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Originalism Historically Conceived

Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.

Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O’Neill, the doctrine’s initial expositors such as Berger “made originalism impossible to ignore.”[1]

Consistent with its semantic meaning, originalism provoked novel and creative responses in the domain of jurisprudence. This effect has not been a function of the “climate of opinion.” Rather, it is a necessary and proper constitutional preservation and maintenance project for the sake of limited and responsible federal republican government. But critics such as James E. Fleming, a follower of Ronald Dworkin’s moral reading of the Constitution, rue the proliferation of originalist interpretations. Fleming’s list of varietals includes original meaning, Framer intent, interpretivist, constructionist, original methods, and public meaning.[2]

Another critic, the Stanford historian Jonathan Gienapp, invites historians and legists to reflect on original intent jurisprudence in a recent series of essays.[3] Gienapp instinctively perceives originalists as conservatives driven by presentist aims who need a “methodological corollary” to pursue those aims. Referring to the pioneering 1980s scholarship of Berger and Bork as “Originalism 1.0,” Gienapp says its goal was to recover what the Constitution’s Framers intended. When challenged on conceptual grounds, conservative judges and legal theorists later introduced the concept of “original public meaning,” referred to by Gienapp as “Originalism 2.0.”

Under the latter approach, constitutional text and discourse are understood in the manner employed by a competent speaker of the language at the time of the Constitution’s framing and ratification. Gienapp dismisses Originalism 2.0 as “studying word usage,” which leads to semantic nitpicking. It omits the historical context of American constitutionalism, according to Gienapp. Because it “claims to have escaped history,” the new originalism poses an urgent threat to the practice of history. Debates over it have “gravitated . . . towards the philosophical foundations of historical meaning.”

Originalists, he says, in insisting that “the document’s meaning could not evolve with the times” but must remain “fixed and constant over time,” have “stopped trying to beat historians at their own game—by re-writing the rules by which that game is played.” Instead of fighting a losing empirical battle, originalists “stake out different conceptual foundations altogether.” In D.C. v. Heller (2008), for example, the new originalists sought to engage historians on a “non-historical turf,” dismissing historians’ contextual reading of the Second Amendment as a misunderstanding of the concept of original meaning.

Gienapp exhorts historians to fulfill their professional obligation and rise to the originalist challenge. The dispute is not over Founding-era facts, he says, but over “what methods are needed to identify the original historical meaning of a historical text.” The new originalists, conceiving of historical knowledge in terms of cognition, profess “a certain kind of historical meaning” that they believe makes them “immune from historical critique.” In other words, Gienapp avers, public meaning originalism defines history as “a form of knowing that rather than a form of knowing how.

He posits a different conception of historical epistemology. Historians gather and organize facts to produce “empirical knowledge,” but their expertise “is that they know how to read historical sources and properly decipher their historical meaning.” This is the meaning sources have “in their original historical context.” To think historically, therefore, means “knowing how to bracket the assumptions, values, and logics that shape contemporary consciousness,” in order to replace them with the assumptions, values, and logics that framed the very different mental universe of those living in a different time and place.” This “know-how” in “reading historical sources,” Gienapp declares, “is the defining attribute of historical expertise, organizing the profession and guiding its training.”

To grasp the meaning of words “in their original historical context requires first reconstructing the foreign conceptual world from which they issued.” It means “taking up residence with the natives of the historical past” and “learning how to think and reason as they once did.” In relation to the Constitution, Gienapp explains, it requires “knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have, . . . learning how to think historically, . . . behaving like a historian.”

Gienapp presents the case for “know-how” historicism in matter-of-fact terms. He does not consider the influence of modern and postmodern contexts on interpretive modalities concerning “how to think historically” and “behaving like a historian.” If he means what he says, however, it is unlikely that he would affirm the truth-value of thinking historically.

The source of historicism is Giambattista Vico’s 18th century treatise New Science claiming that people think differently in different eras. Vico defended rhetoric and culture against Cartesian rationalism aimed at detecting error and falsity in discourse. Historicism is the modern philosophical principle holding that historical knowledge is relative to the standpoint and circumstances of the historical investigator. Historicism, or historical relativism, denies ontological reality and truth. Whether its practical function is to serve as an instrument of moral confusion or as an agent of truth is debatable.

