Sunday, February 28, 2021

Originalists vs. Historians: Round ?

Stephen Griffin

Originalists are at it again, claiming that their project differs fundamentally from “historical inquiry.” This is the term I employ to denote the ordinary practice and methodology of historians in a just-published article in the Tulane Law Review, “Optimistic Originalism and the Reconstruction Amendments.”  But is this contention as plausible as they assume?  In my article, I advance the argument in this dispute in a way not reflected in the most recent round of controversy.

I refer to the exchange between Mary Sarah Bilder in the historians’ corner and John McGinnis and Mike Ramsey for the originalists.  Bilder, a legal historian who has made important contributions to our knowledge of the founding period, offered some pointed observations about originalism by way of memorializing the late Bernard Bailyn, surely one of the most distinguished historians of American history.  Like many historians, Bailyn was most impressed with the process of intellectual change and exchange involved in making and then implementing the Constitution, not the fixity of the constitutional text.  Clearly leaning against influential forms of semantic or public meaning originalism, Bilder is provocative: “[o]riginalism missed everything that mattered about the debate on the Constitution.”

Simply judging by past disputes, something about Bilder seems to set originalists off.  This time, John McGinnis sounds the charge.  In contending that originalists and historians are pursuing different enterprises, he appeals to a division of labor.  Originalists focus on the law, while historians focus on causal explanations and motivations.  More precisely, originalists concern themselves with “legal meaning” and “legal rules of interpretation.”  Historians, he thinks, are interested in the causal role of ideas in the broader society…which does not include lawyers or the law, I guess.

I put it in that skeptical way because we should notice how much mileage McGinnis gets simply by adding the word “law” to matters that historians are indeed interested in, such as the meaning of constitutions and the ideas that relate to their formation.  Observe further how McGinnis implicitly locates lawyers and their determination of legal meaning in a conceptual space somehow beyond the eighteenth and nineteenth-century societies in which most of the words of the Constitution were written.

McGinnis seems to assume that Bilder is opposing originalism as an interpretive approach to living constitutionalism, when it is far more likely (and productive) to regard her as contrasting contemporary originalist methodology with historicism, an approach rooted in appreciating the perspectives of the relevant participants.  Historicism is alive to the possibility that these perspectives are often quite different from our own.  This suggests that historians are not only on a different methodological path than originalists, but one that constitutes an implicit critique along the lines of charging that there is a lack of appropriate context to much originalist work.

Yet McGinnis specifically denies a related criticism he takes Bilder to be making – that originalism becomes mired in the consideration of individual words and phrases divorced from context.  He contends that originalists are quite happy to immerse themselves in historical context, although he qualifies this by saying that what is relevant is the “historical legal context” (my emphasis).  Agreeing with McGinnis, Mike Ramsey chimes in that in failing to consider details like this, discussion of originalism by historians lacks “rigor and nuance.”

Is this really the case?  In “Optimistic Originalism” I argue that many originalists, now apparently including McGinnis, have fudged the critical issue of historical context.  In fact, they treat it as something of a black box.  Doing this enables them to claim simultaneously that they are considering context, but in a way somehow distinct from historical inquiry.  In my view, this is a hard point to grasp and even harder to pin down.  But in “Optimistic Originalism,” I use the example of Reconstruction to give this point a real depth and force beyond the conceptual.  I suggest the fault line is between paying attention to context in the “objective” style favored by originalists as against considering the perspectives of those present at time.  Does the latter, so critical to historical inquiry, contribute meaningfully to what originalists call “context?”  Perhaps surprisingly, the answer turns out to be “no.”


Reconstruction shows that originalists face a choice, at least if they want to sign on to the popular “optimistic” view that the historical evidence shows that the Reconstruction amendments underwrite broad legal protections for African Americans and women.  If the specific views of the persons who wrote and ratified the amendments are relevant to “context,” then this points toward the need for something like “living constitutionalism” if the major achievements of the Warren and Burger courts are not to be rejected.  By contrast, if we are free to determine the “legal meaning” of the amendments outside the views of the framers, then we run the risk of winding up very rapidly in la-la land – the very accusation that originalists have leveled against living constitutionalists for decades.  In so doing, originalists have become increasingly “optimistic” about the past in the sense of giving themselves permission to be less realistic in terms of matching a proposed interpretation of the Reconstruction amendments with anything people at the time thought plausible.

This results from the fact that the people who were in the know, so to speak, with respect to the legal meaning of the amendments were sure that their legal effect would be influenced by preexisting legal doctrines such as the distinction between civil-political-social rights and the pervasive influence of federalism.  We can bypass these views as not being relevant to “context” only at the peril of detaching ourselves from mid-nineteenth century legal reality.

 If originalists are determined to proceed down the road of deciding for themselves what is and what is not relevant to “legal” meaning, their approach needs to come with a substantial warning label similar in stringency to the that which comes with deadly products like cigarettes (I’m having some fun here).  It seems likely that for historians, the label would have to say something like – “WARNING: The legal arguments advanced herein are not based in a methodology regarded as sound by historians.”  In all candor, are originalists willing to adopt this label every time they determine the legal meaning of a constitutional provision?

I surmise there are two reasons why this logic has not impressed originalists.  First, they tend to believe that originalism is a worked-out mostly complete theory which long ago rejected relying on original “intent” – what I have termed here the general perspective and specific views of the framers.  Unfortunately, this turns out to be a repeat of the problem laid out above wherein originalists want to reserve the right to choose for themselves what goes into the black box they label “context.”  We should keep in mind as well that as laid out by some critics of originalism (including yours truly) the debate between those defending an original intent approach and those advancing original public meaning was never based on any rigorous (sorry) assessment of whether either view was sound by the standards of historical inquiry. 

Furthermore, I think it has become apparent in the last twenty years or so that there are substantial differences between the methodology emphasized by contemporary originalists and appeals in the eighteenth and nineteenth centuries to the intent of the framers and the plain meaning of the text.  Contemporary originalism is in fact unlike any past interpretive method ever used in American constitutional law.  Yet originalists persist in implausibly linking contemporary originalism with these past interpretive methods.  This supports the intuition that the originalist method is more selective than rigorous.  I suggest what historians see is an interpretive approach which, in claiming to be distinctively “legal,” is giving itself permission to ignore inconvenient historical evidence that would make it plain that pursuing a no-holds-barred approach to the past would be disastrous if transplanted to the present.

I surmise the second reason why the critique from historians has failed to impress originalists is that it appears to give them, as well as many nonoriginalists who use historical evidence, nowhere to go.  Originalists are correct that most historians are little interested in exploring the meaning of very specific, sometimes obscure, clauses of the Constitution.  On the other hand, it is not really the job of historians to make the lives of lawyers and judges easier.  Come to think of it, it’s not really the job of legal scholars either.  Aside from a few meaningful contributions by historians such as in the debate over the Second Amendment, the question remains open what the interpretation of the Constitution would look like if it were properly informed by sound historical inquiry.  This should be viewed as a fascinating opportunity for legal scholars, however, rather than regarded as a reason to ignore historians and their work.


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