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Historians, Originalists, and Pauline Maier

One of the continuing disputes that originalists have is with historians. Very few historians are originlists, and many have no respect for the enterprise at all. It is telling that Gordon Wood, some years ago, defended originalists by saying something to the effect, their theory is mistaken, but many of them are nice people. With friends like that . . . .

Historians often criticize legal scholars, including originalists, for doing “law office history,” by which they mean the legal scholars cherry pick historial information simply to support their case. This is sometimes true, even of originalists, but all originalists recognize that this is bad practice and criticize one another for doing so. Law office originalism is bad originalism, but that does not mean there is not good originalism.

Originalists, however, also criticize historians – for what originalists call “history office law.” History office law can involve a failure to understand and be careful about legal issues. But perhaps it most often involves a mistaken understanding of the enterprise of interpretation as practiced by originalists. There are various originalist methodologies and the differences are important. But to take just one originalist methodology, the original public meaning approach asks what the meaning of a provision would have been to a reasonable and knowledgeable person at the time. Historians often do not understand or apply this correctly. And they often make statements that originalists would strongly disagree with, without any strong reasons backing them up – statements such as, because there was disagreement at the time of the Constitution on a provision, that means there was no original meaning.

My sense is that these differences are due to a variety of causes. One is that the historians often lack legal training. Another is that they appear to be trained to be skeptical of reaching conclusions that suggest a single (or dominant) view at a time or employing their own judgments about what the materials would have meant to people at the time. And a third is that people are not necessarily good at everything and if one has the skills to be a historian, he or she may not have other skills.

I was reminded of all this when I saw that Pauline Maier had passed away, just a few years after publishing her very well received book Ratification. While Maier clearly knew a lot about the past, she appeared to have had the weaknesses typical of historians. This statement from Steven Haywood at Powerline seems similar to my complaints: “She seemed to embody a trait found often among historians, of mastering and uncovering important facts, but having no systematic grasp of the wider theoretical implications of the subject matter.” That was my own limited experience with Maier, which I blogged about here.

Reader Discussion

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on August 17, 2013 at 16:43:52 pm

Nice!
Or as Jaffa says 'understand them as they understood themselves."

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gabe
on August 18, 2013 at 08:45:16 am

Historians can't seem to grasp the idea that people can have totally different opinions, yet still deliver a compromise that actually has literal meaning, and spend much of their live trying to demonstrate that what something says isn't what it means.

I would submit that the only reason a historian looks into the past is to prove their belief system.

I can't remember it it was Scalia or someone else who described the three tests of original intent, but I submit that there is a 4th. Would the states, knowing this meaning to be what it is believed to be, sign the Constitution. In many very common cases, the meaning we have today would have absolutely prevented ratification and possibly would have caused a genuine civil war (as opposed to what we euphemistically call THE Civil War).

Historians seem to have a hard time uncovering the fact that the Commerce Clause exists not to restrict or control interstate trade in anyway but to PROTECT it from arbitrary state controls, taxes, interference.

Historians seem to have a hard time discovering the actual meaning of "provide for", which doesn't mean "to give" or "provide with", but to SAVE FOR, to SET [tax money] ASIDE FOR.

Historians have a hard time discovering that the arguments over "importation and migration" had solely to do with the commerce of slavery.

They also seem to have a very difficult time discovering what the word "Necessary" means, let alone "Proper".

They don't know what the Civil War was, seem to believe the South started and the North was a victim of Southern aggression and was simply defending itself.

They seem to believe that Honest Abe was a reality, not a slogan.

Etc, etc, etc.

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John Ashman
on August 18, 2013 at 09:13:55 am

For an elaboration of the distinction between historians writing about the law and lawyers writing about history, please see John Phillip Reid, "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. Indianapolis. Liberty Fund. 1993, 2007, pp. 185-308, an essay which would appear later as The Ancient Constitution and The Origins of Anglo-American Liberty. Dekalb. Northern Illinois University Press. 2005.

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G. M. Curtis III
on August 18, 2013 at 17:27:02 pm

I agree with many of the comments made by John Ashman above, as well as some of the comments made by the author of the above post. I would also like to emphasize the distinction between serious originalists, like Raoul Berger, who fearlessly demonstrate how extensively we have deviated from the intent of the various framers (of the original Constitution and, then, the various amendments). Even though Berger might be faulted for primarily looking at the respective framers and not the intent of the states who ratified the Constitution and its amendments (e.g., in his GOVERNMENT BY JUDICIARY), he stands head and shoulder above, in terms of the integrity of his scholarship, the phony originalists who attempt to sneak in grandiose conceptions of natural rights (and even natural law) into their analysis.

