The Continuing Value of Documentary Collections in Originalist Theory

Guest Blogger

 For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).

 Lee J. Strang

Collections of important historical documents have long held value for historians, legal scholars, teachers, and American citizens of all stripes.  Henry Steele Commager’s Documents of American History was first published in 1934 and has reached its tenth edition.  In this century, Bruce Frohnen’s, The American Republic: Primary Sources (2002), and American Nation: Primary Sources (2009), provide two volumes of documents covering American history up to World War II.  Now comes Kurt T. Lash’s, The Reconstruction Amendments: The Essential Documents (2021), whose documents explain, as its name suggests, the fundamental constitutional changes wrought by the Civil War.  My post will catalog the place within originalist scholarship and theory that Lash’s and other collections should continue to hold. 

Early on in the evolution of originalist theory and practice, collections of primary source documents were one of the key tools of originalist scholarship on the Constitution’s meaning in addition, of course, to primary source documents themselves.  These collections were valuable to early originalist scholars for two key reasons.  First, the collections represented the expert editor’s judgment that these were the most important historical documents relevant to American history or a facet of that history.  Second, the collections contained indices to direct scholars to particular documents and passages most relevant to the scholar’s inquiry. 

One thing one can say for certain about originalist theory is that it has changed significantly during the past forty years.  As originalist theory has developed more recently, it contains a number of distinct and mutually enriching techniques of historical research to identify the constitutional text’s public meaning at the time of ratification.  Originalist have identified five analytically distinct research techniques that contribute to ascertaining the text’s original meaning.  These different techniques were the product of many causes, including originalism’s theoretical development and the constituent components of original public meaning. 

A key benefit of this multi-pronged approach is to utilize a variety of different mechanisms to provide as much support for uncovering, and the highest level of confidence in, the original meaning.   This occurs when all of the techniques support the same original meaning.  A second valuable product of this multi-pronged approach is that it also signals when scholars should not have confidence in a result.  When some of the techniques point to an original meaning, though they do so weakly, or when one or two of the other techniques do not support that conclusion or push away from it, then a scholar cannot be confident in his conclusion.  Third, originalists will also be able to say with a high degree of confidence when there is no determinate original meaning.  This could occur if each of the techniques fails to identify a determinate meaning, or if some techniques strongly push against the others’ conclusions. 

Collections like The Reconstruction Amendments will be valuable to some of these techniques and not to others.  Below I describe five techniques employed and identified by originalist scholars to ascertain the Constitution’s meaning, and whether and how Lash’s collection will assist those techniques.  (My catalog of techniques overlaps with but is different from Larry Solum’s methods identified in Originalist Methodology and Triangulating Public Meaning.)  Then, I briefly summarize the place of such collections in constitutional construction.

The historically first technique employed by originalists was studying the constitutional record.  You can think of this as standard lawyerly legislative history.  This was the primary method to identify constitutional meaning utilized by early originalist scholars.  It treated recovery of the Constitution’s meaning as a traditional legal inquiry into the meaning of a promulgated text, like a statute.  Raoul Berger’s Government by Judiciary, for instance, focused on the give-and-take in the legislative process that culminated in the Fourteenth Amendment, which he placed within the context of the Amendment’s broader historical background, to uncover the Amendment’s “legislative intention.”  Studying the constitutional record continues to be very popular today.  A more recent example is Donald Drakeman’s thorough argument for the original meaning of the Establishment Clause in Church, State, and Original Intent. 

Collections like Lash’s are valuable to this method of recovering the original meaning.  Lash spent years identifying documents that present the background to the Reconstruction Amendments, along with important selections from congressional and ratification debates.  Lawyers trying to tell the story of the legislative history and therefore the meaning of the Fourteenth Amendment, like Berger, would find much of that story told in The Reconstruction Amendments. 

Linguistic intuition is a second technique.  This technique uses the linguistic intuitions of an American English speaker to understand the Constitution’s text.  The Constitution was written in English, and at least some, and perhaps much of the Constitution’s meaning remains accessible to current American English linguistic intuitions.  Nealy all scholars agree, for instance, that the constitutional requirement of “two Senators from each State” is accessible to current American English speakers.  Linguistic intuition is limited in its usefulness, however, because of linguistic drift that occurs in natural languages, like English, over time.  Words that had one meaning evolve unexpectedly into a different meaning.  This produces false-positives, where a modern American English speaker will (correctly) understand that a word has a (modern) meaning, but that understanding will itself hide the original meaning from view. 

The Reconstruction Amendments is valuable to the technique of linguistic intuition.  Collections like Lash’s can check, and dispel or confirm, an interpreter’s linguistic intuitions about the Constitution’s meaning.  For example, today’s linguistic intuitions would lead one to think that the phrase “equal protection of the laws” meant that a state’s laws must treat people substantively equally.  In fact, the Equal Protection Clause required states to affirmatively protect all persons and their property from violence and to enforce their legal rights in the state’s court system. 

