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12/16/2015

An Invitation (and Challenge) to Anti-Originalist Historians
Michael Ramsey

Inspired by Kurt Lash's post Do Historians Understand Originalism? (noted here) and the Fordham Law Review's historians' symposium, I offer the following invitation (or challenge, depending on how you look at it) to historians who are originalist critics. 

Saikrishna Prakash and I (separately, but with lots of overlap) have put much energy into developing an original meaning account of the declare war clause.  While we differ on some details, our general conclusion is that the clause substantially limits the President's ability to initiate the use of military force without Congress' approval.  My impression (with all due modesty) is that this account has been generally persuasive to a fair number of modern originalist-oriented legal scholars, with the significant exception of John Yoo and a few others.  (Their position is that the clause does not, or at least does not materially, limit the President's use of force).

I am not aware that any pure historian has commented in detail on this debate.  My invitation to historians is this: tell us where we are wrong. 

We could be wrong at least three ways.

(1) Perhaps there is no identifiable meaning of the declare war clause.  That is, perhaps we can't tell what it's language meant, how people of the time understood it, what the framers thought it's role was, etc.; the Yoo position is as likely to be right as ours, but the bottom line is that it's all indeterminate.  No useful light can be shown on the matter.  So, really, one can't say that the clause limits the President.  I would like to hear, though, why we can't reach any useful conclusions on the matter (since I think we can).

(2) Perhaps the Yoo position is the better reading (he uses a lot of history and historians in support).  I'm not aware of any pure historian taking this view, but I would be interested to hear their account.

(3) Perhaps our conclusion is right, but we are getting there the wrong way.  This would be the most interesting, I think, because it would illustrate the differences in how historians approach original meaning and how legal scholars do.  But I think it's not sufficient to quibble over isolated pieces of evidence (though I welcome quibbles as well).  What  I'd most like to see is a historian's account of how the clause limited the President.

I think this is a pretty fair test.  The meaning of the clause is not obvious, as the idea of declaring war is ambiguous and somewhat outdated, so it requires some attention to history to understand it.  Assuming most academic historians lean somewhat to the left politically, there is less likely to be a policy-driven reaction against originalist conclusions here.  Legal scholars, while having a clear majority and minority position, are far from unanimous, and the clause's meaning is highly contested among political commentators and executive branch and legislative branch lawyers.  So it is not an easy or intuitive case.  Yet ultimately I do think there is a answer, and I've tried to make the case as best I can (and Prakash makes it better).

I mean this invitation in an entirely serious and non-confrontational way.  I really would like to understand, concretely, what it is that historians don't like about originalism, as I think we can learn from each other.  I think working in depth on a particular issue, rather than in the abstract or on the basis of scattershot examples, would make the discussion more meaningful.  So it is a genuine invitation.

But it's also a bit of a challenge.  Because if historians are going to say that originalism as an enterprise is flawed (as opposed to just that some arguments are flawed or that some clauses can't be given meaning), they have to show that all (or most, anyway) originalist analyses are flawed.  Since I'm pretty confident of this one, I offer it up as a target.  To make their criticism stick, I think they need to knock it down.

So what do you say?  I think it would make a great article.