Constitutional legalism is no panacea, but it is the best we lawyers can do.
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.