Journal Article

LEARNING TO READ LIKE AN EIGHTEENTH-CENTURY LAWYER: THE HISTORICAL CRITIQUE OF ORIGINALISM REVISITED

Cornell, Saul

2024

Overview

INTERSUBJECTIVE MEANING Historians have been among the fiercest critics of originalism.1 Among the many virtues of Jack Balkin's book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique.2 In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin's analysis. In this sense, originalists are about a century behind the times in terms of their ontological and epistemological assumptions.6 Recognizing that meaning is intersubjective requires shifting focus away from a search for an objective truth, referential theories of meaning, and instead focusing on meaning as a social construct, functional theories of meaning.7 Once one realizes that originalism rests on a serious mischaracterization of the way constitutional communication functioned in the Founding Era, one of originalism's foundational claims, the socalled fixation thesis, crumbles.8 Although originalism comes in almost as many flavors as the breakfast cereals lining the shelves in a modern American grocery store, it has about the same nutritional value, which is to say it is mostly empty calories offering little sustenance. The claim that historians do not understand the law and are therefore incompetent to evaluate the original meaning of legal texts, including the Constitution, has been frequently repeated by originalists, but it has never been well documented or substantiated with any hard evidence-a common failing of much originalist scholarship, which often has a thin veneer of empirical rigor, but generally relies on impressionistic assessments and cherry-picked evidence to support its interpretations.12 Moreover, this argument ignores the fact that modern lawyers are typically not well-schooled in the interpretive practices or legal culture of the Founding Era.13 Even among those who claim to employ original methods in their analysis of Founding Era law the results are deeply anachronistic and often riddled with errors.14 No originalist has been more strident in making this type of guild argument than Randy Barnett: \"[S]ome [historians] apparently believe that they, and they alone, can recover the meaning of a law enacted in the Eighteenth Century when they would not be able to understand the meaning of a law enacted in the Twenty-First. Take the issue of statutory interpretation raised by Barnett.25 Sophisticated empirical studies by Abbe Gluck have demonstrated that even those charged with writing and interpreting the nation's laws, whose staffs include scores of lawyers, are often not fully conversant with the rules of modern statutory construction.26 I think it is fair to say that most legal scholars who do not teach or publish in a particular area are typically not reliable guides on cutting-edge issues in legal analysis in fields outside of their expertise.

• Publisher: Bill of Rights Journal
• Subject: 18th century / Attorneys / Historians / Linguistics / Writing