a website about the criticism as Koch-directed. I do know that she refused to talk to Mike Munger, a public choice expert who is on the same campus and had offered to debate her on Buchanan.

                She definitely did not prove anything about Buchanan promoting or advancing racism. He supported school vouchers, yes, but Charlottesville segregationists (which is where he lived) thought that school vouchers would destroy segregation. He wasn’t in any way “aligned” with those people. Nothing else she presents even somewhat ties him to advancing racism. It’s all half-assed smears and frenzied gesticulating at the fact that some racists lived in Virginia, both at the time and a century ago, so Buchanan must also be racist.

                The greatest irony? Now we can actually test the racial integration before and after school vouchers in districts that have implemented school choice. It turns out that it does increase integration, just as Buchanan predicted.

          2. Ambrose and Goodwin dinged for plagiarism, Bellesiles and Ellis for making stuff up. It’s like walking a tightrope between inventing too little and inventing too much.

            1. “Ambrose and Goodwin dinged for plagiarism, Bellesiles and Ellis for making stuff up. It’s like walking a tightrope between inventing too little and inventing too much.”

              I’d think that anyone who has too much difficulty — in either direction — with accurately citing sources shouldn’t be in academia. It’s not a tightrope, it’s just a straight line.

    2. If we take history as a record of human activity, then the only true historical source is the individual him/her/themself (and even then memories aren’t perfect).

      Once they dead then everything is up to interpretation.

      Data, facts, and context will always be incomplete.

    3. Brett, do you feel the same way about John Lott?

      1. Lot’s got some problems, sure. But I never caught him altering the words of publicly available documents.

        1. You never caught Belesilles either. The fraudulent nature of the probate records was ultimately uncovered by other historians, Stanley N. Katz, Hanna H. Gray and Laurel Thatcher Ulrich, after other critics noted the discrepancies.

          1. Look, as I remarked above to you, Emory focused on the fraudulent probate records because they could at least make the case that their fraudulent nature wasn’t immediately obvious. Focusing on that gave them an excuse for the award.

            But it wasn’t just fraudulent probate records. The immediate controversy concerned quotes and public documents that Bellesiles had rewritten. I’ve got a copy of Arming America on my shelf, I’ve read it, and I couldn’t get more than a few pages into it before my first WTF moment. I’m just an interested layman, and I could see that he was getting quotes wrong.

            For instance, he rewrote the 1792 militia act, to remove the language commanding that citizens provide themselves with arms, and replace it with a statement that Congress would do so.

            You can hardly find a page in the book that doesn’t have some similar problem. I find it hard to believe professional historians simply failed to notice mistakes laymen could spot.

            1. And again, historians have been reckoning with it that last 19 years. Hoffer talks about their political blind-spot that probably delayed a more vigorous response in his book.

              This scandal, while damaging, does not completely discredit the historical profession any more than Andrew Wakefield completely discredited all of medicine.

              What’s going on is that for various reasons you want to believe all historians are wrong because accepting the profession’s descriptions and explanations of the past would make you question your assumptions about the present and your place in it. It might make you face uncomfortable truths about the world you live in and how you came to occupy your place in it.

              “Michael Bellesiles was a fraud, so now I don’t have to have to grapple with what other historians say about slavery, race, the Civil War, the Revolution, Reconstruction, party realignment, the New Deal, human sexuality, etc.”

              Of course, you’re probably perfectly happy to trust historians on topics that you don’t currently have strong opinions about. I imagine I could give you a book on the history of Chinese piracy by a professional historian and you wouldn’t reject it’s findings because of Michael Bellesiles, even though they’re trained the same way as the rest.

              1. It adjusted my default. Don’t talk about “law office history”, show me where the history is wrong. I no longer assume historians are a better guide to history than anybody else, I know they can be worse in some cases.

              2. YOU ARE ARGUING WITH A BIRTHER.

                1. Which one? 🙂

            2. Brett, is it possible that you are spotting “mistakes” about guns which you are attuned to spot, because you have expectations (but not historical knowledge) about what history should show about guns? So if a professional historian reviewing the historical record found the colonial era surprisingly thin on gun references, and said so, you might find that to be obviously mistaken, and a discredit to the history profession?

              Reason I ask is because professional historians are far better than average at discarding preconceptions about what they are going to find in the record. As a result, the best of them show a talent for being surprised, and at recognizing when a surprise looks interesting. So if almost everyone in the world thinks the colonial era was awash in guns—including some professional historian looking into a work which says otherwise—that guy is not going to react the way you do—by being outraged his preconceptions were not satisfied. In a historian, that is a strength, not a weakness.

              I am pretty sure from your comments that you suppose Bellesiles is not only disgraced, but debunked. From what I saw, after looking into it a bit, his most pointed critics seemed to presume that after they had shown Bellesiles was a cheat, they had also proved his hypothesis was false.

              But in what I read from the critics, no one ever showed me convincing evidence to prove that. Plenty of evidence to show Bellesiles cheated, and disgraced himself as a scholar, but little or nothing except the screw-ups to show he was wrong.

              As far as I know, Bellesiles’ hypothesis, the theme of his book which so outraged his pro-gun critics, is for now unproven by Bellesiles, and un-debunked by his critics. It may still prove true someday. But good luck getting any professional historian to go there—probably at least for decades.

              1. “Brett, is it possible that you are spotting “mistakes” about guns which you are attuned to spot, because you have expectations (but not historical knowledge) about what history should show about guns?”