Gienapp is a full-fledged historicist and proud of it. Asserting that the “issue at the heart of originalism” is “the phenomenon of historical difference in language use,” he adopts historian Bernard Bailyn’s claim that the “past is a different world”—one so foreign that “a different form of translation is required.” Public meaning originalists, according to Gienapp, assume that the conceptual vocabulary of the Founding is still very much in view and in practice, and thus never tackled the phenomenon of historical difference in language use.

The key to the historical problem of language use is not so much putting things in context but “figuring out which context and why.” How do historians actually conduct the linguistic translation that is needed? This is where “historical know-how” comes in, Gienapp explains. For discernment on this issue historians need to find the right philosophers to lead them from darkness into light. Historicist revelation enters most propitiously by knowing “how to speak the language in which the text was originally written, knowing how to play the so-called language games—as the philosopher Ludwig Wittgenstein famously put it—in which the text was originally embedded.”

If “the past is indeed so foreign,” Gienapp reasons, “then a different form of translation is required: holistic translation.” What historians need to do is “first to translate the whole language of which the words were mere components,” processing individual meanings or arguments.  Historicism is essential to “appreciate the foreignness of the past,” and “historicism and holism mutually reinforce each other.”

In Gienapp’s account, contemporary historicism is grounded in the intellectual authority of pioneering philosopher-psychologists William James and John Dewey, analytic philosophers Ludwig Wittgenstein and W.V.O. Quine, and neo-pragmatists Richard Rorty and Donald Davidson. These mind-reading savants provide the intellectual capital required to construct a historicist-holistic idiom for understanding the foreign world of the past. Moreover, the  philosophers Michel Foucault, Thomas Kuhn, and Clifford Geertz have advanced historicist understanding in the social sciences “by stressing the holistic, and thus contingent, character of human concepts,” he writes. The bottom line for Gienapp is that “historical know-how,” the coin of the realm in postmodernity, is grounded in Wittgenstein’s assertion that the key move in acquiring philosophical insight is “knowing how to play language games.”

Holism is based on the proposition that the whole is greater than the sum of its parts, in contrast to inductive verification in which the parts function within the whole. In semantic holism, words acquire meaning not in isolation but in the context of sentences that constitute a language. Gienapp’s project depends on Wittgenstein’s theory of linguistic game-playing as the platform on which holistic historicism is constructed. In place of a “representational picture of language,” Wittgenstein adopted “a functionalist account of meaning” in which “the content of sentences is a product of how words are used in contingent discursive contexts.” Wittgenstein wrote that “only when language was returned to the messy reality of its everyday usage could usage, and thus meaning, be illuminated.” As Gienapp says, “Wittgenstein saw language as fundamentally a social practice,” not as a medium essentially tied to something external. Thus “he considered the constitutive elements of language to be contingent and historical.” Reading a historical text in the “language game” contest to restore original meaning “was thus primarily about the recovering original language games.”

The object of Gienapp’s anti-originalist project is not obvious. Ostensibly, he intends to protect the community of professional historians from a hostile takeover by originalists, while converting originalist-minded legists and historians to the discipline of historicist-holistic ratiocination. He laments that historians and originalists have not enjoyed meaningful exchanges because “originalism plays an ever-growing role in contemporary political culture.” The question, in Gienapp’s view, is “what relationship does historical inquiry as practiced by professional historians have to theories of originalism that legal scholars have refined?”

While originalists acknowledge differences between the Founders’ words and ours, in Gienapp’s view they fail to recognize that “the first key to understanding the American Founding is appreciating that it is a foreign world.” He claims that the public meaning originalist Lawrence Solum, for example, “argues for an originalism without history.” Solum denies that the Constitution has a different meaning now than when it was created. Failing “to historicize,” his method of translation proceeds from “the faulty premise that the Founding generation and we occupy the same linguistic world.” Solum and other 2.0 originalists, Gienapp charges, “fail to appreciate the holistic character of meaning—that individual utterances earn their meaning based on how they fit into a linguistic whole.” Originalists err in their interpretation, “focusing on individual words and statements when they must first grasp the broader idioms from which those component parts issued.”

