The Volokh Conspiracy

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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.