A Pox on Both Your Houses, Part I: Anti-Historical Originalists

Not every anti-originalist spurns American history. But anti-originalists may spurn history and be perfectly consistent with their own position. It is doubtful whether originalists may do the same without losing credibility with those outside their own circle.

These reflections have been percolating since witnessing two very different camps — originalist legal scholars and anti-originalist historians — unite in promoting some dubious history about Madison’s Notes of the Constitutional Convention. Each side of the debate has contributed to the debunking of Madison’s Notes, apparently in pursuit of its own agenda.

Let me make plain that I am neither a historian nor a legal scholar, and I have no dog in this fight between originalists and anti-originalists, much less a stake in the internecine battles among the originalists. I am simply a political theorist who happens to specialize in the records of the Constitutional Convention.

Nevertheless, sometimes the disinterested outsider has the clearest perspective on where the battle lines are being drawn; the combatants are too busy kicking up dust to see clearly where they are. It seems to this observer that the anti-originalist historians have made a good case. If today’s originalists genuinely believe that they can abandon any serious engagement with constitutional history, yet retain credibility with non-specialists beyond their own cohorts, then the war is over and the anti-originalists have won.

Crucial to the credibility and respectability of originalists is a credible respect for history in both of its primary meanings. First, history means the actual events that took place in the past. Of special interest to the originalist would be the persons, arguments, and activities related to the formation, adoption, and early application of the Constitution.  The second meaning is the scholarly discipline of studying the extant evidence of those past events to form a coherent narrative about them.

And both senses of history, at least insofar as the history of the Constitutional Convention is concerned, have been under threat since the 2015 publication of Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention. This book is suffused with imaginative conjectures about how Madison “doctored” his Notes of the Constitutional Convention in order to improve his own image, yet it offers very little in new evidence—at least, very little evidence that will stand up to careful scrutiny.

That the anti-originalist historians have warmly embraced a narrative that discredits the most important historical records about the Constitution’s formation is easy to understand. But the response by some originalists is more perplexing to the outside observer. Georgetown law professor Lawrence Solum and at least one other originalist have privately confided that they believe that Madison’s Hand “helps us.” More publicly, Professor Solum has enthused: “Every constitutional law scholar needs to read this book. And the judges, lawyers, legal scholars, and historians need to rethink its approach to the Framing. Highly recommended!”  Other originalists have been conspicuously indifferent to the book.

By way of contrast, scholars who are more thoroughly acquainted with the history of Madison’s Notes — such as Gordon Lloyd, W. B. Allen, Paul Rahe, and myself — have given compelling reasons to be highly skeptical of the most provocative claims made in Madison’s Hand. [1] Professor Solum did not offer his reasons for insisting so strenuously that not only historians, but also judges, lawyers, and legal scholars need to read this book and rethink the Framing. However, it is difficult not to suspect that his brief but fervent endorsement arises from some mixture of ignorance of and disdain for the history of the Constitution’s formation. In other words, not only are the details of this epoch unknown to originalists but, as far as they’re concerned, they’re not worth knowing. Therefore, a book suggesting that the history is less knowable is all to the good.

The growing tendency among originalists to spurn constitutional history is a mistake if they hope to appeal to non-specialists who are not already sold on originalism. All originalists posit that Constitutional clauses possessed a fixed meaning at the time they were written and adopted, and that modern interpretations should be constrained to that original meaning. Either premise might be questioned, but non-specialists are more likely to focus on the second: why should contemporary judges be bound by old interpretations?  Any prior impetus for such a constraint becomes an especially hard sell for contemporary Americans, many of whom have long exhibited progressivist leanings and have become increasingly critical of their own origins.

For most people — especially those without legal expertise — the choice of who should interpret the Constitution’s meaning will ultimately come down to a question of trust. There are still many people who trust the Founders more than they trust contemporary judges. This helps explain why, of the 90 percent of Americans who have any sympathy for originalism, fully two-thirds of those surveyed chose “Framers’ intent” as the most important consideration when determining the Constitution’s original meaning.

This preference for the meaning fixed by the Framers may be rooted in non-rational (which is not to say irrational) sentiment—a veneration for what is old or ancestral. Or it may have more rational origins. For instance, some might believe that, in spite of the Framers’ very real personal failings, they deserve our trust for devising an ingenious system of government.  Another reason for trusting them may be this one: they are impartial umpires over our own constitutional controversies (whatever might have been their partisan goals in their own time). The popular form of originalism is therefore rooted in a respect for the judgment of the Framers.

