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10/22/2018

An Important Difference Between Historians and Originalist Law Professors
Mike Rappaport

Recently, I was having a discussion with a law professor who looks at matters from a historical perspective. While such law professors are not professional historians, many of them have adopted the historian's perspective. During our discussion, one aspect of the dispute between historians and originalist law professors became crystal clear.

When historians are making claims about the original meaning, they look at the matter, naturally enough, from a historian’s perspective. There will be several possibilities.

  1. The matter was discussed and there was a dominant opinion on it.
  2. The matter was discussed and there was no dominant opinion. Instead, there was a relatively even split of opinion on the matter.
  3. The matter was not discussed at all or rarely discussed.

When confronted with these circumstances, the historian tends to view only case 1 as having an answer. The reason I think is straightforward: the historian is attempting to report the past and there is only evidence from the past of an answer as to 1.

Case 3 involves a situation where the past does not tell us anything (except that the matter was not considered). Case 2 involves a situation where the past tell us there was no clear answer. We certainly cannot report that the past has an unambiguous answer as to 2.

The originalist will view things differently. The reason is that the originalist is not looking for “what the past tells us about a matter.” The originalist is looking for the original meaning. The discussions at the time offer some evidence of the original meaning, but they do not determine the answer to the matter. Thus, the originalist might give different answers than the historian.

In case number 3, the originalist might conclude that one opinion was the original meaning and might even conclude that this is the clear original meaning. People might not have talked about it because the issue did not arise or because the answer was clear. Of course, it is also possible there was no clear original meaning, not because it was not discussed, but because the answer was simply a hard one.

In case number 2, the originalist again might conclude that one of the two contending opinions was the original meaning. Although the Framers’ generation may have been split, one of the opinions may appear stronger to us. In fact, the originalist might even conclude that one of the contending opinions was the clear original meaning. This is, of course, not the result we would expect, because the Framers’ generation was split on the issue. But sometimes this evidence can be outweighed by other considerations. For example, a political party might have adopted a position on an issue because it furthered their political interests, even though the Constitution did not really support their argument. In this situation, the original meaning might clearly support a result rejected by one of the political parties.

What about case number 1? In this case, I admit I would be reluctant to conclude that the original meaning (or the clear original meaning) went against the consensus at the time. But, of course, it might be possible in an extraordinary situation.

In the end, there is a difference between “what the past is telling us” as understood by the historian and “what the original meaning is” as understood by originalists. It is important to keep this distinction in mind when reviewing debates between historians and originalists. Originalists are happy to consider what historians say about matters, but we should remember that often historians have a different objective than originalists do.