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Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians’ superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement.

One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend to be on the left, while most of the originalist law professors are on the right.  The methodological differences are bad enough without being magnified by politics.  For example, even when I talk to right wing historians who are somewhat sympathetic to originalism, I still find myself often disagreeing with their methodological points.  These methodological differences are important.  Matters only become worse when we add political fuel to the fire.

Another problem is that the two disciplines often are pursuing different goals.  Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning.  Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time.

Thus, I was pleased to see two articles written by Stanford History Professor Jonathan Gienapp presenting the historians side of the argument with a lot more understanding of and respect for originalism than historians ordinarily exhibit.  That is not to say that I agree with all of his arguments, but his essays are a big improvement.  Happily, Gienapp’s argument has been engaged by various originalists, including Randy Barnett, Mike Ramsey, and Larry Solum.

Much of Gienapp’s first essay argued that the newer originalist theories purported to avoid having to possess detailed knowledge about history.  Instead, these originalists would merely need to know the linguistic meaning of the terms.

In Gienapp’s second essay, he argues that the newer originalists have underestimated how difficult it is to understand late 18th century English.  Instead, they need to appreciate that historians are specialists in understanding the past and therefore their skills are needed to genuinely understand the original meaning.  The techniques by originalist law professors are generally not adequate.

Ultimately, I agree with Professor Gienapp in at least this sense: the more knowledge and information we have, the better.  Historians and law professors bring different perspectives and different skills to the table and generally our understanding of the past will benefit if we have more knowledge.  Thus, historians can make a contribution.  But even if more knowledge is better than less, the key question is how important different types of knowledge is and how much each contributes to the enterprise of discovering the original meaning.

In my next post, I want to focus on a more specific question – whether the techniques used by originalists are usually adequate to the task of determining the original meaning and how often the contributions of historians are needed.

Reader Discussion

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on April 11, 2017 at 09:28:31 am

"Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning. Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time."

These two are not necessarily incompatible (although the last clause "changed over time" is more suspect). An example: 14th Amendment, Sect I "All persons born....."

Why was this sought? Was it to assure that immigrants from foreign shores could have status as natural born citizens OR was it to provide constitutional protections to the Freedmen.
would this not be helpful in understanding the "legal" language of the Amendment?

And then we come to "changed over time": Here, it seems to me, that both historians and legal scholars go astray. How something changed over time does not (necessarily) inform the original intent / meaning; rather, it could simply be evidence of a certain form of constitutionalism - you know, the LIVING kind!

That being said, it is important that the two disciplines come to an understanding: WHY the drafters did something and HOW they chose to formalize that in legal terms are both significant in capturing meaning.

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gabe
on April 11, 2017 at 14:23:47 pm

We had to read Shakespeare in the original English in high school, but the founders who wrote two hundred years later can't be read in high school civics without a historian?---doubtful!

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Kye
on April 12, 2017 at 20:57:38 pm

I have found that, all too often, legal scholars and historians and political scientists share an ignorance of how law was actually understood in revolutionary-era America. Natural law (or "reason," to use the preferred legal term) was the cornerstone of traditional English jurisprudence (as studied in the eighteenth-century colonies), and this school of thought was much older than Lockean "natural rights" in a state of nature. (Locke wasn't even a lawyer!) In this natural law tradition, "perfection" --development of habitually virtuous behavior, with benevolence (active concern for the well-being of our fellow humans) foremost among the virtues -- was the prerequisite for "happiness."

Natural law was understood as coming from God (the "author" of human nature), which meant that there was a fundamental connection between law and theology. This can be seen in James Wilson's law lectures (1790-91) as well as in this gem of legal orthodoxy from the "Essex Result" criticizing the proposed (and rejected) 1778 Massachusetts Constitution:

"The reason why the supreme governor of the world is a rightful and just governor, and entitled to the allegiance of the universe is, because he is infinitely good, wise, and powerful."

The Essex Result is online at http://press-pubs.uchicago.edu/founders/documents/v1ch4s8.html

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John Schmeeckle
on April 14, 2017 at 10:54:51 am

I have yet to see a historian actually assist in the understanding of the Constitution. All I've seen thus far is posturing.

When I asked one historian to explain the Power to Tax Clause in view of his superior understanding of the past, he suddenly pulled up his drawbridge and retreated into his master's chambers.

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John Ashman

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