Although historicism and holism can be taken to extreme lengths, that lesson should not minimize their importance. Following Wittgenstein, Gienapp reiterates that restoring original meaning is “primarily about recovering original language games.” The representational understanding of language is replaced by a functional view. Only when language was returned to its everyday usage, said Wittgenstein, could usage and thus meaning be illuminated.

Gienapp cites the political philosopher Quentin Skinner, a linguistic conventionalist, as a convert to Wittgensteinian holism. In place of ahistorical essentialism that elevates texts to the trans-historical level of perennial debates, Skinner “opted for historicist nominalism.” Following in the path of Plato, Machiavelli, and Hobbes, Skinner wrote about “the state.”  “[ R]egulated by distinct language games, he found that their uses of the word ‘state’ were so different” that “it was illusory to assume they were picking out identical concepts.” Skinner turned out to be “a far more authentic public meaning originalist,” Gienapp concludes, precisely because he appreciated Wittgenstein’s philosophical teaching “that an appropriately historicist brand of public meaning requires contextualizing original utterances holistically.”

In acknowledging the perdurability of originalism, Gienapp might be attempting to make originalism the best it can be through friendly criticism. Taking his writings at face value, however, it is reasonable to conclude that his principal intention is to fashion a historicist-holistic platform on which Progressive moral aspirations can be fulfilled. Against the background of judicial activist policymaking that provoked originalism, it is conceivable that Gienapp’s historicist-holistic construct may serve as the rationale for Progressive aspirational fulfillment.

Consider, for example, that Justice Kennedy, in Obergefell v. Hodges (2015), cleared away the ontological reality of male-female marriage as so much detritus, declaring that same-sex couples “aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” This is the “whole” in Gienapp’s historicist-holistic paradigm, into which sundry subordinate parts are to be absorbed. In Obergefell Justice Kennedy also appealed to historicism in finding that male-female marriage was based on social convention. As the times change, “reality” changes accordingly.

Postscript: Professor Gienapp, presumably practicing historicist-holistic epistemology, wrote an article in 2015 entitled “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism.”[4] The question at issue was whether the Constitution ought to contain a provision authorizing removal of government officers appointed by the President.

Although this was a technical matter on which the Constitution was silent, delegates in the Federal Convention sensed that it had more than a surface-level significance. They understood the issue “as pertaining to the very meaning and status of the Constitution itself,” Gienapp wrote, adding that the disposition of this question was “a crucial moment in the development of American constitutionalism.”

Upon ratification of the Constitution, “Americans had committed themselves to a written document that would serve as final political arbiter.” The instrument was now “the final judge of political life.” Gienapp concluded that the fundamental issue raised concerned “the concept of the essentialism of the United States Constitution.” An ontologically-minded metaphysical realist originalist could not have said it better.

[1] Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Johns Hopkins University Press, 2005), p. 131.

[2] James E. Fleming, Fidelity to Our Imperfect Constitution (Oxford University Press, 2015), pp. 1-24.

[3] See Jonathan Gienapp, “Constitutional Originalism and History,” essay posted March 20, 2017 on processhistory.org, the website of the Organization of American Historians; Jonathan Gienapp, “Knowing How vs. Knowing That: Navigating the Past,” essay posted April 4, 2017  on processhistory.org; and Jonathan Gienapp, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review, Vol. 84, Issue 3 (2015).

[4] Jonathan Gienapp, “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism,” Journal of the Early Republic, Volume 35, Number 3 (Fall 2015).

Reader Discussion

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on August 10, 2017 at 10:34:28 am

At times, I thought i was reading Strauss or Jaffa - "to understand them as they understood themselves."

Also, what appears to be missing from the book (and the essay, perhaps) is a recognition that the original text was a product of *political* compromise.* without an understanding of the political factors / forces motivating the drafters / ratifiers, no amount of textual and idiomatic analysis / interpretation will yield a fully fleshed out understanding of either meaning or intent.

What does a textual / linguistic analysis of the Three-Fifths compromise yield without knowing the political / cultural aims of both the South and the North?

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gabe
on August 10, 2017 at 12:36:10 pm

"The question at issue was whether the Constitution ought to contain a provision authorizing removal of government officers appointed by the President."