Anti-originalists are not dependent upon any such respect; indeed, spurning the Founders is one possible reason for being anti-originalist. Since the Framers of the Constitution were racist, sexist, rich white men (so this reasoning goes), there is no reason why we today should be bound by their understanding of the Constitution.

Madison’s Hand has the effect of undermining much of the preexisting respect for the Founding generation. Constitutional law scholar Richard Primus has rightly argued that one reason why the book is damaging to originalism is “because the idea that Madison deliberately shaded his story recasts him as a villain,” and that villainy calls into question his respectability as a Framer. He’s right, and one can’t help but wonder why a book that throws the “Father of the Constitution” into disrepute would “help” originalists of any stripe.

Originalists also need to respect historiography, the discipline of history, if they are to maintain credibility with those who are not already sold on originalism. A persistent accusation against originalists is that they practice “law office history”—that is, they employ the methods of history superficially and cherry-pick the evidence to achieve their desired result. One possible response to the accusation would be to continue to use the same methods, but practice them in a more rigorous, comprehensive, and impartial way.

Instead, Professor Solum has argued that he can avoid the potential pitfalls of “law office history” by replacing the potentially subjective analysis of historical documents with the “rigorous methodology” used by linguistic philosophers. He points out that many of the methodologies and goals of the historian, such as their search for the “motives and purposes of constitutional actors,” are often irrelevant to his own purposes and methodologies.

There is at least a rhetorical problem with originalists who shrug off the methods of the historian. Historians, for the most part, employ methods that people trust, and they are trusted for good reason. Histories that win both popular and critical acclaim are generally those that gather data from the widest collection of source material relevant to the question under investigation and, through simple induction, offer the most representative narrative and examples to tell the oftentimes complex stories of human interactions. The best histories will also introduce the competing hypotheses and “bit players” that complicate the main themes in the drama. These methods are reasonably accessible and understandable to any educated observer. More important, such methods are trusted because they appeal to common sense.

Whatever else may be said in favor of Solum’s preferred methods of discovering semantic meanings through corpus linguistics, they do not possess the virtues of accessibility and common sense. Many of the fine points of his methodology are not easy for the non-specialist to understand. More important, those parts that are plain to the outside observer fail to pass the common-sense smell test. The methodology appears to involve divorcing constitutional words from their historical context in order to discern the many possible semantic meanings they might have contained at that moment in history, then reintroducing context only to “disambiguate” the meanings.

Why would anyone — at least, anyone not schooled in linguistic philosophy — believe that deliberately extracting words from their historical context would lead to superior historical meanings? Solum says only that his methods are more “rigorous.” However, a rigorous methodology does not mean that it is one well suited to achieve its stated purpose. Nor can one assume that those who specialize in it will apply it in an objective way to particular cases. What grounds, then, would the non-expert have for trusting the conclusions based on this recondite methodology? In the final analysis, it must come down to: “trust us, we’re lawyers with linguistic expertise.”

And will the American public trust these experts to act in a disinterested way when addressing controversial constitutional subjects? Probably as much as they will trust any other self-professed expert with obscure methods — which is to say, that trust will not extend beyond a very close circle. And for those who are authorities in constitutional history, any trust in the experts’ disinterestedness will be further undermined when Professor Solum enthusiastically endorses a very questionable historical narrative on Madison’s Notes, apparently because he believes that it “helps” him.

And this leads to an important question. Why does he believe that Madison’s Hand will help public meaning originalists?

If he believes that, by undermining people’s trust in historical figures like James Madison, and discrediting historical documents such as his Notes of the Constitutional Convention, their trust will thereby be transferred to his preferred linguistics methodology and its practitioners, then his expectations are extraordinarily unrealistic. Presently, the Framers of the Constitution enjoy a widespread respect among the American people. Discrediting them to advance corpus linguistics would be worse than cutting off your nose to spite your face; it would be disfiguring the face to set the nose off to greater advantage.

To this outsider, it seems that the anti-originalist historians have made a strong case when they accuse originalists of being anti-historical. And insofar as their casual disdain of the history of the Constitution is true, they will ultimately lose credibility with those outside their circle.

Nevertheless, anti-originalist historians have been plagued by certain inconsistencies of their own, and that will be the subject of my next post.

[1] Paul A. Rahe, “Missing the Point,” Claremont Review of Books 18, no. 2 (spring, 2018): 61–65 (forthcoming). The article I wrote for American Political Thought (linked above) explores only some of the more important fallacies in Madison’s Hand; in a forthcoming book, I will place the problematic features of Bilder’s book within the 175-year historical context of the perennial attempts to discredit Madison’s Notes.

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