Not Everyone Who Studies the Past is a Historian

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A couple of weeks ago Stanford history professor Jonathan Gienapp published a critique of the so-called “originalist” approach to the interpretation of the U.S. Constitution.  Gienapp showed the difference between the ways historians think about the Constitution and the ways judges and lawyers think about it.

Georgetown law professor Randy Barrett responded to Gienapp’s piece here.

And now Gienapp has responded to Barrett with another lengthy post that is, once again, worth reading for it’s articulation of how historians approach the past, particularly the founding era. It is a great reminder that not everyone who studies the past is a historian and it returns to the old debate between the past as “usable” and the past as a “foreign country.”

Here is just a small taste of his piece at Process blog: “Knowing How Vs. Knowing That: Navigating the Past.”

…in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within.

Read the entire piece here.

Mary Sarah Bilder on “Originalism”

6c546-madisonSome of you may recall our Author’s Corner interview with Mary Sarah Bilder on her book Madison’s Hand” Revising the Constitutional Convention.

Yesterday Bilder turned to the pages of the Boston Globe to challenge the “originalist” interpretation of the United States Constitution.

Here is a taste:

The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.

Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

Read the entire piece here.

What Would the Founding Fathers Think About Originalism?

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Andrew Shankman, author of Original Intents: Hamilton, Jefferson, Madison, and the American Founding and the author of my favorite review of one of my books, says “not much.”

Here is a taste of his piece at History News Network:

President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.

Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.

Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.

Read the rest here.

I also recommend Jonathan Gienapp’s piece at Process, “Constitutional Originalism and History.”

The Author’s Corner with Andrew Shankman

Original Intents.jpgAndrew Shankman is Associate Professor of History at Rutgers University at Camden.  This interview is based on his new book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding (Oxford University Press, 2017).

JF: What led you to write Original Intents?

AS: I was excited by the charge given to me by Oxford University Press—to write a book that would advance scholarly knowledge of the nation’s constitutional, political, economic, and financial origins, but that would be entirely accessible to any reader and that could be completely understood without any prior knowledge of subject.  Oh, and to keep it under 200 pages!  That was an exciting challenge.  Scholars are very good at writing for other scholars, and some of them get good at writing for a general audience.  That such a prestigious press wanted me to write a book that the general public could enjoy and learn from, and that would not sacrifice any complexity—would not “dumb it down”—and so would benefit scholars too—that seemed such an exciting and a great idea, and a very worthy challenge to take on.

JF: In 2 sentences, what is the argument of Original Intents?

AS: Original Intents examines the political, constitutional, and economic ideas and policies of Alexander Hamilton, Thomas Jefferson, and James Madison from the American Revolution through the early 1790s.  Original Intents argues that Jefferson and Madison had profound disagreements with Hamilton about the meaning and purpose of the Constitution and the future of the nation, and that the ideas of all three were shaped, evolved, and changed by their ongoing and heated arguments with each other.

JF: Why do we need to read Original Intents?

AS: Original Intents recreates in close to real time the step by step ways in which Hamilton, Jefferson, and Madison came to realize what they thought and who they were.  They came to their understanding through intense engagement with each other during the most significant, creative, and productive period of their lives. The arguments the three had with each other from the American Revolution through the early 1790s (mostly it was Jefferson and Madison agreeing with each other and seriously disagreeing with Hamilton) established the framework for how Americans came to understand their Constitution.  Their arguments also began the debates that continue to our day about the proper relationship between the national and state governments, how much and in what ways governments should tax and take on debt, and what sort of nation we the citizens should aspire to have.  In their different ways, all three of them believed the United States was an ongoing experiment, that its institutions were only as strong and durable as the citizens who made use of them, and that the Constitution provided the basis and the beginning for a never-ending conversation among citizens and between those who governed and the people they were governing.  Original Intents explores how all that began, and how three of the people most responsible for shaping and overseeing the new Constitution quickly discovered that they disagreed about what it said and what it meant.  Understanding their ideas—their differing original intents—allows us to better understand the immensely important historical legacy we have inherited, and the tremendous burdens, responsibilities, and also privileges that come with being a citizen.

JF: When and why did you decide to become an American Historian?

