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March 15, 2012


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Bradford William Short

I just have to write in, because the tendentious nature of Prof. Cornell’s posts here (something I am now used to from my limited encounters with Cornell’s past work) is just. too. much. And as a Fordham graduate (though, of the law school in Manhattan, but where I spent literally as much time as was possible, in two years of elective possibilities and rights to take independent studies towards a J.D., taking as much legal history as Martin Flaherty, Bill Treanor, Bob Kaczorowski and Rachel Vorspan would let me) I cannot describe how irksome it is that Prof. Cornell portrays the serious study of history there as something that is certain to always conclude that originalism is dumb, dumb, dumb.

First, Cornell’s selection of targets is an act of raw straw-man construction. Michael Rappaport? Richard Epstein? Who are we kidding here? These men are constitutional theorists and/or law and economics specialists. Everyone involved in the academic study of history knows that they, when they venture into topics that it takes reading some historiography in order to fully understand, will end up saying things that are very foolish. The same can be said for numerous other conservative/libertarian law professors and judges: Justice Thomas, Justice Scalia, John Yoo, Robert Bork, and a number of other people. But, if you only listen to Prof. Cornell on the subject, you would get the impression that famous, high-citation, constitutional theorists are the totality of what is happening in America with originalism. That is thoroughly false, and Cornell of all people knows it.

To start, all schools of constitutional interpretation today have theorists who are nowhere near as well-versed in Anglo-American constitutional history (and the history of Anglo-American political/moral ideas) as they should be to make the claims that they often make in support of their theoretical preferences. One would never know it from reading Cornell’s posts, but this is the main point of my mentor Martin Flaherty’s “History ‘Lite’ in Modern American Constitutionalism” (95 Columbia LR, page 523), not the attempt to single out originalism for scorn that Cornell is engaged in. The majority of History “Lite” concerns itself with shoddy historical thinking coming from the major works of not only Richard Epstein, but also from Cass Sunstein and Bruce Ackerman (though Flaherty is least harsh on Ackerman in the article). The fact is, Flaherty’s considered judgment as a historian is that constitutional theorists in general come up wanting when judged by the standards of historians for the claims about Anglo-American constitutional history that they make. Flaherty has never proved (and I should know, since I spent two years around him arguing about this stuff, sometimes every day) that the history “lite” of originalist constitutional theorists is somehow more of a “scam” than that of opposing constitutional theorists. Indeed, just as an admirer of Robert Bork often has to blush in going through the pages of History “Lite”, so too does an admirer of Ronald Dworkin. And so, we are left with the rather unsurprising (if still depressing) conclusion that, if one goes to Rappaport, Epstein, Bork and Yoo to learn about America’s constitutional past, or if one goes to Dworkin and Sunstein to learn about America’s constitutional past, one will be wasting one’s time.
The only thing left for Cornell to say is that because originalism is a theory of constitutional interpretation that takes history itself as dispositive of claims, it is somehow orders of magnitude worse for originalists to engage in history “lite” than it is for non-originalists. Flaherty himself says something near this at the start of the article, but it is not a major conclusion of his piece, and it is not his considered judgment as a historian. (Indeed, it cannot be, if we simply think clearly about the question. Historians can prove and disprove what we think we know about the past; they cannot then take two different sets of people, say originalists and Dworkinians, and tell us which one is “worse” when making a false claim about history. One needs to bring in knowledge from another field, like ethics or political philosophy, to answer that question.) I have always thought Flaherty was strongest in making that point, merely as in saying that it is particularly embarrassing for an originalist to not take time to know his/her history. But, that is a very small point. Flaherty himself teaches his students that even if they reject originalism strongly and with fury (which they tend to do on the Upper West Side of Manhattan), the need to study constitutional history still obtains. He points out that history is largely dispositive if one’s theory of constitutional interpretation is Harlanite constitutional traditionalism, and he is right to do so. But that itself shows how one can be even something of a left-of-center anti-originalist (which is what I would say John Marshall Harlan was, given what he did to give America constitutionalized abortion indirectly and constitutionalized contraception directly) and still be relying on history in pretty much the same way an originalist does. Also, in disputing a particular point about history with an originalist, a constitutional theorist who does not try to use history at all in his/her constitutional theory, still has an obligation to get the underlying particular point about history right. In footnote 15 of his article, Flaherty shows that this is pretty much exactly something that Dworkin has done. And so it should be insulting to all us historians whenever a constitutional theorist of any stripe uses history “lite” to fool people into thinking silly things about America’s Constitution. That problem is an epidemic in American law schools (and in American philosophy departments, I would add), and it does not happen more in places that are more conservative, libertarian, or originalist. Flaherty might on occasion say something like that (he might have on more than one occasion had an argument with me concerning a claim like that), but it is not a serious, considered proof of Flaherty’s in his “History ‘Lite’ in Modern American Constitutionalism”. It is not that, I would submit, because that cannot be proved, because it is not so. And the many examples of liberal/progressive/anti-originalist history “lite” Flaherty gives in his article are more than enough proof that it is not so. But one would never learn this reading Cornell’s posts here.

