This issue of Law and History Review begins with Anat Rosenberg's provocative study of a question that plagues the public square today: what is the difference between advertising and news? A successful attempt to repeal the advertisement duty on British newspapers in the mid-nineteenth century led owners to struggle to differentiate advertising from news. Newspapers’ resulting hierarchy, with news at the top and advertisement relegated to subordinate status, would become the foundation of journalistic practice for some time to come.
Next we are pleased to offer a Symposium entitled, Originalism and Legal History: Rethinking the Special Relationship. Originalism is an ever-protean interpretive philosophy, but it has a few basic postulates: the historical idea that the original public meaning of the Constitution of the United States of America can be made known and the normative idea that this meaning should guide contemporary constitutional interpretation. Originalism came into vogue during the 1980s when leading conservative jurists and Reagan administration officials publicly embraced it. It has only grown in popularity since.
All the while, however, historians in law schools and history departments have also criticized originalism and its expositors for a purportedly problematic historical praxis. At its best, the dialogue between historians and originalist theorists and practitioners has produced some fascinating ruminations on the possibility of textual determinacy and the transformation of legal and political language from the eighteenth century to the present. At its worst, the dialogue has devolved into “an interdisciplinary turf war” without an exit plan.1
This special issue of the Law and History Review seeks to offer new perspectives on the public meanings of the American Constitution, the history of originalism, and the overlapping worlds of partisan politics, constitutional interpretation, and legal scholarship. It brings together original empirical scholarship, intellectual histories, and critical appraisals of originalism. We hope that this issue is just the beginning of a sustained engagement with originalism in the pages of Law and History Review and our other venues. Next year, we will feature an article by Jonathan Gienapp that revisits the methodological transformation of originalism from the late twentieth century to the present. The Docket (lawandhistoryreview.org), our digital arm, will also feature commentary by scholars involved in this conversation, and beyond.
Readers can keep track of the latest goings on at Law and History Review through our twitter account @history_law. The American Society for Legal History's redesigned website can be accessed at https://aslh.net, for all the Society's latest announcements and news.
1. Charles, Patrick J., Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence (Jefferson, NC: McFarland & Company, 2014), 8.