fbpx

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 16, 2018 at 08:55:18 am

As an originalist, I am highly skeptical of Bilder's book as it sounds exactly like something left historian or living constitutionalist would right in the support of their own agenda. We already have enough problems with conservative "historians" like Kevin Gutzman, lawyers like John Eastman, talk show hosts and "thought leaders" butchering American history to support extreme right wing policies. Perhaps there is some bias in the Constitutional notes, but it is the only snapshot of the event we have. Perhaps there were some statements of support for slavery that were left out, perhaps a few shouting matches erupted, we don't really know. Perhaps it is all too pretty, but we still have to extract what we can from it rather than speculate about what might be changed or missing.

So while some may embrace the book, I wouldn't read too much into it, since most legal scholars don't really care much about hearsay. If she has actual facts in there, some of it might be useful, but I don't think it is likely to change any legal outcomes, unlike the fantastical readings and writings of living constitutionalits, who took the anti-Federalists worst fears and made them cold hard reality.

read full comment
Image of John Ashman
John Ashman
on May 16, 2018 at 08:55:58 am

"would write"

read full comment
Image of John Ashman
John Ashman
on May 16, 2018 at 10:15:32 am

Originalists should follow Uzell's common sense advice: restore history to its rightful primary role in constitutional analysis; do not undermine respect for the history of the Founding and of the Founders if you are to redress the great political harm you have done to your important cause by over-intellectualizing it and making it the specialty of legal academics and linguists.

It is non-sensical and illogical to attempt, indeed, fantastical even to hope that originalism could ever be strengthened or even defended by jettisoning history. Yet, that is what many originalists have done and in so doing, they have fallen haplessly into the trap of historicism and the pragmatic clutches of those dreaded "living constitutionalists."

In his original contributing essay to Liberty Classics on this site Professor Stephen Presser sings the praises of one of America's great original originalists, Raoul Berger (both a legal practitioner and a law scholar) who did originalism right by focusing in his (truly) classic "Government by Judiciary" on original history, original intent and original meaning. Berger's straightforward approach seems so ancient, outmoded and unsophisticated nowadays when originalism is the exclusive province of law school academics and has become so over-intellectualized, subdivided and narrowly specialized that it's way beyond the ken of ordinary trial and appellate lawyers (like me,) ordinary citizens, almost all judges and all politicians, which means that it's losing all-important political and judicial battles because of its unintelligibility and its incommunicability.

Forty years ago I understood originalism and loved it. Today, I feel toward originalism like I feel toward my ex-wife: I no longer recognize what I once loved.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on May 16, 2018 at 11:26:24 am

Good points. Something that always gets on my nerves about the anti-historical originalist position, even more so than the patchwork "law office histories," is the citation of dictionaries from the founding as the sole piece of evidence for the original meaning of words. It's great to cite Webster's 1st edition, but that shouldn't be the end of the story; terms used in government documents were sometimes used in non-standard ways with non-standard connotations

read full comment
Image of CJ Wolfe
CJ Wolfe
on May 16, 2018 at 12:01:51 pm

Neither historian nor legal scholar here. Given the regular laser focus on Madison (i.e., he always seems to be THE starting point of a discussion), and the cited propensity above RE originalists' tendency to highly rank "Framer's intent", a question comes to me:

What role for historians (if any) do discussions of the notes from others - in other states - play in the digestion to contribute to arrival at "Framer's intent?" The admittedly light bit of reading I've done indicates that many things may have had more watered-down language, many others from different states may have taken a more draconian stance on the same issue. While "framers" is a collective, it seems to me that there's plenty of evidence to suggest intent isn't an invalid position because the final language - as well as that of many amendments which soon followed - was a compromise, or perhaps more properly, a concensus.

Thoughts welcomed by this unwashed peasant.

read full comment
Image of Wes Howard
Wes Howard
on May 16, 2018 at 13:01:19 pm

I am sympathetic to the writer's perspective here but believe she overlooks a significant cause of the controversy. There is no one word for it, but it involves ordinary human egoism and careerism. Every individual professor and every generation of professors want to distinguish themselves in their fields, and you can't do that by simply repeating what someone else wrote before. And publication of "original scholarship" is mandatory; this requirement ensures that we are subjected to an unceasing stream of "original scholarship" every day of the week in every academic discipline. History is no exception. But it is really impossible to produce "original scholarship" on a subject as thoroughly covered by past scholarship as the American Revolution. In this field, there is no longer any history to be done, only pure historiography. That means that the only thing to be done is to imagine new narrative curves to fit the fixed and finite data points to.