And just as one should look to Flaherty, Treanor, Larry Kramer, Lewis Grossman, Lois Schwoerer and others like them on the left/liberal/progressive/non-originalist side to understand our constitutional past, so too one should look to people like Bob Cottrol, Keith Whittington, Phil Hamburger, Joyce Lee Malcolm, Forrest McDonald, James Ely and others like them (including far, far, far, far, far, far lower down the list of scholars in terms of accomplishment, me) for persons on the right/conservative/libertarian/originalist side for help in one understanding our constitutional past. Basically, for Saul Cornell to pick a fight over what is well-done history versus history “lite” with Michael Rappaport is kind of like a mixed-martial arts fighter picking a fight with someone confined to a wheelchair for the rest of his life. Cornell knows full well that Bob Cottrol (full disclosure, my mentor for my LL.M. in legal history at G.W., the person who took me up where Flaherty left me off) would be happy to debate him anywhere and in any place about the (overall, no court decision is perfect) legitimacy of both originalism and Heller, and that both can and are consistent with a true legal history of the Second Amendment. Indeed, Cottrol has done exactly that, many, many times in the past, with Prof. Cornell not two feet away from him during the debate.

And truly, I have to stress something on this here, for while I love every, single, one of the American Society for Legal History national meetings I have been to since completing my time at Fordham (and I understand why Al Brophy does the same), the one facet of them that annoys me, year after year, is the tendency of just this sort of mixed-martial-arts master vs. wheelchair-bound man, “fair-but-still-fixed fight,” genre of debate on hot constitutional issues at ASLH. It does not matter if it is Jack Rakove complaining about Justice Scalia’s use of the word “perilous” in Heller (one of the most unimportant points I have ever heard a historian make in delivering a paper), or if it is David Konig going at Heller with no one like Cottrol or Malcolm even in the room. Again, any ASLH member should know that a trained historian like Konig will make mincemeat out of one of Justice Scalia’s opinions. The question is, why does someone like Bob Cottrol think it is a net improvement for enforcing the original intent/meaning of the Second Amendment, and that it is actually historically (pretty much) correct, and certainly represents an improvement upon what the U.S. Reports told lawyers about their constitutional past before? Basically, the question should be, “why does someone like Bob Cottrol like Heller?” It should not be, “why does someone like Justice Scalia like Heller?” The former is an example of a fair fight; the latter is an example of a fixed fight.

Attending some sessions at ASLH meetings, reading Cornell’s posts, one would never think there was anything to originalism other than dumb, dumb, dumb things being said by theorists who do not know the limitations of their theoretical interpretive methods. There certainly is that, but again, it is happening on all sides. And even then, aren’t people bored with this by now (I know I am, I know I have been at certain ASLH sessions). Doesn’t anyone want to hear a real debate, between two (or more) real historians on some of these questions?

