John McGinnis on Mary Sarah Bilder on Originalism
Michael Ramsey
At Law & Liberty, John McGinnis: Why Mary Sarah Bilder Gets Originalism Wrong. From the introduction:
As originalism has gained prominence, it has become a target for academic historians. They often accuse lawyers of a shallow view of history, pejoratively termed law office history. They complain of lawyers’ overreliance on linguistic crutches like dictionaries, and their ignorance of the social and political context of the constitutional text.
In my view, originalists and historians should not face fundamental conflicts in part because they are largely interested in different questions. Originalists are focused on the legal meaning of texts, and the relevant evidence for that meaning is set by the legal rules of interpretation at the time of enactment. Historians are more interested in much broader questions, like the causes of historical events and the motivations of those who contributed to them. It is not so different from the division of labor if it were applied to contemporary traffic accidents. Lawyers would focus on the narrow question of who is liable for specific accidents. Historians (and other social scientists) would consider the causes of the rise and fall of traffic accidents and their consequences for society.
That is not to say there is no overlap between the concerns of some legal historians and originalist lawyers. Legal historians can identify context which may be relevant to determining meaning under the rules of interpretation at the time or establishing what those rules were. They can also bring to light useful sources through archival research. Unfortunately, such fruitful collaboration is rare. And in my view, the fault is largely with historians because they often write about originalism in a tendentious way that has three principal defects. First, they themselves do not provide the relevant legal context of the evidence they use in making claims about legal meaning. Second, they make a caricature of originalist methodology. Third, they rely on arguments from professional authority.
Sadly, a recent short essay by Mary Sarah Bilder, a distinguished legal historian at Boston College, exemplifies all three faults. The essay meditates on an epigram used in an essay by the late great historian Bernard Bailyn. Surprisingly, Bilder does not directly quote his epigram in so many words, but it appears to have been a comment from James Madison where Madison stated, according to Bilder, that the Constitution was just “a draft of a plan” until “life and vitality were breathed into it.” These snippets might seem at first glance to confirm, as Bilder no doubt means to suggest, that Madison did not believe that the meaning of the Constitution was settled at enactment and that its meaning properly evolves based on the subsequent views and actions of the American people as they breathed life into it. ...
Despite its title, the post does not really undertake much speculation about why Professor Bilder gets originalism wrong (as opposed to how she gets it wrong). Without personalizing any such speculation, I suspect that many historians get originalism wrong because (a) they have an intuitive dislike for it and so are overly anxious to show its faults, and (b) they are speaking within a peer community that shares this common intuitive dislike, so they don't expect or encounter critical many readers. As a result, they don't bring to the discussion the care, rigor and nuance that characterizes their historical work.