Cornell on Popular Constitutionalism and the Original Debate Over Originalism

The ever-thoughtful Saul Cornell, who holds the Paul and Diane Guenther Chair in History at Fordham, has a new article, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" in the Yale Journal of Law and Humanities.

Saul takes on a number of recent debates in originalism -- such as the extent to which we should be looking at the meaning among the voters, rather than the drafters, of the Constitution and its amendments.  One of his key themes is that whomever we're looking to -- whether it's the drafters or the voters or some even larger public -- that there needs to be much more attention to the intellectual context.  As Cornell provocatively phrases the issue (at page 335): " Until  Originalists  recognize that they must master the basic techniques of intellectual history and understand the major modern historical debates about eighteenth-century political and constitutional history, and gain something more than a passing knowledge of Foundingera sources, their claims will continue to generate ideological manifestos masquerading as serious scholarship."

There's a lot more that should be said about Saul's article and also about the shifting approaches of both originalism and popular constitutionalism.  I've been spending a lot of time of late thinking about Southern ideas of constitutionalism in the thirty years leading into Civil War.  I'm particularly interested in two issues -- first, the feedback loops between public ideas about the Constitution and judicial ideas.  Such as, how did southern ideas make Dred Scott look like a legitimate decision.  And,  second, how did those public ideas about constitutionalism shape the South's move towards secession?  The public ideas helped frame the South's complaints about Lincoln's election and also the ways that Southern politicians and voters responded; they also legitimated the South's actions.  While Saul and many of the other originalists are focused -- completely understandably on the eighteenth century and the post-war period -- I think their work on whose ideas matter and why those ideas matter will help us understand the constitutional origins of the Civil War.

Comments

[Bill Reynolds]

How much more evidence is needed to show how empty is the vessal of Originalism? Good article. Thanks