fbpx

A Pox on Both Your Houses, Part II: Anti-Originalist Historians

In my last post, I described how the anti-historical bent of some originalists was undermining their credibility, qua originalists. In this post, I hope to show how the anti-originalist historians, by promoting some dubious historical narratives about Madison’s Notes of the Constitutional Convention, are undermining their credibility, qua historians.

Since the 2015 publication of Madison’s Hand, a book that above all seeks to discredit Madison’s Notes as a reliable record of the Constitution’s formation, anti-originalist historians have been actively recommending it. All of them have stressed the light this book will shed on contemporary debates over the Constitution.

Jack Rakove and Jonathan Gienapp have written similar and glowing reviews of the book. Both praise its author, Mary Sarah Bilder, not only for her painstaking research but also for her humility or restraint in interpreting the physical evidence. Both promise that Madison’s Hand will not only alter our understanding of Madison’s Notes and the Constitutional Convention, but our contemporary understanding of the Constitution itself. And both conclude with sweeping and grandiose claims that, after this book, either our view of Madison’s Notes or constitutional scholarship in general will never be the same again. Rakove alone uses his review as a forum to take direct aim at originalists, describing the “perverse effect” that this book will have on the dominant form that is practiced today.

Similarly, Saul Cornell has been one of the leading voices explaining and defending the “anti-originalism” of most historians. His criticism of the originalists’ “Use and Abuse of History” in the D.C. v. Heller case makes a cogent case that originalists are sometimes guilty of “law office history.” Nevertheless, he is guilty of some of the same “use and abuse of history” when recommending the “must-read” book, Madison’s Hand. Cornell asserts that Madison’s doctoring of his Notes for his own benefit is now an “indisputable fact,” and he promises that the “meticulous and measured” scholarship in this book will change “the way we view history and the law.”

The problem with these several endorsements comes down to this: a careful examination of the book’s claims will show that none of the author’s new “discoveries” about Madison’s alleged misdeeds is based on verifiable historical evidence. All of it relies on a large dose of imaginative conjecture, and much of it is based on factual error and strategic omissions. But the anti-originalist historians seem poised to gloss over the historiographical defects in the book, evidently because they are enthralled by the conclusions it reaches.

For instance, both Rakove and Gienapp affirm that it is likely that Madison wrote out his Notes only twice per week during the Convention. This likelihood is insisted upon, in spite of Madison’s explicit statement that he wrote out his Notes as soon as possible after each day’s sessions, and in spite of a total absence of supporting evidence for the new alternative theory.  Again, both Rakove and Gienapp are entirely sold on the novel story that Madison’s important June 6 speech was written and inserted into the Notes years later (supposedly, it was never actually spoken during the Convention). This ready credence is difficult to understand, since the bulk of the “evidence” which Madison Hand advances to support this theory rests on false or misleading descriptions of the manuscripts and an overly credulous trust in Rufus King’s fragmentary records for the first week of June. A closer and more accurate examination of the facts leads the researcher to the conclusion that Madison’s Notes for June 6 were written contemporaneously, and they were an accurate portrayal of the day’s events. Rufus King’s notes, on the other hand, were in a confused state and probably mistaken.

Anti-originalist historians have made some good points when they question whether originalists can retain credibility as expositors of the historical meaning(s) of the Constitution insofar as they spurn constitutional history. Nevertheless, their warm and ready embrace of Madison’s Hand calls into question the self-endorsement of historians, taken as a class, as being uniquely qualified for understanding constitutional history.

Gienapp has recently written that legal scholars are ill equipped to judge the original meanings of the Constitution, because they lack the specialized training and outlook of the historian.  Understanding the original meaning of a text requires “something far greater than mastery of facts;” indeed, it “requires taking up residence with the natives of the historical past.”

In response, Georgetown law professor Randy Barnett accused Gienapp of turning historians into a sort of priestly class, uniquely qualified to understand original constitutional meanings.  Gienapp followed up on his initial critique by clarifying, albeit vaguely, that the historical knowhow lacking amongst originalists is an appreciation of the vast foreignness of the past.

