Law Professor Michael L. Smith recently wrote an article titled Is Originalism Bullshit? and I’d just like to respond briefly to some comments on page 47. Professor Smith says Professor Rob Natelson has “no need for historians’ critiques in light of [his] self-proclaimed expertise.” That statement by Smith is very misleading, and Natelson is actually not dismissive of historians’ critiques at all. Smith relies upon the following paragraph which Rob wrote for the Originalism Blog in January (the blog post was mine but I conveyed comments from Rob):
Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But even before beginning our "state war powers" project, I knew that one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.
Professor Smith does not disagree with Professor Natelson’s interpretations of the words “permission” or “hostile,” as used in the eighteenth century. Nor does Smith point to any contrary critique by a historian who was ignored or overlooked by Natelson. Smith also does not dispute that Professor Natelson properly used contemporaneous dictionaries to prove or confirm his correctness. So what’s the problem?
Natelson’s self-described procedure was applied to “common” words that he had already encountered in writings from the eighteenth century, and if instead obscure words had been involved, which Natelson had not previously encountered, then doubtless he would have consulted the old dictionaries before forming any notions about what he would find in those old dictionaries. In short, I don’t see anything wrong with the way Rob Natelson proceeded in this matter. As a coauthor with Rob, I can attest that we cited many historical critiques, without picking ones supporting our conclusions, and the idea that Rob has no use for such critiques is incorrect.
In many ways, the English language of the eighteenth century is a foreign language as compared to modern English. But we should not despair of understanding it, any more than we should despair of understanding modern foreign languages. In my opinion, Rob is among the best at translating eighteenth century English to modern English, at documenting that he is correct about any points that might be controversial, and at examining historical sources and critiques to help reveal senses or shades of meaning that might otherwise be unclear.
Posted at 6:40 AM