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Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning

Published online by Cambridge University Press:  25 July 2019

Abstract

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

Type
Invited Article
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

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Footnotes

He thanks Gautham Rao, Charles Barzun, Frank Cogliano, Jonathan Gienapp, and Calvin Terbeek for valuable suggestions. This article was written during his time as a fellow at the Florsheimer Center for Constitutional Democracy at Cardozo Law School. He thanks the center's codirectors Kate Shaw and Deborah Pearlstein for their support. Excellent research support was provided by Jonah Estess.

References

1. For different assessments of the promise and perils of interdisciplinary borrowing in contemporary legal scholarship, see Leiter, Brian, “Intellectual Voyeurism in Legal Scholarship,” Yale Journal of Law and the Humanities 4 (1992): 79104Google Scholar; and Tushnet, Mark, “Interdisciplinary Legal Scholarship: The Case of History-in-Law,” Chicago-Kent Law Review 71 (1996): 909935Google Scholar.

2. Gienapp, Jonathan, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (2015): 935–56Google Scholar; Rakove, Jack N., “Tone Deaf to the Past: More Qualms about Public Meaning Originalism,” Fordham Law Review 84:3 (December 2015): 969–76Google Scholar; and Cornell, Saul, “Originalism as Thin Description: An Interdisciplinary Critique,” Fordham Law Review Res Gestae 84 (2015): 110Google Scholar.

3. District of Columbia v. Heller, 554 U.S. 570 (2008). For a conservative critique of Heller, see Wilkinson, J. Harvie III, “Of Guns, Abortions, and the Unraveling Rule of Law,” Virginia Law Review 95 (2009): 253323Google Scholar; for a left critique, see Siegel, Reva B., “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (2008): 191245Google Scholar. For examples of originalist praise of Heller, see Barnett, Randy E., “The Gravitational Force of Originalism,” Fordham Law Review 82 (2013): 411–32Google Scholar; Solum, Lawrence B., “District of Columbia v. Heller and Originalism,” Northwestern University Law Review 103 (2009): 923, 947Google Scholar; and McGinnis, John and Rappaport, Michael, “Federalism and Separation of Powers: An Originalist Future,” Engage 15 (2014): 3439Google Scholar. For a sampling of historical critiques of Heller and the originalist scholarship it drew upon, see Flaherty, Martin, “Can the Quill Be Mightier than the Uzi?: History ‘Lite,’ ‘Law Office,’ and Worse Meets the Second Amendment,” Cardozo Law Review 37 (2015): 663–79Google Scholar; and Cornell, Saul, “‘Half Cocked’: The Persistence of Anachronism and Presentism in the Academic Debate Over the Second Amendment,” Journal of Crime and Criminology 106 (2016): 203–18Google Scholar.

4. Solum, Lawrence B., “Intellectual History as Constitutional Theory,” Virginia Law Review 101 (2015): 1111–64Google Scholar. For critiques of Solum's simplistic and distorted gloss on historical methodology, especially intellectual history, see Cornell, “Originalism as Thin Description” and Gienapp, “Historicism and Holism.” For a richer, more sophisticated view of the multiple ways in which legal meaning is actually determined in American law, see Fallon, Richard H. Jr., “The Meaning of Legal ‘Meaning’ and Its Implications for Theories of Legal Interpretation,” University of Chicago Law Review 82 (2015): 1235, 1241–43Google Scholar.

5. For a statement of some of the central tenets of recent originalism, see Solum, Lawrence B., “Originalist Methodology,” University of Chicago Law Review 84 (2017): 269–95Google Scholar.

6. Whittington, Keith E., “Originalism: A Critical Introduction,” Fordham Law Review 82 (2013): 375409Google Scholar; Whittington, Keith E., “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (2004): 599614Google Scholar; Berman, Mitchell N. and Toh, Kevin, “On What Distinguishes New Originalism from Old: A Jurisprudential Take,” Fordham Law Review 82 (2013): 545–76Google Scholar; and Smith, Peter J., “How Different Are Originalism and Non- Originalism?Hastings Law Journal 62 (2011): 707, 722–24Google Scholar.

