Balkinization: Originalism in Law and the History of Ideas

Originalism in Law and the History of Ideas

Mark Graber

I just finished my introduction to the University of Maryland Law Review Symposium: "An Eighteenth Century Constitution in a Twenty-First Century World." The essays are terrific. I hope many of you read them when published. The first paragraph of my introduction declares:

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."

This brief observation suggests a different concern with originalism than those frequently noted. For better or worse, historians have never been able to convince most constitutional lawyers to abandon originalism, and constitutional lawyers have never been able to convince most historians that originalism in any form is legitimate history. The reason, I suspect, is scholars with an historical sensibility tend to examine history from the perspective of "what is different and unique about this era," whereas lawyers look for familiarity. For better or worse, originalist rhetoric has been, in one form or another, a mainstay of constitutional discourse. The best those of us with different sensibilities can hope is that these public discourses do not prevent citizens and scholars from learning as much from what is strange about constitutional foundings as what superficially appears familiar.

UPDATE: The essays are not available yet. Sorry. Thanks for the pointer on the original jumbled first sentence.

Posted 9:14 PM by Mark Graber [link]

Comments:

"Prominent constitutional originalists and historians of political thought explore the same political texts often employ the same methods for very different reasons."

Isn't a "who" or an "and" missing from this sentence?

# posted by

Neal Deesit : 5:04 AM

Why is it so difficult determining original meaning? If original meaning could be agreed upon by constitutional scholars, might that simplify applying original meaning to current issues to be addressed that may not have been considered by the founders/ratifiers? Could it be that there is just a tad of subjectivity in determing original meaning?

On the difference between constitutional scholars and historians, I would point to historian Saul Cornell's recent book on the Second Amendment in contrast to those of constitutional scholars. I haven't read too many challenges of Cornell's scholarship methods. Rather, the objections appear to be through selectivity of sources in the form of statements by individuals back in the old days.

I look forward to the Symposium publication.

# posted by

Shag from Brookline : 6:09 AM

This just confirms what I've been saying: Originalism is just how you interpret text, if you're objectively trying to determine it's meaning. Other approaches to "interpretation" are just ways to substitute more acceptable meanings for the actual meaning of a text you don't like.

A Cambridge philosopher is in a position to say, "Sure, that's what it means. So what?" Officers of the government, who have all sworn oaths to that Constitution, are not. They hold their positions of power only by virtue of their willingness to publicly precommit themselves on this issue.

Perhaps we ought to discuss the legitimacy of so precomitting, and then reneging on that oath.

# posted by

Brett : 6:55 AM

Professor Graber,

Is there a link to the essays in .pdf format you could provide?

Thanks.

# posted by

Calvin TerBeek : 9:28 AM