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Do Historians Understand Originalism?

I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree. In fact, I think his recent op-eds about the true meaning of the Thirteenth Amendment suggest that even Eric does not really believe historical inquiry is incapable of discovering original legal meaning.

Actually, I am quite certain that law professors are far, far ahead of Foner in developing theories of textual interpretation and methodologies for identifying common historical patterns of language usage. And where historians like Foner seem to believe that historical knowledge is directly applicable to contemporary legal problems and politics, originalists understand that historical meaning is one thing, but applying such meaning to contemporary cases requires a separate normative argument. And woe to the originalist who fails to reveal her priors!

There is better and worse originalist scholarship, of course, just as there is better and worse history department scholarship. But I am beginning to think historians have read very little originalist scholarship, good or bad. In his recent essay in Fordham Law Review, historian Jack Rakove has “qualms” about semantic meaning originalism. Pointing to the groundbreaking work of Gordon Wood (which Rakove seems to think few originalists have read), Rakove notes that legal concepts were under rapid development in Revolutionary America. This, to Rakove, poses a serious problem for originalists:

This perception of the underlying character of Revolutionary-era constitutionalism hardly fits well with the dominant motif of semantic originalism, the so-called “fixation” principle, which holds that the linguistic content of a constitutional provision is set at the moment of its adoption, in terms whose meaning are already transparent to contemporary users. As a legal principle, fixation seems like a wholly plausible theory: a document is drafted, its authors and signers have objectives—intentions—they seek to secure, and they do their best to impart those intentions into the text. Once its content is fixed in this way, later interpreters have a legal obligation to ascertain and apply those intentions. Or so semantic originalists like to think.

The problem is that not a single originalist, at least that I know of, adopts this caricatured version of originalism. I would have thought Rakove was aware that semantic originalists do not seek the “intentions” of the Framers. They seek the communicative content of legal texts. This content is “fixed” at the time of the original communication—a meaning that can be recovered by an empirical search for common patterns of language usage at the time the text was adopted.

But even had Rakove accurately described the semantic originalist project, he seems unacquainted with how it has been deployed. Originalists know Wood’s work (see, for example, about 20 of my articles). In fact, Wood is incredibly important to originalists: At the time of the Founding, critical constitutional ideas were undergoing major development. Despite that development, however, the Constitution remained an intelligible communication circa 1787. In fact, as Wood himself has shown, a peculiarly American popular sovereigntist understanding of fundamental law was in place by the time the Philadelphia convention adopted the Constitution and sent it along for ratification. Legal historians have known this fact, and relied on this fact, for decades (see, for example, the first volume of Bruce Ackerman’s We the People).

Rakove is correct, the ideas were newly emergent. But they had emerged and they are discoverable. At most, Wood’s work calls into question one school of originalism—original methods originalism—and even there only in relation to issues of construction. (The “methodist” originalists rely on pre-Founding era Blackstonian rules of textual construction.) In fact, originalists are already debating the degree to which emerging concepts of law and constitutionalism during the Founding era support one or another approach to constitutional construction. (See, for example, my review of McGinnis and Rappaport’s 2013 book Originalism and the Good Constitution.)

Law professors who wish to gain a competent understanding of social and political history should read Eric Foner and Jack Rakove. But Foner and Rakove need to read a lot more originalist scholarship if they want to usefully enter the world of originalist debate. And they might want to hurry up. Otherwise, a lot of bright young legal historians are going to realize that all the really interesting work is being done over at the law school.

Reader Discussion

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on December 11, 2015 at 08:45:24 am

Ok, I get it. Historians are clueless. They do not understand the law professors, who are far more advanced in their thinking. When they critique their intellectually superior colleagues, they do so with caricatures.

Fair enough. But suppose I want to understand what the law professors are saying. What do I read? Where are the terms they use defined. What is the difference between "intentions" embedded in texts and "communicative content." The one term reflects the undeveloped thinking of guys like Foner and Rakove, the other the much better and more sophisticated thinking of guys like Lash. The two terms look to me to be identical, so obviously I am missing something.

Why is it that the epistemological problems implicit in the one way of talking about this are profound, whereas those implicit in the other are straightforward?

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Kevin R. Hardwick
on December 11, 2015 at 09:59:58 am

Much of the problem is simply that many historians let their present politics get in the way. They want to control how people use their work in the present, and so they build straw men to attack when it appears that their work is being used in ways with which they do not agree. Oh well.

Original meaning, as a type of originalism has come into its own, but earlier forms of original intent thinking were a bit too simplistic. Historians, being conscious that multiple interpretations can be found in any given time, still take aim at this earlier, more vulnerable target. It keeps them on good terms with the rest of the faculty.

But if they really believed that past meanings and present understandings were entirely incommensurable,they would have to desist from writing history.

