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06/25/2018

Saul Cornell on Originalism and History
Michael Ramsey

At Take Care Blog, Sual Cornell (Fordham, History): Originalist Critiques of Anti-Originalism: Still Don’t Know About History (commenting on my post on the recent law professors' letter regarding fiduciary limits on executive power).  It begins:

To understand the exalted views of presidential power associated with the Trump administration one must appreciate the role that originalism and its theory of the unitary executive plays in contemporary right wing thought and culture.  According to Trump’s lawyers, the President “possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President.”  As is true for many originalist claims about the past, the unitary executive rests on  a series of distortions, simplifications, and a profoundly ahistorical reading of  the Constitution.  Although originalists invoke the authority of history, their method is profoundly ahistorical.  This failure to grasp the nature of history is evident in a recent posting on the Originalism Blog by Professor Mike Ramsey expressing consternation that critics of Trump’s originalist justification would turn to history and text as the foundation of their critique.  Most originalists share Ramsey’s confused view of anti-originalism.  According to Ramsey opponents of originalism share three common views:

(1) Originalism is a radical cultish ideology that is inconsistent with ordinary approaches to legal interpretation.

(2) Originalism is impossible because we can’t know for sure what the framers thought about anything or what words meant historically, and in any event only trained historians can fully understand the past.

(3) Originalism is irrelevant because we shouldn’t be bound by the framers’ design.

Two quick points at the outset: 

(1)  I did not "express consternation that critics of the Trump administration would turn to history and text as the foundation of their critique."  I think this it's great that they did.  I like originalist arguments (else I would likely not write for a site called The Originalism Blog!) regardless of who makes them or why.  Indeed, in a subsequent post (which I'm not sure Professor Cornell has read) I wrote that the law professors' letter made a persuasive originalist argument in support of the fiduciary duties of the executive -- one that's backed up by quite a bit of originalist scholarship.  I congratulate the signatories of the letter for relying on history and text.

What I did suggest in the post that Professor Cornell cites is that I was surprised that a number of law professors made the strongly originalist arguments in the letter, because many (not all) are generally not originalists in orientation and some have been harsh critics of originalism in the past.

(2) I did not say all opponents of originalism shared the three common views Professor Cornell lists (or that these are the only criticisms of originalism).  I said that these are common criticisms raised against originalism that were prominent during the Gorsuch hearings.  And (this was my main point) the law professors' letter tends to refute all of them, because it implicitly reflects the view of a number of conventional legal scholars that originalism is (at least sometimes) an appropriate methodology; that the the Constitution's historical meaning is (at least sometimes) knowable; and that the Constitution's original meaning is (at least sometimes) binding on us today.

Professor Cornell goes on to raise (as I count them) three different objections to originalism:

First, it is important to point out that critics of originalism do not view it as cultish, but ideological.  This is an important distinction.  As many critics of have noted, originalism functions as both the method and ideological foundation for much contemporary right-wing constitutionalism.

...

Historical arguments are hardly unique to originalism.  Such arguments are widely recognized by non-originalists as one of the many modalities typically employed in modern constitutional interpretation. Critics of originalism do not ignore Founding era thought, but they insist that constitutional ideas were not fixed in 1788. (The entire notion of fixation, a claim shared by many originalists, itself rests on a serious misreading of the philosophy of language and linguistics, a point that originalist critics have made on multiple occasions.)  Rather than embrace the stilted version of history espoused by originalists, non-originalists share a view common among the leading constitutional thinkers of the Founding era.  Constitutional culture in the Founding was decidedly not originalist in the sense in which this term is typically used in modern legal debate.  History, was indisputably important to many in the Founding era and historical argument has always been important in American constitutional law in the centuries that have followed, but it is important to distinguish genuinely historical approaches to the past with originalism.

Ramsey and other leading originalists, including Lawrence Solum, Randy Barnett, Michael Rappaport, and John McGinnis have all consistently misrepresented the historical critique of originalism.  The point of the historical critique of originalism is not that we are unable to recover historical meaning.  One need not be a PhD. to comprehend the relevant historical methodology necessary to understand Founding-era constitutional culture and debate. There are many outstanding legal academics who do high quality historical work who do not have professional training in history.  The problem is that few originalists fall into this category.

I take two of these arguments to be methodological objections -- that originalism isn't being done correctly because it's ideological or insufficiently educated on historical method.  (I'm happy that Professor Cornell rejects the idea "that we are unable to uncover historical meaning," although I don't think it's a "misrepresent[ation]" to identify that as a common critique of originalism).  These two objections don't go to the idea of originalism, only to its practice.  If originalism as practiced is too ideological or historically inaccurate, originalists should welcome such criticism and do better.

But I find it difficult to discuss methodological objections in the abstract.  Although he begins with a reference to the law professors' letter, Professor doesn't say what he thinks of it (and of the scholarship on which it rests).  (1) Is it too ideological?  Perhaps, because its signatories are (I surmise) principally opponents of the President.  But it rests on ideas developed earlier, and by scholars who may have different views of this President.  And in any event, isn't the question whether it is accurate, not its motivation?  Even if all its signatories were motivated by ideological opposition to the President, that does not mean its history is wrong. (2) Is it using inappropriate historical and linguistic methods to reach its conclusion?  Perhaps, but without hearing the specific objections it's hard to say.  In a prior exchange with Professor Cornell where he and I debated some specific methodological objections regarding the debate over the natural born citizen clause, I found his objections insubstantial.

Professor Cornell's third objection appears to be the fairly standard nonoriginalist position that originalism is one of the "modalities" of constitutional interpretation but not the only one, and that constitutional ideas can evolve over time.  I think he's right that this is the real point of dispute between originalists and nonoriginalists.  But I'm not sure what he adds to this debate, or why he thinks I see the contours of that debate differently.