Historians and Legal Scholars

I have written various posts about the gulf between historians and legal scholars, especially as it relates to constitutional originalism.  A recent piece I wrote allows me to illustrate my general arguments.

Earlier in the month, I wrote a short piece for the New York Times Room for Debate feature where I argued that the national convention method for amending the Constitution does not work and therefore Congress enjoys a monopoly on amendments.  I proposed an alternative method that would avoid a convention and would have the state legislatures agree on specific amendment language that would then be ratified by the states.  (For my Liberty Forum discussion of the matter, see here.)

Someone pointed out to me that one of the comments to my piece in Room for Debate was written by Pauline Maier.  For those not aware of her work,  Maier is one of the leading historians of the Founding, whose recently published work on the Ratification of the Constitution has gotten rave reviews.  Maier is at the top of her profession.  Thus, if Maier fumbles easy plays in the legal realm, that tells you something about historians when they venture on to legal terrain.

I was happy to see that Maier had commented on my piece, but disappointed by her comment.  I will reproduce her comment below.  Maier’s words are indented, mine are in normal formatting.

During the course of the Revolution, Americans learned to distinguish constitutional law, which was a direct act of legislation by the sovereign people (drawn up by special conventions and then submitted to the people for ratification or, with the Federal Constitution, to specially elected state ratifying conventions) from ordinary laws, which are passed by legislatures. The first state to make that distinction was Massachusetts, whose constitution of 1780, the oldest still-functioning written constitution in the world, was drafted by an elected constitutional convention and sent back to the people in the towns for ratification. That constitution was also the first to be enacted by “We the People,” as was the federal Constitution of 1787. This proposal pays no attention to that “original understanding” of the American constitutional system. It would have fundamental and ordinary laws both come from state legislatures.

Maier is correct that American in the late 18th century distinguished between constitutional law and ordinary law in the way that she suggests.  But her point is seriously problematic.  First, the United States Constitution authorizes amendments by either the people (acting through conventions) or by legislatures.  Moreover, it allows amendments passed entirely by legislatures.  In the most common amendment method, two thirds of each house of Congress proposes an amendment and three quarters of the state legislatures ratify it.  My proposal is no more legislature oriented than the “ordinary” way the Constitution is amended.  Thus, her criticism seems misplaced.  There is nothing in the Constitution or the constitutional tradition that cuts against having legislatures propose and ratify an amendment.  Moreover, her reference to the original understanding seems to ignore that the legal document itself (and therefore the decisions of the original drafters and ratifiers) was to allow amendment purely by legislatures.

Note, too, that Article V of the U. S. Constitution offers a way around Congress: if two-thirds of the state legislatures request that a new constitutional convention be called, Congress must call one.

Maier’s point is peculiar.  My piece had argued that this method for amending the Constitution does not function.  Therefore, this “offering” by Article V is of little value.

Incidentally, the Twenty-First Amendment to the US Constitution (ending prohibition) was ratified by state conventions, not state legislatures, so it is incorrect to say that the convention method “has never been used.”

Maier’s point here is also wide of the mark.  I am quite aware that the Twenty-First Amendment was so ratified.  What she misses is that my reference to the “convention method” was clearly to the method whereby a convention proposes an amendment.

What do these mistakes have to do with the differences between historians and legal scholars?  Well, it is exactly mistakes of this sort – mistakes that to me could easily have been avoided by a careful attention to the precise argument being made and to distinctions drawn in the constitutional text – that historians sometimes seem to make as to law.

As I have said before, I am sure that historians find legal scholars frustrating in other ways.  And they may have valid points to make.  But that does not mean that legal scholars don’t have legitimate gripes as well.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Eric Hodgdon says

    Dear Sir,
    You may know things I don’t. Likewise, I may know things you may not. There is a difference between something that does not work and one that is intentionally not being used. With the Constitution as the machine, Article V is functional, it’s just not fully used, by way of an intentional operator obstruction. Truth is being skewed in your word choice, from an engineering standpoint.

    As one who knows equipment, I know machines will work when built by the design, if it’s a workable design. The Constitution was built by the design, but has suffered abuse by its operators. Poor training and poor supervision are responsible. If the design is faulty, then say so, please. While precision in law may be a plus for you, you are describing the mechanics as at fault, when clearly it’s the operators or the design.

    I think you alternate method for Art V has merit.

    • Eric Hodgdon says

      Dear Sir,
      As I reconsider my previous post, this is preferred.

      Likewise, engineering, electronics and mechanics is my field. There is a difference between something that does not work and something that is intentionally not being used. This is far from hair splitting or semantics. With the Constitution as the machine*, Article V is functional, however, it’s not being fully used by way of an intentional operator obstruction**, from an engineering standpoint.

      As one who knows equipment, I know that machines will work when built by the design, if it’s a workable design. The Constitution was built by a design, but has suffered abuse by its operators. Poor training and poor supervision are responsible for what you refer to.

      While precision in law and the Constitution are your pluses, you are describing a part of the machine as at fault, when clearly it’s the operators refusing service to a customer.

      * A Machine That Would Go Of Itself, Michael Kammen – 1986 – Alfred A. Knopf New York
      ** Likewise, they never bothered to expand or distort this portion of our top doc, because they know nothing can be done to force compliance. We have no reasonable controls to force government to be responsible, let alone follow the Constitution. There is no law broken if they do nothing. Congress is boycotting a part of this necessary article, or is on strike because they fear the unknown.

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