Barnett on Historians and Originalism

Given my recent post on historians and original meaning, I thought I would recommend a post by Randy Barnett covering the same subject. Randy summarizes the argument powerfully:

Briefly, lawyers are experts in identifying the meaning of language in legal context; historians are not and, to their credit, don’t even try (unless they are submitting amicus briefs to the Supreme Court). In addition to describing past events, historians are particularly interested in explaining why what happened in the past happened, why people did what they did; as a result, they are very concerned with identifying motives, or other causal influences. Historians have no particular interest in the meaning of authoritative legal texts, unless they are legal historians who are very often also lawyers. The fact that a legal text is old sometimes makes the identification of meaning more difficult, but far from impossible in most cases. For one thing, the meaning of language hasn’t changed that much.

Read the whole thing.

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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Comments

  1. gabe says

    Mike:
    A very interesting series of postings – well done!
    Yet, I find myself rooting for the historians here on the theory that engineers view the world through the prism of engineering – so, too, do lawyers. Lawyers, like other professions, sometimes get lost within the rhythms and rationales of our particular disciplines (see Greves comments on executive agencies).
    The fact that historians seek to determine rationale behind law / action can, and does, provide a critical insight into intent (Harry Jaffa as a superb example ) of the authors.
    would you not agree taht at present we suffer from a lack of clear understanding of what our positive law / constitution was intended to secure for us.
    Anyway, enjoyed the postings.

  2. Kevin R. Hardwick says

    The constitutional and cultural historian Michael Kammen some years ago published an intersting and useful analysis of the evolving meaning of the term “liberty.” The book, SPHERES OF LIBERTY, is based on his contributions in 1985 to the Merle Curti lecture series at the University of Wisconsin-Madison, and was republished in 2001. It is the finest study I know of the process by which langauge, and the meanings attached to it, most emphatically do change over time.

    Kammen discovered a terrific and underused archive of primary sources published by the good folk at Encylopedia Brittanica, ANNALS OF AMERICAN HISTORY, which is organized chronologically, with most volumes contained documents produced over a span of just a few years. Kammen went through this collection, seeking documents that made use of the term “liberty.” He then read them in order to examine cognate terms–synonyms–and antithetical terms–antonyms.

    The results are intriguing. For example, for many Americans in the early 18th century, the opposite of “liberty” is “license.” To possess liberty in this usage is to be someone who possesses a properly ordered inner life, such that one’s rational faculties keep the passions properly subdued and controlled. To be free is to be self-disciplined. This understanding merged very easily with reformed theology, which sees liberty as freedom from sin, and which in the 17th and 18th centuries construed sin, at least partially, as passion.

    But this was hardly the only understanding of the term liberty. At various points in the mid to late 18th century and in the first half of the 19th, thoughtful commentators understood liberty as the opposite of slavery. Thus, the (largely) southern institution of chattel slavery turns out to be a constituetive opposition for understanding liberty.

    In the 20th century from the 1920s forward, yet another key oppostional term that was useful for articulating liberty was “communism.”

    The point here is two fold. First, at any given time, there are multiple competing conjugate groupings of synonyms and antonyms that define and convey a term’s meaning. Barry Shain, for example, distinguishes multiple meanings of the term liberty in his provocatively argued THE MYTH OF AMERICAN INDIVIDUALISM. Leaving aside the merits of Shain’s argument, he is surely correct to note that liberty was a term with multiple meanings, depending on the context of its usage.

    But just as fascinating, Kammen demonstrates pretty compellingly that these various meaning evolve over time, in quite significant ways. Liberty means something different, depending on both the context and the time within in which is was used. When reformed, and especially Calvinist, Christian meanings are dominant, the term will mean something quite different than when it was used by, say, Arminian adherants of the Second Great awakening in their condemnations of slavery. And it will mean something entirely different still when it is used in the 20th century not only to condemn and oppose communism, but at the very same time to explain the difference between free society and communist authoritarianism.

    All of this is a distraction from a fine post, which I think well captures the differences between legal scholars and historical ones.

  3. John Ashman says

    “For one thing, the meaning of language hasn’t changed that much.”

    It has and it hasn’t. Words like “rape” mean things that have nothing to do with the original definition of rape.

    I’d wager that not even 10% of LAWYERS know what “provide for” actually means in the Constitution. I believe this, because I’ve embarrassed more than a few.

    “Commerce” no longer means a trade of one thing for another, it means all aspects of business.

    “Civil war” no longer means a battle for control of a common territory, but also includes taking back, by force, areas that have seceded.

