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08/13/2017

Herman Belz on the Evolution of Originalism
Michael Ramsey

At Liberty Law Blog, Herman Belz (Professor Emeritus of History, University of Maryland): Originalism Historically Conceived.  A wide-ranging post, with principal focus on Jonathan Gianepp's criticisms of originalism:

Another critic, the Stanford historian Jonathan Gienapp, invites historians and legists to reflect on original intent jurisprudence in a recent series of essays.  Gienapp instinctively perceives originalists as conservatives driven by presentist aims who need a “methodological corollary” to pursue those aims. Referring to the pioneering 1980s scholarship of Berger and Bork as “Originalism 1.0,” Gienapp says its goal was to recover what the Constitution’s Framers intended. When challenged on conceptual grounds, conservative judges and legal theorists later introduced the concept of “original public meaning,” referred to by Gienapp as “Originalism 2.0.”

Under the latter approach, constitutional text and discourse are understood in the manner employed by a competent speaker of the language at the time of the Constitution’s framing and ratification. Gienapp dismisses Originalism 2.0 as “studying word usage,” which leads to semantic nitpicking. It omits the historical context of American constitutionalism, according to Gienapp. Because it “claims to have escaped history,” the new originalism poses an urgent threat to the practice of history. Debates over it have “gravitated . . . towards the philosophical foundations of historical meaning.”

Originalists, he says, in insisting that “the document’s meaning could not evolve with the times” but must remain “fixed and constant over time,” have “stopped trying to beat historians at their own game—by re-writing the rules by which that game is played.” Instead of fighting a losing empirical battle, originalists “stake out different conceptual foundations altogether.” In D.C. v. Heller (2008), for example, the new originalists sought to engage historians on a “non-historical turf,” dismissing historians’ contextual reading of the Second Amendment as a misunderstanding of the concept of original meaning.

Gienapp exhorts historians to fulfill their professional obligation and rise to the originalist challenge. The dispute is not over Founding-era facts, he says, but over “what methods are needed to identify the original historical meaning of a historical text.” The new originalists, conceiving of historical knowledge in terms of cognition, profess “a certain kind of historical meaning” that they believe makes them “immune from historical critique.” In other words, Gienapp avers, public meaning originalism defines history as “a form of knowing that rather than a form of knowing how.

(Thanks to Mark Pulliam for the pointer).