Monday, August 17, 2015

The Relevance of Intellectual History to Constitutional Law and Constitutional Change

Stephen Griffin

I’ll punt for now on addressing the points Jack just made – in particular, I am saving reflection on the interpretation/construction distinction for the end of these posts.

With respect to what historians can contribute to debates over the new originalism and living constitutionalism, one has the sense that in recent work by legal scholars, barriers are being put up to productive interdisciplinary exchange.  Pretty clearly some legal scholars, including many new originalists, are trying to reassert and refurbish the autonomy of legal discourse from intrusions by other disciplines, especially history and political science.  This is a worrisome trend, for reasons I identify below.  It’s certainly one of the more sensitive subjects I will discuss in these posts and I don’t mean to get on the wrong side of anyone in what follows.

The immediate relevance of this topic to my prior posts is my assertion that without the context provided by meaning as purpose or meaning as “intent,” producing legal interpretations, especially in specific cases, becomes deracinated, disconnected from reality.  There was a recent relevant exchange on the value of intellectual history between Cornell and Solum, which I thought could have been more productive, beginning with Cornell’s article in the essential-reading FordhamLaw Review symposium I referred to earlier.  So I will start with some ground clearing.

Is there a problem with originalism (including the new originalism) and history?  For that matter, is there a problem or conflict between standard-issue constitutional interpretation (by those with law degrees, no matter what their interpretive views) and history?  Many people say yes and the problem has a name: “law-office history.”  There is a well-developed literature on this subject going back to the 1960s.  New originalists seem to resent this label but if memory serves, it was criticism by historians directed at the Supreme Court, not legal scholars.  Further, this was criticism of both liberal and conservative justices, particularly on the Warren Court.  My good friend Frank Cross has shown that the use of historical evidence by the Warren Court was far more significant than most scholars (and Justice Scalia in Reading Law) suppose.  So historians critical of law-office history have had a lot of material to work with, at least since the Warren Court.  According to these historians, the essence of the problem with law-office history was the selective use of historical evidence in the service of a normative goal – in the case of the justices, to make their opinions more persuasive and authoritative.  It’s a pretty plausible and understandable critique.

Yet we might wonder what exactly is wrong with the selective use of historical evidence?  You have probably never read a work by a historian that wasn’t selective in some sense.  Historians certainly choose evidence to illustrate their points.  But that doesn’t mean they are using history in the same way as lawyers and judges.  Some scholars say that if there is a problem with the use of history by lawyers and judges, it is because they are not trained as historians.  Others say intellectual history is a different sort of inquiry from legal interpretation.  This is a topic I’ve been concerned with for some time, starting with my 1996 book American Constitutionalism.  For my part, I never believed the fundamental problem was lack of training or that lawyers and judges get historical facts wrong.  I think we can count on the adversarial system to ensure that the basic facts asserted in legal briefs and judicial opinions are usually right.  To digress a bit, training does make a difference to knowledge of historical sources.  Historians are far more knowledgeable than lawyers and judges not only about the diversity and variety of available primary sources, but also concerning issues of their reliability and credibility.  Law professors can put together impressive compilations of primary sources.  But law professors, lawyers and judges do not spend their time doing projects like the Documentary History of the Ratification of the Constitution (DHRC), a project that since 1976 has vastly improved our understanding of what happened during ratification.  Yet the DHRC is a source legal scholars began using only relatively recently.  Projects of this kind do require specialized training and expertise.

But the primary problem I see is not lack of training or getting facts wrong.  Originalism has the same trouble with history as lawyers and judges generally whether they count themselves as originalists or not.  That is, lawyers and judges employ historical evidence in a client and case-driven context that has only a coincidental relationship with the scholarly pursuit of the truth, wherever it leads.  This is why lawyers and judges typically use history in a “forensic” sense, framing the evidence so that one perspective will dominate the others, often to the exclusion of the possibility (to use an idea I picked up from Bill Nelson) that they are asking questions of history that history cannot answer.  Of course, these considerations apply only to lawyers representing clients and judges trying to persuade through opinions.  They need not apply to academic lawyers, legal scholars.  However, practical experience suggests otherwise.  Especially to the extent that legal scholars take lawyering and judging as models for scholarship, the problems with history that afflict lawyers and judges carry over.  This has a greater impact on originalism than other interpretive views because of the decisive weight originalism gives to evidence from the founding period.  And that’s how there can be valid charges of “law-office” history directed against legal scholars, not just lawyers and judges.