7. On originalism 3.0 and inclusive originalism, see Baude, William, “Is Originalism Our Law?Columbia Law Review 115 (2015): 2349–408Google Scholar; McGinnis, John O. and Rappaport, Michael B., “The Constitution and the Language of the Law,” William and Mary Law Review 59 (2018): 1321–412Google Scholar; Sachs, Stephen E., “Originalism as a Theory of Legal Change,” Harvard Journal of Law and Public Policy 38 (2015): 817–88Google Scholar; and Sachs, Stephen E., “The ‘Constitution in Exile’ as a Problem for Legal Theory,” Notre Dame Law Review 89 (2014): 2253–98Google Scholar. For an early critique of originalism 3.0, see Barzun, Charles L., “The Positive U-Turn,” Stanford Law Review 69 (2017): 1323–88Google Scholar; and Primus, Richard, “Is Theocracy Our Politics?Columbia Law Review Sidebar 116 (2016): 4460Google Scholar.

8. Beard, Charles A., An Economic Interpretation of the Constitution (New York: The Macmillan Company, 1913)Google Scholar; for a discussion of historical epistemology and the quest for objective meaning, including the work of Beard, see Novick, Peter, That Noble Dream (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar.

9. On Heller's connection to gun rights ideology and right wing politics, see Siegel, “Dead or Alive.” Heller is part of a larger assault on the modern New Deal regulatory state. On this connection, see Cass R. Sunstein and Adrian Vermeule, “The New Coke: On the Plural Aims of Administrative Law,” Supreme Court Review (2015) 41–88. On the role of the Federalist Society in developing originalism as a potent tool for political and social change, including Second Amendment originalism, see Hollis-Brusky, Amanda, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015)Google Scholar.

10. Lawson, Gary, “Delegation and Original Meaning,” Virginia Law Review 88 (2002): 327, 398CrossRefGoogle Scholar; Kesavan, Vasan and Paulsen, Michael Stokes, “Is West Virginia Unconstitutional?California Law Review 90 (2002): 291400CrossRefGoogle Scholar; and McGinnis, John and Rappaport, Michael B., “Original Methods Originalism: A New Theory of Interpretation and the Case against Construction,” Northwest University Law Review 103 (2009): 751802Google Scholar.

11. Charles, Patrick, “The ‘Originalism is Not History’ Disclaimer: A Historian's Rebuttal,” Cleveland State Law Review Et Cetera 63 (2015): 111Google Scholar.

12. Solum's “Intellectual History as Constitutional Theory” erroneously argues that the historical critiques of originalism aimed to supplant constitutional theory by intellectual history. In fact, the intellectual history critique of originalism takes a view that is almost the exact opposite of the one that Solum attributes to its adherents. Most historians have argued that the goal of recovering the historical/legal meaning of the Constitution is distinct from its application to contemporary constitutional problems; see Cornell, “Originalism as Thin Description.”

13. For a thoughtful philosophical critique of Solum, Bassham, Gregory and Oakley, Ian, “New Textualism: The Potholes Ahead,” Ratio Juris 28 (2015): 127–48CrossRefGoogle Scholar. For a trenchant critique of the inability of Gricean pragmatics to deal with issues of power, particularly in legal communication, see Harris, Sandra, “Pragmatics and Power,” Journal of Pragmatics 23 (1995): 117–35CrossRefGoogle Scholar; and Mertz, Elizabeth, “Legal Language: Pragmatics, Poetics, and Social Power,” Annual Review of Anthropology 23 (1994): 435–55CrossRefGoogle Scholar.

14. Brest, Paul, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (1980): 204–38Google Scholar; Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996)Google Scholar. On the issue of collective intent, see Schweikard, David P. and Schmid, Hans Bernhard, “Collective Intentionality,” in The Stanford Encyclopedia of Philosophy, ed. Zalta, Edward N. (Summer 2013)Google Scholar, https://plato.stanford.edu/archives/sum2013/entries/collective-intentionality/ (accessed July 1, 2019); and Deborah Tollefsen, “Collective Intentionality,” Internet Encyclopedia of Philosophy, https://www.iep.utm.edu/coll-int/ (accessed July 1, 2019).