                You need to understand that the actual historical knowledge is pretty widespread, due to books such as Halbrook’s “The Founders Second Amendment.” A lot more people than you’d expect are able to recognize when somebody has rewritten the 1792 militia act, or some relevant quote from Washington, though they might not have access to old probate records.

                And, yes, Bellesiles hasn’t just been proven a fraud, he’s been debunked. He didn’t alter quotes for the fun of it, he did it because the quotes didn’t support his thesis. Ditto for his other frauds. It wasn’t a matter of the evidence being lacking, but rather of it affirmatively refuting his thesis.

                1. No, Brett. An unsupported historical thesis is not a debunked thesis. Not in the least. It is a thesis you can’t publish, and be a respectable historian. But it remains an open question.

                  It could have been, and seems in this case to have been, a goad to desperation for Bellesiles. I think he had set out with what he took to be a useful hypothesis about colonial era gun culture, and thought he could rely on probate records to prove it. But found as he went along, no way. Then he started misbehaving.

                  There are all kinds of reasons why that could happen, some of which I could have predicted for him—the big one being there are good reasons to suppose probate records would not amount to a useful gun census. You can’t assume guns were uniformly distributed among classes. That would be an interesting finding, if you could prove it, but you can’t prove it with probate records. Probate records from that era do not uniformly sample classes. Nor are probate records comparably representative across various locations.

                  Plus which, it would be logical to suppose that in some instances, especially where hunting figured heavily in family subsistence, the gun would never make it to probate. It would be handed off first to someone fitter and better able to hunt with it, years before the guy in declining old age actually died. But in other cases, where family subsistence wasn’t similarly gun dependent, and fitness didn’t matter as much for gun use, the gun would stick around to become just another asset in the estate. It is easy to imagine how that, too, could have been a class-affected phenomenon. So for use as a gun census, you ought to expect probate records to be a snarly mess.

                  Note: that that means would-be Bellesiles debunkers who rely on probate records for counter-arguments, as at least one has done, are in the same pickle he was in.

                  Full disclosure. The objections I offer to probate records as a source are not something I just put together now. I was nearly Bellesiles, decades before he went to work. In 1972 I was doing history graduate work on colonial subsistence, work which would have been helped along by better insight into some of the questions Bellesiles set out to answer, about the availability of guns, and the frequency of gun use. It occurred to me, too, to check probate records. But a bit of discussion in my graduate seminar turned me away from that dead end street before I went down it, largely for the reasons I just mentioned.

                  As for Halbrook, please. The guy is paid by the NRA. He is not a historian. No matter how distorted a picture of historical gun use he presents, he will not suffer professionally for any distortion, unless he displeases the NRA and its members. The likelihood is that he is just Bellesiles in the other direction—but with even fewer historical tools than Bellesiles. That said, I haven’t read the book you mention, so I am going to get a copy and see if Halbrook can turn me around. I’ll let you know.

                  1. The guy is paid by the NRA. He is not a historian.
                    I assume these are independent assertions, there is no reason a historian couldn’t be paid by the NRA.

                    1. Why would they want to?

                    2. VOR, I did intend them as independent. To be a gun advocate paid by the NRA to reach NRA-friendly conclusions is one kind of disqualification for doing dispassionate analysis of gun history. To be untrained in the methods of history is a different kind of disqualification.

                      If it were plausible that the NRA would hire a professional historian to do dispassionate historical analysis on gun history, then, yes, there would be no reason not to do that—but that would require a different NRA, with a different past, than the one that exists.

                    3. ^This

                  2. “An unsupported historical thesis is not a debunked thesis.”

                    A debunked historical thesis, on the other hand, IS a debunked thesis. Remember, Bellesiles didn’t just invent stuff to support his thesis, he altered records that contradicted it.

                    “As for Halbrook, please. The guy is paid by the NRA. He is not a historian. ”

                    And yet, somehow he managed to get the text of all those quotes right, and Bellesiles was the one who altered them. Somehow he didn’t have to invent stuff, and Bellesiles did.

                    Strange, that. Almost like the historical record itself agreed with Halbrook’s position, and contradicted Bellesiles’. Almost like you can be a paid shill for the truth.

                    1. Brett, the NRA is grateful to have you in its pews, to beg questions in prayerful unison with other congregants.

                      I don’t pretend to be expert on colonial era gun questions. But I have some. If there was such a vigorous colonial gun culture prior to the revolution, why was it that the colonial militias showed up for their first major fight, at Bunker Hill, without enough gunpowder to finish the battle? Why, during the first year of the war, did the congress have to dispatch a raiding party to Bermuda to pillage a powder magazine there? Why was there only one powder mill in the entire would-be nation—a mill with a capacity to turn out only ~25,000 pounds total during the first two years—while Washington, with a war to fight, was struck dumb at being told he had powder reserves sufficient to issue only 8 ounces per man?

                      Those are facts of history which hint at a complicated story. Maybe someone among gun advocates has already answered them. However they are answered—and gunpowder imports from enemies of England will certainly be part of the answer—the fact of a pressing gunpowder shortage that dogged colonial armies throughout the war is (maybe rebuttable) evidence against a robust and thriving domestic gun culture before the war.

                      More suggestive (and maybe rebuttable) historical evidence? When the duPont powder mill opened, long after the revolution, in 1802, it quickly came to dominate what is described as a weak domestic industry, which had been turning out gunpowder in such small quantities, and of such inferior quality, that it couldn’t even be used by artillery. That was the state of affairs even after the war. Wasn’t it part of Bellesile’s thesis that American gun culture didn’t really get rolling until the 19th century?