Am I missing something? Isn't this completely covered in Art. II, §§ 2 and 4?

I really don't see what the problem is all about with originalism except that colonial history is not simply taught. Before 1789, the several colonies had existed as independently functioning political and economic units since 1630. There are a wealth of records that give us a very good understanding of what the people thought they were ratifying in 1788-89. The Constitution was a plain language document and the ordinary rules of contract interpretation require that ambiguities be construed against the Federalist drafters and in favor the anti-Federalist opposition at the time. After all, the Federalist Papers were nothing more than Federalist propaganda and should be treated as such.

American history begins with the English Petition of Right in 1628 OS. That was the last constitutional document the settlers brought with them from England. The right vindicated in the Petition of Right was that only Commons could levy taxes and that was the first right vindicated by the settlers in the colonies in 1634.

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EK
on August 10, 2017 at 13:01:00 pm

Even though language itself evolves, the underlying concepts don't go away. Scholars go awry when they immerse themselves in the vagaries of linguistics at the expense of focusing on what the drafters of that document were trying to do.

lf you don't understand relevant British history, you would have a hard time grasping what they wanted to accomplish. The beheading of Charles l, the Glorious Revolution, and their experience in the Colonies all imparted hard lessons in governance (as did the ancients), and they took Georges Santayana's warning to heart. Bottom line, they were trying to preserve "the rights of Englishmen" by preventing everything that went wrong in Britain.

They listened to the greatest intellectual lights of the day: Blackstone, Locke, Montesquieu, Gibbon, and Sidney. Giving too much power to a king invited despotism, as evidenced by the experiences giving rise to the Dol. Parliamentary supremacy precipitated a different set of problems: lt was not lost on them that Bill of Rights [1803] was a mere statute, which could be repealed at any time. An unwritten Constitution was as malleable as the Living Constitution certain elements of modern society want to impose. And as Gibbon observed in his magnum opus, "the discretion of the judge is the first engine of tyranny."

Montesquieu's solution--dispersing ultimate power among three coordinate branches of government--was the one they ultimately chose. And even if they had written COTUS in Latin (like Magna Carta), the object of the contract hasn't changed since the days of King John l. All we have to do is figure out what they had in mind.

A good illustration of this principle is the Good Behaviour Clause. ln a paroxysm of naked self-interest, today's judges swear that it is too abstruse to enforce. But if you see COTUS as an equation and "plug in the numbers," the provision makes perfect sense.

Although most agents of the Crown served “at the pleasure of the King,” public officials in England were frequently given a freehold in their offices, conditioned on “good behavior.” See e.g., 4 Coke, Inst. of the Laws of England 117 (Baron of the Exchequer). Lesser lords were also granted the authority to bestow freeholds, creating an effective multi-tiered political patronage system where everyone from paymasters to judges to parish clerks enjoyed job security. See e.g., Harcourt v. Fox [1692], 1 Show. 426 (K.B.) (clerk of the peace).

At common law, good behavior tenure was originally enforced by the sovereign through the writ of scire facias. But as this power concerned only the interests of his subjects, and the King exercised it only in parens patriae, he was bound by law to allow the use of it to any subject interested. Blackstone explains:

“WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.”

3 Wm. Blackstone, Commentaries on the Laws of England 260-61 (1765); see, United States v. Amer. Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process).

By making an official subject to removal for violating it, the condition of good behavior defined the powers of a given office. Lord Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise said office. Saikrishna Prakash and Steve D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citing Coke’s Institutes). Blackstone added that “the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king’s bench.” 4 Blackstone, Commentaries at 140-41. Thus, the duty to be fair and impartial was an integral part of an 18th-century English judge’s job description, as was the duty to hear every case properly brought before his court.

More importantly for separation-of-powers purposes, the legal power to enforce this provision lied with the aggrieved citizen. Judges didn't have to fear the wrath of the President or Congress, but they had to do their jobs. And given how haughty and arrogant modern judges have become, you can see why they want to make this provision go away.

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LawDog
on August 10, 2017 at 13:07:07 pm

You can't remove a document from its surroundings and hope to understand it. The problem of slavery--Jefferson was 30 years ahead of Wilberforce--hangs like a cloud over its conception. Thinking of COTUS as a treaty makes it easier for me to understand.

