Originalism, History, and Objectivity

Mark Graber

Originalism promises to constrain justices more than theories of constitutional interpretation or constitutional adjudication (the two are not identical as Keith Whittington and others remind us) that depend on contested moral and political theories. Consider, however, three problems.

First, objectivity is contested in both history and philosophy. The debates are not identical. Still, the overlap suggests that claims that we can have an objective understanding of history sufficient to have an objective understanding of the original public meaning of, say, "cruel and unusual punishment" are likely to be similar to claims that we can have an objective understanding of what ethically constitutes cruel and unusual punishment. Put simply, solving the objectivity problem in history is likely (though only likely) to go a long way toward resolving the objectivity problem in philosophy. (there is a more general lesson here. Lawyers who look to another discipline to solve legal debates are likely to discover either that an analogous debate exists in the other discipline or, at any event, that they must rely on a theory that is contested within the other discipline).

Second, and more significantly, historians who are committed to objectivity nevertheless vigorously dispute the best interpretation of crucial moments in American constitutional development. Moreover, dominant histories change and those changes typically reflect, consciously or unconsciously, changes in dominant political coalitions. Winners write history (I think it was C.Vann Woodward who described historians as "camp followers of victorious armies") and who the winners are in American politics changes. Both Randy Kennedy (a review essay in Harvard 15 years ago reviewing Eric Foner) and Pamela Brandwein (Reconstructing Reconstruction) have written wonderful histories demonstrating how historical memory changes (and even how what constitutes the relevant history changes). The book to the right of this blog offers a revisionist history of the original meaning of the constitution (eventually, I'll explain why you should buy the thing). Most of my friends (see, i.e., Howard Gillman, Ken Kersch, Julie Novkov) have written similar revisionist histories. Others will revise us. A constitution that depends on the dominant interpretation of the framing or post-Civil War regime is unlikely to be more stable than the one we have.

Third, one might note that originalism in practice does not seem all that objective. Several years ago, I wrote an essay on Justice Thomas in Maltz, REHNQUIST JUSTICE (University of Kansas Press) detailing how Thomas relied extensively on history when the history supported his conservative convictions, consistently relied on the most conservative historian around on matters in which historians disagreed (consider originalism and Brown) and when discussing affirmative action and advertising, matters on which history favors liberals, ignored history altogether. In short, given the choices, originalism in practice is not likely to constrain justices any more than moral philosophy.

The main lesson of the above may be that, whatever the merits of originalism in theory compared to other theories in practice, originalism in practice so far has not looked much different from more Dworkian theories in practice. History is not identical to philosophy, but the practice of both is more closely connected than much debate suggests. If justices in practice are going to rely heavily on the respectable historian whose conclusions best support preexisting philosophical understandings, I'd like their justifications to defend those philosophical understandings as well as the historian selected.
Posted 8:52 PM by Mark Graber [link]