Gienapp did not delineate many particulars detailing how that appreciation for the foreign past is acquired. Nonetheless, Barnett’s criticism that the historians’ knowledge comes down to a sort of priestly Gnosticism would seem to be verified by the praise and ready acceptance Gienapp has elsewhere lavished on the questionable methodology and conclusions found in Madison’s Hand.

According to Madison’s Hand, and contrary to the leading histories prior to it, numerous historical records are less reliable than we have previously supposed them to be.  Ostensibly, Madison’s Notes were initially intended to be a private diary, not an objective account of the debates; Madison deliberately left out material whenever he was uncomfortable with it or when he was simply bored; many of the speeches were not composed until years after the Convention; some of Madison’s pre-Convention arguments were not actually developed until after the Convention; Hamilton’s notes of Madison’s June 6 speech was actually written in response to Federalist 10; Dolley Madison may have actually composed an important part of Madison’s Preface to his Notes without his permission; and, most important of all, Madison frequently altered the account of the Constitution’s formation, years later, to make himself look better. In other words, nothing is ever what it appears to be (although there is no real evidence to support these suppositions).

Whereas Gienapp has insisted that “going native” in the past must mean something “greater than mastery of facts,” the book he praises is altogether unmoored from a scrupulous adherence to facts. The new stories that Madison merely fabricated parts of his Notes are themselves no better than fabrications. Therefore, the anti-originalist historians’ endorsement of these imaginative stories as “indisputable facts” must in the final analysis come down to this: “trust us, we’re historians.”

Why would anti-originalist historians wish to discredit historical records? In this rush to debunk Madison’s Notes, their impetus seems to be the same as that which is animating the anti-historical originalists. It is a battle to determine which sort of expertise is best qualified to discern the meanings of the original constitution. Whoever can be trusted to best discern constitutional meanings in the past will have the greatest influence over constitutional interpretation as it is practiced today.

Consider: if it were true that the most authoritative records of the Constitution’s formation are seriously compromised, then a simple, uncomplicated reading of them will not yield genuine historical meaning. And once that premise is accepted as true, then only highly trained historians — those who are uniquely qualified to see the truth behind the false façade of seemingly straightforward historical texts — are able to piece together the meaning of that text.

In April of 2017, Mary Sarah Bilder wrote an article for the Boston Globe about Neil Gorsuch’s nomination to the Supreme Court, titled, “The Constitution Doesn’t Mean What You Think It Means.” Some originalists took exception to a couple of slighting remarks she made about them. Lawrence Solum complained about her misrepresentation of originalists, and he felt particularly aggrieved because he believed that originalists have treated her work with so much respect and care. And in a post for this blog, John O. McGinnis shrugged off Bilder’s historical account of the framing of the Constitution, because it did not (contrary to her apparent intent) undermine originalism.

Both Solum and McGinnis have entirely missed the big picture. Bilder’s most damaging claims, as far as originalists are concerned, are her repeated assaults on the reliability of historical documents (a subject to which the Globe article only barely alluded). If true, these claims would considerably alter the study of history and make it inaccessible to any but historians.

Jack Rakove concluded his review of Madison’s Hand by saying that its author has made the task of the “working historian … all the more challenging.” He strongly implies that all others who are not working historians — whether they be legal scholars, political theorists, or the unwashed masses — are likely duped whenever they simply try to read historical texts at face value.

How is one to square the historians’ defense of their superior methodologies, on the one hand, with the enthusiastic promotion of a book that employs a rather questionable methodology to reach dubious conclusions, on the other? The only explanation would seem to be the expectation — shared by Rakove, Gienapp, Cornell, and Bilder — that the audacious new conclusions found within Madison’s Hand will alter constitutional interpretation as it is practiced today.

Eventually, when a more thorough, accurate, and impartial history of Madison’s Notes is finally published, it will be found that originalist legal scholars are not the only ones who may sometimes be guilty of law-office history. Some historians also cherry-pick the evidence for their own purposes. The integrity of any discipline depends on a commitment to following the facts wherever they lead: allowing the facts to shape one’s conclusions rather than the other way around.