                      That gunpowder problem is an example of how historians try to resolve questions by investigating facts in the historical record. If you want to actually rebut Bellesiles, that is the kind of research that will do it—or not. There are many similar lines of inquiry which could both raise and settle related questions.

                      Just insisting that Bellesiles was dishonest—although a point everyone concedes—is beside the point. It gets you this far, and no farther: Bellesiles did not prove his thesis. Rebutting it will require much more historical work than just impeaching Bellesiles.

                    2. Scalia confirmed all the common gun regulations which existed at ratification, when he confirmed the limited weapons protected by 2A, in Heller, by confirming US v Miller (1939). NOTHING drives NRA puppets crazier!! 🙂

        2. So some kinds of misrepresentation are OK, if a gun guy does it?

          1. Lott is also an economist, not a historian. Brett thinks that historians are the problem.

            1. It’s a different class of error.

              Economists tend to have data gathering bias so that when they perform their analysis it’s biased towards a specific type of result. Climate scientists do the same.

              Historians (apparently) tend to have a make-stuff-up or ignore-the-expert-down-the-hall so I can get my desired result bias, though my area of expertise is closer to climate science, so that’s just what appears to be the case, and I’ll defer to an actual expert in the field.

              While these may appear to yield the same end result (papers that support the authors original biases) they’re actually quite different, especially in the ability of outsiders to catch.

              I can see the errors in Lott, because I can just do the math myself. I can’t see the errors in Maclean because I don’t have enough foundational knowledge – some of her claims were surprising, but not obviously wrong to someone not versed in the field. They were obviously wrong to those versed in the field though.

          2. The only actual “misrepresentation” of Lott’s that I’m aware has been proven was his use of a sock puppet online. Which, yeah, was embarrassing, but nothing on Bellesiles’ scale of fraud.

            1. And the time the dog ate his data?

              1. I don’t believe anybody has proven that he didn’t lose that data, that the computer crash happened has been confirmed by other people.

                The sock puppet activities, on the other hand, are genuine.

                1. Brett,

                  Let me surprise you by saying those letters defending Lott are quite impressive.

                  I was especially interested to see the ones from Jon Karpoff, a former teacher of mine for whom I have considerable respect.

                  1. Glad to hear it. For my part, I find his sock puppet activities highly embarrassing. But, feet of clay, and all that. You work with the allies you have, not the allies you wish you had.

                    I think the worst that’s been legitimately said of Lott’s research, as opposed to his sock puppet activities, is that the statistical significance of some of his results is kind of low.

                    But that itself is a profound finding. Going from “Blood in the streets!” to, “We’ll, it might actually be beneficial, but the effect is too small to prove one way or the other.” is a big, big move. It gets you from a valid basis for restrictive laws, into the realm where the presumption of liberty ought to prevail.

                    1. Two other issues:

                      Were there not also some errors in his coding of the data, which, when corrected, reduced the strength of his results?

                      I have read that when his model was used to predict crime rates in times subsequent to his study period, the results were quite different from those of the study period. For a statistical study, this is bad.

  2. You cite Jefferson, who detested originalism. Strongly. Very strongly. As authoritarian. In a lengthy letter to Madison (he was in France at the time.

    Consider. If governments derive their just powers by consent of the governed … then what would he say about consent of long-dead?

    He said that NO generation should bind a later generation to debt. Today, he’d not say we’re passing debt on to our children. He’d likely say were were …increasing their taxes, without a vote. All borrowing should be repaid within 20 years (a generation)

    That’s the easy part. He also argued for a constitutional convention every 20 years. By what right do we bind later generations to ANY form of goverment? He described what we have now as “government by might, not right.”

    That doesn’t necessarily mean an entirely new government. It means CONSIDERING our entire government. And securing consent by every generation.

    What could possibly be more libertarian? Even Ayn Rand placed consent of the governed at the very top … for a society.

    1. That’s not opposition to originalism, which is an approach to determining MEANING. His position was that the constitutional text should be subject to frequent amendment, not that it should remain unaltered, and simply be subject to having future generations of office holders pull new meanings out of their asses.

      1. A complete rewrite is not an amendment. And his words are quite clear. “Consent of the governed.
        “The earth belongs to the living.”

        That’s what it means to oppose a perpetual constitution — the goal of the constitutional convention because the Confederacy was obsolete in 19 years … and totally replaced. IOW, why should THAT generation be the only one to do a complete redo?

        Originalism is interpreting the text as it was interpreted at ratification — when Jefferson argued the entire text could be thrown out. As the Confederacy had been.

        1. Isn’t that an argument FOR originalism though?

          When through the passage of time the constitution no longer meets the needs of the people, it should be thrown out and replaced with what does? Which implies a text whose meaning is fixed but whose utility is not.

          1. Good point! I’ll suggest that’s true for a generic meaning of “originalism.” Here, “original intent” refers to what the Founders intended.

          2. Exactly. Jefferson just believed in frequent amendment. NOT living constitutionalism.

            1. Exactly

              Wrong. I already corrected you. Those are not the only alternatives. And we independents ignore tribal squa

              1. “… We independents ignore tribal squabbles, left vs right.” Here, neither can be justified ,… to either Jefferson or Rand. Left and right are both authoritarian here, by rejecting Consent of the Governed and Will of the People.

  3. Sorry, I forgot a link to Jefferson’s letter. I’ll also cite the key parts.

    His conclusion, letter to Madison from Paris

    Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.

    The question Whether one generation of men has a right to bind another …-I set out on this ground, which I suppose to be self evident, “that the earth belongs in usufruct to the living”: that the dead have neither powers nor rights over it. … the rights of the whole can be no more than the sum of the rights of the individuals … no generation can contract debts greater than may be paid during the course of it’s own existence.

