Over at the Faculty Lounge, historian Saul Cornell has a guest post criticizing my recent post. In that post, I had criticized Richard Epstein’s freedom of speech interpretation based on a singular police power. I said:
First, it is not clear that the police power concept was in existence as a concept in 1789. They certainly limited rights by these types of considerations, but it is not at all clear that they had a understanding of those considerations as a singular police power. More work needs to be done on when this concept emerged, but my sense is that it emerged in the first half of the 19th century. Thus, the police power may make good sense as a matter of political theory, but not of originalist constitutional law, at least for the initial Constitution and Bill of Rights enacted in 1789-1791. (The 14th Amendment may or may not be another matter.)
Rappaport is dead wrong about the history and his claim ought to raise a red flag about the entire “original methods” variant of originalism. Rappaport believes that we need some work on this topic. In fact, we have such a work, William Novak’s book, The People’s Welfare. The first chapter of this important study deals with the origins of the police power and looks at a number of Founding era sources.
Although the phrase “police power” was not all that common in the Founding era, the concept was frequently invoked. The 1776 Pennsylvania Constitution affirms “III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.” St George Tucker’s chair at William and Mary was in law and police. Tucker’s Blackstone has a number of references discussing the regulation of “internal police.” (first emphasis added)
When you say someone is dead wrong about something, you’d better be dead certain you are right. Unfortunately, Saul isn’t.
My point, which appeared to have escaped Saul, is that the singular concept of a police power, which Epstein was invoking, did not appear to exist in 1789. My point was not that the term “police” or “police power” did not exist. It was rather about the existence of a singular legal concept of the police power. I think my post was clear enough, since David Bernstein in the comments recognized it and pointed it out to Saul.
I wouldn’t be so annoyed about this, except that this is not the only time Saul engages in such overheated rhetoric. His article in Dissent does the same thing. I had always thought you should let your arguments do the talking, not your rhetoric.
Perhaps Saul believed that he was on solid ground, because he, a Ph.d in History, was instructing a mere law professor about history. As he said, “Rappaport is dead wrong about the history.” But what many historians who write about law fail to recognize is that the validity of their claims does not merely depend on simple history. It requires an appreciation of legal concepts and legal distinctions – an appreciation that fails Saul here.
Historians who write about law frequently go on and on about “law office history.” Even assuming that their complaint was correct (and that it did not also apply to the bias of historians about history, which we have seen plenty of), it would not excuse “history office law” – the failure of historians to understand and apply legal concepts.
I could go on about other distinctions that Saul fails to appreciate — between different types of new originalists, between errors of application and errors going to the theory — but that would only belabor the point.