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07/30/2019

Saul Cornell on Originalism and History (Again)
Michael Ramsey

In the Law and History Review, Saul Cornell: Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning (Law and History Review, August 2019).  From the introduction (footnotes omitted): 

Recent originalist scholarship presents a case study in the problem of interdisciplinary inquiry in contemporary law. Borrowing insights from outside of the law without fully engaging with the relevant theoretical debates in other fields has resulted in a misapplication of key concepts. Rather than help originalists develop a more sophisticated approach to history and respond to earlier critiques of their methods, much recent originalist scholarship has used these insights as a means to avoid direct engagement with these earlier criticism. The result of such borrowing has been greater distortion of the historical meaning of the Constitution, not less.2 Nothing better illustrates the problems inherent in recent originalism than Second Amendment scholarship and jurisprudence. The Supreme Court’s ruling in District of Columbia v. Heller relied heavily on originalist scholarship, and leading originalists have praised the case as the best example of their method in practice. Yet, scholars from across a wide ideological and methodological spectrum have criticized Heller’s many historical errors and anachronistic interpretations of Anglo-American legal texts. Rather than praise the “gravitational pull of originalism,” as one prominent originalist and Heller defender has done, it might be more apt to characterize originalism as a scholarly black hole that has systematically warped legal and constitutional texts, in some instances almost beyond recognition.

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available. Despite paying lip service to ideas about reading the Constitution historically, originalism continues to invoke the authority of history without actually engaging in a genuinely historical practice. The assumptions at the root of most originalist inquiry are dubious at best, and in many instances demonstrably false. Originalists continue to treat eighteenth-century constitutional speech and communication as if it were little different that ordinary interpersonal communication, but virtually all of the texts consulted by originalists were generated as part of a rhetorical public debate that shares little with everyday speech situations. Other originalists claim to avoid the problems of this linguistic approach by adopting one focused on the legal, not the ordinary, meaning of the text. This approach also ignores the profound differences between American law in the eighteenth century and modern law.

Originalism has already gone through two major paradigm shifts during the last generation.6 Originalism 1.0 was focused on intent. By contrast, originalism 2.0 eschewed intent and instead focused on public meaning. Originalism appears to be morphing yet again: version 3.0 is still somewhat inchoate, but its champions have turned away from an emphasis on linguistic meaning, stressing instead legal meaning.  Either conceived in terms of the “language of law” or as “an inclusive originalism” the most recent variants of originalism continue to approach the contentious and discordant constitutional and legal culture of post-revolutionary America from the perspective of an outdated model of consensus history that few serious historians would recognize as accurate. All of these variants of originalism have failed to deal with the remarkable vitality and diversity of the intellectual and cultural world of the Founders. The result is a flat one dimensional account of Founding Era constitutional debates. As the Heller decision attests, the stakes in this debate are not merely academic.

Although a few left-leaning examples of originalism have emerged, the approach continues to be largely the province of the political right. Indeed, originalism has been effectively weaponized by those eager to advance an ideological agenda that not only includes advancing the cause of gun rights, but ultimately aims to undo much of the modern regulatory and administrative state. Instead of addressing the fundamental historical problems with their methodology, leading originalists have turned to a variety of theoretical fixes. Some originalists have borrowed from modern philosophy of language, analyzing constitutional communication as if it were essentially little different than ordinary face-to-face communication between social equals engaged in a rational exchange of ideas. Another prominent group of originalists favors the use of ideal imaginary readers constructed by modern legal scholars from Founding Era sources. Finally, supporters of originalism 3.0 claim that by treating the Constitution as a legal text or a text written in the “language of law” one can arrive at an objective fixed meaning: the long sought after originalist holy grail. None of these theoretical fixes solves the core problem with originalism: the absence of a rigorous historical methodology for dealing with the complexity of Founding Era constitutional thought and culture. Reading legal texts historically will require that originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues
is a separate task from the process of uncovering the legal meaning of Founding Era constitutional texts. Deciding what, if any, relevance such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

The article continues with some particularly strong criticism for the work of Larry Solum, Randy Barnett and John McGinnis & Michael Rappaport.

(Via How Appealing).