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Method and Dialogue in History and Originalism

  • Logan Everett Sawyer

Abstract

There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional interpretation because of developments in professional historiography. Post-Revisionist approaches to the historiography of Reconstruction inspired and legitimated the book that set originalism on its current trajectory: Raoul Berger's Government by Judiciary. The revolution in the historiography of the founding embodied in Gordon Wood's Creation of the American Republic offered originalists other opportunities. It was not methodological disagreements but technological, institutional, and disciplinary developments since the 1980s that separated history and originalism. Those trends have mostly accelerated in the twenty-first century, but the role historians played in creating originalism suggests opportunities for productive dialogue still exist and should be pursued.

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The author thanks Nathan Chapman, Saul Cornell, Cynthia Nicoletti, Peter Onuf, Laura Phillips Sawyer, and Matthew Steilen for critiques that significantly improved this article. The author also thanks Jonathan Gienapp, Bernadette Meyler, and Matthew Steilen for the opportunity to present a version of this article at the annual meeting of the American Society for Legal History.

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1. Originalists often cite a handful of works of history, most importantly Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969). But Creation is 50 years old, and citations to recent work are scant. There are only a handful of citations to winners of the John Philip Reid Award, including Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005); Tomlins, Christopher, Freedom Bound: Law, Labor and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010); and Edling, Max M., A Hercules in the Cradle: War, Money, and the American State, 1783–1867 (Chicago: University of Chicago Press, 2014). Little-Griswold winners fare little better. Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004) has been cited less than a half dozen times in law review articles advancing originalist arguments. Bilder's, Mary Sarah Beveridge Prize winning Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2015) has been lauded as a work of history by originalists, but largely discounted as being of little relevance. Solum, Lawrence B., “Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record,” BYU Law Review 2017 (2017): 1621–82, at 1656–57. Solum, Lawrence B., “Intellectual History as Constitutional Theory,” Virginia Law Review 101 (2015): 1111–64, argues the methods of intellectual history are of limited use for originalists.

2. Cornell, Saul, “Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism,” Fordham Law Review 82 (2013): 721–56.

3. Stein, Joshua, “Historians before the Bench: Friends of the Court, Foes of Originalism,” Yale Journal of Law and the Humanities 25 (2013): 359–89.

4. Megill, Allan, Historical Knowledge, Historical Error: A Contemporary Guide to Practice (Chicago: University of Chicago Press, 2007).

5. Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment, 1st ed. (Cambridge, MA: Harvard University Press, 1977).

6. Wood, Creation.

7. O'Neill, Johnathan, Originalism in American Law and Politics: A Constitutional History (Baltimore, MD: Johns Hopkins University Press, 2005).

8. Avins, Alfred, “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent,” Virginia Law Review 52 (1966): 1224–55; Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 135; Ervin, Sam J., “The Role of the Supreme Court as the Interpreter of the Constitution,” Alabama Lawyer 26 (1965): 389–99; and Rehnquist, William, “The Notion of a Living Constitution,” University of Texas Law Review 54 (1976): 693706.

9. Kersh, Ken I., “Ecumenicalism through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955–1980,” Studies in American Political Development 25 (2011): 86116; and O'Neill, Originalism, 111–32.

10. Berger, Government by Judiciary, 1st ed.

11. Whittington, Keith E., “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (2004): 599; Kersh, “Ecumenicalism”; and O'Neill, Originalism, 111–32.

12. O'Neill, Originalism, 111–32. Compare with Sam Ervin Jr. and Alfred Avins who opposed Brown and the 1964 Civil Rights Act on originalist grounds. Avins, Alfred, “Racial Segregation in Public Accommodation,” Case Western Reserve Law Review 18 (1967): 1251–83; Avins, Alfred, “De Facto and de Jure School Segregation,” Mississippi Law Journal 32 (March 1967): 179247; and Ervin, Sam J., “The United States Congress and Civil Rights Legislation,” North Carolina Law Review 42 (1963): 315.

13. Berger, , Government by Judiciary, 2nd ed. (Indianapolis, IN: Liberty Fund, 1997), 485–91.

14. Avins, “De Facto and de Jure School Segregation”; Avins, “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent”; and Bozell, L. Brent, The Warren Revolution: Reflections on the Consensus Society (New Rochelle, NY: Arlington House, 1966).

15. Trefousse, Hans L., The Radical Republicans; Lincoln's Vanguard for Racial Justice (New York: Knopf, 1968); LaWanda, and Cox, John H., “Negro Suffrage and Republican Politics: The Problem of Motivation in Reconstruction Historiography,” Journal of Southern History 33 (August 1967): 303–30; Rose, Willie Lee, Rehearsal for Reconstruction: The Port Royal Experiment (Indianapolis, IN: Bobbs-Merrill, 1964); McPherson, James M., The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction (Princeton, NJ: Princeton University Press, 1964); and Stampp, Kenneth M., The Era of Reconstruction, 1865–1877 (New York: Knopf, 1965).

