At Balkinization, Stephen Griffin: Originalists vs. Historians: Round ? From the introduction:
Originalists are at it again, claiming that their project differs fundamentally from “historical inquiry.” This is the term I employ to denote the ordinary practice and methodology of historians in a just-published article in the Tulane Law Review, “Optimistic Originalism and the Reconstruction Amendments.” But is this contention as plausible as they assume? In my article, I advance the argument in this dispute in a way not reflected in the most recent round of controversy.
I refer to the exchange between Mary Sarah Bilder in the historians’ corner and John McGinnis and Mike Ramsey for the originalists. Bilder, a legal historian who has made important contributions to our knowledge of the founding period, offered some pointed observations about originalism by way of memorializing the late Bernard Bailyn, surely one of the most distinguished historians of American history. Like many historians, Bailyn was most impressed with the process of intellectual change and exchange involved in making and then implementing the Constitution, not the fixity of the constitutional text. Clearly leaning against influential forms of semantic or public meaning originalism, Bilder is provocative: “[o]riginalism missed everything that mattered about the debate on the Constitution.”
Simply judging by past disputes, something about Bilder seems to set originalists off. This time, John McGinnis sounds the charge. In contending that originalists and historians are pursuing different enterprises, he appeals to a division of labor. Originalists focus on the law, while historians focus on causal explanations and motivations. More precisely, originalists concern themselves with “legal meaning” and “legal rules of interpretation.” Historians, he thinks, are interested in the causal role of ideas in the broader society…which does not include lawyers or the law, I guess.
I put it in that skeptical way because we should notice how much mileage McGinnis gets simply by adding the word “law” to matters that historians are indeed interested in, such as the meaning of constitutions and the ideas that relate to their formation. Observe further how McGinnis implicitly locates lawyers and their determination of legal meaning in a conceptual space somehow beyond the eighteenth and nineteenth-century societies in which most of the words of the Constitution were written.
McGinnis seems to assume that Bilder is opposing originalism as an interpretive approach to living constitutionalism, when it is far more likely (and productive) to regard her as contrasting contemporary originalist methodology with historicism, an approach rooted in appreciating the perspectives of the relevant participants. Historicism is alive to the possibility that these perspectives are often quite different from our own. This suggests that historians are not only on a different methodological path than originalists, but one that constitutes an implicit critique along the lines of charging that there is a lack of appropriate context to much originalist work.
My view is I wish orignalists and historians would engage more with each other, instead of sniping at each other. I do agree with Professor McGinnis to the extent that I think originalists and historians are engaged in a somewhat different enterprise, but I think the two enterprises are (or should be) complementary. Legal scholars are often interested in the historical meaning of particular words and phrases, while historians are typically interested in broader events — but those broader events are often relevant to the particular meanings.
I think it might also be helpful to cast the division as one between legal scholars and historians, rather than originalists and historians. Originalists are legal scholars who think that the Constitution's original meaning should be binding on modern decisionmakers (with possible exceptions for precedent, practice, etc.). But most legal scholars in the constitutional field think that the Constitution's original meaning is relevant to modern decisionmaking, even if it is not decisive. Thus arguments are commonly made, by legal scholars who do not consider themselves originalists, about the the original meaning of particular constitutional clauses. (Consider, for example, recent debates over the scope of impeachment, the scope of the pardon power, or the meaning of "emoluments".) Their methodology in determining original meaning is, so far as I have observed, not materially distinct from what originalist scholars employ. The difference is the weight assigned to historical meanings in modern adjudication. So it would seem that historians' complaints are not with originalists in particular.
Professor Griffin goes on to say:
I suggest the fault line is between paying attention to context in the “objective” style favored by originalists as against considering the perspectives of those present at time. Does the latter, so critical to historical inquiry, contribute meaningfully to what originalists call “context?” Perhaps surprisingly, the answer turns out to be “no.”
I disagree. The "perspectives of those present at time" do "contribute meaningfully" to original meaning inquiry – "meaningfully," but not decisively. Thus original meaning inquiries routinely consider the understandings and motivations of members of the founding generation. while also considering other evidence of a more legal nature as well.
The "fault line" instead I think is (as suggested earlier) between focus on particular phrases and focus on more general motivations and experiences. This though should not be a fault line but an incentive for cooperation.
Posted at 6:02 AM