Also, if all you read were Prof. Cornell’s posts, you would think all serious historians reject, totally, originalism as the best method of constitutional interpretation. That is just false, unless Cornell wants to go the added step of insulting Bob Cottrol (and many others) and saying that he doesn’t merely think Cottrol’s view of what the Second Amendment did is wrong, but that Cottrol is not a real historian to boot. Not only would that be a surprise to numerous historians who work with Bob (starting with me), but it would prove nothing. Cottrol is a historian (maybe even one who is correct about the Second Amendment while his debaters are in fact wrong), no matter how politically incorrect his conclusions are. Saul Cornell cannot wish us away. Again, from Forrest McDonald taking a crack at Charles Beard 50 years ago, to today, at least a good 10-20% of legal and constitutional historians in America are originalists, and I’d say membership in ASLH runs at about the same rate. Does that mean that maybe 9 in 10 legal historians you’ll meet reject originalism? Yup, and I have no problem with historians who do reject it in the end (my J.D. mentor did, my LL.M. mentor didn’t; I love them both). But any theory that commands the respect of 20% of the profession is not a “scam.” It is a minority view that deserves respect and to be debated on its own merits and demerits. That Cornell cannot seem to do that in these posts speaks very ill of him.

(And this leaves out the other embarrassing fact that Flaherty and Treanor were originalists, for many years, during the early part of their careers. They were the other “liberal originalists,” the ones who took more care than Akhil Amar did. Yes, they abandoned originalism eventually, from my discussions with them, Flaherty for a kind of Harlanite constitutional traditionalism, and Treanor for Carolene Products theory—though it has been so long since I have argued/talked with them about these issues that I cannot say where they are now. But the fact remains, for years the Martin Flaherty whom Cornell cites in this post WAS an originalist. What does that say about the justification—or lack thereof—for the way he abuses originalism in this post? Is it really true that no serious legal historian is an originalist? In a word, no.)
The second problem in the posts I’d like to deal with will take up much less space. It basically concerns the idea that what Cornell’s targets are doing is unique even to law schools, let alone to originalism. Related to this problem is the authority which Cornell gives to “philosophers of language” in his post. In my experience, disrespect for real “history right” is very common amongst practitioners of politico-ethical disciplines that might have reason to use history for their own ends. I cannot say I have experience with philosophers of language, but I spent about the first seven of the last 14 years thinking about philosophers of bioethics nearly every day. And their history “lite” is one of the most important (and worst) things I have ever written about. My early articles for Flaherty and Treanor at Fordham could be better; notably for common facts I could have shown better source selection. But on the main points I have spent my life researching, that there is a theory of an inalienable right to life and liberty, that was given a classic formulation by authors such as Locke, and that it totally negated legal suicide (including assisted suicide), and that it is a big part of our Anglo-American constitutional history, and history of moral ideas, my evidence and sources could not be better. And my research shows that amongst the worst history “lite” out there is the work of people who are (unfortunately) at the top of the profession of bioethics, who have a constitutional agenda to legalize assisted suicide, and who help make that agenda more likely to become a reality by saying things about philosophers like Locke and Kant that are not merely false, but are howlers. Unlike Saul Cornell, I have learned that whenever a philosopher starts talking to me about Anglo-American history, I have to watch my intellectual wallet. I find it ironic, again, that he shows no interest in the infractions against legitimate historical method performed by progressive/liberal philosophers (which again, are many), but cannot stop talking about the sins of Michael Rappaport.

