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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.

Reader Discussion

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on October 24, 2013 at 14:09:39 pm

Mike:

Can I ask if you are prepared to say "original public meanings" and if, in so doing. that would include the commonfolk and what they believed they were "consenting" to?
BTW: Anybody, is there any material on the "common folks" perceptions / understandings of the Ratification / debates / constitution? would be interested in a quick review.

take care
gabe

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gabe
on October 25, 2013 at 02:15:43 am

Different originalists have different views on this. In my view, the Constitution -- as concerns its legal effects -- is a legal document that often has a legal meaning. The ratifiers who consented to it did so recognizing it would be a legal document for these purposes. That is why people like Hamilton and Brutus discussed its legal meanings.

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Mike Rappaport
on October 25, 2013 at 09:00:04 am

Once again I would like to suggest a consideration of John Phillip Reid's essay, "The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries," in Ellis Sandoz, ed., The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law (Liberty Fund, 1993, 2007). If American historians would consider more carefully Reid's perspective, it is likely that they would come to a broader and more sound understanding of the distinctiveness of the American Founding. These comments by and about Wood seem, in a desiccated way, to nip around the edge of a more profound consideration of the richness of history as a moral and intellectual inquiry. Could it be suggested that the Brennan/Meese debate did not open the doors as some of the participants to that debate may have hoped? Reid's analysis of Pocock in this essay cited provides bright light for this conversation.

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G. M. Curtis III
on October 25, 2013 at 10:22:36 am

Mike: Yes, of course, it was intended as a legal doc w/ legal meanings but my argument has been that it meant something more than just legal words to those who would be living under it - and we ought to be cognizant of what the audience "expected and anticipated." It may help to arrive at intended meaning and may shed light on the "moral and intellectual" history required by G.M.'s comments above. (I would add -cultural history)

Here is another take:

http://nomocracyinpolitics.com/2013/10/25/freedom-and-civility-by-anthony-esolen/

"What Americans suffer now is an imaginary and disintegrative “Constitution” which declares that, in one way or another, the law shall not perform that most important work of the law, because culture itself is “unconstitutional.” Mass education, mass politics, mass entertainment, and mass distraction masquerading as news—they are now what we take for culture, but those things bear the same relation to a living culture as the scattered members of a raccoon have with the beautiful and innocent animal that failed to cross the superhighway.

The true Constitution was one part blueprint outlining the mechanical relations among bodies of government, and one part guarantee of ordinary life against the threat of that machine. The “Constitution” is another thing altogether. It is what declares that there shall be neither steel nor simple iron, but only the mechanically adduced “will” of numbers—and of those most mechanical governors of the machine, with the levers and clutches before them, unable to resist “doing something,” without the slightest idea of what they will accomplish, or how much they will destroy."
(From an essay by Anthony Esolen, a Professor of English at Providence College in Providence, Rhode Island).

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gabe
on October 25, 2013 at 10:39:37 am

Flash Update:

In support of Professor Esolen's thesis:

"City of Seattle to ban use of the words, "citizen" and "brown bag."

Need anyone say more?

take care
gabe

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gabe
on October 25, 2013 at 22:27:33 pm

Allow me to add a strong second to Mr. Curtis' recommendation of John Philip Reid's essay, above. I'd like to expand it to include the entire corpus of Reid's substantial contribution to the study of the history of law and constitutions. Reid's magnificent four volume Constitutional History of the American Revolution deserves a wider readership.

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Kevin R. Hardwick
on October 26, 2013 at 20:36:53 pm

It seems to me that they are forced to choose between real history and legislative history and "necessarily" (more like conveniently) choose the latter.

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John Ashman
on October 26, 2013 at 20:50:59 pm

Mike--

For what it is worth, this sounds very much right to me.

All best,
Kevin

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Kevin R. Hardwick
on October 26, 2013 at 20:53:18 pm

John Philip Reid draws a distinction between history as written by historians and that which he calls "jurisprudential history." If I get time, I will try to locate this distinction and try to capture what Reid means by it.

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Kevin R. Hardwick
on October 27, 2013 at 08:42:44 am

Kevin:

That would be quite helpful. I cam across something by Reid and due to length of piece did not read it. even retire folks have demands on their time.
Hopefully, my brief reading of it was incorrect as I still see a potential overreliance on a legalistic view of constituent law without a fair balancing of cultural understandings and aims.

take care
gabe

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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.