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LawDog
on August 10, 2017 at 13:15:10 pm

l would merely add that we really don't teach history, period. l respectfully submit that knowledge of British history and law are even more essential to an understanding of how COTUS is to be read. Though l have little fear of any grave deficiencies among the regular contributors here, l would recommend Yale's on-line course on the topic and especially, the latter half of the course, http://oyc.yale.edu/history/hist-251, to passers-by.

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LawDog
on August 10, 2017 at 13:45:18 pm

Dawg:

Agreed. "Wordsmithery" simply has us chasing our collective tails.
I think people often forget that COTUS is a *POLITICAL* document and attempts to apprehend / comprehend its meaning / import are absotively pointless without recourse to the "politics" underlying it and the beliefs / traditions / practices of the citizenry comprising that particular politics at that particular time. This is not to say that there are no "truths" embedded in those politics that have (had) validity from time immemorial into the distant future.

I, too, have argued that one must attempt to discern the nature of the problem that these decent, practical men were determined to fix. Perhaps, some bright scribe will be so kind as to coin a term for this: i.e.," original problems originalism" In doing so, we may also come to understand, and, yes, appreciate, even its *original* defects.

COTUS is akin to great aunt Bessie's fruitcake. Comprised of many ingredients (grains, fruits, nuts, sugars, etc) with a taste not acceptable to all BUT it was intended to (and has ) last for, well time immemorial (if Bessie hit the booze hard enough.) Indeed, like Bessie's confectionary masterpiece, it has been passed down among the generations.
Hey, not bad for a mishmash, right!

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gabe
on August 10, 2017 at 20:49:06 pm

Mr. Gabe, This has nothing to do with today's topic, which I admit I haven't even had a chance to read yet.

Thanks for suffering my ignorance - If the U.S. and N.Korea are still technically under a cease fire; as such, if we should find ourselves on the verse of serious aggression again with N.Kor, would Trump still be required to go to Congress to obtain their consent, (are we actually in a sense, still at war with NKOR)?

I imagine Congress would say an emphatic "YES"!

Thanks!

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Paul Binotto
on August 10, 2017 at 22:21:03 pm

Originalism is the idea that words have their original meaning. For example, "No person shall be a representative who shall not have attained to the age of twenty-five years," does not say "goats under bridges eat tobacco", it says "No person shall be a representative who shall not have attained to the age of twenty-five years".

"Freedom of speech" means "freedom of speech". We can argue whether or not erotica or campaign advertisements count as "freedom of speech", but originalism means we have to begin with the idea that there is such a thing as "freedom of speech" until it is specifically removed by amendment.

Another example, "the right of the people" does not mean "the rights of the collective body of the people", such that as long as the police don't violate the collective's freedom from search-and-seizure, they can violate any particular individual's freedom from search-and-seizure by searching any private home without a warrant. Originalism states that "the right of the people" means "the right of each and every person".

How do we know that the founders used the word "collective" when they meant it and didn't use it when they didn't mean it, like in the second amendment?

25. The property of the soil, in a free government, being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes, that the limits of the State should be ascertained with precision: [. . .]
-North Carolina Declaration of Rights (1776)

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we can communicate because words have original meaning
on August 11, 2017 at 11:24:20 am

This is why l persist in calling COTUS a treaty: Pacta sunt servanda controls. lt is what the Framers expected.

CJ Roberts's infamous "precedent on precedent" makes this clear. The office of a judge "is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief … [and to] add force and life to the cure and remedy, according to the true intent of the makers of the Act," Heydon’s Case [1584] 3 Co. Rep. 7a, 7b, 76 Eng. Rep. 637 (Exch.), "A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880).

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LawDog
on August 11, 2017 at 16:41:34 pm

What ignorance??? Never let "wordsmiths" bring you down (illegetimi [wordsmiths) non carborundum)

But that is an *interesting question and it beat the heck out of me!

take care

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gabe
on August 11, 2017 at 17:37:35 pm

Ha - thanks! That's not very likely to happen; I am too much of one myself.

