Saul Cornell (Fordham University — History) has this response essay in the Fordham Law Review Res Gestae: Originalism as Thin Description: An Interdisciplinary Critique (responding [harshly] to Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111 (2015), which in turn commented [harshly] on Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism, 82 Fordham L. Rev. 721 (2013)).
From the introduction:
Although, I suppose, Solum is technically correct to say it may be argued that intellectual history could provide a theory of constitutional interpretation, that was not the thesis I advanced. In fact, my essay made the opposite argument. My argument was fairly simple: if one wishes to understand what the Constitution meant at a particular point in the past, one needs a rigorous historical method to recover the range of meanings it might have had for various groups living at the time. I argued that intellectual history provided a tried and true method for accomplishing this goal. The relevance of this historical information to constitutional theory and jurisprudence is not itself a historical question, but a legal and political one. My goal was not to enhance the importance of history to constitutional theory, but to diminish it.
There is little point in responding to Solum’s facile critique of intellectual history and to his glib dismissals of the work of eminent scholars such as David Hollinger, James Kloppenberg, and Quentin Skinner. Until Solum takes the time to read deeply and thoughtfully the literature of intellectual history, and obtains more than a smattering of familiarity with the scholars he criticizes, there is nothing to be gained from engaging with a critique based on a superficial reading of a few texts, some of which are now almost half a century old. Any serious evaluation of these scholars would require a careful examination of their theoretical writings, empirical scholarship, and the complex connections between theory and practice in their writing.
In a brief essay it would be impossible to address all of the theoretical and methodological flaws in Solum’s simplistic model of constitutional communication…
And in conclusion:
One of the biggest problems with Solum’s model is his failure to attribute any agency to individual historical actors. In Solum’s theory, individuals are used by language; they do not use language. Originalism in this sense is literally an “idiotic” constitutional theory. It treats most Americans in the Founding era as if they were voiceless: empty vessels for holding linguistic and contextual facts. By ignoring human agency, originalists, including Solum, are guilty of succumbing to the “enormous condescension of posterity,” a pernicious and ahistorical bias that the great English historian E.P. Thompson warned against in his classic study, The Making of the English Working Class. By effectively silencing discordant voices and turning what was a lively and raucous public debate into a dull placid affair, Solum produces an ideologically distorted vision of the Founding. This approach drains politics from one of the most politically contentious moments in American history. To the extent that it was possible to fix the constitutional meaning for any provision of the Constitution (apart from the most trivial constitutional questions), such a process was a function of political and ideological forces, not the neutral philosophical application of a set of universal truths about language.
The time has surely arrived to abandon the simplistic approach to language and history associated with nearly all versions of originalism, including Solum’s semantic originalism. Rather than dismiss intellectual history, Solum and other originalists would do well to master a few of its more basic techniques.
Posted at 6:29 AM