A third technique is immersion.  Immersion occurs when a scholar becomes so well acquainted with the linguistic practice and historical context surrounding the target of research that the scholar is able understand language similar to a period native speaker of the language.  Professor Lash’s own scholarship on the Reconstruction Amendments reflects his immersion.  As shown through The Reconstruction Amendments, books, and articles, Professor Lash has immersed himself in the linguistic practices and history of America leading up to and during the Reconstruction era.  This has allowed Professor Lash to articulate and defend new, coherent interpretations of various aspects of the Fourteenth Amendment from particular constitutional meanings, to clause meaning, to incorporation. 

The Reconstruction Amendments will be of some, modest value to immersion.  The collection provides a body of documents to read, through which one may become more adept at the linguistic practice of the period and the Amendments’ historical context.  However, the collection does not contain a sufficient number or perhaps wide enough variety of documents to allow a reader to reach immersion, so readers would have to go beyond the collection. 

A fourth technique is mastering the Constitution’s “language of law,” as John McGinnis and Michael Rappaport have argued.  Perhaps much of the Constitution is written using a legal idiom, and so the public meaning of these provisions will be derived from legal practice and legal rules of interpretation.  For instance, one would look to international law to ascertain the meaning of “Letters of Marque and Reprisal” in Article I, Section 8.  Turning to originalist scholarship, John Stinneford’s explanation of the original meaning of “unusual” in the Eighth Amendment concluded that it was a “legal term of art”

Professor Lash’s collection will be of modest assistance to this method because it does not contain sufficient documents from legal practice to provide reliable data on the language of the law.  American legal practice includes cases, statutes, and learned commentary on the law.  The Reconstruction Amendments has all of these, but not in sufficient quantity and with sufficient focus on the terms of art and legal rules of interpretation pertinent to the Amendments to establish the Amendments’ language of law. 

The newest technique is corpus linguistics.  Corpus linguistics is computer-assisted research of large bodies of period uses of the target words or phrases (gathered in bodies of documents called corpora) to identify meaning.  For instance, Jennifer Mascott employed corpus linguistics to help identify the original meaning of “Officer[]” as “any individual who had ongoing responsibility for a governmental duty.” 

Lash’s collection would be of little value for corpus linguistics because it is not a searchable corpus.  Even if it were to become a searchable corpus it would not be large enough to support reliable conclusions.  Third, the data set represented by the collection was selected by a scholar and may not be representative of linguistic practices before and during Reconstruction.  Lastly, the time period covered by the documents in Lash’s collection goes significantly beyond Reconstruction itself, which is likely to make conclusions about public meaning in 1868 less reliable.   

My discussion up to now has focused on originalist interpretation of the Constitution.  Originalist theory has also developed the concept of constitutional construction.  Though originalists debate the nature and extent of constitutional construction, most agree that construction occurs when the Constitution’s original meaning is underdetermined.  In this construction zone, whether collections such as Lash’s will play a role, and what that role is, depends on each scholar’s conception of construction. 

There are a variety of different conceptions of constitutional construction.  There are some basic categories we can use to classify them.  One categorization concerns what, if anything, guides constitutional construction.  For some, construction is an open field for non-legal normativity.  Keith Whittington falls into this camp.  “Rather than revealing the meaning implicit in the constitutional text, constructions more creatively generate constitutional meaning to resolve contemporary political and legal disputes.”  Here, Lash’s collection will be of modest assistance because it is an interpreter’s already existing and (likely) long-standing normative commitments that will guide construction.  For others, the Constitution continues to constrain construction.  Randy Barnett and Evan Bernick argue that officers in the construction zone “must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural decision.”  It is in this latter category that collections like Lash’s will continue to provide valuable resources for originalist scholars.  For instance, a scholar would be well served by reading The Reconstruction Amendments to learn the “purposes, goals, [and] aims” of the Reconstruction Amendments’ drafters. 

Another distinction is among who or what creates constitutional constructions.  Some theories of construction identify courts as the primary constructors, while other scholars identify the other branches of the federal government and state actors.  In principle, the issue of who performs constitutional construction does not seem related to whether and to what extent the constructor will benefit from utilizing collections such as Lash’s. 

* * *

Kurt Lash’s The Reconstruction Amendments is a well-rounded and usable collection of documents relevant to the Reconstruction Amendments.  Viewed from the perspective of modern originalist theory, it should find a welcome reception to aid scholars working to identify the Constitution’s original meaning, and will be useful to some originalist scholars to propose constitutional constructions. 

Lee J. Strang is the John W. Stoepler Professor of Law & Values at the University of Toledo College of Law. You can reach him by e-mail at Lee.strang@utoledo.edu.