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Originalism Deploys History Under Legal Discipline

Lynn Uzzell has written a broadside against both anti-historical originalists and anti-originalist historians. I am one of the originalists criticized. But more importantly, the picture Uzzell paints of originalism as practiced is unrecognizable to me.

Originalism today is deeply historical in its effort to recover the meaning of the Constitution as it would have been understood by the Framers of the Constitution. Indeed, the brand of originalism which Mike Rappaport and I formulated requires following the methods of interpretation that would have been deemed applicable at the time—a subject that obviously requires research into legal history. But more generally, as Mike Rappaport and I have recently discussed, scholars interpreting particular constitutional provisions today undertake deep dives into the historical usage of its legal terms, like “due process” or “cruel and unusual punishment.” They have also applied legal interpretive rules that and they have supported their use by showing that the Framers themselves used them. It is hard to think of more pro-historical originalism than this.

Now it is true that originalists have not tried to fix the meaning of constitutional provisions by considering historical movements or plumbing the motivations of the political actors at the time, but that is how it should be. The original methods of constitutional interpretation did not do that either. Nor do originalists today generally put the intent of particular Framers front and center in their interpretation. But if one reviews the early judicial opinions about state constitutions as well as the Federal Constitution (that review is history too!), that kind of approach is also generally absent. It is not surprising that appeals to the intent of individuals was not the preferred original method. Modern scholars have showed the difficulty in aggregating different intents.

Thus, while I do not agree with Larry Solum that Mary Sarah Bilder’s claims, even were they true, about Madison, are likely to advance originalism as a positive enterprise, they are not likely to dramatically revise our interpretation of the Constitution’s original meaning. It is largely fixed by other historical evidence more relevant to the way legal meaning was determined at the time. That does not mean that the private intentions of the Framers cannot point to the relevant context of the provision. Larry Solum, who Uzzell also criticizes, says as much here, and originalists do make use of such statements for these limited purposes.

Besides her criticism of the positive use of originalism, Uzzell ventures into a discussion of its normative attractiveness, suggesting that it is imperiled by Mary Bilder’s claims about Madison’s “doctoring” of his notes. But normative defenses of originalism do not depend on holding out the Framers as perfect individuals. Many did things of which we would disapprove today, particularly with regard to slavery. This is not the place to go through all the justifications for originalism, but in my view the most important is that it received consensus support in a ratification process that makes for good fundamental law. Madison’s notes, which were not made public during the ratification process or for decades afterwards, have nothing to do with this consensus.

Perhaps Uzzell is saying that Bilder’s attack on Madison will undermine originalism in the mind of the public as a matter of fact, even if it does not undermine it as a matter of theory among the learned. Forgive me for being skeptical. I am reminded of a cartoon with headline “Einsten’s theory of relativity changed everyone’s understanding of basic reality,” showing a man in the street left agog after it was announced. The public is likely to think of the Framers much as they did before Bilder’s book.

Finally, I did not “shrug off” Bilder’s historical account of the Framing, as Uzzell says. I contested the historical claim that she made in a Boston Globe op-ed that originalism reads the Constitution as a technical contract. It does no such thing. But it does read it as a legal document. And I show that Bilder fails to account for the evidence from the words of the document itself and the historical context surrounding its production that the Constitution was a legal document, subject to legal interpretative methods of the time. I could not have plausibly discussed Bilder’s work on Madison in my response, because she did not mention it in the op-ed.

My refutation, of course, appealed to history. Uzzell is right that originalism cannot be anti-historical, but it should focus on the evidence that original methods—themselves a product of historical inquiry—deem relevant.

Reader Discussion

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on May 18, 2018 at 11:09:21 am

"...that originalism reads the Constitution as a technical contract. It does no such thing. But it does read it as a legal document."

How can it be anything other than a legal document? To assert otherwise would seem to (effectively) deny the basis for all american law and its legal system.

Intent should be the province of historians as they weave their "reconstruction" of ever fading memories, and like memories. history is filled with many hues / shadings that strike the eye of the various and dissimilarly situated observers at oblique angles.
It strikes me that such a lens is singularly inappropriate for a the law and COTUS; even more so for those who would interpret and apply such *intentional* law.