15. Baude, William and Sachs, Stephen, “The Law of Interpretation,” Harvard Law Review 130 (2017): 1079–147Google Scholar.

16. Gienapp, Jonathan, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar.

17. Solum, Lawrence B., “Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record,” Brigham Young University Law Review 2017 (2017): 1621–82Google Scholar. For a genuinely Gricean approach to constitutional meaning, see Soames, Scott, “Toward a Theory of Legal Interpretation,” New York University Journal of Law and Liberty 6 (2011): 231–59Google Scholar; and Soames, Scott, “Deferentialism: A Post-Originalist Theory of Legal Interpretation,” Fordham Law Review 82 (2013): 597617Google Scholar.

18. Solum, Lawrence B., “Communicative Content and Legal Content,” Notre Dame Law Review 89 (2013): 479519Google Scholar.

19. Grice, Paul, Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989)Google Scholar. On Grice's centrality to modern philosophy of language, see Lycan, William G., Philosophy of Language: A Contemporary Introduction (New York: Routledge, 2000), 8697Google Scholar; Grandy, Richard E. and Warner, Richard E., “Paul Grice,” in The Stanford Encyclopedia of Philosophy, ed. Zalta, Edward N. (Winter 2017)Google Scholar, https://plato.stanford.edu/archives/win2017/entries/grice/ (accessed July 1, 2019).

20. On the concept of speech community, see Patrick, Peter L., “The Speech Community,” in Handbook of Language Variation and Change, ed. Chambers, J.K., Trudgill, Peter, and Schilling-Estes, Natalie (Hoboken, NJ: Wiley-Blackwell, 2004), 573Google Scholar; and Morgan, Marcyliena H., Speech Communities: Key Topics in Linguistic Anthropology (Cambridge: Cambridge University Press, 2014)Google Scholar.

21. On the shift from originalism 1.0 to originalism 2.0, see Fallon, Richard H. Jr., “Are Originalist Constitutional Theories Principled, or Are they Rationalizations for Conservatism?Harvard Journal of Law and Public Policy 34 (2011): 528Google Scholar.

22. For contextualist accounts of the rise of Anglo-American ordinary language philosophy, see Kuklick, Bruce, “Modern Anglophone Philosophy: Between the Seminar Room and The Cold War,” Modern Intellectual History 3 (2006): 547–57CrossRefGoogle Scholar; and Chapman, Siobhan, Paul Grice, Philosopher and Linguist (London: Palgrave-Macmillan, 2005)CrossRefGoogle Scholar. For some interesting observations on the relevance of the methods of intellectual history to the history of philosophy see, Rorty, Richard, “The Historiography of Philosophy: Four Genres,” in Philosophy in History: Essays on the Historiography of Philosophy, ed. Rorty, Richard, Schneewind, J. B., and Skinner, Quentin (Cambridge: Cambridge University Press, 1984), 4975CrossRefGoogle Scholar.

23. Solum, “Triangulating Public Meaning,” 1652–53.

24. Gienapp, “Historicism and Holism.” For a good sampling of the vitality and range of approaches taken by intellectual historians, see Grafton, Anthony, “The History of Ideas: Precept and Practice, 1950–2000 and Beyond,” Journal of the History of Ideas 67:1 (January 2006): 132CrossRefGoogle Scholar.