For too long, many of those who have examined Madison’s Notes have been influenced by an implicit agenda of one kind or another. Today, representatives from both sides in the originalism debate — the anti-historical originalists and anti-originalist historians — have been complicit in distorting the historical facts about Madison’s Notes, and thereby corrupting the discipline of history. Those who still care about historical facts—who believe that the true calling of the historian is to reveal historical truths—should join with Shakespeare’s Mercutio in saying: A pox on both your houses.

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 17, 2018 at 09:14:57 am

Originalism is only as sound as the history on which it is based.

read full comment
Image of Mark Pulliam
Mark Pulliam
on May 17, 2018 at 12:53:41 pm

What is it to "think historically"? Is the answer to the question of "what is history" which most contemporary history PhDs give the only one? is it the best one? That is very much an open question, I suspect.

read full comment
on May 17, 2018 at 12:55:36 pm

An in initial comment (more to follow as I digest both of her recent posts): Lynn Uzzell falsely states that Jack Rakove wrote a "glowing" review of Bilder's book. Rakove, on p. 321, pointedly indicates that he has some problems with Bilder's book, which he begins discussing (after an extended review of Bilder's argument) on p. 332.

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 13:40:27 pm

To quote Cicero: "In history the standard by which everything is judged is the truth." Practically speaking, the task of the historian is to accurately present the essence of what happened. For example, to what extent, and in how many cases, is the wording of the Constitution the result of the conscious attempt to paper over unresolved differences in the Convention with carefully-phrased ambiguities?

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 15:31:18 pm

You have gone and done it again, Ms. Uzzell, defended incisively and insightfully an existentially-vital argument in support of constitutional history as the essential defense against ideological incendiaries (legal academicians, soi-disant "historians" and politically-motivated judges) who would ignore or distort history in order to torch the original constitution (deconstruction) and then rewrite it (reconstruction) all the better to achieve the overriding political objectives of neutering the constitution's structural barriers, subverting its written restraints and converting the constitution into an instrument of social justice and Article III judges into social justice warriors.

Only a fool or a professional co-conspirator in that destructive political project would seek to deny the truth of your defense of accurate, reliable constitutional history.

In confronting your ideological enemies (many of whom in the legal academy would be your friends were they aware of their strategic stupidity in ceding the field of constitutional history) and in continuing your principled defense (against crypto-ideologues masquerading as historians) of the Founding's historical truths, I would urge you, Ms. Uzzell, to follow the admonition of history's greatest statesman-historian:

“Never give in. Never give in. Never, never, never, never—in nothing, great or small, large or petty—never give in, except to convictions of honour and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy.”

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on May 17, 2018 at 15:57:04 pm

To Pukka Luftmensch, I am going to repeat my question from above, for your consideration:

To what extent, and in how many cases, is the wording of the Constitution the result of the conscious attempt to paper over unresolved differences in the Convention with carefully-phrased ambiguities?

I will add a follow-up question: if and when such papered-over ambiguities are correctly identified, how does that affect the range of permissible "originalist" interpretations of the relevant clause of the Consitutuion? To rephrase the question more generally: How do originalists grapple with areas of studied ambiguity within the Constitution?

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 17, 2018 at 19:18:07 pm

John:

Good question(s)!

Have not read Binder (or uzzell's commentary) but it is, or should be, clear that there were intended ambiguities in COTUS. It is why I, at times, refer to the Founders as *crafters*, not drafters, of the constitution. Clearly, they were beset with some not immediately resolvable conflicts whilst at the same time under pressure to obtain sufficiant support for ratification and adoption of this newly crafted political regime.

Does this mean that, as it is supposed by Binder, that the whole document / structure is unworthy of our PRESENT respect and consideration? are we to then search continuously for some hidden "defect", some hidden objective of Mr Madison, Wilson, etc? are we to lessen our regard for this document?

