Balkinization: "A Newer Originalism: Book History and Constitutional Interpretation"

"A Newer Originalism: Book History and Constitutional Interpretation"

Jeremy K. Kessler

The Society for U.S. Intellectual History has posted an interesting, short essay on the historiographical methods best suited to an originalism rooted in public meaning rather than intent. Specifically, the authors argue that the "history of the book," rather than more traditional "intellectual history," might be of greatest salience to new originalists looking for firmer empirical footing. The publishing history of The Federalist is offered as an example. The authors are Drew Starling, a PhD candidate at Penn, and Sean Nadel, a JD candidate at Columbia. A brief excerpt follows:

"Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon 'law-office history' in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas . . . . are mediated by a number of actors – authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few – each with his or her own intentions in doing whatever he or she does. . . . Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading."

Posted 11:56 PM by Jeremy K. Kessler [link]