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04/26/2017

Historians and Originalists Part II: The Adequacy of Originalist Scholarship
Mike Rappaport

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task.

Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th Century language will be unknown to them.  Now certainly this is an overstatement.  Much of the language of the 18th century is pretty accessible to modern Americans, even if some parts are not (and even if we do not know which parts we are mistaken about).  Obviously, this includes clear language such as each state enjoying equal voting rights in the Senate.  But it also includes less clear language, such as the Confrontation Clause (which allows the accused the right “to be confronted with the witnesses against him), where we know some of what it means, even if we don’t know the details without further research.

The knowledge of ordinary historians will be even less useful to the extent one believes as I do that much of the Constitution is written in legal language.  If that is the case, then the legal historian may have significant advantages, but other types of historians may miss the legal meanings and the legal methods that lawyers at the time employed to discover that legal meaning.

But none of this should be understood to deny the importance of historians generally and the possibility that their “knowing how” knowledge can help to discover useful information.  Still the key question is whether the methods of law professor originalists are adequate to discovering the original meaning of provisions.

In part, this depends on the information that is required to determine the original meaning.  For original methods originalism, the type of originalism to which I subscribe, one needs to know a variety of pieces of information.  Here let me mention the most important pieces.  First, one needs to know the meaning of the words, including both the ordinary and legal meaning of the terms.  One also needs to know the interpretive rules that were employed, both in ordinary language and in legal language.  Further, one needs to know the purposes of provisions (understood as lawyers at the time would have), and therefore reference to the values of the people at the time will be relevant.  Finally, one needs to know the legal history of institutions.

The typical law professor originalist article, when done well, looks at the provision at issue; the discussion of the provision from the drafting and ratification conventions; precursors to the provision in the states, in the colonies, under English law; and early interpretations of the provision by the Congress and the courts.  In addition, one typically looks at dictionary meanings – both ordinary and legal dictionaries – and usages in other documents of the relevant words.  This may represent a small or large amount of materials, depending on the clause.

What is significant about this type of research is that it will show how people at the time interpreted the provision, including the meaning of words, and the values they appealed to.  It will also show a good deal of information about the words generally and precursor provisions. This can often be a tremendous amount of information.  Since it will often involve specific discussion of particular provisions, it is easier to interpret than more general language which may have different meanings in different contexts.

I don’t want to argue that this information is all one needs, but it will often provide very powerful evidence.  For example, this type of information as to the Recess Appointments Clause provided strong evidence that it had the narrow meaning I argued for and that Justice Scalia defended in his concurrence in the Noel Canning case.  In fact, the people who argued for the broad meaning did not really with conviction contend that it had the broader original meaning.  Instead, they simply claimed that the language was ambiguous and therefore could be “liquidated” through practice.

In many cases, this information will be adequate to the task.  It is true that this information is not complete.  But no historical evidence ever is.  It is always subject to the possibility that other information may be found relevant to the issue.  And if historians can come up with additional relevant evidence, that would be great.

But in terms of the practice of originalism, the question is how often historians come up with information that actually changes scholars’ views as to the original meaning of a provision.  The mere possibility that they will sometimes come up with that information is not enough to show that originalist investigations are inadequate.  One wants to know how often this occurs.  Based on my experience, it is not obvious that the work of historians is regularly needed before anyone can provide a strong case of the original meaning of a provision.

In my last post in this series, I will discuss a case where originalist scholars have struggled to understand the original meaning of a provision and what the role of historians might be as to this interpretive effort.