Seth Barrett Tillman who teaches in Ireland and has written many pieces on American originalism, writes:
I’d like to develop some related points arising from my personal experience. . . .
Some historians see lawyers as engaged in a coordinate academic enterprise: a pursuit of some unknown truth or, at least, an effort to get there. But not all historians think this. Some historians believe lawyers, including lawyers with academic affiliations, are agenda-driven hacks, who purposefully seek to build one-sided arguments for ideological reasons or to serve a client. In one legal history listserv I participate in, the listserv editor has from time-to-time insisted that participants state why they have posed a question to the listserv members. My own view is that such information risks biasing answers. I flagged my concern to the listserv editor and his response was that members want assurances that their answers will not be used on behalf of clients and causes who and which they do not wish to benefit or associate with. . . .
I also have come to believe that some historians just do not like lawyers (which would hardly make historians unique in American society). Such historians see academic lawyers and law schools as a poor fit in wider university culture. And the first thing such historians point to are student-edited law journals which do not fit the customary arts & sciences peer-reviewed journal model. . . . I [also] sense that outside of the U.S. in other English-speaking and common law jurisdictions, (foreign) historians are more friendly to academic lawyers. One reason for this may be that outside the U.S., academic lawyers frequently do not teach in free-standing law schools – which may be somewhat isolated from other university departments. . . . Finally, outside the U.S., most legal academic have PhDs, not JDs, which sometimes have little or no significant research component.
Finally, some (American) historians are just unhappy with their fellow citizens and America as it is constituted today. They lay the status quo at the foot of lawyers, who they see as serving the moneyed, the powerful, the vested interests, and the status quo. To some extent this view is tied to professional jealousy. They see lawyers as peculiarly relevant to politics (via litigation and legislation). By contrast, their own expertise and views are (as they see it) largely sidelined, even though they (believe they) have greater expertise than the judges/Justices (i.e., lawyers) who are tasked with examining concrete historical questions affecting lives and liberty. . . .
Seth's explanations ring true to me, although I have had less personal experience with some of them.
In comments on an earlier post, Seth again illustrated some of the problems with historians' understanding of originalism and law. Historian R. B. Bernstein had recommended an article that he had written on the problems with originalism. Seth quoted from Bernstein's article:
“My favorite example is the Electoral College. The Constitution’s framers expected the Electoral College ONLY to thin the herd of presidential candidates, with the House of Representatives picking the President and Vice President from the top three. George Mason of Virginia predicted that this would happen in nineteen out of twenty elections. It did not work out that way.”
Then Seth wrote:
“Top three”? The “top three” requirement was imposed by the Twelfth Amendment, not the framers. Article II allowed Congress to choose among the top five, right? And exactly who were these “framers” to which you speak? Precisely which framers took this position other than Mason? Your three footnotes did not clarify this.
This is your “favorite” example — in a paper you recommend others to read as a critique of other scholars’ work?
The exchange between Seth and Kevin Hardwick in the comments of this post are also worth reading.
Posted at 8:16 AM