Third and last, I just want to say that whatever sins I have committed in writing this comment the way I have (with a fair amount of personal information, with a fair amount of anger), I erred on that side because I want everyone reading this to know exactly where I am coming from, and not be misled in the least. I am on the market now, and whenever I am lucky enough to become a law professor, I will almost certainly be the most conservative member of my faculty (certainly the most socially conservative, which is something very, very few law professors are, even at George Mason and Chicago). I am an originalist, and over time I hope to live to see the courts in America become originalist. I believe, net-net (and I put heavy emphasis on the “net-net” there) that the appointments of Thomas, Scalia, Roberts and Alito have made America a better, more democratic place to live. But whatever I think on those matters, they do not, they cannot, change my views about basic historical facts and what I know about the profession of the historian. Originalist constitutional theorists often are clownish. They say things about the past that often make me wince. The American Enterprise Institute is, in my opinion, a wonderful place. But it has a fair number of crazy and insane statements about America’s constitutional past made within its walls every year (or at least made by its fellows, somewhere, at sometime, and in public). Indeed, just this week Charles Murray made the following, utterly ridiculous, post on the Corner:
I love NR and NRO too, but this post, which shows a near-total ignorance of what Locke’s theory of the origin of property in labor is, is just sad to read. And yes, this type of silly, arm-chair history of ideas/constitutional history is far too easy to find amongst America’s tea-partiers, amongst Republicans running for President, and amongst people talking to the world on Fox News. Ever since my first classes and office-hours debating with Martin Flaherty (which began about 10 years ago now) I have admitted that. I became a historian precisely because I took the expose of dumb originalism seriously, and I wanted to help disabuse my fellow conservatives of the myths that the likes of Richard Epstein have taught them. Liberal/progressive law professors/legal historians should take some time to shoot the fish in the barrel, to show them that, no, you often cannot learn about the Founding from going to Federalist Society talks and panels (indeed, you will lose knowledge, by learning libertarian myths about the Founding in place of real knowledge). But that should be a small part of what any scholar in legal history does (be he/she in either a law school or a history department). And they should do that to BOTH SIDES. Liberals and progressives who teach history should not give people the impression that all the b.s. in the world about the Founding and the Constitution comes out of a mouth like Glen Beck’s. Again, because that is obviously false, as the research I have devoted my life to shows. (And in the end, is it really so hard to also look at the bogus abortion “history” in Roe, or the nonsense about the history of sodomy laws, and whether they were in any way specifically anti-homosexual—guess what, they were—in Lawrence? You do your students a huge disservice if you don’t excoriate both conservative AND liberal history “lite”, period, dot.)

And just as your students deserve to know about historical clowns on both sides, so too do they deserve to know about great history written on both sides of the originalism question. Indeed, one of the greatest of Epstein’s sins against the profession of the historian is his utter rejection of context: the historian’s rule that nothing you say can be reasonably likely to be true, unless you have first made sure that you have taken into account the context of the time you are studying and talking about. But doesn’t Cornell do the exact same thing in these posts? Doesn’t he deliberately refuse to contextualize what he is talking about here, as it happens in 21 st century America right before his eyes? Again, he’s debated Bob Cottrol many, many times before. He knows full well that there are serious historians who are also originalists. And he knows that there are unserious-about-history constitutional theorists who are not originalists and are progressives who stand to gain from their unserious rejections of originalism. Anyone reading this blog, who knows much about law, but not much about history or the profession of history, would think that originalism amongst historians is as crazy as a tenured biologist who is a creationist. They would be thoroughly misled as to the state of these debates today. They would have no context in which to place Cornell’s arguments, and they would have no idea of what really happened in this part of history: the history of the idea of originalism as it was debated amongst legal historians in the late 20th and early 21st centuries. And that is an embarrassing inconsistency for Cornell indeed.

Saul Cornell

As my post makes clear I think Caleb Nelson’s scholarship, particularly his essay on Founding era interpretive methods, is excellent. Nelson was a Scalia clerk which hardly puts him on the liberal side of the spectrum. Nor does Nelson have a degree in history. Rather than show that historians can be originalists, I would argue that the work of Cottrol, Malcolm, and much of the later writings of Leonard Levy show that historians are just as tempted to write law office history as lawyers. My point about the philosophy of language was quite simple. Most contemporary philosophy of language cuts against new originalist theory. I am not sure what bio-ethics has to do with this issue.

