Originalism, Objectivity and History

One interesting difference between the use of history and philosophy in constitutional interpretation is that while a great many philosophers endorse some version of Ronald Dworkin's call for a fusion of moral theory and constitutional law, hardly any prominent historian is an originalism. The reason is not that most contemporary historians are liberal. As numerous Supreme Court briefs demonstrate, constructing originalist arguments for liberal positions has not proven particularly challenging. Rather, the standard versions of originalism exhibit little knowlege of historical practice.

One commonly claimed virtue of originalism is that anchoring constitutional meaning in original understandings/meanings is more objective than turning to philosophy. But as any good historian knows, debates over objectivity in history are just as intense as debates over objectivity in philosophy (see THAT NOBLE DREAM, a history of the history profession that ought to be mandatory reading for anyone doing originalism). Of course, maybe proponents of objectivity in history are right. But it might also be the case that proponents of objectivity in philosophy are right. The more important point is that no powerful reason exists for amateurs (i.e., law professors and judges without advanced degrees in the relevant subject) to assume that one discipline is more objective than the other.

Even assuming history is objective in theory, the practice hardly provides much objectivity for amateurs. Consider the history of Reconstruction (Randy Kennedy has a nice piece on this in the Yale Law Journal). Historians at different time periods have told different stories about what and who was important from 1865-1876. Did Radicals have to compromise their principles to Conservatives (Benedict), or did Republicans constitutionalize the fundamental free labor principles underlying the anti-slavery crusade of the 1850s (Foner). Worse, as Pamela Brandwein demonstrates in a wonderful book, Reconstructing Reconstruction, both politics and internal changes in history structure how past events are interpreted and the very sources historians use when making interpretation.

In short, the history of the history of interpreting the original meaning/understanding of constitutional provisions is likely to reflect the dominant philosophical understandings of those principles. The correspondence will not be perfect, but close enough to suggest that originalism is not that dramatic an alternative to more moral constitutional readings. And where there is a difference, historians are likely to point out that the lack of correspondence is based on the framers holding understandings that we now reject or cannot fully recover.

Good histories typically find that constitutional meanings were contested even as they were framed and ratified. Good legal history can identify important strands of our constitutional tradition, but the choice among those strands is ours, even when we claim James Madison made us do it.