In any event, well said, Prof. McGinnis!

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gabe
on May 18, 2018 at 13:41:06 pm

Two points here.

First; the Constitution should be read as a contract or, more exactly, as a covenant between the rulers and the ruled. My argument here is that from the Mayflower Compact to the Fundamental Orders of Connecticut to the Massachusetts Body of Liberties American, American political documents were derived from the Calvinist low church confessions or covenants that were the fundamental documents of Independent and Presbyterian congregations. A decade later in England, the same sprit is clearly exhibited in the several "Agreements of the People" proposed by the Leveller faction between 1647-49.

From 1620 onward in the American commercial colonies, the relationship between the governed and their magistrates or rulers was always based on covenant theology. The governed, who elected both their church and civil rulers, understood that they were duty bound to submit to their elected rulers. The rulers understood that their performance in office would be continuously judged by the governed and that they, the rulers, would have to stand for re-election periodically (usually annually). The 17th C. literature in the American colonies shows that the rulers spent a lot of time ruminating on the characteristics of a good ruler and the ruled spent a lot of time ruminating on their duty to submit to the rulers they had elected.

Second; the focus should be on the language of the Constitution as it was understood by those who ratified the document and not on the subjective and usually undisclosed intent of the Framers. The legal maxim here that ambiguities in the language used in contracts must be construed against the party that drafted the document and not against the party that agreed to the contract.

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EK
on May 18, 2018 at 14:26:10 pm

A contract assumes a equal relationship between the two parties. This isn't that. The Constitution should instead be understood as an agency document (like a power of attorney), in which one party (the people) delegates power to act on their behalf.

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Devin Watkins
on May 18, 2018 at 14:44:55 pm

I think that is the difference between a Whig and a republican.

Your interpretation would support hereditary slavery and a hereditary aristocracy. I think Sir Robert Filmer (1588-1653) was the last person in the Anglo-sphere who made that argument with a straight face and his argument was published only after his death.

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EK
on May 18, 2018 at 16:48:53 pm

It seems to me that it does not matter what you call it, "covenant", agency document" or a bloody Mahoska", it is a legal document and must be read and interpreted employing those rules and methods common to such documents.

Or are we asserting that since the Constitution is NOT a legal document that nothing within it is legally enforceable. If so, then why all the lamentations concerning the Good and honorable Justices of the courts. If not enforceable, then the good Judges are certainly free to rework it to their hearts content.

Then again, how else can we rule over our little Smurfs?

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gargamel rules smurfs
on May 19, 2018 at 02:06:54 am

What? hereditary slavery and a hereditary aristocracy? I have no idea what the hell you are talking about. And a person from before the constitution existed made the same argument about the constitution? Are you crazy? I mean, I don't even know how to respond to the argument as it is just that wacky.

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Devin Watkins
on May 19, 2018 at 02:13:29 am

Wait, you think I am supporting the "Divine right of kings"? LOL. That could not be further from the truth, you got it exactly backwards. I do not believe it is the King who is the sovereign, it is the people. It is the people from which all the power of government comes, not the other way around. It is as James Madison said in Federalist #46, "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. " Or as the Declaration of Independence says "governments are instituted among men, deriving their just powers from the consent of the governed." It is from the people that the powers of government come.

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Devin Watkins
on May 19, 2018 at 13:20:50 pm

Devin:

Just think - when was the last time you were called a Whig?
Well, sir, you have accomplished something in that!!! I for one would stick with your Whiggish positions - Ha!

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gargamel rules smurfs
on May 19, 2018 at 14:27:48 pm

So, I’m not really in favor of the High tarrifs or public works projects of the Whigs, but I am closer to a Conscience Whig. But of the political parties of that era, I would probably be closer to a part pf the Free Soil Party. Tarrifs no higher then needed, pro-homestead act, and anti slavery. “Free Soil, Free Speech, Free Labor, and Free Men” sounds like a good slogan to me.

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Devin Watkins
on May 22, 2018 at 14:08:51 pm

With all due respect for two thinkers for whom my respect is unbounded, I believe that I answered this question plainly if not definitively several decades ago: http://www.williambarclayallen.com/chapters/Constitution_Not_Just_a_Law.pdf .

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W. B.Allen

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.