Why Mary Sarah Photos will get the originalism mistaken
As originalism has grown in importance, it has become a target for academic historians. They often accuse lawyers of a shallow view of history, which is pejoratively referred to as the history of the law firm. They complain about the lawyers’ excessive reliance on linguistic crutches such as dictionaries and their ignorance of the social and political context of the constitutional text.
In my view, originalists and historians should not face fundamental conflicts in part because they are mainly interested in different issues. Originalists focus on the legal meaning of texts, and the relevant evidence for that meaning is set out in the legal rules of interpretation at the time of entry into force. Historians are more interested in much broader questions such as the causes of historical events and the motivations of those who contributed to them. It is not that different from the division of labor when applied to contemporary traffic accidents. Lawyers would focus on the narrow question of who is liable for specific accidents. Historians (and other social scientists) would consider the causes of the rise and fall in traffic accidents and their impact on society.
That is not to say that there is no overlap between the concerns of some legal historians and originalist lawyers. Legal historians can identify contexts that may be relevant for determining meaning according to the rules of interpretation of the time, or for determining these rules. You can also unearth useful sources through archive research. Unfortunately, such a fruitful collaboration is rare. And in my view the mistake lies largely with historians, because they often write in a tendentious manner about originalism, which has three main flaws. First, they do not themselves provide the relevant legal context of the evidence they use to assert claims to legal meaning. Second, they caricature the originalist methodology. Thirdly, they are based on arguments from the specialist authority.
Unfortunately, a recently published short essay by Mary Sarah Bilder, a distinguished legal historian at Boston College, illustrates all three of these mistakes. The essay meditates on an epigram used in an essay by the late great historian Bernard Bailyn. Surprisingly, Bilder doesn’t directly quote his epigram in as many words, but it appears to have been a comment from James Madison in which Madison loudly stated that the Constitution was just “a blueprint of a plan” until “life and vitality” were breathed into . “These excerpts seem at first glance to corroborate, as images no doubt suggest that Madison did not believe the meaning of the Constitution was established as of the Effective Date and that its meaning would become correct on the basis of subsequent views and actions of the American people developed as they breathed life into it.
Indeed, images give a name to the idea that thinking about a text changes its meaning in the light of subsequent events. The term is “intellection”: intellection proposed a creative thought process that is fascinatingly different from the imagination. In the intelligence the mind can correct the cave. That is, through creative thinking, the mind could change those parts of the cave that no longer correspond to current realities. “
Madison’s insistence on using state conventions as a guide is consistent with the originalist view that the meaning of the Constitution was established long ago.
However, it is incorrect to argue from Bailyn’s comments that Madison introduced a method of constitutional interpretation that can be grasped by the concept of “intellect”. As a member of Congress and an opponent of the Jay Treaty, Madison argued that the House should have the right to subcontract contracts when considering issues on which it could legislate, even though the Constitution only gives the Senate responsibility for advice and approval made a contract. His interpretative step was to reject the claim that what the authors of the Philadelphia Convention believed to be the constitution was dispositive. He argued instead that understanding the enactors was key, which enabled him to draw on materials from the state conventions that ratified the constitution. Here is the full context of the words that pictures quoted:
There the instrument came out [the Framers]It was nothing more than a draft plan, nothing but a dead letter, until life and validity were breathed into it through the voice of the people speaking through the various state conventions. Therefore, if we want to look for the meaning of the instrument beyond the face of the instrument, we must look for it not in the proposed general convention but in the state conventions that accepted and ratified the Constitution. It was to these that the message referred, and it would be appropriate to follow it.
Madison therefore argues that the meaning of the text is based on state conventions. It is these conventions that have breathed life into it and may be relevant beyond the text. This view does not offer support for a living constitutionalism in which meaning develops through the breath of every generation, including our own.
Moreover, Madison’s views here do not contradict those he expressed much later when he was pondering the correct method of constitutional interpretation in the quiet of retirement. In an 1821 letter to Thomas Ritchie, he wrote:
The legitimate meaning of the instrument must be derived from the text itself. or if a key is to be sought elsewhere, it must not be included in the opinions or intentions of the proposed body [and] proposed the Constitution, but in the sense that it is used by the people in their respective state conventions in which they rec[eived] all the authority it has.
Michael Rappaport and I have stated that the weight Madison assigns to the people in the conventions could be justified as an application of a legal rule of contemporary representation known at the time of its inception. Official measures, such as a proposed amendment or the unified meaning of a convention, provide this representation – or, more poetically, a “breath of life” – for the words on the page. Whatever its source, Madison’s insistence on state conventions is consistent with the originalist view that the meaning of the Constitution was established long ago.
Nor can pictures resist distorting the originalism. This claim is false, as any look at the originalist science of the past few decades would show. Far from fixating on dictionaries and disaggregating individual words, originalist scholars often delve deep into the relevant history, including the history of the many legal terms used in the constitution and the way they were linked. In this way, the meaning can be understood in its historical legal context.
For example, I would refer images to Caleb Nelson’s article “Preemption”, in which he explains the meaning of the non-obstant expression (“notwithstanding the contrary”) in the supremacy clause with reference to pre-existing conventional rules of interpretation. A more recent example is Michael McConnell’s recently published article “The President Who Wouldn’t Be King,” in which McConnell argues that the power of the president can best be understood when one realizes that Framers takes into account the power of the British monarch and is based on it has spread the branches. In a recently published paper, Michael Rappaport and I examine other originalist works, the meaning of which is determined by a much larger body of evidence than that for which pictures give credit to the originalists. Unfortunately, her comment betrays an ignorance of contemporary scholarship about the original constitution – matters in which an early republic legal historian might be interested.
Imagery is also misleading if it implies that the originalism was created by the conservative movement. It says: “[A] A mix of digestible documents and Reagan conservatism held together on the occasion of the bicentenary provided fertile soil for Antonin Scalia and Edwin Meese’s 1986 speeches, which declared constitutional case law on the basis of an original public meaning. “It is hardly the case that originalism was invented in the Reagan administration. As Howard Gilman – not a Conservative himself – has shown, there was consensus for the first hundred years that the Constitution should be given the importance it had when it came into effect. It was only in the advancing era that the idea of a living constitution emerged.
Finally, images are based on arguments of the specialist authority. The entire essay relies heavily on the fact that Bernard Bailyn disagreed with the originalism and, in particular, believed that gun rights were restricted to the militia. But as great a historian as Bailyn was, referring to his views is no substitute for addressing the vast literature on the meaning of the Second Amendment. Appeals to contemporary authority cannot displace the responsibility of historians and originalists to capture the historical records.