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12/15/2015

Kurt Lash on Historians on Originalism
Michael Ramsey

At Liberty Law Blog, Kurt Lash, Do Historians Understand Originalism?  It begins: 

I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree. In fact, I think his recent op-eds about the true meaning of the Thirteenth Amendment suggest that even Eric does not really believe historical inquiry is incapable of discovering original legal meaning.

Actually, I am quite certain that law professors are far, far ahead of Foner in developing theories of textual interpretation and methodologies for identifying common historical patterns of language usage. And where historians like Foner seem to believe that historical knowledge is directly applicable to contemporary legal problems and politics, originalists understand that historical meaning is one thing, but applying such meaning to contemporary cases requires a separate normative argument. And woe to the originalist who fails to reveal her priors!

(and continuing with some harsh words for Jack Rakove's piece in this symposium in the Fordham Law Review).

RELATED:  Ian Bartrum (UNLV) has this recent post on Prawfsblawg about the Fordham  symposium.