Certain academics have rushed to embrace "data analytics" because it is essentially just a new food source, one that will sustain at least one generation and possibly two of academic careers. "Rigor" being a favorite word of academics who fancy themselves scientists, it only means quantitative methods. Counting, in other words. An endless number of journal articles can be churned out on this basis, all in service to the tenure track.

This is not cynicism, it is simple fact. Academics are no different from us ordinary mortals; they have the same ego and emotional structure as the rest of us, respond to the same inducements, have the same vices and virtues. Pursuit of self-interest is just as explanatory if not more so than all of the other reasons offered for the "new approach."

I think the writer is deceiving herself if she believes that, insofar as the American Revolutionary period goes, only one faction "cherry-picks" its data to form a desired narrative. All narratives of all kinds are precisely the result of selectivity in the "data." The criterion for selection is always believed to be "relevance," but relevance presupposes an already-formed (even if only vaguely) narrative the writer desires to narrate.

The "simple induction" the writer mentions is long since played out in this field. A professional career dependent on continuous publication can be sustained in this field (and many others) today only by inventing new kinds of induction, whose plausibility is a function of a reader's pre-existing preference (data analytics types will believe anything if it is presented to them in tabular form; "people's history" types will believe anything that presents certain classes of people as always the passive victims of other classes).

read full comment
Image of QET
QET
on May 17, 2018 at 00:01:14 am

Like Wes Howard, I am just an unwashed peasant (as opposed to a bird-brained pheasant), but I have been schooled a bit in historiography, much less so law, so I am drawn to this topic series and comments. That said, the comments by QET share many of the same sentiments I feel on the interpretation and production of historical products based on limited resources coupled with the vanities of unchanging human nature, only stated more eloquently and succinctly than I probably ever could.

As for the comment by Mr. Wolf: I am not a lawyer but when I need to understand the legal denotation of legal words and phrases, I do not consult Webster's. I consult Black's. Perhaps historical legal writings of the legal giants of the time of the Founding are a better source. But I wish I had a Webster's first edition, and a complete set of all following editions to document the (destructive) changes in our lexicon.

I look forward to the continuation of this series and the comments to come.

read full comment
Image of Len at Large
Len at Large
on May 17, 2018 at 08:49:00 am

Yep - SO much of what we see as "work product" of the Academy is nothing more than an attempt to "mark out a specific territory", perhaps akin to the *distinction* that my Chocolate Lab establishes on a certain fire hydrant. And the same may be said for the constant "ratcheting up" of Leftist academics pleadings for "social justice" and "equality."

It is not simply "Publish or Perish" - it has morphed into Publish the more extreme, the more anti-conventional or Lose All distinction.

Academics, lawyers, judges are no different than the coworker in the next cubicle who seeks his own distinction by undermining your "work product", motives and efforts.

a Pox indeed!

read full comment
Image of gabe
gabe
on May 17, 2018 at 10:32:11 am

Have you read Pauline Mayer's "Ratification" (2011)? It supports the the view that the Constitution was drafted in such a way that it could be ratified in a series of state conventions and in the face of substantial opposition from anti-Federalist delegates. Accordingly, some of the language, particularly in Art. III, is intentionally ambiguous.

In this view, the so called Framer's only fixed intent was to get damn thing ratified. Further, one under utilized way of understanding the Framers' intent is to look at what the Framers did once in power. It wasn't pretty and by 1800, the Framers' party, the Federalists, were out of power for a generation and more. Perhaps that is reason why the Federalist Papers were rarely cited until 1900 when they seem to have become the cat's paw the Progressives used to expand the power of the judiciary, the Federalists' favorite branch of government.

read full comment
Image of EK
EK
on May 17, 2018 at 10:46:39 am

Thank your for the reading suggestion. Klarman's "The Framer's Coup" arrives at that same view and is a worthwhile read.

read full comment
Image of Wes Howard
Wes Howard
on May 17, 2018 at 14:24:25 pm

I am astonished that somebody could claim that "it is really impossible to produce “original scholarship” on a subject as thoroughly covered by past scholarship as the American Revolution."

