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Friday, December 11, 2015

Historians Take On New Originalism

I highly recommend the Fordham Law Review’s recent forum issue, in which several prominent historians offer their critiques of “New Originalism.” This forum follows a 2013 symposium of constitutional theorists and philosophers of language, which explored the interpretive methodology espoused (most prominently) by Larry Solum, Randy Barnett, and Keith Whittington. If you want a primer, probably the best place to start is Solum’s “Reader’s Digest” version of his “Semantic Originalism,” but I’ll attempt a very quick and dirty (and undoubtedly flawed) summary here.

Per the New Originalists, sound constitutional explication take place in two distinct phases: (1) Interpretation—in which we discover the text’s “semantic meaning” or “communicative content”; and (2) Construction—in which we construe the text’s “legal meaning” vis a vis some modern controversy.   In the first phase, we discover communicative content by looking to the language conventions that existed when the text was ratified. This “original public meaning” can then be “fixed” or frozen at a discrete historical moment.   We then carry that fixed meaning into the construction phase, where it constrains—absent weighty countervailing reasons—our conclusions about the text’s legal content.

The recent Fordham forum does a very nice job illustrating the inevitable problems that arise when this neat and clean theory (which imagines we can simply “discover” some discrete set of language conventions that “fix” a word's semantic meaning) runs into the complex and messy reality of human social practice—particularly the foreign societies that existed in 18th or 19th century America. Martin Flaherty opens with an introduction that details three abuses of history that originalism invites; Jack Rakove makes an excellent case that the Founder’s themselves were skeptical about the limiting capacities of language; Saul Cornell gives a detailed account of the competing language conventions surrounding “speech” and “assembly” (which make “fixation” a necessarily constructive task); and Helen Irving points out that, depending on the legal culture and problems at hand, a minority or dissenting set of historical conventions might provide the best source of modern legal meaning.

The piece that hits closest to my heart, however, is Jonathan Gienapp’s take on New Originalism’s failure to adequately account for problems of historical translation.   Gienapp presents a historical perspective on an issue I have tried and tried to address within the philosophy of language framework: The impossibility of translating text atomistically—of ripping one word or phrase out of its natural form of life and slapping it into a whole new language game.   Indeed, within New Originalist thought, this approach has led some folks to discount the role that history (at least professional history) plays in originalism. All the originalist needs to do is search the databases for a suitably large sample of the usage of particular word at or around the right historical moment, and—presto—we have a fixed semantic meaning.

Gienapp does an excellent job demonstrating that this simplistic approach fails to define a method that demands “holism” and “historicism.” That is, even a narrow historical account of language conventions must account for the interdependent and interlocking structure of the conventions themselves.   A successful act of translation cannot simply isolate one part of a complex historical language web, and then transport it into a modern language game with entirely different conventional structures. As Gienapp says, we must “translate all of the language.” I have tried to make this point from a Wittgenstein-Kuhnian perspective by likening the atomistic effort to “trying to use the Newtonian terms ‘mass’ and ‘force’ to solve a problem in Einsteinian physics.” To the degree that we can translate between historical and modern language games, it must be holistic—and we must concede that some terms simply will not translate because the games are ultimately incommensurable.

Gienapp suggests, rightly I think, that the best remedy for these failures of New Originalist translation is to engage a more robust and holistic historical method, one that acknowledges Wittgenstein’s lessons about language as a contingent practice, and one that avoids the temptation to take “language on holiday” by simply importing foreign language conventions into an incommensurable modern game.

This, of course, is a much richer and more nuanced discussion than I can hope to present in a blawg post, so if you’re even remotely interested, you could do worse things than spend a couple hours reading the Fordham forum.

Posted by Ian Bartrum on December 11, 2015 at 03:50 PM | Permalink


The Flaherty (http://fordhamlawreview.org/assets/pdfs/Vol_84/No_3/Foreword_December.pdf ) and Irving (http://fordhamlawreview.org/assets/pdfs/Vol_84/No_3/Irving_December.pdf ) pieces are rife with ontological/epistemic confusion, I think. What the Constitution *is*--the meaning historically expressed by the text, according to the originalist; something intergenerational, according to most non-originalists--is distinct from what we *know* about the Constitutution. In many respects, the Constitution's requirements may be unclear--that's implicit in early requirements (see http://ssrn.com/abstract=2662572 ) that a constitutional/statutory conflict be clear before a court could refuse to enforce the statute. Flaherty follows Jackson's concurrence in Youngstown, but that concurrence--using our purported ignorance about history as a springboard for the exercise of judicial power--is a paradigm case of What Not to Do. (See http://ssrn.com/abstract=2232453 at 436-37.) Likewise, Irving says that originalists have changed their theory because they "have conceded that the original intent of the Constitution’s Framers cannot be known." But lack of knowledge about X doesn't entail that the Constitution isn't composed of X; it's possible that we do not know what the Constitution requires. That's grist for the application of a knowledge-as-the-norm-of-assertion rule, not revision of our constitutional ontology.

Posted by: Chris | Dec 15, 2015 1:23:11 PM

Historians, who are the sorts of people who are experts on this sort of thing, are cited by Prof. Lash as uninformed in their criticism of law professors who use history as a keystone in their jurisprudence. To be sure originalists use historians though what ones they should use is a question. It is not like historians agree on what history involved.

Perhaps, the cobbler should stick to thy last. OTOH, I would give historians a bit of a pass. "Originalism" is split so many ways at this point, it gets confusing.

Lash also challenges Prof. Foner when he says there is "no such thing as original meaning of text" by citing an op-ed where he discusses the "true meaning" of the 13th Amendment. But, the op-ed to me seems to focus on Lincoln and doesn't really fully provide the "true meaning" of the 13A. It provides a basic idea but then perhaps Eric Foner's meaning is not really the "true" meaning either.

Posted by: Joe | Dec 13, 2015 10:57:07 AM

Paul, I was about to post the same link before I saw your comment. Lash's response, as compared to the post, seems to indicate that there is still an enormous disciplinary gulf that seems unlikely to be resolved soon. It is interesting to me that many, but not all, legal academic originalists seem comfortable going on their own without acceptance from other disciplines. In contrast, political science originalists like Whittington are far more engaged with inter-disciplinary objections. I might be overstating things, though.

Posted by: Corey Rayburn Yung | Dec 12, 2015 1:32:27 PM

Folks interested in this issue might also want to read this discussion by Kurt Lash: http://www.libertylawsite.org/2015/12/11/do-historians-understand-originalism/.

Posted by: Paul Horwitz | Dec 12, 2015 10:21:24 AM

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