Balkinization  

Tuesday, August 22, 2006

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.

Comments:

If a new biography of a historical figure is said by a reviewer to give us "a [Mr. X] for the 21st Century" what does that mean? Was there a different Mr. X. in the last century?
The answer of course is yes. And there will be another in the 22nd. Still, our grandchildren will understand us more than we understand ourselves, and It's our job to try not to embarrass them too much.

The myth of objectivity is a modern invention, yet reactionaries- those who stand opposed to everything modern- cling to it.
What is there to say.
 

Pure objectivity is quite elusive, whatever the discipline, be it history, philosophy or the law. Hermeneutics should be the wave as all of us, including judges, scholars, laymen, apply our experiences to problems or circumstances that arise without transporting ourselves back in time to try to understand original intent, original meaning, original understanding or whatever additional original modifier there may be for originalism.
 

I was thinking of something like the ecclectic relativism you describe when reading a post here about the Detroit judge who ruled last week against the wiretap program's extralegality, decrying it, as she did, on constitutional grounds, but exercising her bully pulpit to good ends, in a way reminiscent of the times in which she entered the practice of law; and casting my glance then one decade into the future from her entry into the legal scene to the time of Bakke as 'conservatives' on various benches rolled back gains for which as a young lawyer she strived. One of the best constitutional law websites has as its principle a lawyer whom I happened to hear on the radio on the way to work one day in a clip of audio which was somewhat self-effacingly describing what it was like to enter into the practice of law, as he did, a few years after the first Supreme Court Justice nominee to get Borked, Judge Bork, was grilled in the Senate Judiciary Committee for just the kind of selectivism which your article here today critiques.

I appreciate the historians who can translate for the young generation what the Bork hearing was like; and, unfortunately, though ineluctably, what it was like for young college seniors to learn their peers had boarded a train to Selma for a march to demonstrate the need for a voting rights act and increased civil equality, if we were to enter into the modern world. Interestingly, about sixteen years ago the literary magazine in a college which I attended published its 25th reunion issue to commemorate the march on Selma, and so-called Freedom Summer. Two men who were prominent in courses in letters at that institution co-wrote their retrospective in a meandering Socratic style, boldly admitting they did not know why they went South, or what, other than some human instinct to help impoverished people raise their bootstraps, they participated at all. In historical context, those college seniors were viewed by their peers as trailblazers on the written page; they were not activists or agitator types; rather, they were introspective, eloquent, and fairly nice at social events. Then, in the 25 year retrospective they admit their callowness and ignorance, and write their tale as if their role was fairly tangential, very risky, and perhaps important only for the fact they participated, and were counted, and they survived to tell their story.
Times change.
A minority achieved a little boost.
And sometimes it seems like 'conservative' jurists can escape notice by reducing incrementally some of the expanded rights of minorities achieved forty years ago. Reading one of the principal contributors to the present website this week, one with libertarian views, I could even sympathize that college admissions in some places are beginning to rollback some of the extraordinary measures they enforced for a few decades to seed the workforce of many professions with minorities who by prior laws and policies had little chance for a college education. Maybe it is alright Bakke gets stronger and Brown wanes, this line of thought proceeds. But I suspect these jurists are playing 'conservative' politics with their offices.
 

Every man has his secret sorrows which the world knows not; and often times we call a man cold when he is only sad.
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Every man has his secret sorrows which the world knows not; and often times we call a man cold when he is only sad.
Agen Judi Online Terpercaya
 

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