25. On Skinner's methods and criticism of those methods, see Skinner, Quentin, “Meaning and Understanding in the History of Ideas” and “A Reply to My Critics,” in Meaning and Context: Quentin Skinner and his Critics, ed. Tully, James (Princeton, NJ: Princeton University Press, 1988), 29–67, 231–88Google Scholar. For an example of a more thoughtful critique of Skinner, see Gordon, Peter E., “Contextualism and Criticism in the History of Ideas,” in Rethinking Modern European Intellectual History, ed. McMahon, Darrin M. and Moyn, Samuel (New York: Oxford University Press, 2014), 3255CrossRefGoogle Scholar. For a short but thoughtful example of Skinner's empirical historical work, see Skinner, Quentin, Liberty before Liberalism (Cambridge: Cambridge University Press: 1998)Google Scholar.

26. Bevir, Mark, “Contextualism: From Modernist Method to Post-Analytic Historicism,” Journal of Philosophy of History 3:3 (January 2009): 211224CrossRefGoogle Scholar. For a sympathetic account of Bevir's approach to intellectual history that reframes his method in explicitly Gricean terms, see Martinich, A. P., “A Moderate Logic of the History of Ideas,” Journal of the History of Ideas 73:4 (October 2012): 609625CrossRefGoogle Scholar.

27. Fasold, Ralph W. and Connor-Linton, Jeff, eds., An Introduction to Language and Linguistics, 2nd ed. (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar offers a useful gloss on Grice's theory of meaning and the challenge to that model posed by the ethnography of speaking, socio-linguistics, and linguistic anthropology.

28. Cornell, “Originalism as Thin Description”; and Gienapp, “Historicism and Holism.”

29. Developing a genuinely Gricean approach to history would necessarily focus on speakers’ meaning, not on sentence meaning. For an effort to explore such a possibility, see Martinich, “A Moderate Logic of the History of Ideas.”

30. A number of traditional intentional originalists have argued that Solum's theory is parasitic on earlier theories; that is, his theory turns out to be a form of intentionalism; see Alexander, Larry, “Originalism, the Why and the What,” Fordham Law Review 82 (2013): 539–44Google Scholar; Kay, Richard S., “Original Intention and Public Meaning in Constitutional Interpretation,” Northwestern University Law Review 103 (2009): 703–26Google Scholar; and Fish, Stanley, “The Intentionalist Thesis Once More,” in Challenge of Originalism: Theories of Constitutional Interpretation, ed. Huscroft, Grant and Miller, Bradley (Cambridge: Cambridge University Press, 2011), 99119CrossRefGoogle Scholar.

31. Soames, “Deferentialism.” Soames approaches eighteenth-century constitutional meaning as if participants in constitutional debate adhered to Gricean maxims of communication, a dubious assumption that is hard to reconcile with the historical realities of post-Revolutionary Era constitutional debate. For a more general critique of Grice challenging the universality of his maxims, see Duranti, Alessandro, “Language as Culture in U.S. Anthropology: Three Paradigms,” Current Anthropology 44 (2003): 323–47CrossRefGoogle Scholar.

32. Legal philosopher Andrei Marmor has persuasively argued that Grice's maxims simply do not match the goals of legal speech, which are strategic, not cooperative; see Marmor, Andrei, “Meaning and Belief in Constitutional Interpretation,” Fordham Law Review 82 (2013): 577–96Google Scholar. See also, Marmor, Andrei and Soames, Scott, eds., Philosophical Foundations of Language in the Law (New York: Oxford University Press, 2011)CrossRefGoogle Scholar. For a more general philosophical critique of the simple communication model's relevance to law, see Greenberg, Mark, “Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication,” in Philosophical Foundations of Language in the Law, ed. Marmor, Andrei and Soames, Scott (New York: Oxford University Press, 2011), 217–56CrossRefGoogle Scholar. On Grice's maxims, see Martinich, A. P., Communication and Reference (Berlin: De Gruyter, 1984), 1737CrossRefGoogle Scholar. On the promise and perils of applying a Gricean model to constitutional interpretation, see Mikhail, John, “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers,” Virginia Law Review 101 (2015): 1063–103Google Scholar; and the cautionary remarks by Hellman, Deborah, “Unintended Implications: A Commentary on Mikhail's ‘The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers,’Virginia Law Review 101 (2015): 1105–10Google Scholar. Conversational implicatures in the Gricean scheme are dependent on the existence of clear conversational maxims that are deliberately violated by a speaker seeking to convey a different meaning than the literal expression that the words in an utterance would signify. In the case of the Constitution, there were no universally agreed-upon maxims, so the utility of this concept is of limited value.