AS: From an early age I knew I wanted to study history.  I loved mythology, the middle ages, the Civil War, the old west.  But I decided to try to become a professional historian and specialize in late 18th and early 19th century American history in the fall semester of my junior of college at Northern Illinois University, in 1991.  That semester I took a course in American diplomatic history to 1898 with a wonderful professor who died this past December named Carl Parrini.  The first eight weeks were all about the 1780s and 1790s.  Learning about Hamilton’s financial system, the crazy 1790s when Americans were accusing each other of being secret British agents scheming to restore monarchy, or of being crazy radical operatives of revolutionary France plotting to erect a guillotine in Philadelphia—all that stuff was amazing to me.  The paintings make all these 18th century folks look like boring wax figures wearing wigs.  To learn that they weren’t that at all, to learn just how fascinating and passionate and complex they all truly were, and how wild and wooly it all really was, I was hooked, and I’ve stayed hooked.

 JF: What is your next project?

AS: My next book moves forward in time to the period between the end of the War of 1812 (1815) and the Nullification Crisis (early 1830s), which was when South Carolina argued that it could nullify federal law within its state borders.  I’m looking at a group of younger (for the most part) followers of Jefferson, who came to be known as the National Republicans.  By the end of the War of 1812 the National Republicans began to fear that much of what they had expected to be true about the United States was not going to happen.  They had assumed three things: first, that the U.S. could and should remain almost exclusively agricultural.  Second, that the national government could be very inactive most of the time, especially domestically.  And third, that slavery would naturally grow less and less significant over time.  Between 1815 and 1825 people like Henry Clay, John C. Calhoun, Mathew Carey, Richard Rush, and many, many others came to believe that none of those three things was true or was going to happen.  My book will be about why they concluded that, what they tried to do about it, and why, by the early 1830s, they had provoked a large national movement in opposition to them that defeated them.  I’m writing a story of thoughtful, principled, and often deeply flawed failure.  I plan to title it The National Republicans: Capitalism, Slavery, and the State during the Long 1820s.

JF: Thanks, Andrew!

Ted Cruz: Politician or Originalist?

Politician.

After watching George Stephanopoulos interview Ted Cruz it is apparent that Cruz is placing politics and his own vision for America over the United States Constitution. Cruz is a master of diversion. Notice how he does not directly answer a lot of Stephanopolous’s questions.

Is Barack Obama really a “lame-duck” president?  At what point does a POTUS become a “lame duck?”

Cruz says that he would filibuster any Obama appointee because “the people” should decide on who will replace Scalia.  When Stephanopolous pointed out that the people elected Obama, Cruz’s said “that was three years ago.”  What?  Doesn’t the Constitution say that the President serves a four-year term?

Someone help me out here.  I understand that the Senate has every right to reject an Obama nominee.  But is the fact that the POTUS is a “lame duck” and thus should not be making  an appointment so late in his term a legitimate reason for rejecting any nominee he sends to the Senate?

Kevin Kruse of Princeton University makes an important point in this satirical tweet:

Again, Cruz is placing politics and his moral vision for America over the Constitution, the document he claims to vigorously defend.  This leads me to believe that Cruz may be motivated by something other than strict constitutionalism.

Ted Cruz’s Commitment to Original Intent Will Be Tested Tonight

The death of Justice Antonin Scalia will shape tonight’s GOP debate and will, of course, shape the rest of this presidential campaign. That almost goes without saying.  I fully expect that tonight in Greenville, South Carolina the debaters will use Scalia’s death to stress the importance of this election.  Yes–all three branches of government are now “up for grabs” in November.

Ted Cruz has already weighed in on Twitter:

Here is what Senate Majority Leader Mitch McConnell had to say: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

I am trying to be objective as possible here.  I have my views about what I would like to see in the next Supreme Court justice, but I am not going to go there in this post.  I am curious, however, about the proper procedure for nominating Supreme Court justices.

According to Article 2 of the Constitution, the President of the United States is responsible for the appointment of Supreme Court justices.  If I understand the original intent of the Constitution, this is to be done by a sitting president, not a future president.  Unless I am missing something, Barack Obama is the sitting president of the United States.  He still has about 25% of his term left.