    They derive these rights not from their predecessors, but from nature.

    On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please.

    This principle that the earth belongs to the living, and not to the dead, is of very extensive application and consequences.

    1. The question Whether one generation of men has a right to bind another …-I set out on this ground, which I suppose to be self evident, “that the earth belongs in usufruct to the living”: that the dead have neither powers nor rights over it. … the rights of the whole can be no more than the sum of the rights of the individuals … no generation can contract debts greater than may be paid during the course of it’s own existence.

      Well, that’s interesting, but doesn’t actually make much sense. People aren’t born in cohorts once every twenty years. They are born and die every day, every hour. So this distinction isn’t very logical.

      Exactly what do you propose as a policy to implement this idea?

      1. A generation is 20 years, by definition. And everyone does not have the same 20 years in their personal generation.

        Exactly what do you propose as a policy to implement this idea?

        A constitution is not policy. We’d have to amend the constitution to have a new convention every 20 years.

        A new constitution might require that all new debt be repaid within 20 years, and a much longer schedule to eliminate the entire federal debt (which Trump promised to do in only 8 years). I’d also hope for a 2/3 vote in Congress for
        a) All “lifetime” federal judges (who interpret the Constitution, which requires 2/3 to amend)
        b) All major legislation — especially taxes, spending and the budget, (Partisan tribalism is now a severe threat to the republic)

        Overall: Only voters can possibly, ever drain the swamp.

        1. It most definitely is not 20 years by definition. Otherwise we couldn’t do experiments on evolution using 200 fruit fly generations in four years. It also isn’t usually 20 years in humans: some developing societies have generations of less than 20 (Niger) and some highly developed societies have generations up to 30 (Japan). The US is at 26 now. Most are 22-24.

          And why divide it at a generation? Why not every two generations or every half-generation? I’m a late-half millennial – I don’t want early millennials controlling anything, much less the Constitution. That’s just inviting the hipster menace to reemerge.

          1. Jefferson was stupid? There are two definitions for generation. You cite the meaning for a species or family, which is only the first one below

            https://www.merriam-webster.com/dictionary/generation
            generation noun
            gen·er·a·tion | \ je-ne-ra-shen

            a: a body of living beings constituting a single step in the line of descent from an ancestor
            b: a group of individuals born and living contemporaneously
            the younger generation
            c: a group of individuals having contemporaneously a status (such as that of students in a school) which each one holds only for a limited period

            Which has nothing to do with Jefferson’s point. I did say he equated it with the 19 years before the Confederacy became obsolete.

            I don’t want early millennials controlling anything, much less the Constitution.

            They would never be close to a majority at any given time.

            1. You’re moving from 20 years to match Jefferson’s 19 years, which he doesn’t actually define as a “generation”? He’s referring to (b) in your definition, as in all of the citizens of the US alive at the time. He’s not even saying that there is a natural and absolute demarcation at 19 years. The reason he chose 19 is based on mortality rates for 21 year olds in 18th century France, which are abominable compared to modern standards and weren’t even good at the time. He expected half of all 21 year olds to die by the time they’re 40! From the SSA for 2015, life expectancy for 21 year olds is now 56 years, for a total of 77 years. That’s a nearly three-fold increase in generation length according to your definition.

              The point about early millennials was mainly a joke, although I do think their politics are (on average) worse than my own. Of course, everybody thinks that about any conceivable grouping of other people.

              1. He says generation in his quote, AND says 19 years!
                Like I said, he used 19 years to equate with the life of the Confederacy then, but changed to 20 years in later writing.

                Do you have any comments relevant to his proposal? Anything at all?

                1. You don’t understand that it’s not actually correlated to the modern meaning of generation as 20 years. He only used that as the life expectancy of a 21 year old in 18th century France, assuming that it would hold across the Atlantic, which almost certainly wasn’t true anyway.

                  His proposal is bad. It ties law-making to arbitrary time-spans that come out of likely-wrong statistics not even relevant to the American situation. If you were to actually follow the genesis of his idea, you would tie the Constitution to a rewriting every 56 years. The fact that it depends on the magnitude of disease and healthy eating in a population is nonsensical. For very bad societies you would spend as much time writing constitutions as dealing with the problems!

                  We’ve even seen the effects of constitution writing based on cohorts. Failed African and LA states rewrite their constitutions every 20 years based on populist movements and continue to be failed states. Anglophone, northern European countries, and Japan do very little constitution-writing (for ourselves) and are still the most successful and stable countries. It turns out that when you remake law whole-sale in a predictable fashion that it’s easy for bad actors to capture it and take power for themselves.

                  1. So you indeed think Jefferson was stupid. And you reject the founding principle that government derives its just powers from consent of the governed

                    And

                    We’ve even seen the effects of constitution writing based on cohorts.

                    That would incude ours!
                    So you defend our Constitution, but reject the founders who created it … along with rejecting consent of the governed.
                    Thanks for confirming my mere assumption of your authoritarian nature.

                    My daily limit for picking nits has been reached …

                    1. Otherwise smart people can have bad ideas. I think most of the Founders were smart but clearly they couldn’t all have had good ideas, as they disagreed on such fundamentals as the Bill of Rights, a possible monarchy, or having any Constitution at all

                      I have no idea what you’re on about with “consent of the governed.” Even if you govern based on only the living citizens some won’t consent to anything. A cohort could easily change the system so that the next cohort doesn’t get to choose anything anyway, so there isn’t really any teeth to your assertion.