To be sure, perhaps most of what historians produce (even legal historians) is of no use or interest to lawyers and judges.  From my perspective, historians are less interested than they used to be in writing histories of specific constitutional provisions (Cornell’s work on the Second Amendment is an obvious exception).  But some historians (and I include law professors and political scientists who have a genuine interest in the past in a historicist sense) are interested in the development of American constitutionalism and constitutional law.  Their perspectives are vital because they are not afflicted by the role problems that plague lawyers and judges.  Their works hopefully reflect the scholarly values of critical distance and the pursuit of the truth wherever it might lead.  So their work ought to be regarded as especially valuable by legal scholars precisely because their conclusions are not driven by the demands of client representation or the need to address a specific pressing case or controversy.  This means their perspectives and use of evidence are usually more reliable than those offered by lawyers and judges, not necessarily because of their specialized training, but because of their relatively unbiased scholarly role.

So if legal scholars deliberately reject the way historians use evidence in favor of the way lawyers and judges use evidence, they are making an unforced error that runs contrary to the scholarly values of critical distance and the pursuit of the truth.  It is an unforced error because it is certainly possible that the conclusions generated by historians might match those that originalists find plausible as an initial matter.  And of course the conclusions of historians might match those generated by lawyers and judges in a specific case.  But this would be coincidental, not because they have the same values or roles.

How does this chain of reasoning make a difference to the new originalism?  It makes a difference if the use of history by new originalists is modeled after the recommendations and practice of jurists like Justice Scalia rather than reputable historians.  I won’t get into the controversy over Heller here, but it is noteworthy that Scalia’s opinion was criticized for its selective use of historical evidence.  More to the point is Randy Barnett’s often-quoted comment to the effect that the new originalist inquiry is distinct from the kind of inquiries historians pursue.  New originalists are after the semantic meaning of words in the eighteenth century – but not what historians are necessarily after, although Barnett and others leave it a bit vague as to how they see the projects historians pursue.  But how is this project to be carried out?  Without reliable dictionaries of American usage, circa 1780s, any assemblage of definitions is necessarily being constructed in the present, not the past.  Properly elaborating the meaning of the mixed textual and nontextual doctrines of federalism and separation of powers pose further problems.  If we use the “reasonable person” standard, I think it is evident after reflection that we will be constructing a person who we find reasonable in the present rather than someone the eighteenth century would have found reasonable.  And, in any case, why not use actual eighteenth-century people?  Because they had persistent disagreements over the meaning of fundamental concepts and weren’t motivated by our concerns?  These considerations should be a tip-off that the new originalism is indeed repeating some of the mistakes of the lawyers and judges who practice law-office history.

This is not to say that I believe any of Barnett’s specific conclusions about the eighteenth century are wrong.  He and Justice Thomas might well be right about the meaning of “commerce,” for example – for those times.  In this post, I am making a methodological point about the difference between doing sound historical scholarship and doing lawyering or judging.  On the other hand, I do think a sound historical approach spells trouble for some of the conclusions pro-executive legal scholars reached using the theory of original public meaning starting in the 1990s.  That’s the topic of my next post.  For now, I want to emphasize that legal scholars should pay attention to historical scholarship out of a shared scholarly mission, to challenge conventional legal wisdom and ultimately to improve our understanding of American constitutionalism, both past and present.  One of the ways we can do this is by using the self-understanding historical actors had at the time to construct valid baselines for theories of constitutional change.  This is an under appreciated fault line running through contemporary debates in constitutional theory.  Some scholars like Bruce Ackerman deliberately use the self-understanding of historical actors while others reject it in favor of seeing more continuities than differences between past and present.  I hope to elaborate on this point in another post.

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