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The Importance of Experts

Lynn Uzzell has criticized the positive reactions of both originalists and nonoriginalists to Mary Bilder’s book, Madison’s Hand (which argues that Madison doctored his notes). While I agree with some of what Uzzell says, unfortunately she fails to appreciate the importance of developing a strong originalist theory that will win the debate among experts.

Let me start with an area where I am in sympathy with Uzzell. Although I have not read Bilder’s book and can’t comment specifically on its scholarship, I agree with Uzzell that the book should be scrutinized and that it is not helpful to originalism if Madison’s notes are unreliable. That said, Bilder’s is a history book, and it is mainly the job of historians, not legal theorists, to assess it. Unfortunately, most historians are anti-originalists. Thus, I welcome Uzzell’s forthcoming book criticizing Bilder’s argument.

But I must disagree strongly with another strand of Uzzell’s post – her claim that the advances made by legal theorists are not especially helpful in promoting originalism. Uzzell claims that the public will not be persuaded solely by esoteric or hard to understand theories put forward by experts. But even if this is true, the views of experts are important and are often influential with the public.

It is essential for originalism to compete successfully in the debate among experts. I have seen the difference that support among experts makes. In the 1980s, originalism was believed to be a simple minded approach that no thoughtful and sophisticated person could accept. If one practiced or defended originalism, one was treated as if one was a flat-earther. For example, the legal historian William Nelson once said that he would never vote in favor of tenure for an originalist, as if originalism were like astrology. In such a world – where anti-originalists could just assume that originalism was wrong – persuading people to be originalists was extremely difficult.

Now, things are different. Originalism is respectable. While most lawyers, judges and academics still oppose originalism, one does not have to apologize for it anymore. A law professor or judge can say one is an originalist and people accept that it is not an unreasonable position to hold. That is a function of at least two things. First, and foremost, the arguments made in favor of originalism in recent years have become much more sophisticated and more persuasive. Second, many leading scholars have become originalists and defend the position. Thus, it is much harder for people to simply dismiss originalism. Now, they need to present arguments – they can’t just be prejudiced against it (in the sense of pre-judging it). It is true that non-experts may not fully understand these arguments, but that is besides the point. This is a battle among experts and what experts believe matters.

Consider the difference between two justices – Chief Justice Roberts and Justice Gorsuch. In his formative years as a lawyer, Roberts lived in a world where originalism was ridiculed and rejected. While one suspects that Roberts is sympathetic to originalism, he is not willing to tie his reputation to originalism in the way that Scalia or Thomas did.  I suspect that is because Roberts still retains the belief of his formative years that originalism is just too controversial to be relied upon forthrightly.

By contrast, Gorsuch grew up as a lawyer in a world of Scalia (and then later Thomas) opinions. In that world, originalism came to be defended by sophisticated arguments. Originalism had become more respectable. I believe Gorsuch is willing to tie his reputation to originalism in part because he thinks of it as a strong theory that cannot be easily dismissed.

The moral of the story is that expert debate matters. Of course, it is not the only thing that matters. The public’s views are also important. But the public’s views are in part based on the views of experts. And therefore winning the debate among experts is essential. While Uzzell offers advice on how to win the war, she unfortunately underestimates the importance of this battle.

Reader Discussion

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on May 21, 2018 at 09:02:23 am

By contrast, Gorsuch grew up as a lawyer in a world of Scalia (and then later Thomas) opinions. In that world, originalism came to be defended by sophisticated arguments. Originalism had become more respectable.

And what world did Scalia and Thomas grow up in?

Yes, let the experts continue to expert, but what matters above all is character, the willingness of a judge or justice to do what is patently right (an originalist strict constructionism) even in the face of the torrent of law review articles issuing forth daily to the contrary and the gravity of the "living constitutionalism" precedents accumulated over the past century. As for a judge's "reputation," well, this is just what I touched on in my comment to Uzzell's first post. All I can say is, we need more judges like Scalia, Thomas and Alito willing to defy the mob of reputation-menacing experts.

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QET
on May 21, 2018 at 09:28:55 am

Professor Rappaport says that Uzzell "fails to appreciate the importance of developing a strong originalist theory that will win the debate among experts."

There is no such victorious "theory" espoused by some ultimate legal scholar slouching toward Bethlehem to be born; there is no ultimate expert who "will win the debate among experts." Disparaging or ignoring history while inciting more law professors to proliferate more increasingly esoteric, unintelligible legal theories will not change that reality.

But doing so will weaken originalism by furthering the public and political appearance that originalism is but an academics' game.

Reliance on original text, original meaning, original intention (yes, it has its narrow place) and the study of history as the key to determining and understanding all three is the task. The way Raoul Berger did it.

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Pukka Luftmensch
on May 21, 2018 at 13:09:58 pm

"Reliance on original text, original meaning, original intention (yes, it has its narrow place) and the study of history as the key to determining and understanding all three is the task. The way Raoul Berger did it."