33. For other examples of originalist theories that erroneously apply a simple model of communication to constitutional debate in the Founding Era, see Alexander, Larry and Prakash, Saikrishna, “‘Is That English You're Speaking?’ Why Intention Free Interpretation is an Impossibility,” San Diego Law Review 41 (2004): 967–95Google Scholar; and Wurman, Ilan, A Debt against the Living: An Introduction to Originalism (Cambridge: Cambridge University Press, 2018)Google Scholar.

34. On the nature of the Early American public sphere, particularly its divided and contentious nature, see Forum: Alternative Histories of the Public Sphere,” William and Mary Quarterly 62 (2005): 3112Google Scholar.

35. Gumperz, John J. and Cook-Gumperz, Jenny, “Studying Language, Culture, and Society: Sociolinguistics or Linguistic Anthropology?Journal of Sociolinguistics 12 (2008): 532–45CrossRefGoogle Scholar; and Saville-Troike, Muriel, The Ethnography of Communication: An Introduction, 3rd ed. (Hoboken, NJ: Wiley-Blackwell, 2002), 1418Google Scholar.

36. Duranti, Alessandro, Linguistic Anthropology (Cambridge: Cambridge University Press, 1997), 82CrossRefGoogle Scholar. Of course one need not embrace the radical indeterminacy of language associated with Jacques Derrida's deconstructive theory of the infinite play of signs to reject Solum and other originalists’ simplistic view of objective meaning and transparent communication. On Derrida's theory; see Leonard Lawlor, “Jacques Derrida,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Summer 2018), https://plato.stanford.edu/archives/sum2018/entries/derrida/ (accessed July 1, 2019).

37. Morgan, Speech Communities. Kammen, Michael, “The Problem of American Exceptionalism: A Reconsideration,” American Quarterly 45 (1993): 143CrossRefGoogle Scholar; see also Higham, John, “Changing Paradigms: The Collapse of Consensus History,” Journal of American History 76 (1989): 460–66CrossRefGoogle Scholar.

38. Barnett, “The Gravitational Force of Originalism,” 411, 413–31; McGinnis and Rappaport, “Original Methods Originalism”; Lawson, Gary and Seidman, Guy, “Originalism as a Legal Enterprise,” Constitutional Commentary 23 (2006): 4748, 79Google Scholar; and Scalia, Antonin and Garner, Bryan A., Reading Law: The Interpretation of Legal Texts (Eagan: West Publishing, 2012), 355, 399402Google Scholar.

39. For critical discussions of the concept of the reasonable man in law see, Moran, Mayo, “The Reasonable Person: A Conceptual Biography in Comparative Perspective,” Lewis & Clark Law Review 14 (2010): 1233–83Google Scholar. For thoughtful discussion of Madison and the Founding Era's evolving views of constitutionalism, see Bilder, Mary Sarah, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2017)Google Scholar; and Gienapp, The Second Creation.

40. On the problems of using hypothetical authors to reconstruct textual meaning, see Carroll, Noel, “Interpretation and Intention: The Debate between Hypothetical and Actual Intentionalism,” Metaphilosophy 31 (2000): 7595CrossRefGoogle Scholar. Madison's view that it was the meaning imputed by the ratification conventions and not framer's meaning that was determinative of Constitutional meaning (at least in 1791), is perhaps the clearest example of how one influential theory of constitutional interpretation in the Founding Era broke with the ordinary rules of conversation in which a speaker's intentions determine meaning. It is worth noting that Madison's novel theory of constitutional meaning also rejected the traditional intentionalist views of statutory construction that dominated English legal theory prior to 1776. Nor was Madison's theory the only alternative model of textual meaning floated at the time, another fact that makes the claim of modern scholars, lawyers, or judges arguing in favor of a single original meaning or method deeply problematic.