                      The Founders who actually wrote the Constitution (Jefferson did not participate) did not write a constitution solely about the problems of their time. Jefferson’s view aside, they clearly wrote a constitution for the future to abide by, able to be changed if needed but eternal. Courts have held this for a long time and it was the clear backdrop of the Civil War. It wasn’t ever meant to be completely rewritten. James Madison certainly felt that way and he actually helped write it: https://founders.archives.gov/documents/Madison/01-11-02-0131

                      Do you think James Madison is stupid?

                    2. .

                      I have no idea what you’re on about with “consent of the governed.”

                      That’s from the best-known phrase in the Declaration of Independence!
                      So you again confirm your authoritarian nature.
                      And again change your “argument.”

                      You keep defending “consent of the long-dead,” in direct conflict with individual liberty. On a libertarian web site.

                    3. Gormadoc, I suggest you misunderstand both Jefferson and Madison. Consider instead that the notion of the rule of the present generation was not for Jefferson an actual, time-limited formula. Instead, it was a metaphor, which Jefferson used to clarify the fundamental question around which the revolution was contested—the question of America taking on a sovereignty separate from that of Britain, and inventing a novel way of being sovereign into the bargain.

                      As the Declaration makes plain, that was the organizing principle on Jefferson’s mind when he drafted it. And that novel new kind of sovereignty—joint popular sovereignty shared by a nation’s subjects—came with an implication which Jefferson’s generational metaphor brought to the fore—that it was mistaken to assume but a single, original sovereign generation. What the founders could do, so could others at any future time. The Declaration Jefferson wrote says that, in so many words:

                      “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

                      The misunderstanding of Madison lies in supposing he thought otherwise about sovereignty than Jefferson. They were largely on the same page, along with co-founder James Wilson, who was Madison’s ally at the constitutional convention, and who may have been the best educated political philosopher among the founders. Wilson wrote clearly about sovereignty, and used his opinions to illustrate why the constitution was not a final and perpetual authority over the American people.

                      So probably the best way to interpret Madison’s remarks in the letter you quoted is to frame them as an admonition that in ratifying the constitution, the states could reserve no power to subsequently set the constitution aside. Because that power of establishing sovereignty or setting it aside did not belong to the states. That power belonged only to the We the People, the nation’s actual sovereign.

                      That sovereign—and not the states—had authored the constitution, which was the sovereign’s decree to rule over the state governments, and over the federal government. Madison had worked hard at the convention to set things up that way, especially by insisting against opposition that state conventions, and not state legislatures, would be the ratifiers—and thus keeping the sovereign constitutive power entirely in the hands of the People. That was not the action of a statesman who intended to make the erstwhile sovereign permanently powerless, as your comment implies.

                    4. Wrong on Jefferson. He explicitly argued for a new Constitution every 19 years. With reasons NOBODY here has been able to rebut. Because “Will of the people” is not will of the log-dead.

                      And I linked to the proof.
                      https://reason.com/2019/06/07/originalism-and-the-law-of-the-past/#comment-7811350

                      The Constitution is yet another example of both left and right being equally authoritarian (the living constitution crowd and the originalists)

              2. He’s referring to (b) in your definition,

                I appreciate your retraction.
                (It’s not my definition)

                1. English has no body that decides definitions. You supplied this definition and support it, therefore it is yours. No retraction is forthcoming.

                  1. No retraction is forthcoming.

                    You already retracted, by changing to definition “b” — after I proved you wrong that only “a.” exists … as confirmed by the thread, in black and white.

                    English has no body that decides definitions.

                    Dictionaries do that, not individuals and certainly not me. Dictionaries differ. I cited Merriam-Webster (check the link) to prove you wrong by their definition.
                    And you’ve admitted your error that “a” is the only definition, after I provided proof.

                    Are you related to Trump?

          2. As an early millennial, you’re wrong. It’s you youngsters who are ruining the world 😉

            1. Would we call this a ….. generational squabble? 🙂

            2. Hey, we didn’t bring hipsters into this world.

        2. eliminate the entire federal debt (which Trump promised to do in only 8 years)

          And some idiots believed him.

          1. The ones who believe him are the same ones who refuse to believe that he has already added more 8-year debt than Obama did after 8 years. (CBO forecast debt for 2025 vs Obama actual)

            Remember, Obama had inherited the 2nd worst recession since WWII. Trump inherited he longest recovery EVER for an incoming President (from Obama, over 9 years). The old record was 22 months that Clinton got from Bush1 (NOT to defend Obama, just to compare.)

            And Trump is the first President to EVER increase the deficit by over 40% in a single year … in a “booming” economy.

            1. TYPO. Trump inherited a recovery in its 7th year. 9th would be impossible from Obama. 🙁

  4. Why do so many legal scholars rely on Founding-era history even when historians say they shouldn’t? How can responsible legal scholars expect to find answers where historians find ambiguity and disagreement?

    Faith, mostly. And whataya know, their faith is always rewarded by finding that “original intent” matches what they wanted to do.

    1. I think they do it because somewhere along the way lawyers got the idea that they can understand everything.

      Really, the problem is not limited to history. It crops up all over the place.

      1. Mark Tushnet called it out as the “lawyer as astrophysicist” problem. Of course, Mark Tushnet is also an example of it himself insomuch as he writes extensively on history without being a trained historian.

  5. “Originalism” is rapidly turning into a pretentious synonym for “lawyers doing what they have always done, the way they have always done it.” In its current, diluted form, it neither helps judges decide cases nor meaningfully constrains them. We are all originalists now.

    1. We are all libertarians, too. Or “often libertarian.” Or “libertarianish.”

      If the Volokh Conspiracy teaches anything, it is this.

