Historian, Cure Thyself

Over at the Faculty Lounge, Saul Cornell has another post criticizing me.  Like his previous post, Saul’s post is filled with overheated rhetoric – more on this below.   He responds to a post I wrote about a different historical paper regarding historical method and freedom of the press.  At the end of my post, I concluded it with a respectful line, which I wrote because I believe there is a gulf between legal scholars and historians about methodology.  I wrote:

I must admit that perhaps I am not understanding the historians.  Or perhaps they do not understand legal methods and legal meaning.  Or perhaps the truth is somewhere in between.

Saul responds to this with a cheap shot.  He writes:

To be fair, Rappaport  confesses that his frustration may be a function of ignorance.  Thus, he writes: “I must admit that perhaps I am not understanding the historians.  ” On this point I think Rappaport is correct. The entire new originalist project rests on a series of profound errors—some philosophical and  others historical.

I suppose Saul, given his intemperate writing, wouldn’t know a respectful line if it hit him in the face.  Let me explain something else: you don’t return respect with derision.  People will think you are a jerk .

With the formal matters put to the side, let me turn to substance, where Saul is once again profoundly ignorant.  Saul writes:

Rappaport and most new originalists  show little understanding of the complexity of Founding era legal culture. The result is a one dimensional account of  legal meaning.  Rappaport claims to be interested in using original methods, but he seems unable to grasp the most basic  fact about the Founding era’s interpretive methods: there was no consensus on interpretive methods.  This point has been demonstrated by a number of  legal scholars, including Caleb Nelson and Larry Kramer.  Historians have long appreciated this point, but as Martin Flaherty’s work demonstrates, most originalists seldom read deeply in the relevant historical scholarship and so are blithely unaware that few serious historians would accept that the Founding era was a period of constitutional consensus.

Once again, there is ignorance here, but not on my part.  If Saul would simply read the works that he appears to be criticizing, he would see that my work with John McGinnis does recognize there may have been disagreements at the founding.  We recognize that there was a traditional intentionalist interpretive methodology (associated with Blackstone), a seemingly distinct intentionalist interpretive methodology, which sought to look at legislative history, and a more textualist oriented methodology (sometimes associated with Alexander Hamilton’s bank opinion).  Nor do we claim that these are the only positions that were held.   See here starting on page 786.

While we have argued the Constitution should be interpreted in accordance with original methods, we have not argued what those methods were.  We believe that this would involve an in depth and balanced inquiry into the historical materials that we have not engaged in.  We do, however, believe that the leading methods at the time were all some version of originalism – original intent, original public meaning, etc.

It is not clear why Saul assumes that we believe we have already engaged in this task.  Perhaps he is in the grips of a preconception about the originalist world that he cannot shake.  But a little bit of old fashioned historical research – reading the articles one criticizes – might help.  Historian, cure thyself!

Reader Discussion

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on March 21, 2012 at 12:40:38 pm

I was in graduate school in American History for a few semesters before I went to law school. The intellectual failings of American Historians are multitudinous and severe.

Here are a few things they simply do not understand:

1. Religion. Religion has been driven from the graduate school. American Historians do not understand it, even though it has driven social change in the United States from the first immigrants through the Civil Rights movement, and the culture wars.

2. English history. The American Revolution and the constitution are a dialogue with the English Civil War and the Glorious Revolution. Those English events are the historical context within which American History occurred.

3. Money and banking. Without a deep understanding of money and banking much of American political history is incomprehensible. American Historians simply have no knowledge at all of the subjects. This is why the only worthwhile histories of Banking in the US were written by a banker and a financial writer.

4. Law. Lawyers need to understand history, but American Historians do not understand law. When I was in grad school, I read about the Supreme Court rulings of the gilded age that said that corporations were entitled to due process. The American Historians who wrote about it could only understand it as crude side taking. When I went to law school and studied corporation law, I realized that the American Historians were baffled because they had no clue about the law.

Cornell, unfortunately combines all of the ignorance of his fellow American Historians, with political hackery. Unlike Krugman, he will neither get a Nobel Prize, nor a NYTimes column.

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Walter Sobchak
on March 21, 2012 at 19:13:25 pm

It seems to me that Professor Cornell makes a patently false assumption: that unless there was "consensus" as to the legal meaning of something, the meaning was arbitrary. This is the same disfavored principle that underlies claims that only unanimous Supreme Court decisions can create precedent.

It is not necessary for an originalist to resolve eighteenth century disputes over how the Constitution should be interpreted; it suffices that the Constitution withstood those controversies and that we were left with a record, not only of the disputes, but of their outcomes and the reasoning that favored one side over the other. It seems rather silly to argue that originalists cannot use founding principles to resolve modern legal questions because there is no consensus as to what those principles were, but then realize that the founders were able to resolve their own issues even absent that consensus.

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on May 01, 2012 at 15:02:06 pm

Vy nice indeed. Reminds me of my early (German) law soochl years. Remarks:Where is Switzerland ? The Swiss have a very good civil code (ZGB) which ist quite distinct from ther German BGB while Austria (ABGB) is rather close.Further to this, Kemal Atatfcrk incorporated the ZGB`s basic principles into Turkish law, not the BGBs as I remember (quick check in German Wiki confirms this).Great admirer of the Corsican Ogre that I am, I wd rather call the French codification Code Civil as the French do. Boney`s contribution was real and important, but it was naturally exaggerated by his admirers.Having done internships in France during my student days I wd not underrate the common origin of both systems: the Roman law. French and German law have astonishing similiarties in some respects (the concept of ownership and land ownership in part.) which show their common origin. I have also heard Common Law in my student days and it is just different.Btw. Alsace and Lorraine still retain the post 1871 German-style land register (Grundbuch) which according to a French colleague was just too good too abolish again.Finally, where wd you situate EU-law in this? The EU is forcing legal changes upon their members which may lead to a certain harmonisation in some fields.

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on May 03, 2012 at 23:17:19 pm

All argument about the ssenillis of a judicial philosophy that infuses a modern ideology into bits and pieces of what the framers said and passes itself off as what the founders originally intended Is Scalia the only Justice who will cite himself? That is, Scalia will write a dissenting opinion and then later quote himself in that dissenting opinion when writing for thr court. In doing so, he makes his writing in dissenting opinions (read: not the opnion of the court) and inserts it into the law (read: makes his opinions the opinion of the court). I'm wondering if any other Justice in the history of the Court has done this.I think my favorite Scalia opnion is RAV v. City of St. Paul, where he obsesses about the shockingly hard core pornographic movie that contains a model sporting a political tattoo over and over.

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