I don't think that Rappaport (or McGinnis) would find fault with that statement. Also, perhaps you read a bit too much into Rappaport's critique of legal historians / historians. My reading of his writings would not indicate a rejection of them but rather a considered scrutiny of their attempts at "legal" and "textual" analyses.
Now there is, indeed, as Rappaport suggests (and even if i dislike it) a need for expert opinion in all fields of endeavor. the danger is to leave the field to the experts alone. Curiously, it strikes me that of all possible legal theories of interpretation / construction, originalism, which purports to *find* the original meaning using original text, etc is the LEAST likely to be perceived by the average citizen as one susceptible to exclusive expert analyses. Most citizens will presume to be capable of reading text and some minimal history and would prefer to avoid some lengthy exigesis on how and why the Constitution has (and is) changing.

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gabe
on May 21, 2018 at 13:30:58 pm

James Madison left mysteries. Opinion about the mysteries seems futile. For example, it seems Memorial and Remonstrance was not his work alone. See the ample Editorial note at https://founders.archives.gov/documents/Madison/01-08-02-0163.

Plato had Socrates inform us that nothing is more damaging to a citizen than to claim wisdom: better to admit to self, “I do not know,” when that is so.

Plato had Agathon inform us that a civic citizen neither initiates nor tolerates harm to or from anyone; but not everyone is a civic citizen.

Frederick Douglass informed us, “. . . every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman.” Some people disagree with Douglass.

Kahlil Gibran informed us that this generation is not to try to instruct the next generation, because time marches forward rather than backward; http://www.katsandogz.com/onchildren.html. The idea of people ten generations ago imposing on people’s lives is not consistent with time’s direction. Furthermore, reason about justice among the 5% of factional Protestants who could vote in 1790 does not apply to the 2018 diverse population with 100% non-criminal voters. Justice marches forward.

Albert Einstein informed us that civic citizens do not lie to one another so as to lessen misery and loss; see Einstein’s essay within https://samharris.org/my-friend-einstein/.

In 2018, we have the articulation that every human has the independent power, energy, and authority (IPEA) to develop integrity. But some persons honestly use their human IPEA for egocentricity, crime, evil, and other infidelity. Some try to take advantage of persons who develop integrity and fidelity.

Professors, lawyers, and judges may tell themselves they are above fellow citizens. However, prudence begs recognition that some people use their IPEA for fidelity to the-objective-truth and do not tolerate harm to or from anyone. Even though civic people may unavoidably suffer objectionable force, they reject coercion.

With citizens using widespread IPEA to develop integrity, fidelity may emerge in a civic culture: A better future may be attainable. I hope these thoughts are well received. I have no idea how much collaboration in the silence of this forum contributed to these articulations but am a grateful fellow-citizen.

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Phillip Ray Beaver
on May 21, 2018 at 14:00:22 pm

In 1852, Frederick Douglass informed us, “. . . every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman.”

Kahlil Gibran informed us that the passing generation may not instruct the coming generation, because time marches forward rather than backward; http://www.katsandogz.com/onchildren.html.

In 2018, we have the articulation: Every human has the independent power, energy, and authority (IPEA) to develop integrity. But some persons honestly use human IPEA for egocentricity, crime, evil, and other infidelity. Some people try to take advantage of persons who develop integrity and fidelity.

Prudence begs recognition that some people use their IPEA for fidelity to the-objective-truth and do not tolerate harm to or from anyone. Even though civic people may unavoidably suffer objectionable force, they reject coercion. Eventually, the people overcome coercion.

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Phillip Ray Beaver
on May 21, 2018 at 14:55:26 pm

Gabe, your point is excellent: originalism is too vital to be entrusted to the experts, especially those in the legal academy which, historically, has been instrumental in distorting the constitution, undermining the rule of law, empowering judicial oligarchy and crafting the apologetics of Article III abuse. It is they, the LawProfs and their indoctrinated students-cum Article III judges, not the historians, who have done the most to undo our constitution.

Having sinned unforgivably and for decades against the Founding, the LawProfs must not now be trusted with the future of originalism (they'll just screw it up,) and we need not depend on them in order for originalism to grow and prosper. Where is the evidence that Marshall, Bork, Scalia, Thomas, and Alito (and I hope, Gorsuch) were constitutionally empowered and intellectually motivated by law review articles and increasingly intricate ( to the point of unintelligibility) legal theories of originalism? Rather, theory be damned, these pioneers of originalism seem to have been infused with common sense and special understanding/appreciation of the law and of the intellectual and historical origins of the constitution and the written record of its founders' meanings and intentions. Those are matters of history; they are intellectual and moral forces which are available to all who can study and reflect and which animate all who love and would preserve our constitution, whether scholar, judge, trial and appellate lawyer, John Doe citizen or Mr. Smith who comes to Washington.

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Pukka Luftmensch
on May 21, 2018 at 15:34:31 pm

"Kahlil Gibran informed us that the passing generation may not instruct the coming generation, because time marches forward rather than backward; http://www.katsandogz.com/onchildren.html. "

Yeah, right!

So I guess you never potty trained your children - now that is integrity!!!

give it a break!

February 2nd has passed already!

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gabe
on May 21, 2018 at 15:41:58 pm

"give it a break!"

HaHa!

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Pukka Luftmensch
on May 21, 2018 at 21:15:33 pm

gabe, your expression of your individual power, energy, and authority (IPEA) is sad . . . sad . . . sad. (MWW and I reared three children.)

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Phillip Ray Beaver

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