Here is the panel on Textualism and Constitutional Interpretation from the Federalist Society Lawyer’s Convention last Friday. It was a dynamite line-up with the super smart (and fellow Guggenheim Fellow) Richard Primus (Michigan), conservative originalist John McGinnis (Northwestern), and originalism critic Mitch Berman (Texas). I go first to defend originalist constitutional interpretation and distinguish it from constitutional construction.
I thought that the discussion was conducted on a very high level, though I never said, nor meant to imply, that historians were “dumb.” My point, made quickly and under the pressure of time, is that (a) originalism does not require lawyers to be historians, (b) lawyers can analyze the meaning of legal texts, even from the past, and (c) when historians without legal training attempt to analyze the meaning of legal texts (or evaluate the quality of legal arguments made in the past) they can reach dumb results. To this I would add that historians are typically interested in things other than legal meaning, or the merits of legal arguments. When a small fraction of historians get themselves into debates about the Constitution, most are themselves nonoriginalists who still look for the “original intent” of the drafters or ratifiers despite the fact the nonoriginalist law professors have rightly been critical of that endeavor for some 30 years now, and most originalist scholars have modified their approach in response. Some historians who attempt “originalism” hold to a particular view of “meaning” that reduces the meaning of words to the motives, goals or objectives of those who uttered them. By identifying these motives or goals, they think they have identified the true “meaning” of the words, but this is a highly disputed and problematic theory of linguistic meaning. Moreover, historians can be as “partisan” in their advocacy of original intent when they enter into constitutional debates in the public domain, for example by joining amicus briefs, as lawyers can be. But lots of nuance was lost in the few seconds I took to respond to Professor Primus’s repetition of the claim that “constitutional lawyers are paid to masquerade as historians,” which is not only an appeal to authority by historians but is a cheap shot at legal scholars.