Bradford William Short

Wow. Well Prof. Cornell, you managed to not even meet the low expectations I proposed; you went there and you did insult Bob and basically said he wasn't a real historian. How thoughtful of you. I suppose now both Bill Treanor and Martin Flaherty weren't real historians in the early phases of their careers when they were still liberal originalists? Or did they only publish law office history then? Anyone else you want to excommunicate while you are at it?

As for Caleb Nelson, I didn't say you never cited a conservative in your life (and btw, Nelson was a Thomas clerk, not a Scalia clerk). I said you refused to acknowledge that some historians can be, and are, and will defend if given the opportunity (in a civil forum, not what you have written for Dissent) originalists/originalism. I think it is even more clear from your response that you do, in fact, refuse to acknowledge that. As for Nelson, he is (from what I can tell, I do not follow his work, though that is the luck of what I have time to read more than anything else--no one should take what I say here as a slight against Prof. Nelson at all) from what I can tell a constitutional theorist who is literate in legal history, kind of like Michael McConnell. Someone who doesn't really specialize as a historian teaching in a law school, but, unlike Epstein or Dworkin, when the job calls for writing about history qua history, will do the work of the historian to get the history right. Such principled constitutional theorists exist, no doubt, on both the right and the left. But as Flaherty's 1995 article shows, and as events since then also show, they seem to be drowned out by the law professors who write history lite. That fact of present life is both sad and I condemn those responsible for it (including large sections of The Federalist Society, though certainly not all of it). But the fact remains, you did not mention a single legal or constitutional historian of the last 50 years who is also an originalist, and you thereby pretended that no considerable number of such historians exist. They do and therefore the picture you paint for readers of the profession is false.

My only point in talking about the politics of these people is to acknowledge the basic fact that we have in the backs of all of our minds as we read a set of posts like this, namely that, looking only to the historian opponents of originalism (what you do) will have the net effect of telling liberals reading a convenient untruth: that to be a historian is to oppose originalism and to oppose the "conservative bent" in the current (semi-) originalist Court. That is nonsense, liberals should be exposed to originalist historians' work even if that work makes them squirm by making them question their total rejection of originalism. Ditto for conservatives. For them the convenient untruth is that people like Richard Epstein and John Yoo aren't making up the "history" as they go along. They should be exposed to articles like Flaherty's, even though *that* might make *them* squirm as they realize that many of their Federalist Society heros are, in fact, practitioners of history lite. I am saying: let's be honest here, to some degree we are doing this to each other because both sides have become politicized, and have strong political opinions (I am certainly one of those, I'll be the first to admit), and we need to work harder on resisting the temptation of politics as we do our history and interact with each other. Again, you pointing out that you have once quoted a conservative constitutional theorist (to destroy originalism, no less!) rebuts none of this.

Last I will point out that I gave a detailed, factual rebuttal of your misuse of Martin Flaherty's 1995 article on just this topic. You have responded to none of that (again, because you cannot). People reading this can go on Westlaw or Lexus and read the article for themselves. I will end with this: in Saul Cornell's world Martin Flaherty published an article titled "History 'Lite' in Modern American Originalism". Of course, in the real world Flaherty's article is called "History 'Lite' in Modern American Constitutionalism". Originalism is merely a subset of Constitutionalism, all the other constitutional theories make up the rest of "Constitutionalism". There is absolutely nothing in that article that says that they aren't just as guilty of having practitioners of history lite in their ranks, nor is there anything in that article that says originalists *have* to be practitioners of history lite. And I defy anyone to show otherwise.

saul cornell

Treanor and Flaherty are wonderful scholars. Second Amendment originalism is not even close to the standards set by these two scholars. People often ask me if I think one can do originalism in a serious way that meets the standards of genuine historical scholarship. Good originalism is not impossible in theory, it is just hard to find in practice. You have to get the intellectual history right and only after you have done that can you sort out what it means in modern constitutional terms. Most historians reject originalism and they are correct to do so. Few originalists take the time to get the intellectual history right.