      This explains Libertarians For Tariffs.

      Libertarians For Authoritarian Immigration Policies And Practices.

      Libertarians For Statist Womb Management.

      Libertarians For Military Belligerence.

      Libertarians For The Death Penalty.

      Libertarians For Trump.

      Libertarians For Torture.

      Libertarians For White Supremacy.

      Libertarians For Abusive Policing.

      Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.

      Libertarians For A Muslim Ban.

      Libertarians For Ted Cruz.

      1. Libertarians for restricting where Americans are allowed to travel.

        1. ^And that

    2. Well, of course it is. All things are subject to decay and corruption, and originalism is no exception.

      The fact that, if you’re genuinely an originalist, you’ve got basically no chance at all of ending up in the judiciary, (Because judges are picked by politicians, and the last thing politicians want, regardless of what they find it expedient to say, is to be bound by a fixed constitution.) gives institutional originalists a very strong motive to start shading their views in a direction more conducive to ending up in a position to actually put them into effect. It only makes it worse that the movement is being consciously invaded and taken over by living constitutionalists like Jack Balkin, who figure that they can replace the content of originalism with living constitutionalism, and win by default.

      1. It must get awfully lonely out there.

      2. The fact that, if you’re genuinely an originalist, you’ve got basically no chance at all of ending up in the judiciary

        And a good thing that is.

  6. Why do so many legal scholars rely on Founding-era history even when historians say they shouldn’t?

    Is that what historians say? I thought historians said something more like:

    “You think you are relying on history. But you don’t know how to do history. So sometimes, quite often, when a historian looks at what you attempted to do with history, all the historian can say is, “You can’t do that.”

    By which the historian does not mean you are wrong because you transgressed some obscure nit, in an obscure corner, of an obscure professional code. Instead, the historian means, neither could a historian do what you attempted, and learn anything worth knowing about the past. That would be because the rule you broke prevents mistaken results—which you likely get whenever you break that rule.

    An example, to illustrate: “Professor Morgan, you are an esteemed historian. Please fill out this form and tell us what Hamilton would have said in answer to these questions.” You can’t do that, and neither can any historian—including Edmund Morgan, to whom that question was once put. A very gentle and kind, “You can’t do that,” was indeed the answer the would-be survey guy took home.

    Another example: “We know the 2A was intended to protect an individual right to self-defense with firearms, because the historical record before and after the founding is replete with instances which show references to self-defense with firearms in other contexts.” You can’t do that, and neither can any historian.

    Another example: “Lawyers know what John Marshall thought about this particular point of law, because lawyers know Marshall read Blackstone’s Commentaries, and that is what Blackstone said.” You can’t do that, and neither can any historian.

    Another example: “Scholars know what Thomas Jefferson meant when he used a word in an interesting document, because they looked up the meaning of that word in an English dictionary that Jefferson had in his library.” Same as before.

    Another example: “Although the founders did not explain what they meant by some vague constitutional text, we can know what they meant because historians (or lawyers) soon afterward interpreted it that way.” Same.

    If it is not self-evident why the specific reasoning embodied in each separate example would be a fertile source of historical errors, I can try to answer questions—with the caveat that I had undergraduate and graduate historical training, but did not become a historian.

    Beyond the specific errors of historical reasoning which lawyers so often fall into, is the larger problem of what they are almost invariably trying to do. They are trying to mine history, to find whatever bits they can, to sanctify some argument intended for present-day use, to prevail in some present-day controversy.

    The cherry picking is a problem, but not the most troubling problem. A more troubling problem is that nothing in history is about the present day. To suppose otherwise is an impossible notion. What among the things happening this year will prove historically salient with regard to some controversy 100 years hence? We have no clue—not even a hint of what the controversies will be.

    Neither did anyone in the founding era have any clue what controversies our age would struggle to resolve today. So absolutely nothing the founders left in the record was about today’s controversies. In their decision making, historical figures from many decades or centuries past gave not the slightest attention to either today’s issues, or to their context—about which they were as ignorant as we are about our own distant future.

    So almost all of history is out of context with regard to today’s issues. And that ought to be a very troubling problem for would-be originalists—but still, not the most troubling problem. The most troubling problem is that today’s orginalists proceed, and argue, as if they don’t know their mostly-botched historical arguments would be, at best, only marginally relevant, even if they were without flaw. However logically flawed, and wildly out of context originalist arguments actually are—or even however perfect they might prove in theory—some lawyers suppose their relevance as a premise—as if some worthy purpose to apply originalist arguments to today’s controversies is preordained beyond any need to listen to criticism from skeptics outside the legal community. That is the most troublesome problem. And it seems to be the point of view this OP has been offered to promote.

    1. Another example: “We know the 2A was intended to protect an individual right to self-defense with firearms,

      The amendment clearly says the context is for “militia service” …. “being necessary to the security of a free State.” Never even hints at self-defense for individuals (which would be in 9A, where Life, Liberty and the Pursuit of Happiness were incorporated into the Constitution)

      because the historical record before and after the founding is replete with instances which show references to self-defense with firearms in other contexts.

      The historical record also shows bans on “unusual” weapons not brought from home for militia service — per Scalia’s decision in Heller, which confirmed US v Miller (1939) that 2A protects only
      the modern equivalents of a musket and single-shot pistol. Also why the NRA was totally helpless against the 1994 assault weapons ban, for 10 long years, because it could only be repealed by Congress or … it expired.

      Considering we no longer have a citizen’s militia to defend the nation … it’s not just lefties arguing for a living constitution … if and when that is more convenient.