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Peter Haworth
on August 18, 2013 at 22:48:59 pm

Well, you can't really expect much in the way historians look at the past. Not after they drummed the Calvinists out of education along with most other religionists of the Christian persuasion, a neat trick pulled by a group of institutions. I, after all, that George Bancroft, the first American Historian of note in the first part of the 19th century, called America a Calvinistic Republic. The lawyers, however, read the historians of that persuasion out of the scene. What school would hire one who went back to the primary sources and cited people like Witherspoon and a host of others and built a case for America being a Christian nation (a decision of the Supreme Court in 1792 and 1892, if my memory has held up)? Interestingly enough, two professors from some University in Houston did the research and found out that our founding documents by double digits (34%) owed their origins to the Bible and by single digits to two political philosophers, John Locke (8-9%) and Montesquieu (6-8%).

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dr. james willingham
on August 18, 2013 at 22:50:29 pm

line 3, sentence 3, "If,"...

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dr. james willingham
on August 18, 2013 at 23:28:06 pm

Pauline Maier wrote political history--very good political history. She did not write legal history, and to my knowledge never pretended to do so. The distinction matters. I doubt much that Professor Rapport's criticism of ALL historians stands up to scrutiny, if he restricts himself to the work just of those historians who focus on the history of law. To be fair, professor Rapport on occasion acknowledges that he recognizes that different historians speak with authority to different forms of human endeavor. But then, in his summation, he moves to condemning the work of all historians, not merely the opinions of those who venture outside their realm of expertise. Some of the folks commenting in this thread fail even to acknowledge that there is a difference.

Constitutions are, like most forms of human endeavor, complex. They create frameworks of government and of law. But they also are the result of political processes. Professor Maier's fine study of the ratification process is a study of politics, not law. For what it is, it is excellent work, and likely to remain for some time the definitive account. Her opinions about the unfolding of the politics of ratification deserve to be treated with respect.

I think it is entirely appropriate to treat the claims of someone whose work is about unpacking political processes and narrating how they came to transpire with some skepticism, on those occasions when they venture outside of the realm of what they know. Pauline Maier was a very fine historian, and read for what her scholarship actually does, nothing that Professor Rapport has to say in his blog detracts from it. She was not a lawyer nor was she a historian of law, and to so far as I know never pretended to be either. When it comes to offering opinion about contemporary legal matters, her views command the respect anyone should give to an engaged citizen, but certainly no undue deference. This does nothing to detract from her professional work.

There are some historians whose arguments, by nature of their expertise and scholarship, do command respect on questions of legal history. I seriously doubt, for example, that Professor Rapport would be able or would wish to make the kinds of criticisms he makes of Maier of someone like John Philip Reid, or Peter Hoffer, or Christopher Tomlins, or for that matter Jack P. Greene. I think it very likely that he would take issue with some of their findings--but he could not criticize them for lacking understanding of legal theory.

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Kevin R. Hardwick
on August 18, 2013 at 23:30:39 pm

I would urge Dr. Willingham to read the work of historian John Ragosta. Ragosta, it should be mentioned, possesses a J.D., although he does not write about legal history.

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Kevin R. Hardwick
on August 19, 2013 at 00:02:31 am

Professor Rappaport writes, "[Historians] appear to be trained to be skeptical of . . . employing their own judgments about what the materials would have meant to people at the time." I am not sure why he (or anyone else) would write this. Historians, including Maier, make such judgments all the time, as anyone with even a passing familiarity with the work of historians will recognize. Historians, however, in common with Lawyers, Political Theorists, and indeed anyone who aspires to rigorous thought, do strive to provide warrants of their claims before they hold them to be credible. And, in common with other kinds of scholars of human action, they also strive to use language with precision. Thus, for example, what presents itself to my attention most forcefully in the sentence Professor Rappaport writes above are the words "people at the time." Just which people are we talking about?

With the contribution of Dr. Willingham, above, in mind, we might, for example, wish to scrutinize what the concept of "freedom of conscience" meant to Virginians in the mid-1780s. At that time an immensely popular Virginia politician by the name of Patrick Henry proposed a broad and tolerant law to create an extraordinarily liberal Christian establishment in the Commonwealth. Had the law been successful, Dr. Willingham might well be excused for describing at least that part of the United States encompassed within the Old Dominion as a "Christian Commonwealth."