Bradford William Short

Well, I think this basically acknowledges that a) one can be a real historian and a real originalist at the same time, and b) that it is merely "hard to find" them "in practice." Again, if by this Cornell means that the number of Phil Hamburgers (and Bob Cottrols, I am not going to accept his glib, conclusory dismissal of Bob's Second Amendment work for a nanosecond) in the world is vastly outnumbered by the legions of Richard Epstein acolytes, and therefore if one goes to a place where there are a bunch of originalists, one will probably be disappointed by hearing them talk about history, then again, I agree with that. But, I find that to be a very inconsequential point. The important comparison to make is not between the late, non-originalist Bill Treanor and Richard Epstein. It is between Richard Epstein and Cass Sunstein. The number of Cass Sunsteins in the law school world vastly outnumbers the number of Bill Treanors. The number of times Cass Sunstein gets cited every year vastly outnumbers the number of times Martin Flaherty gets cited every year. The generally left, generally non-originalist side has their cotton candy that they like to eat, over hard working history, and the generally right, generally originalist side has their cotton candy that they like to eat, over hard working history. The cotton candy outnumbers (both in number of law professors, and certainly in citation counts) the real historians on both sides. Anyone who takes even a short glance at Brian Leiter's rankings knows this. Again, the problem with Cornell's last sentence is same as the problem I pointed to in making my point concerning Flaherty's title. No, it is not true that "few originalists take the time to get the intellectual history right," if by that you mean to single out originalists. Few *constitutional theorists of any stripe* take the time to get the intellectual history right. *That sentence* would give readers a correct impression of what is going on here.

The other comparison to make is this: amongst real historians is being an originalist SO rare that you have less than a 1 in 100 chance of reading/meeting a historian who sees his/her work as contributing (in the long run) to a principled originalism? The answer to that is "no." Originalists are plentiful enough amongst the ranks of historians for that to be false. It is my understanding that Bob Kaczorowski (who again, trained me for years, and who I was on the phone with a few days ago, so I think I'd know) is still an originalist (he is a very odd one, and he has a view of the 14th Amendment and Congress' powers under it that would mortify both most members of The Federalist Society and most liberals/progressives...indeed, his views seem to come to almost James Bradley Thayer's by the back door). The early Treanor and Flaherty were originalists. As is Phil Hamburger, Bob Cottrol, and Keith Whittington, etc. Indeed, Prof. Cornell totally misunderstands my main point if he thinks I confuse "good originalism" with "conservative" (again, I try to merely acknowledge in my writings that there *is* a closer connection between conservatives and originalists than between liberals and originalists, and that right now, in today's political reality, conservatives probably have more to gain from a good originalism enforced by the courts than liberals do, though that itself is a very complicated equation). In my view Bill Treanor does a great job, for originalism and for America, when he goes after Takings Clause nonsense, and tries to help prevent conservative judicial activism from taking over eminent domain law in this country. In my view Martin Flaherty does a great job, for originalism and for America, when he goes after John Yoo during the last 10 years. Those things were things they would have done in their earlier, originalist, phases of their careers too, and they were right to them. Legal historians who want to achieve good originalism NEED their "liberal originalism" as much as I think we need my work on assisted suicide and the inalienable right to life and liberty, an example of "conservative originalism." But in the end, this shouldn't be about conservative or liberal, it should be about whether there are several good legal historians over the last 20 years who, at the same time that they were good legal historians, were also originalists. There were and there are. And people should not represent to the general lawyer/law professor community that that is not so.

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