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Randy Barnett on Historians and Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Challenging the priesthood of professional historians -- a long and sharp critique of this post by Jonathan Gienapp: Constitutional Originalism and History (for my milder response, see here; but based on Professor Barnett's comments, I think I may have underreacted).

Here is part of Professor Barnett's critique (the post is too long and rich to adequately summarize):

I agree [with Gienapp] that bracketing the assumptions, values, and logics that shape contemporary consciousness is important in seeking to understand the past. But, as a consumer rather than a producer of the works of historians, I must say that, when they venture into the constitutional arena, historians far too often fall short of this objective. Oddly, for some, the past never fails to disappoint their presentist ideological agenda. (A marvelous counter-example is the book Freedom National: The Destruction of Slavery in the United States, the thesis of which came as a complete surprise to its author, historian James Oakes. Oakes’ legal analysis was also particularly astute for a nonlawyer. I spotted no errors.)

This is why I like to check their footnotes. I like to see for myself if they have successfully “bracket[ed] the assumptions, values, and logics that shape contemporary consciousness.” But nowadays, such footnotes are often sparse, and are very general in what they do report. All too often we must take their narrative of the “alien, past world” on faith. And as the last paragraph makes clear, Professor Gienapp’s explication of how history is supposed to be practiced shares a lot in common with those religions that require their laymen to take the biblical interpretations of their clergy on faith. Call this the vision of historians as spirit guides or priests.

And from later on:

Back before I was an originalist, I disparaged the search for original framers intent to apply to present circumstances as “channeling the Framers” (a phrase Professor Gienapp puts in quotation marks, though without a source. Perhaps he got it from me). As in “Oh Framers, would you think that detecting increased heat emanating from a house was a ‘search’?” This is not an empirical inquiry; this is a hypothetical thought experiment; it is quite literally a counter-factual inquiry. And it appears that, according to Professor Gienapp, this exercise and nothing as mundane as “empirical knowledge” is “at base” the “historians’ expertise.”

But the converse problem with this claim is that some historians seem to think they can investigate the meaning of legal terms and concepts in the past without any legal training. For this it helps to be a lawyer. True, some of the best legal historians do have legal training, but not all who opine on the “meaning” of the Constitution do.


... [H]istorians who opine on constitutional “meaning” or political argumentation (without legal or philosophical training) tend to avoid the substance or merits of legal or philosophical arguments made by their historical subjects and choose instead to focus on the hopes, fears, ends, objectives, agenda, and expected applications of historical figures, groups and movements. If all you have is an hammer, then everything is a nail. If all you have is the historical method–as defined by Professor Gienapp–then the meaning of “meaning” must be reduced to the import or purpose of a constitutional provision, not the communicative content of what it said.