However, another popular Virginia politician, a man named Thomas Jefferson, led a movement to oppose the law proposed by Patrick Henry. A third Virginia politician, closely allied with Jefferson--a man named James Madison--wrote a powerful "Memorial and Remonstrance" opposing the law Henry supported, and arguing for instead strict separation of Church and State within the Commonwealth. Madison adduced a wide variety of arguments designed to speak to various constituencies within the state. Among them were arguments designed to speak to evangelical Christians in the state--and, while the evidence is a mostly anecdotal, it seems very likely that Madison crafted these arguments in part in consultation with evangelical Christians--including Baptist leaders like J. Leland and Presbyterian leaders like Madison's college professor and mentor James Witherspoon. What is proven, however, is that the two politicians who opposed Henry's law--Jefferson and Madison--were successful in preventing Henry's law from passing, and in securing passage of Jefferson's law, with the over whelming backing of the state's evangelical Christian community.

So--if the matter at hand is the question that Dr. Willingham raises, "was the Virginia corner of America at its inception a Christian nation?"--it matters a great deal whom we talk about when we talk about "the people." For evangelical Christians, this question was answered emphatically in the negative. For liturgical Christians, on the other hand--the Protestant Episcopal Churchmen who advocated for Henry's view of the matter--the answer was "yes." This was a matter on which reasonable, informed, and thoughtful men disagreed, although as the politics of the matter played out, it was the view of the evangelicals that prevailed.

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Kevin R. Hardwick
on August 19, 2013 at 09:29:25 am

One final thought on the difference between historical and legal reasoning.

Good historians ask questions to which they do not know the answer, and then try to develop answers for those questions from appropriately methodical engagement with primary sources. History done in this fashion often develops answers that the scholar asking the question did not anticipate. A thesis, from this kind of method, is always the answer to an open question. Not all history, of course, is good.

Good lawyers are trained to be advocates. Lawyers take a thesis, and develop for it the strongest argument they can. A thesis, in this kind of method, is given a priori, before the lawyer commences research. As above, not all legal scholarship is good.

It is on the basis of these two quite different approaches that historians criticize the historical work of lawyers, and vice versa. See the introductory essay by John Philip Reid in his Constitutional History of the American Revolution (I believe the title is "Jurisprudential History" or something like that) for this distinction, as told by a scholar who is sympathetic to the methodology of legal scholars.

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Kevin R. Hardwick
on August 20, 2013 at 10:10:35 am

I refer readers of this thread to my article, "The Constitution as an Exploding Cigar: And Other Historian's Heresies About a Constitutional Orthodoxy," NEW YORK LAW SCHOOL LAW REVIEW 55 (2010/2011): 1073-1095, available online at:
http://www.nyls.edu/user_files/1/3/4/17/49/1156/Law%20Review%2055.4_06Bernstein.pdf

As a constitutional historian with legal training and experience, I have tried to show why historians rightly have doubts about originalism, on grounds that often do not show up in originalist discourse, pro and con, which tends to be written by constitutional theorists and scholars with little or no historical background and training.

Further deponent saith not.

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R. B. Bernstein
on August 23, 2013 at 02:51:47 am

R. B. Bernstein, “The Constitution as an Exploding Cigar: And Other Historian's Heresies About a Constitutional Orthodoxy,” 55 New York Law School Law Review 1073, 1088 (2010/2011) (footnotes omitted) (capitalization added to "ONLY"):

"My favorite example is the Electoral College. The Constitution’s framers expected the Electoral College ONLY to thin the herd of presidential candidates, with the House of Representatives picking the President and Vice President from the top three. George Mason of Virginia predicted that this would happen in nineteen out of twenty elections. It did not work out that way."

"Top three"? The "top three" requirement was imposed by the Twelfth Amendment, not the framers. Article II allowed Congress to choose among the top five, right? And exactly who were these "framers" to which you speak? Precisely which framers took this position other than Mason? Your three footnotes did not clarify this.

This is your "favorite" example -- in a paper you recommend others to read as a critique of other scholars' work?

Seth

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Seth Barrett Tillman
on August 26, 2013 at 15:43:25 pm

This statement from Steven Haywood at Powerline seems similar to my complaints: “She seemed to embody a trait found often among historians, of mastering and uncovering important facts, but having no systematic grasp of the wider theoretical implications of the subject matter.”

Agreed. I see some of this in Doris Kearns Godwin's Team of Rivals (which I'm currently reading). Still, I find law office history more egregious: the deliberate cherry picking; or the negligent reliance exclusively on reported cases; or the ignorance of secondary sources outside Westlaw/Lexis; or the anachronistic use of contemporary legal understandings.

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David Upham
on February 26, 2015 at 15:09:08 pm

A quick look at Heinonline showed three references to "History office law," one of them a rejection of the other two. If this is a major critique of legal history by trained historians (who may or may also be credentialed by law school degrees to write about anything at all), it must be flying under the radar. Either than, or it is shared orally by its advocates. Best, Pete

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Peter Hoffer

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