Originalism in Law and the History of Ideas

Mark Graber

When prominent constitutional originalists and historians of political thought explore the same political texts, they often employ the same methods for very different reasons. Both seek to understand political language as that language was understood when uttered. Randy Barnett, a leading constitutional theorist, insists that "the words of the Constitution should be interpreted according to the meaning they had at the time they were enacted." Quentin Skinner, the founder of the influential Cambridge School in political philosophy, wholeheartedly agrees with this method of analysis. "The essential question which we therefore confront, in studying any given text," he writes, "is what the author, in writing at the time he did write for the audience he intended to address, could in practice have been intending to communicate by the utterance of this given utterance." Nevertheless, constitutional originalists and
Cambridge School political philosophers have quite disparate motives for studying original meaning. Barnett and many other legal thinkers insist that Americans in 2007 should be legally bound by the original meaning of constitutional provisions. "[O]riginalism is warranted," Barnett states, "because it is the best method to preserve or ‘lock in’ a constitution that is initially legitimate because of what it says." Skinner claims that Americans in 2007 cannot be legally bound by the original meaning of constitutional provisions. "Whenever it is claimed that the point of the historical study . . . is that we may learn directly from the answers," he bluntly states, "it will be found that what counts as an answer will usually look, in a different culture or period, so different in itself that it can hardly be in the least useful even to go on thinking of the relevant question as being ‘the same’ in the required sense at all."