Originalism

Politics, Bar Brawls, and the Law of the Past

What makes history constitutionally relevant?

|The Volokh Conspiracy |

Rick Hills has an interesting critique of my paper with Will Baude on "Originalism and the Law of the Past." (The paper is forthcoming in Law and History Review, and you can find Will's earlier post here.). The dispute centers on the following paragraph of ours:

Present law typically gives force to past doctrine, not to that doctrine's role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by "the officials or the experts of the system." A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on "internal" accounts of legal doctrine (treatises, court cases, and so on), rather than on "external" accounts of law's wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.

Hills writes:

I share Baude and Sachs' desire for legal repose. Like them, I'd like to find a trove of old documents that, like some ancient deed in the county register's office, could settle our current fights over basic issues with bare semantics and obscure legal conventions. But I doubt that the U.S. Constitution provides much in the way of such calm. Going back to the 18th century for apolitical, legalistic settlements of big issues is like going to a saloon in 19th century Deadwood to curl up with a nice cup of tea for a quiet read. The 1780s and 1790s were a constitutional barroom brawl. The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union.

You can read Hills's critique, and my response, over at Prawfsblawg.

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  1. I didn’t read the follow-up, but from what is presented here, it doesn’t sound like you’re arguing about legal doctrine, it sounds like you’re arguing about just exactly how much agreement there was with legal doctrine. Then, as now, different people have different doctrine… some of them WITH political power, and some of them without.

  2. To some extent any governing charter is going to represent the body politick as it exists in any place and time. It may be laudable it try to stay as firm to the original intent laid down by the founders, but practically speaking, the modern system is going to define it as society defines it.

  3. The barroom brawl analogy is good, but may not mean what he intends. The constitutional fights of today aren’t the points that were elided over in the past, they’re things that were clear to the founders that many people disagree with today (while also keeping in mind that the founders were themselves a diverse lot who knew they didn’t live up to their own ideals).

    Firearms are a great example. At the founding, everyone was expected to have them, and they were only prohibited in narrow circumstances, such as the weapons locker in the Capitol building, which provides a convenient place to check in your arms so you didn’t have to carry them during session, while also providing a man-at-arms to protect those inside. A modern analog might be some states that require guns be checked before entering courthouses. But the fight then comes in when you first identify that some restrictions were accepted at the time, and interpret that to mean any restriction is acceptable, such as NYC, DC, Chicago, and California’s de facto gun bans. In CA, for example, it is unlawful to possess a firearm in a usable state, and in case of an attack you must unlock your gun safe, then unlock your ammo safe, then load the weapon, all of which render the right functionally extinguished.

    Funnily enough, the first amendment analog would have been more supported at the founding, if you had to register and a fee to be able to criticize the government only in locations the government had chosen so as to limit your effect.

    1. I think you’ve nailed it: Just because they were arguing over various topics, doesn’t mean we’re arguing over the same topics. Many aspects of the Constitution that are today treated as wildly controversial and vague to the point of meaninglessness, were at the time they were adopted not the least bit controversial or ambiguous.

      1. This is true even if you look at only modern-day political arguments. The two sides of both gun-rights regulation and abortion, for example, are arguing about entirely different things and pretty much never address the other side’s arguments, and so the whole thing is just partisan identification and squabbling over triviality. Of course, neither side appreciates it when somebody shows up and points this out.

  4. That is abstruse commentary. Or is it recondite?

    I find it striking that when I (a non-lawyer) read accounts of the past written by lawyers, it becomes an uphill struggle, reading and re-reading, phrase by phrase, constantly asking, “What the hell is that supposed to mean?” Whereas, other accounts of the past, written by historians—who are no less technically proficient than lawyers, and equally the servants of complex rules of practice and professional constraint—are at least sometimes lucidly written.

    I take that contrast between the two professions as evidence of a difference in intent, which leads to different methods. Historians—at least the best of them, who are the ones I reference here—explore the past with an eye to finding out what is in the historical record, and crafting narratives consistent with what they find. Historians train, and practice, and submit themselves to the discipline of reading historical documents, all with an objective to discover and frame those narratives faithfully in the context of understandings shared by people in the historical periods being studied—and not in any other context.

    Historians avoid especially any context having to do with the present, or indeed, having to do with any time subsequent to the era under their historical consideration. Those other considerations are excluded from historical narrative, because people living in the era under study could have no inkling of them, as they were yet to come. Historians have learned that it is not possible to admit present-minded notions into historical analysis without thereby getting the history wrong.

    The last bit, about present-minded analysis, is important to historians, but seems precluded whenever lawyers delve into the past. Unavoidably, lawyers have something else in mind—they are, after all, not historians. Even in discussions of the legal philosophy of originalism, which seems so obviously dependent on getting the past right, the past never comes first, nor even appears in any role but one subordinated to present-minded objectives. Legal originalism is, after all, a doctrine attempting to discover some way to leverage the past in legal analysis, while avoiding the entanglements of academic history. Present-minded analysis is the very method of originalism. As practiced now, originalism is an anti-historical doctrine.

    I suppose if an adventurous historian were to attempt to elucidate the past by incorporating generous dollops of modern legal doctrine as explanatory of historical events, the result would be about as satisfactory as originalism itself has proved to be. And then, if that historian attempted to explain at length, and philosophically, why it was best do history that way, it would make for reading no less hard to follow than the discussions on originalism featured here.

    And that mixture of agendas results, I suggest, in much of the obscurity and difficulty that a reader like me—which is to say a reader who prefers to avoid mistaken history—experiences when reading treatises on originalism.

    1. Should it be surprising that a non-lawyer with little legal training finds legal commentary abstruse?

      Why is this any more odd for this to be the case with the law then say specialized medicine, analytic biochemistry, or transfinite mathematics?

      To what differences in intent do you refer? Legal scholars—and I distinguish here from attorneys acting in their duty to give the best possible representation to clients—have comparable methods to the ones you describe.

      Legal Scholars—at least the best of them, who are the ones I reference here—explore the law with an eye to finding out what is in the legal record, and crafting descriptions consistent with what they find. Legal scholars train, and practice, and submit themselves to the discipline of reading legal documents, all with an objective to discover and frame those descriptions faithfully in the context of understandings shared by people in involved in their creation of the record studied—and not in some other non-legal context.

      Now lawyers are not generally historians, but the reverse is true as well, historians are not generally lawyers. Individual legal scholars may create tendentious descriptions of legal documents, but individual historians may create tendentious historical narratives as well.

      Which brings up the question that if historians are not in general qualified to interpret contemporary legal documents why we should assume they are better qualified to interpret historical legal documents, which BTW is something lawyers are required to do on a daily basis.

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