16. Graham, Howard Jay, Everyman's Constitution (Madison: State Historical Society of Wisconsin, 1968); and TenBroek, Jacobus, Equal under Law (New York: Collier Books, 1965).

17. Benedict, Michael Les, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York: W.W. Norton, 1974); Donald, David Herbert, The Politics of Reconstruction, 1863–1867 (Baton Rouge: Louisiana State University Press, 1965); Hyman, Harold Melvin, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York: Knopf, 1973); and Paludan, Phillip S., A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975).

18. Berger, Government by Judiciary, 1st ed., 5.

19. Berger to Michael Les Benedict,” September 21, 1975, Box 1, Folder 5, Raoul Berger Papers, Harvard Law School Special Collections [hereafter Berger Papers].

20. Berger to Harold Hyman, February 2, 1976, Box 1, Folder 20, Berger Papers.

21. Ibid.

22. Ibid.

23. Kutler, Stanley I., “Raoul Berger's Fourteenth Amendment: A History or Ahistorical?Hastings Constitutional Law Quarterly 6 (1979): 511–26; and Soifer, Avaim, “Protecting Civil Rights: A Critique of Berger's History,” New York University Law Review 54 (1979): 651706. In his notes on the manuscript of Government by Judiciary, Hyman told Berger that, “I want my JD students, who are working for history MAs and PhD's, to grapple with far more kinds of evidence than” you have examined. Hyman to Berger, March 3, 1976, Box 1, Folder 20, Berger Papers.

24. Hyman to Berger, March 3, 1976, Box 1, Folder 20, Berger Papers.

25. Willard Hurst to Berger, December 21, 1976, Box 1, Folder 19, Berger Papers.

26. Hurst to Berger, October 5, 1981, Box 1, Folder 19, Berger Papers.

27. Wood, Creation. Wood's approach, of course, was not unique. Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967); and Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1975).

28. Wood, Gordon S., “The Fundamentalists and the Constitution,” The New York Review of Books 35 (1988): 3340.

29. Countryman, Edward, “Of Republicanism, Capitalism, and the ‘American Mind,’The William and Mary Quarterly 44 (1987): 556–62.

30. “Ideology,” he wrote later, “creates behavior.” Wood, Gordon S., “Ideology and the Origins of Liberal America,” The William and Mary Quarterly 44 (July 1987): 628–40, at 631.

31. Countryman, “Of Republicanism, Capitalism, and the ‘American Mind.’”

32. Hyman to Berger, March 3, 1976, Box 1, Folder 20, Berger Papers.

33. Berger to Hyman, April 6, 1976, Box 1, Folder 20, Berger Papers.

34. Ibid.

35. Rakove, Jack N., “Gordon S. Wood, the ‘Republican Synthesis,’ and the Path Not Taken,” The William and Mary Quarterly 44 (1987): 617–22. Klarman, Michael J., The Framer's Coup: The Making of the United States Constitution (Oxford: Oxford University Press, 2016), has recently re-emphasized those themes.

36. McConnell, Michael W., “Federalism: Evaluating the Founders’ Design (reviewing Federalism: The Founders’ Design by Raoul Berger),” University of Chicago Law Review 54 (1987): 1486.

37. Ibid., 1491–93, 1508, 1510.

38. Ibid., 1491–93, 1511.

39. Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A.A. Knopf, 1996); Gienapp, Jonathan, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (2015): 935–56. “We do not, and cannot, base our constitutional jurisprudence on the historical reality of the Founding,” said Wood, Wood in Gordon S. and Gerber, Scott D., “The Supreme Court and the Uses of History,” Ohio Northern Law Review 39 (2013): 448.

40. Other important developments are examined in Whittington, “The New Originalism,” and White, G. Edward, “The Arrival of History in Constitutional Law Scholarship,” Virginia Law Review 86 (2002): 485633.

41. Wood, Gordon, “How Democratic is the Constitution?New York Review of Books 53 (2006): 2527. Work published within 5 years of Wood's comment include Edling, Max M., A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2003); Ferling, John, A Leap in the Dark: The Struggle to Create the American Republic (New York: Oxford University Press, 2003); and Holton, Woody, “Did Democracy Cause the Recession That Led to the Constitution?Journal of American History 92 (2005): 442–69.

42. Bloch, Ruth H., “The Constitution and Culture,” The William and Mary Quarterly 44 (1987): 550–55.

43. Main, Jackson Turner, “An Agenda for Research on the Origins and Nature of the Constitution of 1787–1788,” The William and Mary Quarterly 44 (1987): 591–96; and Rakove, “Gordon S. Wood, the ‘Republican Synthesis,’ and the Path Not Taken.”