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Paul Binotto
on August 12, 2017 at 12:57:47 pm

Professor Belz writes of Gienpp's summary of Wittgenstein: "Reading a historical text in the 'language game' contest to restore original meaning 'was thus primarily about the recovering original language games.'" Aside from the question of Gienapp's or Wittgenstein's agenda, there is a relevant issue here, which I explain as follows.

1. The post contains repeated references to "historians," but perhaps, regarding the interpretation of the U.S. Constitution, it is better to refer to "political scientists" and their combination of agenda-driven interpretation and ignorance of the language of law.

2. Modern-day scholars are all-too-often ignorant of the language patterns shared by educated men, especially lawyers, in the Founding generation, and for that reason can all too easily miss relevant nuances of language. The language of law back then was somewhat different from now.

3. An example of this is the Ciceronian rhetoric which lawyers and lawmakers of the Founding generation habitually employed as they aspired to persuasive discourse. Because of my awareness of this mode of communication, I was able to identify the definition of happiness in the Continental Congress's May 1776 independence resolution, embedded in a clever tautology associating "safety" with "lives, liberties and properties," while simultaneously associating "happiness" with "internal peace, virtue, and good order" (which goes back to Cicero's "Tusculan Disputations"). How could so many scholars have failed for so long to notice this definition of happiness? The answer, I believe, lies in the fact that we have lost an appreciation of the common influences that shaped the minds of the Founding generation.

As a step toward remedying this pervasive (but not universal) scholarly ignorance, I suggest the following reading list:

1) Charles F. Mullett , "Fundamental law and the American revolution, 1760-1776" (New York, 1933, reprint 1966), which gives a synopsis of the various works of legal and political philosophy commonly read by educated Founders.

2) Cicero's "De Officiis," which was universally studied (in Latin) as part of the Founding generation's secondary education. Of course this is just the beginning; the Founders were familiar with a long list of Cicero's works on rhetoric and philosophy, which formed an important part of their college educations. John Adams singled out "De Legibus" as among the most useful of Cicero's works, and young Thomas Jefferson copied passages from "Tusculan Disputations" into his commonplace book.

3) Alan Boyer, "Sir Edward Coke, Ciceronianus: Classical rhetoric and the common law tradition, in the "International Journal for the Semiotics of Law," February 1997, Volume 10, Issue 1, pp 3–36; online at https://link.springer.com/article/10.1007/BF01099258?no-access=true

4) Emer de Vattel, "The Law of Nations," focusing on the "Preliminaries" and Chapter 1, which form Vattel's concise summary of natural law. Vattel was of course the leading expert on international law in his day, and his influence on the Continental Congress is hard to overstate. Please keep in mind that colonial lawyers understood natural law to be at the foundation of the laws of England, so they were obliged to have at least a passing familiarity with natural law, and Vattel's work was a standard handbook. Vattel's work is online here: http://oll.libertyfund.org/titles/vattel-the-law-of-nations-lf-ed

5). The Founding Era's most respected thorough-going treatment of natural law was written by Vattel's professor at the University of Geneva, Jean Jacques Burlamaqui. Burlamaqui's "Principles of Natural and Politic Law" is online here: http://oll.libertyfund.org/titles/burlamaqui-the-principles-of-natural-and-politic-law

6) It was Francis Hutcheson who introduced the phrases "safety and happiness" and "unalienable rights" into eighteenth-century political discourse. Hutcheson's "An Inquiry into the Original of Our Ideas of Beauty and Virtue" [1726], for a while required reading at Harvard College, is online here: http://oll.libertyfund.org/titles/hutcheson-an-inquiry-into-the-original-of-our-ideas-of-beauty-and-virtue-1726-2004

Hutcheson's "Short Introduction to Moral Philosophy," a textbook studied by future Founders at the College of Philadelphia and elsewhere, online at http://oll.libertyfund.org/titles/hutcheson-philosophiae-moralis-institutio-compendiaria-1747-2007

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John Schmeeckle
on August 12, 2017 at 17:28:21 pm

You are good to provide these links. I've read three of your papers drawing the Ciceronian basis to much of the Framers thoughts on government and rights, and find your observations to be astute and your arguments persuasive.

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Paul Binotto

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.