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03/22/2017

Jonathan Gienapp on Originalism and History
Michael Ramsey

At Process: A Blog for American History, Jonathan Gienapp (Stanford History): Constitutional Originalism and History.  From the introduction: 

Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously. Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year. As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

And from the conclusion:

No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage—such as, for instance, the authorial intent that shaped a text’s production, the intellectual purposes that a text served, or the broader intellectual or cultural context from which a text emerged. But that choice is irrespective of knowing how to think historically. If the goal happens to be deciphering the public meaning of a historical text, then this foundational historical skill remains every bit as essential. The reason why is what originalists’ favored keyword searches (detailed above) fail to take into account: that, as Bernard Bailyn has put it, “the past is a different world.”  Words and concepts that appear in historical sources often bear a superficial similarity to our own, but grasping what they actually meant in their original historical context requires first reconstructing the foreign conceptual world from which they issued. Keyword searches can never disclose this world (in fact, such searches presuppose that this world is immediately accessible and virtually identical to our own). But, as all historians know, bringing this world into focus requires a much deeper level of immersion. It requires a version of what is needed to decode early modern French cat massacres, crowd activity in eighteenth-century Britain, or early nineteenth-century New York ordinances on pig-keeping.  It requires taking up residence with the natives of the historical past, engrossing oneself in their logics, tracing the patterns made by their thoughts and meanings, and learning how to think and reason as they once did. In the case of the American Constitution, it requires knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have. It requires learning how to speak eighteenth century. It requires knowing how to think historically. It requires, in short, behaving like a historian.

I agree with much of the essay, in particular that it would be a great contribution for historians to become more involved in the originalist enterprise.  I do not agree (as Professor Gienapp says midway through the essay) that most originalists "have dismissed most eighteenth-century historical evidence as irrelevant to their quest"; if they have, they shouldn't.  But historians have not helped themselves by claiming implausibly that the historical meaning of texts cannot be determined or that only historians can make historical arguments.  (To be clear, Professor Gienapp does not make these claims; but I have heard them many times).  Collaboration between historians and legal scholars to reach common ground on historical meaning would be an important step forward.

(Via Alfred Brophy at The Faculty Lounge).