If they want to enter into debates about law and legal interpretation, you are quite right that they should read the most current literature. But if they just want to do history well, then thankfully, they can just do that and keep out of the current fray.

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Hans Eicholz
on December 11, 2015 at 11:05:35 am

Ken-L-Ration, anyone? This seems to be a case of "My dog's better than your dog, my dog's better than yours" (how does one put musical notes in comments?).

As a non-member of the Academy, I find myself often bemused by the apparently never ending efforts of one school or another to produce an all encompassing interpretive framework advancing one view or method as the only proper one. All dogs have fleas (at one time or another) whether the proud owner will admit it or not.

It strikes me that any effort to understand the Constitution, or any law for that matter, that self restricts the available avenues of inquiry is doomed to fail as all such efforts will fail to account for the totality of influences considered by the drafters of the text / law. Let us not forget that laws, constitutional clauses, etc. are not created ex nihilo; rather, they are (were) a concrete response to a concrete problem that confronted the drafters at the time the text was created.
To simply study the text, and its somewhat fluid "communicative content" or intent leaves out the rather rich area of historical inquiry - What was the problem; what were the options, what compromises were made?
To simply study the history and not the discussion / arguments / leaves out the the intent of the drafters. The intent can not be apprehended without an understanding of the meaning of the text contemporaneous to the drafting.

Ultimately, law represents the outcome of compromise(s), in effect a decision. Understanding that decision requires both an appreciation of the historical / social / cultural realities and a fairly clear grasp of the contemporaneous meaning of the words comprising the text. Statute law has sometimes been described as the outcome of sausage making; to what extent is constituent law similarly influenced? Clearly not as much as a present day omnibus bill - but nonetheless various ingredients (inputs) were clearly a part of it.

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gabe
on December 11, 2015 at 12:07:52 pm

And from today's news, an interesting example wherein Justice Kagan's dog is shown to have fleas:

http://thefederalist.com/2015/12/11/elena-kagan-selectively-quotes-amendment-framers-on-redistricting/

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gabe
on December 11, 2015 at 18:23:36 pm

Hans--

You are too good a scholar to indulge in this kind of fallacy. No historian of whom I am aware, or with whose work I am familiar, believes that past meanings and current are incommensurable. That's a reductio ad absurdam.

I think it is entirely fair to ask scholars of any kind of discipline to get the arguments of other scholars from other disciplines right. So asking that historians get the arguments of legal scholars right on their own terms is reasonable. But equally, that obligation falls on law professors too. If you ascribe positions to historians that those historians do not hold and have no desire to defend, then you are hardly engaging in conversation with them.

There are serious epistemological problems getting at past meaning. Any scholar who is concerned to get the past right confronts those problems. Sadly no one is immune from that--not academic historians, nor anyone else: you, me, Professor Lash.

I think it is entirely legitimate to accuse academic historians of far too often ignoring the evidentiary and epistemological issues with constructing historical knowledge. But on the other hand, anyone trained in academic history does in fact give these issues long and serious consideration. Attention to these issues occupies an important and honored position in the training and practice of academic history. It is central to what academic history is. I have no idea to what degree that is true for people trained in other disciplines, but a priori, I would guess less so, just because of the opportunity costs. Historical epistemology is not central to the practice and training of, for example, sociologists, and so has a less prominent place in their training or discourse. I would guess this is true of law professors too.

We can have a serious conversation about recovering past meanings, if anyone desires. But thus far, the tenor of the conversation does not give suggest that anyone, excepting perhaps Gabe ;) is really interested in doing that.

Just to get that ball rolling though, and in the spirit of optimism: what is the difference between recovering "communicative content" and "intentions?" I know that any time I try to communicate with someone else, my intentions have a great deal to do with the content of my writing or speech. I write differently, for example, when I am writing in a venue that might draw sanctions down upon my head than when I am talking privately with my friends--a point powerfully made by Leo Strauss, among others. Unless you are a French semanticist, who thinks that "texts speak authors," you can not disentangle intentions from the communicative content of texts.

As I understand it, modern originalism of the sort being valorized here strives to recover the commonsense, reasonable public meaning of a written statement. I see a great many oroblems with this project, some of which I have developed elsewhere in this forum. But before reiterating those, it seems prudent to make sure I understand this kind of originalism in a fashion that its proponents can say "yes, you've got it--that is the position we strive to defend." So again, I repeat--where can I find a reasonably concise and unencumbered statement of this kind of originalism, so I can try to understand it for myself?

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Kevin R. Hardwick
on December 15, 2015 at 09:18:29 am

You missed my qualifier. I wrote, "But if they really believed..." Clearly they don't really believe this, though some like Hayden White often sound like he wants to make such a claim. Really, what they want, with respect to certain questions, is to have their cakes and to eat them too.

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Hans Eicholz

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