      1. We do have a militia, it is made of all the able bodied males over the age of majority.

        Congress cannot amend the Constitution with mere laws.

        1. Your definiton is obsolete, useless, irrelevant and evasive. I’ll take a SCOTUS ruling by Antonin Scalia …. especially over anyone who has no idea of what the Second Amendment even says, and somehow “forgot” about well-regulated

          We’ve had a professional military for quite some time now. We call them the Army, Navy, Air Force and Coast Guard.

          Learn the Constitution. This time I’ll add emphasis for what I already cited …. and a link for you.

          “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

  7. Here is a re-post. Too much italics is overwhelming.

    Why do so many legal scholars rely on Founding-era history even when historians say they shouldn’t?

    Is that what historians say? I thought historians said something more like:

    “You think you are relying on history. But you don’t know how to do history. So sometimes, quite often, when a historian looks at what you attempted to do with history, all the historian can say is, “You can’t do that.”

    By which the historian does not mean you are wrong because you transgressed some obscure nit, in an obscure corner, of an obscure professional code. Instead, the historian means, neither could a historian do what you attempted, and learn anything worth knowing about the past. That would be because the rule you broke prevents mistaken results—which you likely get whenever you break that rule.

    An example, to illustrate:

    “Professor Morgan, you are an esteemed historian. Please fill out this form and tell us what Hamilton would have said in answer to these questions.” You can’t do that, and neither can any historian—including Edmund Morgan, to whom that question was once put. A very gentle and kind, “You can’t do that,” was indeed the answer the would-be survey guy took home.

    Another example:

    “We know the 2A was intended to protect an individual right to self-defense with firearms, because the historical record before and after the founding is replete with instances which show references to self-defense with firearms in other contexts.” You can’t do that, and neither can any historian.

    Another example:

    “Lawyers know what John Marshall thought about this particular point of law, because lawyers know Marshall read Blackstone’s Commentaries, and that is what Blackstone said.” You can’t do that, and neither can any historian.

    Another example:

    “Scholars know what Thomas Jefferson meant when he used a word in an interesting document, because they looked up the meaning of that word in an English dictionary that Jefferson had in his library.” Same as before.

    Another example:

    “Although the founders did not explain what they meant by some vague constitutional text, we can know what they meant because historians (or lawyers) soon afterward interpreted it that way.” Same.

    If it is not self-evident why the specific reasoning embodied in each separate example would be a fertile source of historical errors, I can try to answer questions—with the caveat that I had undergraduate and graduate historical training, but did not become a historian.

    Beyond the specific errors of historical reasoning which lawyers so often fall into, is the larger problem of what they are almost invariably trying to do. They are trying to mine history, to find whatever bits they can, to vindicagte some argument intended for present-day use, to prevail in some present-day controversy.

    The cherry picking is a problem, but not the most troubling problem. A more troubling problem is that nothing in history is about the present day. To suppose otherwise is an impossible notion. What among the things happening this year will prove historically salient with regard to some controversy 100 years hence? We have no clue—not even a hint of what the controversies will be.

    Neither did anyone in the founding era have any clue what controversies our age would struggle to resolve today. So absolutely nothing the founders left in the record was about today’s controversies. In their decision making, historical figures from many decades or centuries past gave not the slightest attention to either today’s issues, or to their context—about which they were as ignorant as we are about our own distant future.

    So almost all of history is out of context with regard to today’s issues. And that ought to be a very troubling problem for would-be originalists—but still, not the most troubling problem. The most troubling problem is that today’s orginalists proceed, and argue, as if they don’t know their mostly-botched historical arguments would be, at best, only marginally relevant, even if they were without flaw. However logically flawed, and wildly out of context originalist arguments actually are—or even however perfect they might prove in theory—some lawyers suppose their relevance as a premise—as if some worthy purpose to apply originalist arguments to today’s controversies is preordained beyond any need to listen to criticism from skeptics outside the legal community. That is the most troublesome problem. And it seems to be the point of view this OP has been offered to promote.

    1. This is a strange way to phrase originalism and its reliance on history.

      Its probably better to think of it as a theory of probability. What is the probability thing X would have been passed? Would the Constitution have been ratified without a promise of a Bill of Rights. 99% chance it would not. Would it have been passed using the Wickard interpretation of the commerce clause? High probability of no. It isn’t certainty, it is merely trying to get as close as you can.

      Does that hold up to exacting standards of historians? Often not. But law is not an area of exacting standards. If I’m a judge in a case where a cat ate someone’s turtle, its not likely that the Supreme Court of My State has ruled on that exact pattern. But maybe they have a cat at a fish, or a dog ate a pet rabbit. And I must draw parallels that (hopefully if I am a good judge) divine what the Supreme Court that laid down that opinion would have decided in my specific case.

      1. Allutz, you do not strike me as a determined originalist. And you certainly are cavalier about history, what with imagined probabilities of past events. You seem to be saying that where a historian would say, “You can’t do that,” an originalist judge can say, “Oh yes we can, just watch us.” Which is what I say too, but not what Will Baude seems willing to say.

        1. Originalism cannot be justified on libertarian grounds or ANY principle of liberty. As Jefferson said, our current Constitution is NOW rule by force, not by right.

          Since governments receive their JUST powers from consent of the governed … ours is clearly unjust. Simple enough.

        2. I am an originalist to the extent that I am a “but for” originalist.

          I think it is important to try to predict whether the United States Constitution would exist today as it reads, if the interpretation a judge gives it would have had any real chance of being passed when that exact language was passed. And it should have had a good chance. Indeed over a 50% chance, which for constitutional amendments means (essentially) 66%+ support. If an interpretation of language fails that test, it is illegitimate, and if you adopt that interpretation, you make the entire US government illegitimate.

