The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Originalism teachable moment update


As the day of reckoning for the Gorsuch nomination approaches tomorrow (for the cloture vote), the teachable moment for originalism continues, and we here at the Volokh Conspiracy are all over this breaking story. Here's what's been happening.

  • As you will recall from this post, Professor Laurence Solum had some questions for Boston College legal historian Mary Bilder, which was raised by her editorial in the Boston Globe. The next day in this post, University of Chicago legal philosopher and blogger extraordinaire Brian Leiter gallantly appointed himself counsel to Professor Bilder and advised her to exercise her right to remain silent.
  • Larry responded to Brian here.
  • Possibly following Brian's advice, Professor Bilder sent Larry this cryptic statement (which may be written in secret historian code). At any rate, she did not address in plain (modern) English the questions Larry asked about her claims about originalism. Oh well.
  • The renowned Northwestern legal ethicist Steve Lubet briefly responded to one of Larry's questions here.
  • San Diego law professor Michael Ramsey then published these thoughts about Steve's claim that originalists claim that the "'original public meaning"'of constitutional provisions can be recaptured with . . . certainty."
  • Meanwhile Northwestern University law professor John McGinnis published this response to Professor Bilder's editorial in which he explains his and San Diego law professor Michael Rappaport's view that the Constitution is best read as a legal document.
  • Yesterday, Stanford historian Jonathan Gienapp offered this characteristically thoughtful (and super long) reply to my response to his original lengthy criticism of "Originalism 2.0."
  • Finally, Mike Ramsey responds to the following passage of Gienapp's post, which seems to capture the core of Jonathan's position:

The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, "put back together symbolic worlds that collapsed centuries ago." Where this seems to become a problem for originalist-historian debates is not in discussing the "past" in broad terms, but the past period that is most immediately relevant to originalist inquiry-the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today-such as "liberty," "rights," "happiness," or "the state"-they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers' expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts-that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. …

Professor Ramsey then offers these thoughts (which nicely capture my initial reaction):

I'm struck by how uncompromising this is. Is Professor Gienapp really saying that no part of the Constitution can be understood as the Framers understood it, except by historians with the kind of training he describes? That seems implausible. I feel pretty confident that the Framers understood that under the Constitution each state would select two Senators regardless of population. And with just a little background reading, I can get an (admittedly superficial) understanding of why they thought this was a good idea (or at least were willing to agree to it)—at least enough of an understanding to be confident that I am reading their text as they would. I assume he would not disagree.

But if the original meaning of some parts of the Constitution are easily accessible in this way, isn't it likely that the original meaning of some other parts are somewhat less accessible, but still clear enough to non-historically-trained scholars upon close examination? It's not likely that the Constitution contains only two categories of provisions, those that can be readily understood by anyone upon just a casual glance and those that cannot be understood by anyone but PhD-trained historians. More likely, there is a spectrum of difficulty, with historians' tools becoming increasingly useful and perhaps necessary as the questions become more difficult. And historians may also be able to point out situations where the text seems clear enough on its face but with proper understanding of the context is in fact more difficult.

So I think legal academics can accept the value of historians' contributions without abandoning their project. My vision is more cooperative than all-or-nothing.

And yet, one more thought. Professor Gienapp's arguments are very abstract. He does not give examples of parts of the Constitution that originalists misunderstand because they do not have historical training. I'm sure there are some, but it would be useful to have concrete examples. It is of course an impressionistic observation, but I can't think of any example in my field (foreign affairs law) where I have come to one conclusion and then had a subsequent historian's account show me why my view was erroneous. (I would welcome this experience). In part this is because pure historians don't actually do much "applied" originalist scholarship—that is, investigating what a particular phrase meant in the founding era. (I wish they did more). In part it's because I find, generally speaking and with due acknowledgments of exceptions, that even in dealing with relatively specific topics historians' accounts tend to stay fairly abstract and not grapple with the actual words of the text. In any event, it seems to me that this debate would be better advanced by historians doing more originalism to illustrate how their method changes the analysis.

So, the teachable moment about originalism continues.