Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
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.