41. Darnton, Robert, “What is the History of Books? Revisited,” Modern Intellectual History 4 (2007): 495508CrossRefGoogle Scholar.

42. Goldstein, Philip, “Reader-Response Theory and Criticism,” in Groden, Michael, Kreiswirth, Martin, and Szeman, Imre, eds., The Johns Hopkins Guide to Literary Theory and Criticism, 2nd ed. (Baltimore: Johns Hopkins University Press, 2005)Google Scholar; Price, Leah, “Reading: The State of the Discipline,” Book History 7 (2004): 303320CrossRefGoogle Scholar; Thompson, Martyn P., “Reception Theory and the Interpretation of Historical Meaning,” History and Theory 32:3 (October 1993): 248272CrossRefGoogle Scholar. For a concise overview of the empirical problems of applying these insights to actual historical texts, see Jackson, Ian, “Approaches to the History of Readers and Reading in Eighteenth-Century Britain,” Historical Journal 47:4 (December 2004): 10411054CrossRefGoogle Scholar; Gross, Robert A. and Kelly, Mary, eds., A History of the Book in America, vol. 2 of An Extensive Republic: Print, Culture, And Society in The New Nation, 1790–1840, series editor Hall, David D. (Chapel Hill: University of North Carolina Press, 2010)Google Scholar.

43. Nelson, Caleb, “Originalism and Interpretive Conventions,” University of Chicago Law Review 70:2 (Spring 2003): 519598CrossRefGoogle Scholar; Treanor, William Michael, “Against Textualism,” Northwestern University Law Review 103:2 (Spring 2009): 9831006Google Scholar.

44. McGinnis, John O. and Rappaport, Michael B., “The Abstract Meaning Fallacy,” University of Illinois Law Review 2012 (2012): 752, 761Google Scholar.

45. Ibid., 747.

46. On the profound tensions within American legal culture in the Founding Era, particularly with regard to how to read texts, see Cornell, Saul, “The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism,” Yale Journal of Law & the Humanities 23 (2011): 295337Google Scholar. The theoretical distinctions among languages, discourses, and speech communities discussed in this article draw on models developed by sociolinguistics, linguistic anthropology, and the ethnography of speaking. For a useful introduction to this scholarly literature, see the references gathered in note 35.

47. McGinnis and Rappaport, “Original Methods Originalism”; and McGinnis, John O. and Rappaport, Michael B., Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013)CrossRefGoogle Scholar.

48. McGinnis and Rappaport, “Original Methods Originalism.” For a general critique of student- edited law reviews as publishing venues, see Spitzer, Robert J., Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge: Cambridge University Press, 2008)CrossRefGoogle Scholar.

49. McGinnis and Rappaport, “Original Methods Originalism,” 771, n74, citing Yoo, John C., “The Judicial Safeguards of Federalism,” Southern California Law Review 70 (1997): 1311, 1375Google Scholar. For a blistering set of critiques of Yoo, see Flaherty, Martin S., “The Future and Past of U.S. Foreign Relations Law,” Law and Contemporary Problems 67 (2004): 169–94Google Scholar; Mortenson, Julian Davis, “Executive Power and the Discipline of History,” University of Chicago Law Review 78 (2011): 377443Google Scholar; and Alexander, Janet Cooper, “John Yoo's War Powers: The Law Review and the World,” California Law Review 100 (2012): 331–64Google Scholar.