    If you don’t understand the language and words of the time, you truly can NOT understand history, as you will fill in blanks with modern meanings that significantly skew the meaning of what history is.

  4. Kevin R. Hardwick says

    John–

    Can you expand on the meaning of the term “provide for” in the Constitution? Fascinating, and (at least for me) educational and enlightening.

    Thanks!
    Kevin

    • John Ashman says

      Provide comes from the latin word which means to see into the future.

      When used with “for”, provide means to plan for, to save for, to set aside for.

      So in the Constitution, there is no “taxing and spending clause”, and there is no “providing welfare to the public”. The line literally means that tax money is to be collected for defense, repaying loans, and to set aside money in the general fund for the legal workings of government. It’s not a power to spend money, nor to set up agencies for “the general welfare”, but only to save money for the purposes laid out in other areas of the Constitution.

      It’s a truth that the left utterly denies, and both libertarians and conservatives seem not to know. Thomas Jefferson makes this clear in his argument against the federal bank here – http://avalon.law.yale.edu/18th_century/bank-tj.asp , and James Madison makes clear in Federalist 41 – http://www.constitution.org/fed/federa41.htm . But is also self evident from the definition here – http://1828.mshaffer.com/d/word/provide

    • John Ashman says

      Further, the structure of the phrase is not to tell us why taxation exists, but to place limitations on when, why and how the government may tax. Since the left conflates providing for the general welfare with actually spending money for the individual welfare of whomever it chooses, it takes a limiting phrase in the Constitution and not only delimits it, but actually imply that it is a DUTY of government to spend money for the [individual] welfare of its citizens.

      But in actuality, the phrase is designed to limit the purpose of taxation to two specific reasons and one somewhat general reason. Which means that ALL OTHER reasons for taxation are simply invalid. You may not tax to punish people (unless the government has delegated jurisdiction for that area), you may not tax to enrich others, or to change behavior, etc, etc.

      I wouldn’t even bring this up here, but I had a “libertarian” lawyer actually try to argue with me about the “taxing and spending clause” and I almost passed out. If libertarian lawyers accept that, we’re doomed.

      • gabe says

        John:
        Great points!
        Do you think you could send this to John Roberts who in addition to failing to understand the limitations on the clause also forgets that while something may be “permissible” under his reading of the Constitution it is impermissible if it infringes upon basic liberties, such as the right to not engage in “commerce” as you so aptly pointed out earlier.
        BTW – although I disagree with some of your posts I do appreciate them. Keep posting!

        • John Ashman says

          Thanks. I wish I could smash a magic coconut over Roberts’ head since he obviously doesn’t understand the Power to Tax Clause. He seems to think government can tax for any reason it wishes. In actuality, the current tax code is unconstitutional because it is designed around the concept of convincing people to do things they would otherwise not do, little of which has any relevance to delegated powers. A truly constitutional tax would tax the same money equally. The current tax code violates equal protection under the law, IMO, because it taxes people for such things as not being able to get a home loan, or for simply not wanting to buy a home. It punishes single people and people without children. All with an eye on manipulating behavior. This is not one of those “they didn’t sign it right” conspiracy theories, this is simple constitutional understanding that they are taxing for purposes aside from paying for government and simply burying an unconstitutional tax in an otherwise constitutional one.

  5. gabe says

    Kevin:
    Excllent post! In fact, I was looking for just such a resource for an earlier post.

    Language does indeed change with significant effect. If one is not aware of this, we can be led astray.
    It is why I cited Harry Jaffa (although I suspect he would prefer to not be labeled a historian) because he says that we should try to understand (The Founders) as they understood themselves. This includes language.

    Madison, amongst others, was not unaware ot the potential for mischief arising from the misuse of language.
    Madison writes that he concurs “in the proprietary of reasoning to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate constitution. And if that not be the guide in expounding it, there can be no security for the consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the change to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in a code of laws if all its phraseology were to be taken in a modern sense.”
    Is this not what we have witnessed for the last century or so. How else to explain the vast expansion of “supposed” rights and the diminution of certain other unfavorably looked upon rights (property, second amendment, etc)?

    I would suggest that we create a new agency – The Language Police – OOPS!!!
    - we already have that, don’t we?

  6. Kevin R. Hardwick says

    John–

    Many thanks. Much goodness there to chew over.
    Term begins imminently, so I may shortly be unable to hold up my end of things. But I am in the debt of anyone who offers me new thoughts to ponder!

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