Ten years ago, while in graduate school, I uncovered the 1776 congressional definition of happiness (in the original May 1776 independence resolution) -- a definition of happiness that has been universally ignored by scholars up until I stumbled over it. And suddenly -- with "virtue" the central element in the congressional definition of happiness -- a 100-year-old scholarly view regarding the "unalienable right" to "the pursuit of happiness" becomes hard to swallow. See http://startingpointsjournal.com/may-resolution-declaration-of-independence/

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 15:22:19 pm

I'm confused. Are you saying that the definition was unknown to history until you discovered it, in the same respect as, say, a cache of letters discovered in a trunk in someone's attic, or the Dead Sea Scrolls? Or, are you saying that previous scholars had not given the definition due attention in their scholarship? Because if the latter (and that is how I understand your remark that the definition had been "ignored" by scholars), then that is merely an example of what I was referring to above: a new interpretation of an already-known fact. Not history per se but historiography, or hermeneutics. While such work is important, and may well change the "prevailing" view of professional academics, I fail to understand why it is termed "scholarship" rather than "authorship." I am not discrediting your work, just trying to correctly categorize it.

read full comment
Image of QET
QET
on May 17, 2018 at 15:48:09 pm

I am saying that, in the past 100+ years, to the best of my knowledge, no scholar has publicly noticed the May 1776 congressional definition of happiness, and scholars such as Hamowy and Zuckert have embraced a conjectural exposition of the "pursuit of happiness" that flies in the face of the actual definition; and this gives rise to the logical supposition that they (and by inference everyone else for the past century) were ignorant of the actual 1776 definition. Is this a reflection on the level of contemporary scholarship on the American Founding?

I did not use the word "discovered," because it would seem that some people in the past (such as Chief Justice Marshall, as evidenced by his reference to "happiness" at the beginning of his argument in Marbury v. Madison -- he was appointed Chief Justice by President John Adams, the man who wrote the 1776 congressional definition of happiness) knew of the seminal constitutional significance of this May independence resolution.

How to characterize my contribution to scholarship? Is this a paradigm-busting game-changer in our collective understanding of our founding documents? The 1776 definition of happiness would to seem to make the "Lockean" reading of the Declaration of Independence unsustainable, or at least deeply problematic.

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 16:18:33 pm

Not that it contradicts your assertion, but this piece from this blog seems to agree with your take on the Founders' political understanding of the word:

http://www.libertylawsite.org/2017/04/17/liberty-licentiousness-and-the-pursuit-of-happiness1/

read full comment
Image of QET
QET
on May 17, 2018 at 16:19:41 pm

I appreciate the following quote from Lynn Uzzell's article: "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."

My discussion of the foregoing:

1. It appears to me that both originalists and anti-originalists commonly and falsely assume a "Lockean" provenance to our nation's founding documents.

2. This false Lockean reading of our founding documents colors debate about the proper function of government in general and about the extent of the legitimate scope of activity by the federal government under the Constitution.

3. The Preamble of the Constitution, the first two paragraphs of the Declaration of Independence, and the
earlier congressional resolution of May 10 and 15, 1776 are all cut from the same non-Lockean ideological cloth, firmly situated in the Ciceronian natural law tradition. This is commonly ignored by contemporary scholars, distorting discussion and debate over originalism.

4. The references to "safety and happiness" (defined in the May resolution) in the Declaration of Independence and in George Washington's transmission of the just-drafted Constitution to the Confederation Congress and in three of the Federalist Papers AND in the resolution of the First Congress under the Constitution (including many of the drafters) calling on President Washington to proclaim a day of thanksgiving for the successful establishment of the new government all point to an ideological continuity that scholars ignore at their peril.

(Once again, for anybody who has not seen my previous posts on this forum, the May 1776 definitions of "safety" and "happiness" are discussed in "The May Resolution and the Declaration of Independence" at http://startingpointsjournal.com/may-resolution-declaration-of-independence/

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 16:28:00 pm

QET, perhaps you did not see my comment James Rogers' earlier article that you just brought up. In a nutshell, Arthur Schlesinger's speculative presumption about the meaning of "pursuit of happiness" flies in the face of the presentation of the pursuit of happiness in the works of Burlamaqui and Hutcheson, both of whom were "approved writers" in pre-revolutionary Massachusetts. In the age-old Ciceronian natural law tradition. happiness is the end of human existence, and the path toward happiness lies in the cultivation of virtue, with virtue understood foremost as habitual benevolence motivated by love of our fellow humans.

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 16:55:59 pm

I saw it, and when I saw it I decided not to post the comment and thought I hadn't!

Regardless of what to term it, your Declaration of Independence without Locke I found very interesting. But I am unsure how to square your argument as to the true meaning of happiness to the Founders with their deliberate removal, beyond the reach of the national government, of the means of keeping the people on the right path.

Also, if you haven't already, I commend to your reading the book Broken Hegemonies by Reiner Schurmann, especially Book 2.

read full comment
Image of QET
QET
on May 17, 2018 at 19:25:19 pm

Apparently, Thomas West agrees (mostly) with the definition of happiness as you describe AND with the notion that the Founders DID NOT remove themselves from the task of moral (indeed religious) inculcation of the citizenry. As West's latest book demonstrates there was more Cicero and far less Locke than is generally assumed.

read full comment
Image of gabe
gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.