50. See note 42 above and note 52 below.

51. Kaminski, John P., Saladino, Gaspare J., Leffler, Richard, Schoenleber, Charles H., and Hogan, Margaret A., eds., The Documentary History of the Ratification of the Constitution, Volume VI: Massachusetts, No. 3 (Madison: Wisconsin Historical Society Press, 2000)Google Scholar (hereafter DHRC), 1345–46. For the erroneous view that the common people were essentially mute bystanders during ratification, see Prakash, Saikrishna and Yoo, John, “Against Interpretive Supremacy,” review of Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar, in Michigan Law Review 103 (2005): 1539–66Google Scholar. For correctives to this condescending view, see Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007)Google Scholar; Cotlar, Seth, “The View from Mount Vernon Versus the People Out of Doors: Context and Conflict in the Ratification Debates,” William and Mary Quarterly 69 (2012): 369CrossRefGoogle Scholar; and Estes, Todd, “Power and Point of View in the Ratification Contest,” William and Mary Quarterly 69 (2012): 398, 400Google Scholar. For a discussion of the role of popular constitutionalism in early American constitutional development and numerous examples of ordinary Americans making their voices heard in the Founding Era, see Leonard, Gerald and Cornell, Saul, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders Constitution 1790s–1830s (Cambridge: Cambridge University Press, 2019)CrossRefGoogle Scholar.

52. On traditions of intensive Bible reading and anti-Federalism's constitutional hermeneutics, see Cornell, Saul, “Constitutional Meaning and Semantic Instability: Federalists and Anti-Federalists on the Nature of Constitutional Language,” American Journal of Legal History 56 (2016): 2128CrossRefGoogle Scholar.

53. For additional examples of popular anti-Federalism anti-lawyer rhetoric, see Cornell, “The People's Constitution vs. the Lawyer's Constitution.”

54. Cornell, Saul, The Other Founders Anti-Federalists and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: The University of North Carolina Press, 1999)Google Scholar.

55. Illiteracy in this context meant the absence of a Latin education and not an inability to read or write. For a discussion of Singletary's speech in this context, see Warner, Michael, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Cambridge, MA: Harvard University Press, 1992)Google Scholar. Massachusetts enjoyed one of the highest rates of literacy (in the modern sense of being able to read and write) and the biblical references in Singletary's speech further illustrate the profound influence of Protestant traditions of intensive Bible study on reading cultures in early America; see Gross and Kelly, eds., A History of the Book in America.

56. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 758 note 79. Thus, they argue that “lawyer's view was over time becoming less intentionalist and more textualist, and therefore closer to the ordinary language approach.” In fact, a variety of eminent judges continued to embrace intentionalist modes of analysis and often looked beyond the text to the spirit of the law in the Antebellum Era; see, Peterson, Farah, “Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory InterpretationMaryland Law Review 77 (2018): 734–35Google Scholar.

57. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 747, at note 36.

58. McGinnis, John O. and Rappaport, Michael B., “Unifying Original Intent and Original Public Meaning,” Northwestern Law Review 113 (2018): 1394Google Scholar.

59. In this sense, McGinnis and Rappaport have fallen victim to a corollary of the quantification fallacy described by historian David Hackett Fischer, who offers a useful caution that many ideational and emotional problems, which lie at the heart of historical problems, cannot be understood in quantitative terms,” Historians Fallacies: Toward A Logic of Historical Thought (New York: Harper and Row, 1970), 90Google Scholar.

60. Gienapp, Jonathan, “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism,” Journal of the Early Republic 35 (2015): 375418CrossRefGoogle Scholar, and more generally, Gienapp, The Second Creation.

61. On neutral principles, see Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 1, 33CrossRefGoogle Scholar; Friedman, Barry, “Neutral Principles: A Retrospective,” Vanderbilt Law Review 50 (1997): 503–36Google Scholar. On the idea of a rule of recognition, see Hart, H.L.A., The Concept of Law, 2nd ed. (New York: Oxford University Press, 1994)Google Scholar. For contrasting views of the Constitution as a rule of recognition, see Adler, Mathew D. and Himma, Kenneth Einar, eds., The Rule of Recognition and the U. S. Constitution (New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

62. Siegel, “Dead or Alive”; Flaherty, “Can the Quill be Mighter than the Uzi?”

63. For a summary of some of this research, see Kozuskanich, Nathan, “Originalism in a Digital Age: An Inquiry into the Right to Bear ArmsJournal of the Early Republic 29 (2009): 585606CrossRefGoogle Scholar; and Baron, Dennis, “Corpus Evidence Illuminates the Meaning of Bear ArmsHastings Constitutional Law Quarterly 46 (2019): 509–22Google Scholar. A number of originalists have touted the potential of corpus linguistics to provide more objective evidence of original meaning. For a thoughtful assessment of the potential and pitfalls of this approach; see Solan, Lawrence M., “Can Corpus Linguistics Help Make Originalism Scientific?Yale Law Journal Forum 126 (2016): 5764Google Scholar.

