Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
Gordon Wood on History and Originalism
Will Baude writes about Gordon Wood’s views on originalism. He quotes Wood as stating:
[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.
Will writes that “Gordon Wood’s remarks, while mixed, were much more accommodating than [Will] expected.” I agree with Will, that Wood was more accommodating than I expected, but still I have real problems with Wood’s remarks.
Most importantly, I can’t tell exactly what Wood is saying. One possibility is that he is saying that originalists (and law professors generally) use history to buttress their cases and therefore they can’t really be true to the history. But that’s ok, because the two enterprises differ. Historians are after truth, but law professors seek to persuade for political and legal purposes. For example, Wood criticizes Scott Gerber’s view that the Framers were committed to the separation of church and state, noting that there were many established churches and other interactions between church and state at the time of the Framing. But then Wood seems to excuse Gerber on the ground that law professors have different purposes.
Well, if that is what Wood means, I completely disagree. Good originalism should follow the actual history and the claim that the Framers were commited fully to the separation of church and state is simply bad history. Originalists are supposed to make accurate claims and I don’t want Wood making excuses for originalists on the ground, well, these lawyers have different purposes. Thanks, but no thanks.
But at other times, Wood seems to have something else in mind. He seems to believe that there is a division of labor and that law professors need to have a simpler understanding of history than historians do – history lite – but that is ok, because they can’t be expected to have the same full understanding and couldn’t use history for practical purposes if they did. This is a bit better than the first possibility. I agree that law professors can’t be both historians and lawyers, and they might have to sacrifice a bit of history. Still, I would resist this possibility.
Finally, at yet other times, Wood appears to recognize that original public meaning originalists are not interested in all aspects of history, but mainly the original meaning of the words. He recognizes that this greatly reduces the burdens that originalists must meet in order to have an adequate understanding of history. This is the closest to my view.
Originalism does not require too much of law professors. Originalist scholars can investigate the original meanings; they don’t need to fully understand the history the way that a historian needs to. Thus, they can practice, not really a form of history lite, but rather a subspeciality of history – an investigation of legal meanings. While this is hard, it does not require that originalists be superhuman or understand the past to the full extent that a historian needs to.