44. Bloch, “The Constitution and Culture”; Countryman, “Of Republicanism, Capitalism, and the ‘American Mind’”; and Diggins, John Patrick, “Between Bailyn and Beard: The Perspectives of Gordon S. Wood,” The William and Mary Quarterly 44 (1987): 563–68.

45. Howe, John, “Gordon S. Wood and the Analysis of Political Culture in the American Revolutionary Era,” The William and Mary Quarterly 44 (1987): 569–75.

46. Nash, Gary B., “Also there at the Creation: Going beyond Gordon S. Wood,” The William and Mary Quarterly 44 (1987): 602–11.

47. Ferling, A Leap in the Dark; and Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007).

48. Onuf, Peter S., The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787 (Philadelphia: University of Pennsylvania Press, 1983).

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

50. Finkelman, Paul, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, NY: M.E. Sharpe, 1996); Smith-Rosenberg, Carroll, “Dis-Covering the Subject of the ‘Great Constitutional Discussion,’ 1786–1789,” The Journal of American History 79 (1992): 841–73; and Nash, Gary B., Race and Revolution (Madison: Madison House, 1990).

51. Wood, “Ideology and the Origins of Liberal America.”

52. Rakove, Original Meanings.

53. Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988).

54. Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998).

55. Wood, Creation; and Skinner, Quentin, “Some Problems in the Analysis of Political Thought and Action,” Political Theory 2 (1974): 277303.

56. Ball, Terence and Pocock, J.G.A., eds., Conceptual Change and the Constitution (Lawrence: University Press of Kansas, 1988); Gienapp, “Historicism and Holism”; and Toews, John E., “Intellectual History after the Linguistic Turn: The Autonomy of Meaning and the Irreducibility of Experience,” American Historical Review 92 (1987): 879907.

57. Solum, Lawrence B., “Originalism and Constitutional Construction,” Fordham Law Review 82 (2013): 453538; Whittington, Keith, Constitutional Interpretation (Lawrence: University Press of Kansas, 2001); and Barnett, Randy, Restoring the Lost Constitution (Princeton, NJ: Princeton University Press, 2003).

58. Whittington, “The New Originalism.”

59. Gienapp, “Historicism and Holism.”

60. Solum, Lawrence B., “Originalist Methodology,” University of Chicago Law Review 84 (2017): 269–95.

61. Barnett, Randy E., “An Originalism for Nonoriginalists,” Loyola Law Review 45 (1999): 621–54.

62. Bilder, Madison's Hand; and Solum, “Triangulating Public Meaning,” 1656.

63. Storing, Herbert J., ed., The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981).

64. National Historical Publications & Records Commission, Founders Online. https://founders.archives.gov/ (May 9, 2019).

65. Phillips, James C., Ortner, Daniel M., and Lee, Thomas R., “Corpus Linguistics & Original Public Meaning: A New Tool to Make Originalism More Empirical,” Yale Law Journal Forum 126 (2016).

66. BYU Law, Law and Corpus Linguistics. https://lawcorpus.byu.edu/ (May 9, 2019).

67. Teles, Steven M., The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008).

68. Georgetown Law, Georgetown Center for the Constitution, Originalism Summer Seminar, 2019. https://www.law.georgetown.edu/constitution-center/originalism-summer-seminar/originalism-summer-seminar/ (May 9, 2019).

69. University of San Diego, School of Law, Center for the Study of Constitutional Originalism, 2019. https://www.sandiego.edu/law/centers/csco/ (May 9, 2019).

70. Hollis-Brusky, Amanda, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015).

71. Solum, “Intellectual History as Constitutional Theory.”

72. Berger to Hyman, February, 1976, Box 1, Folder 20, Berger Papers.

73. Gienapp, “Historicism and Holism”; White, G. Edward, “Intellectual History and Constitutional Decision Making,” Virginia Law Review 101 (2015): 1165–78.

74. Balkin, Jack, Living Originalism (Cambridge, MA: Harvard University Press, 2014); and Meyler, Bernadette, “Towards a Common Law Originalism,” Stanford Law Review 59 (2006): 551600. At her confirmation hearing, Elena Kagan said that “sometimes [the Framers] laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.” The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, Part 1, 111th Cong. 62 (2010).

75. Two examples are Ablavsky, Gregory, “‘With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings,” Stanford Law Review 70 (2018): 1025–76; and LaCroix, Alison L., “The Interbellum Constitution: Federalism in the Long Founding Moment,” Stanford Law Review 67 (2015): 397446.

76. Cornell, SaulOriginalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008): 625–40.

The author thanks Nathan Chapman, Saul Cornell, Cynthia Nicoletti, Peter Onuf, Laura Phillips Sawyer, and Matthew Steilen for critiques that significantly improved this article. The author also thanks Jonathan Gienapp, Bernadette Meyler, and Matthew Steilen for the opportunity to present a version of this article at the annual meeting of the American Society for Legal History.

Method and Dialogue in History and Originalism

  • Logan Everett Sawyer

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