I think not. i would suggest that the approach of McGinnis and Rappaport, i.e., that COTUS is a *legal*text has some merit and that in those areas of perceived ambiguity we look to the legal definitions / usages / practices of the time.
Should we spend our time searching for (as apparently Ms Binder did, only to find malign) intent, we shall be embarking on a never ending journey. Intent is as variable as the men who *crafted* this document. Intent and *spirit* of the thing should be the prime consideration of the Legislative Branch NOT the Judicial which would do well to confine itself to a) the text, b) legal terms of art and c) the history (assuming that history is not a partisan one). then again, there is precedent that may help to illumine our search.

Judicial interpretation by"Intent" is simply too susceptible to the "intent" of the current Justices.

read full comment
Image of gabe
gabe
on May 17, 2018 at 19:19:58 pm

Oops!
Should read:

"I think not. i would suggest that the approach of McGinnis and Rappaport, i.e., that COTUS is a *legal*text has some merit and that in those areas of perceived ambiguity we look to the legal definitions / usages / practices of the time. [This is where the value of a solid historian, legal or otherwise, comes in to play].

read full comment
Image of gabe
gabe
on May 18, 2018 at 01:12:29 am

Jack Rakove was the primary author of the professional historian's brief filed in the D.C. v Heller case supporting Washington D.C.'s gun control laws, and Saul Cornell , one of the fourteen other amici, claimed some authorship as well. Their Heller brief was a disgrace of American history due to numerous erroneous assertions, conflation of Second Amendment language with militia powers amendment discussion, and extensive missing essential information. The specific points regarding these matters have been extensively documented in a 24 part series entitled, Root Causes of Never-Ending Second Amendment Dispute, published at On Second Opinion Blog commencing January 25, 2009. All parts of this series can be directly accessed from the Fisking Index Page link at the top of this Part 1 URL page:
http://onsecondopinion.blogspot.com/2009/01/root-cause-of-never-ending-second.html

Immediately after reading the Rakove Heller brief, I wrote a critical op-ed for History News Network noting its many historical problems. That article, Why D.C.'s Gun Law is Unconstitutional, was published on February 17, 2008, and can be found at this URL:
https://historynewsnetwork.org/article/47238

Virtually nothing that Jack Rakove, Saul Cornell, and the other professional historians provided to the U.S. Supreme Court in their Heller case brief relating to Second Amendment development and intent can be relied upon as accurate. They essentially removed the Second Amendment from its actual American Bill of Rights related developmental history and provided the Supreme Court with an exposition of their personal views and beliefs, which are directly in conflict with American historical reality.

read full comment
Image of David E. Young
David E. Young
on May 18, 2018 at 11:20:12 am

The history department on a contemporary college campus is no different from the departments of literature, humanities, social science, political science and law; it is filled-to-overflowing with secular Progressives. Professor Rakove appears to me to be one of them, and we could quickly name dozens of other prominent intellectuals like him who play an important (and I suspect knowing) role in the left-wing's organized campaign against the foundations of American cultural and constitutional history and western civilization. They often appear to me to be prepared to deconstruct or reconstruct history (or literature or humanities or law or social science or political science) where doing so serves an important contemporary political objective of the Left.

One of the many beauties of CSPAN is that it enables us viewers to see this insidious ideological process at work as we watch academics and authors participate in panel discussions or interviews in which contemporary political and cultural matters are discussed. A particularly telling test is to observe the authors answer questions about Presidents Obama and Trump, answers which often disclose their unbridled admiration of Obama and contempt for Trump while revealing their Leftist political bias and overriding ideological concerns.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on May 19, 2018 at 14:59:46 pm

Pukka Luftmensch decries "the left-wing’s organized campaign against the foundations of American cultural and constitutional history and western civilization."

Are not right-wing libertarians equally guilty?

Perhaps Pukka Luftmensch will agree that natural law is one such foundation, and that the essence of natural law is promotion of piety and benevolence (together with other virtues) as the source of happiness.

Perhaps Pukka Luftmensch could share an opinion on the Founders' view of the government role in the cultivation of virtue among the people.

