Following up on the guest post from earlier in the week, here's another guest post from Saul Cornell. (Readers who are interested in more on this topic may enjoy Saul's article in Dissent, "New Originalism: A Constitutional Scam"):
New originalists have a serious historical problem, a fact recently underscored by Mike Rappaport’s post on the Liberty Law Blog. Rappaport wrote: “historians often use context and claims of historical method largely as ways of ignoring the legal meaning of provisions. These type of arguments largely leave me cold.” To be fair, Rappaport confesses that his frustration may be a function of ignorance. Thus, he writes: “I must admit that perhaps I am not understanding the historians. ” On this point I think Rappaport is correct. The entire new originalist project rests on a series of profound errors—some philosophical and others historical. Although many new originalists invoke philosophy, the recent writings of real philosophers of language, including Scott Soames and Stephen Neale, raise serious doubts about new originalist method. The historical problems with new originalism are just as profound. Rappaport and most new originalists show little understanding of the complexity of Founding era legal culture. The result is a one dimensional account of legal meaning . Rappaport claims to be interested in using original methods, but he seems unable to grasp the most basic fact about the Founding era’s interpretive methods: there was no consensus on interpretive methods. This point has been demonstrated by a number of legal scholars, including Caleb Nelson and Larry Kramer. Historians have long appreciated this point, but as Martin Flaherty’s work demonstrates, most originalists seldom read deeply in the relevant historical scholarship and so are blithely unaware that few serious historians would accept that the Founding era was a period of constitutional consensus. The same problem mars efforts to interpret the Constitution using fictive readers, another new originalist scam. Would such a reader be an Anti-Federalist or a Federalist? Would they be a member of the legal elite, or a spokesmen for popular constitutionalism? New originalists try to get around this problem by claiming to focus on public meaning. This dodge does not cut it.
The interpretation/construction distinction favored by some new originalists rests on the dubious philosophical claim that the semantic meaning of a text is its public meaning. This claim is controversial at best and has little support among serious philosophers of language. It is easy to demonstrate why this model is wrong if one looks at the First Amendment. Did the First Amendment really mean that Congress could make no law abridging the freedom of the press? The standard response to this embarrassing counter-example is that freedom of the press was a legal term of art. The problem with this claim is that the Founders were divided over this issue. One cannot discern the meaning of the First Amendment without deciding which interpretive convention to use. Many Federalist legal elites followed Blackstone on this point, champions of popular constitutionalism, and leading Jeffersonians did not. The public meaning of the text depends on which conventions you use to understand it.
Without a philosophical smokescreen to ward off serious historical inquiry the new originalist project collapses. The moment you strip away the myth of consensus and deal with actual historical practices, real authors and real readers, new originalism’s simplistic assumptions come into clear focus. Originalists need to obscure these historical realities so they can cherry pick quotes to further their agenda. Using their method you can continuously reshuffle the deck so you are always dealt the right cards to advance your policy goals. This is not a rigorous scholarly methodology, it is an ideology pretending to be a methodology. It is time to move beyond history and philosophy lite and start getting things right.