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04/25/2017

Historians and Originalists Part I: The Context of the Debate
Mike Rappaport

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement.

One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend to be on the left, while most of the originalist law professors are on the right.  The methodological differences are bad enough without being magnified by politics.  For example, even when I talk to right wing historians who are somewhat sympathetic to originalism, I still find myself often disagreeing with their methodological points.  These methodological differences are important.  Matters only become worse when we add political fuel to the fire.

Another problem is that the two disciplines often are pursuing different goals.  Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning.  Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time.

Thus, I was pleased to see two articles written by Stanford History Professor Jonathan Gienapp presenting the historians side of the argument with a lot more understanding of and respect for originalism than historians ordinarily exhibit.  That is not to say that I agree with all of his arguments, but his essays are a big improvement.  Happily, Gienapp’s argument has been engaged by various originalists, including Randy Barnett, Mike Ramsey, and Larry Solum.

Much of Gienapp’s first essay argued that the newer originalist theories purported to avoid having to possess detailed knowledge about history.  Instead, these originalists would merely need to know the linguistic meaning of the terms.

In Gienapp’s second essay, he argues that the newer originalists have underestimated how difficult it is to understand late 18th century English.  Instead, they need to appreciate that historians are specialists in understanding the past and therefore their skills are needed to genuinely understand the original meaning.  The techniques by originalist law professors are generally not adequate.

Ultimately, I agree with Professor Gienapp in at least this sense: the more knowledge and information we have, the better.  Historians and law professors bring different perspectives and different skills to the table and generally our understanding of the past will benefit if we have more knowledge.  Thus, historians can make a contribution.  But even if more knowledge is better than less, the key question is how important different types of knowledge is and how much each contributes to the enterprise of discovering the original meaning.

In my next post, I want to focus on a more specific question – whether the techniques used by originalists are usually adequate to the task of determining the original meaning and how often the contributions of historians are needed.