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07/27/2016

Drew Starling & Sean Nadel on "A Newer Originalism"
Michael Ramsey

At the U.S. Intellectual History Blog (I like that there is such a thing!), Drew Starling (Ph.D. candidate in history, University of Pennsylvania) and Sean Nadel (J.D. candidate, Columbia): A Newer Originalism: Book History and Constitutional Interpretation.  From the introduction:

The recent passing of Justice Antonin Scalia has given new relevance to debates about constitutional interpretation with some questioning whether originalism will simply fade away. Though the survival of originalism, absent its most renowned advocate, is still an open question, many of the criticisms of originalism will persist. Let us suppose that Lawrence Solum and Jack Balkin are right–that originalism will outlive its now-deceased standard-bearer–must it maintain the same shape that it had during his lifetime? Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon “law-office history” in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas never travel through reified space. They are not transmitted telepathically, but are mediated by a number of actors–authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few–each with his or her own intentions in doing whatever he or she does. They are also mediated by the material realities of textual transmission–the physical form that the ideas are given by which they are transmitted to readers–and the interpretive apparatuses with which they are surrounded. Increasingly historians of the book are making intellectual historians aware of the fact that the meaning of a text, formed by a reader, is not only determined by the semantic content on the page. Following bibliographer D. F. McKenzie, we may say that “forms effect meaning,” too. While readers are not passive vessels into which information is poured, their reading is constrained in many ways. To study reading, or in this case, original public meaning, is, in part, necessarily to study the material forms and interpretive apparatuses that legal documents and documents relating to the Constitution have been given.

And after an extended discussion of the "book history" of The Federalist, 

In conclusion, editional differences make a difference. If one is to read The Federalist as an aid to understanding the original public meaning of the Constitution, one must, first, understand the original public meaning of The Federalist, itself.  While the methodologies of intellectual history certainly can go a long way in aiding our ability to reconstruct historical meanings of texts, they alone are insufficient. Many intellectual historians have begun to heed the calls of book historians, who have claimed that the historical meanings of texts cannot be understood by an examination of their semantic contents alone, rather we must also consider the material forms that texts were given, and the ways in which forms shaped readers’ horizons of expectation when approaching texts. To understand the original public meaning of The Federalist is not only to understand the words written by its authors, but it is, necessarily, to understand the words read by its readers, the meanings of which were informed by the different forms that the text took in its various editions. What, then, are we asking? Of course, we do not expect lawyers, judges, and justices to become historians. However, it is important that members of the legal profession pay attention to the ways in which forms, both of original historical documents and of modern editions, affect the ways in which texts are read. Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading. Nevertheless, this is not a one-way street. Historians can also do more to make their work relevant and useful, both theoretically and thematically.  If legal professionals and historians take up the challenge, and if originalism does, indeed, survive its most renowned advocate and practitioner, then, perhaps, it can be reborn on a more epistemologically sound footing.

A great post.  Via Jeremy Kessler at Balkinization.