I'd be especially interested in Pukka Luftmensch's (and others') appraisal of Chapter 5, Sec. 2 of the Massachusetts Constitution:

"Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, IT SHALL BE THE DUTY OF LEGISLATURES AND MAGISTRATES, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people."

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 19, 2018 at 15:17:06 pm

That constitutional emphasis on education, wisdom and virtue is the Puritan influence on the politics of Massachusetts. See the writings of Edmund Morgan.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on May 19, 2018 at 15:53:31 pm

I was hoping that Pukka Luftmensch would share an opinion on the advisability of what the Massachusetts Constitution commends to legislators and judges.

To dismiss "wisdom and virtue" as a relic of "Puritan influence" ignores the fact that it was the Genevan Professor of Jusripridence Jean-Jacques Burlamaqui -- the leading expositor of natural law in the 18th century -- who divided the four classical virtues into "wisdom" (the perfection of the understanding) and "virtue" (the perfection of the will).

Furthermore, it was Burlamaqui's student Emer de Vattel -- author of the era's leading treatise on the law of nations (which was "constantly in the hands" of the Continental Congress, according to Benjamin Franklin), who wrote that "the education of youth is one of the most important affairs that deserve the attention of the government."

I hope that Pukka Luftmensch will agree that Vattel was not a puritan. Perhaps unfamiliar with Vattel? The Massachusetts Constitution (Chapter 5, sec. 2) simply channels Vattel, in particular "The Law of Nations," Book 1, Chapter 11:

" Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where centre all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. §5). It is then the duty of those who form this public will, or of those who represent it—the rulers of the nation—to labour for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power.

"To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found,—that is, in their own perfection,—and to teach them the means of obtaining it. The [48] sovereign cannot then take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline.... The first impressions made on the mind are of the utmost importance for the remainder of life. In the tender years of infancy and youth, the human mind and heart easily receive the seeds of good or evil. Hence the education of youth is one of the most important affairs that deserve the attention of the government.... Who can doubt that the sovereign,—the whole nation,—ought to encourage the arts and sciences?... To instruct the nation, is not sufficient:—in order to conduct it to happiness, it is still more necessary to inspire the people with the love of virtue, and the abhorrence of vice. Those who are deeply versed in the study of morality are convinced that virtue is the true and only path that leads to happiness."

Vattel's "The Law of Nations" -- the clear model for Chapter 5, Sec. 2 of the Massachusetts Constitution, is online at http://oll.libertyfund.org/titles/vattel-the-law-of-nations-lf-ed

What does Pukka Luftmensch think of Vattel in relation to American Founding ideology?

read full comment
Image of John Schmeeckle
John Schmeeckle
on May 19, 2018 at 16:09:59 pm

Natural law and Biblical wisdom were fundamental to the Founding. Garry Wills denied it, describing the Founders and the Founding as consequences of the Enlightenment, but Thomas West proved the indispensability of natural law and Daniel Dreisbach of the Bible. To recognize the importance to the Founding of the Puritans and the Puritan ethic is not to deny the significance of natural law.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on May 19, 2018 at 17:32:54 pm

Pukka Luftmensch incorrectly states that "Thomas West proved the indispensability of natural law" to the American Founding.

Rather, Thomas West falsely argued that Lockean "natural rights" were indispensable to the American Founding. Lockean "natural rights" theory is an unrecognizable transmogrification of classical natural law, which has a moral psychology of perfection (or habitual virtue -- especially benevolence) and happiness, as opposed to Locke's calculated self-interest, with happiness being a goal unattainable in this lifetime.

Perhaps Pukka Luftmensch will be willing to consider the possibility that not West but rather I (John Schmeeckle -- pronounced Shmek-lee) proved the indispensability of natural law to the American Founding, with my recovery of the 1776 Congressional definition of happiness, as discussed first in my 2008 master's thesis "Happiness, Natural Law, and the Declaration of Independence." This was the basis for several article submissions, three of which have been available online for many years (as Thomas G. West knew and knows) at https://independent.academia.edu/JohnSchmeeckle

read full comment
Image of John Schmeeckle
John Schmeeckle

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.