64. Solum's theory conflates the existence of a common linguistic community with the existence of a common speech community. This allows him to treat dictionaries and evidence from corpus linguistics as proxies for meaning, but this approach ignores the way that individuals from different speech communities can read the same texts with different assumptions and interpretive conventions, producing different constitutional meanings. Counting word usage offers some useful information, but without a model of how texts were actually read, it falls far short illuminating constitutional meaning.

65. On the communication circuit and the methods of the history of the book, see Robert Darnton, “What is the History of Books? Revisited.” For a general overview of this important subfield of intellectual history, see Finkelstein, David and McCleery, Alistair, An Introduction to the History of the Book, 2nd ed. (London: Routledge, 2013)Google Scholar.

66. Cornell, The Other Founders. For another example of how this approach can illuminate Founding Era belief and practices, see Cornell, Saul, “‘To Assemble Together for Their Common Good’: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech,” Fordham Law Review 84 (2015): 915–34Google Scholar.

67. In Heller Justice Scalia cites a book review by Randy Barnett for proof that the Dissent's usage was not anomalous, Heller, at 587. Barnett dismissed the argument of historian William Merkel that the Pennsylvania anti-Federalists’ Dissent of the Minority was in fact a statement of a minority position. Actually, Barnett totally misrepresented Merkel's position as “characterizing the Pennsylvania minority report as reflecting the views of wild anarchic deviants”; Barnett, Randy, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, by Uviller, H. Richard and Merkel, William G., Texas Law Review 83 (2004): 248Google Scholar. Merkel's claims were actually uncontroversial among anyone with a rudimentary knowledge of the history of Pennsylvania politics. Anti-Federalists were primarily drawn from the states’ proto-party, the Constitutionalists, who defended the 1776 Constitution against the Republicans, a group that provided the core of Federalist support in the state. The historiography on this topic extends back more than a half a century; see, for example, Cornell, The Other Founders; Arnold, Douglas, A Republican Revolution: Ideology and Politics in Pennsylvania, 1776–1790 (New York: Garland Publishing, 1989)Google Scholar; and Brunhouse, Robert L., The Counter-Revolution in Pennsylvania, 1776–1790 (Harrisburg, PA: Pennsylvania Historical and Museum Commission, 1942)Google Scholar. Curiously, Barnett's argument overlooks basic elements of Founding Era political history, which allows him to dismiss Merkel's affirmation of an undisputed fact about early American politics. This error was compounded when Justice Scalia elevated this mistake to the level of constitutional doctrine. For a more detailed discussion of the Dissent's inflated role in modern debates over the Second Amendment, see Cornell, SaulConflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard,” Constitutional Commentary 29 (2014): 389403Google Scholar.

68. Cornell, “Conflict, Consensus and Constitutional Meaning.”

69. Ibid.

70. The headnote to the Dissent in the DHRC offers numerous examples of contemporary Federalist and anti-Federalist reactions, see DHRC 15:7–13.

71. Ibid.

72. On Whittington's distinctive approach to originalism, see note 6. For examples of Whittington's empirical work, see Frost, Daniel and Whittington, Keith E., “A Man For All Seasons: Historical Memory and John Marshall,” Polity 49 (2017): 575602CrossRefGoogle Scholar; and Whittington, Keith E. and Rinderle, Amanda, “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon,” Hastings Constitutional Law Quarterly 39 (2012): 823–60Google Scholar.

73. Charles, “The ‘Originalism is Not History’ Disclaimer: A Historian's Rebuttal.”

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