So I guess I don’t understand the argument that Cruz and McConnell are making.  The framers of the Constitution did not say that the people have a direct role in choosing Supreme Court justices.  They have an indirect role.  In other words, the people elect the POTUS (well, technically the Electoral College does, but we won’t go down that road right now) and the POTUS picks the justices.  In 2012, the American people chose Barack Obama as POTUS.

I don’t see how someone like Cruz–a defender of “original intent”–can see this any other way.  Unless, of course, Cruz and McConnell think it is OK for politics to trump original intent.

What am I missing?

Antonin Scalia R.I.P.

A Comical Look at the Original Intent of the Second Amendment

Madison and JeffersonJohn Quaintance of The New Yorker offers a fictional exchange of letters between James Madison and Thomas Jefferson on the original intent of the Second Amendment.  Very funny.

A taste:

December 5, 1791
James Madison
House of Representatives

Dear James,

How is it almost 1792?! Quick question on the right to bear arms thing in your “Bill of Rights”—the wording and punctuation are slightly confusing. Did you mean that the right of the people serving in the militia to keep and bear arms shall not be infringed, or people in general? I’m assuming the former, but don’t want to make an ass of you and me! (Franklin made that up, but I’m using it everywhere!) Could you please send me a quick note whenever to clarify?

TJ

P.S. To be honest, I’m still meh about “Bill of Rights” as a name.

* * *
December 7, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

I know, it’s so crazy how fast this year has gone—I just got used to writing 1791 on my deeds of purchase (of slaves)!

As far as the amendment, of course it’s the former. If every private citizen had the right to carry a musket, a thousand people would’ve shot Patrick Henry by now, am I right? Don’t worry about it. Everyone will know what it means.

JM

P.S. You’re not back on “The Ten Amendments” are you? It’s trying way too hard to sound Biblical.

* * *
December 9, 1791
James Madison
House of Representatives

Dear James,

Hahaha re: Patrick Henry. And I agree it should be obvious. It’s just, why not make it so clear that even the biggest Anti-Federalist looney tune can’t misinterpret the meaning? I’d add “while serving in the militia” to line three. Also, not to be a grammar redcoat here, but the use and placement of the comma isn’t helping. Can we change it? It will take two seconds.

I know I’m being annoying!

TJ

P.S. How about “Constitution, Part Two?” (Not a serious pitch, unless you like it!)

* * *
December 11, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

There is literally zero chance that anyone will misconstrue this, and the great news is that if someone actually does, the Supreme Court will set them straight. I don’t want to change it. It won’t take two seconds, because the addition would push a page and I’d have to do the whole rest of it over again and W. is breathing down my neck about it. Plus, I like the way my signature looks on the version I sent you, and you know I always hate the way it looks on important stuff.

Not trying to be snippy, but you’re worrying about nothing.

JM

Read the rest here.

Is It Time for the Constitution to Go?

Louis Michael Seidman, a professor of constitutional law at Georgetown, thinks that we should “give up on the Constitution.”  After teaching constitutional law for forty years he is “ashamed it took me so long to see how bizarre all this is.” 

It is worth putting aside your potential outrage over such an idea and read Seidman’s piece in full. Here is a taste:

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.

Saul Cornell on "Original Intent"

Over at Dissent, legal historian Saul Cornell has a very thorough piece on why most historians oppose “original intent” as the best way to interpret the United States Constitution.

Cornell argues that historians do not oppose original intent because they are liberal (although this may have something to do with it).  Instead they tend to oppose this method of interpreting the Constitution because they are historians.

Cornell writes:

AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

And he concludes:

Justice Scalia may believe we have a dead Constitution, the legal equivalent of a fly in amber. This was not how most Americans in the Founding era would have viewed the matter. Originalists, both old and new, argue that the theory of the living constitution lacks the legitimacy of their own theory. In fact, the historical pedigree of the theory of the living constitution is it least as good as traditional originalism, and far better than that of new originalism. The fact that Americans are deeply divided today over the relative merits of originalism and the rival theory of the living constitution ought to come as no surprise—Americans were divided over the very same issue when the Constitution was first proposed more than two hundred years ago.

Read the entire piece here.