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10/25/2022

Elias Neibart: Originalism as Intellectual History
Michael Ramsey

Recently published, in the Harvard Journal of Law and Public Policy, Elias Neibart (Harvard Law School J.D. expected 2025): Originalism as Intellectual History.  Here is the introduction (footnotes omitted):

If the majority opinions in Dobbs and Bruen taught us one thing it is that the Supreme Court’s originalist jurists remain deeply committed to the practice of history. Throughout its last term, the Court often surveyed the literature and law of the past to address modern life’s most pressing constitutional questions. So, if judges are to take on the mantle of history, what form should their historical inquiry take?

Just as different schools of jurisprudential thought produce and employ distinct methodological practices, so do the different historical camps. The Straussian, the Cambridge School adherent, and the New Left historian sometimes reach different historical conclusions, but they often utilize unique scholastic processes. These processes embody more than a myopic focus on the discrete actions and utterances of the past—they encompass the ideas, philosophies, and languages animating those events. Thus, if American jurists want to uncover rights “deeply rooted in the Nation’s history” or if they wish to determine which regulations are a part of our “historical tradition,” then they must adopt a historical method that accounts for the totality of the historical experience. This approach, therefore, would mirror that of the intellectual historian.

However, intellectual history should not be understood as an “alternative to originalism.” In fact, the opposite is true: originalism should take the form of intellectual history. Infusing originalism with the methodological practices and aims of intellectual history will create an interpretive framework that is far more robust and intellectually honest.

As he digs into the historical record, the originalist intellectual historian recognizes that the text can only be understood after first accounting for the different intellectual traditions underpinning each constitutional provision. Before attempting to ascertain the “communicative content of a legal text,” he digs deeper, unearthing the intellectual heritages undergirding the Constitution’s framework and the era in which it was created. The balance of this essay will delineate this type of originalism, but before that exploration, we should survey the current originalist landscape.