          1. and if you adopt that interpretation, you make the entire US government illegitimate.

            It’s been illegitimate for centuries, as the Nolanlib noted just ato anyone who understand individual liberty.
            As the Nolanlibertaribn

          2. Let’s try that again

            and if you adopt that interpretation, you make the entire US government illegitimate.

            It’s been illegitimate for centuries, as the Nolanlib correctly noted just above you.

            How can anyone defend a government which has been imposed by force upon the governed, not by consent of the governed?

  8. “. . . given that the basic facts of modern life would have been beyond the ken of even Hamilton and Madison and Jefferson?”

    Are our lives really so different?

    Obviously the technology is vastly different however, I don’t think our human relations are much different.

    We agree/disagree, run for office, orate/listen, marry, buy property, enter contracts, get arrested and go on trial, attend schools, lie/cheat/steal, are envious/proud, work hard, have fun, etc.

    These are universal human activities – across thousands of generations, races, ethnicities.

    1. We agree/disagree, run for office, orate/listen, marry, buy property, enter contracts, get arrested and go on trial, attend schools, lie/cheat/steal, are envious/proud, work hard, have fun, etc.

      True, apedad, but.

      The actual nature of marriage is vastly different today than it was then, and I’m not referring to SSM. Think about inheritance and tax laws, the rights of married women, divorce laws, and so on.

      The nature of criminal justice is vastly different. Forensic evidence, technology available to police, our knowledge of the flaws in things like lineups and eyewitness testimony, all the complexity of the criminal process, etc.

      The ways to lie/cheat/steal have multiplied enormously – it’s
      hard to keep up.

      1. None of that changes that there are fundamental rights, which are equal, unalienable and/or God-given.

        They include Life, an unspecified package called Liberty, and another package called Pursuit of Happiness, all of which are thus precisely equal. Also see the 9th Amendment which states we have rights which cannot be “denied or disparaged” by any level of government … rights which are not enumerated (named).

        And the 14th.

    2. Are our lives really so different?

      Consider the occurrences between the founding era and our own, which have deeply affected our lives: Changes in world historical experience, religion, philosophy, science, commerce, agriculture, communications, geographic knowledge, inventions, materials science, biological knowledge, transportation/aviation, warfare, education, race relations, navigation, sexual mores, sex roles in the home and workplace, marketing, political methods, medicine, industrial organization, labor relations, entertainment, energy supply and use, etc.

      Everything you can think of that matters on that list is not only a difference in capabilities, but also a difference in thought. None of that change could have been dreamed of during the founding era. Nor contemplated or noticed in the slightest, because it was all still to be delivered in the unknowable future. But for us now, that founding-era future is all in the influential past. By that influence, all of that change is baked into our culture, thought, politics and mores. Are those radically different now than their counterparts from 1789, when none of that held sway? Seems likely.

      1. Which is precisely why Jefferson called our current Constitution “rule by force, not by right.”

        Can you tell us what principle says government receives just powers, with NO consent of the governed?

    3. Are our lives really so different?

      Apedad, here is a bit more on that question. It is fairly common on the internet to encounter fake quotations, made up, or patched together out of context—usually to misrepresent historical figures as if they were speaking in the voices of modern partisans, offering insights helpful for resolving modern debates. I am unsure if most commenters who remark on blog sites like this one are aware how common those impostures are. To debunk them you first have to suspect their veracity. And for those lacking historical immersion, the grounds for suspicion may not be ready to hand.

      But for historians who have pickled themselves in the writings of the founding era, almost every one of those fake or doctored quotes leaps off the page as the fraud it is. Scholars recognize those frauds because scholars are not only aware of what historical figures thought, scholars are also mindful of what historical figures never thought—because of all that stuff about the inaccessibility of future ideas I mentioned in my post above. Read original sources long enough, and you start noticing all the stuff that never comes up.

      So when some “citation” from Jefferson (or anyone else of respectable antiquity) shows up offering views exactly on point to influence a modern controversy, it’s usually game over. If the quote is cast in terms that real historical figures never thought about, then it can’t be real. On the internet, checking the suspected fakes usually takes mere seconds.

      That, too, is a nice demonstration that our lives really are so different.

      1. The founding era has no relevance whatsoever to those being governed today, By what right would it???

  9. Originalism . . . still younger and less popular than Kim Kardashian, but all the rage among clingers striving to remain relevant in the culture war as America (and its electorate) improves against their wishes and efforts.

  10. Viewed in these terms, originalism is unexceptional, no different from our law of property: it simply reflects a decision by today’s law to grant continuing force to the law of the past.

    This begs the question. It takes as a given that we have a common understanding as to how the law of the past should be applied to a current set of facts, often completely unanticipated by the drafters of that law.

    Isn’t that what the argument is about?

    1. Someone still has to decide what the original intent of the law was, and two different someones can decide two different original intents.

      1. Plus, tribalism nurtures liars. For the good of the cause.

    2. The law of the past can have no relevance whatsoever to those currently governed.

      1. The law of the past will have no relevance whatsoever to those currently governing.

        1. That’s secondary, and obviously false.
          Just curious, are you a Liberty Lover or a Government Haters. They are not the same, and often exact opposites these days.

          What would you do, if anything, with Medicaid?

  11. […] Originalism and the Law of the Past There is a well-known gulf between the way many originalist scholars and jurists think about constitutional law and the way many credentialed historians do. […]

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