Tillman on Historians and Originalists

I hope that readers will bear with one more post on historians and originalists.  Seth Tillman who teaches in Ireland and has written many pieces on American originalism, writes:

I’d like to develop some related points arising from my personal experience.  . . .

Some historians see lawyers as engaged in a coordinate academic enterprise: a pursuit of some unknown truth or, at least, an effort to get there. But not all historians think this. Some historians believe lawyers, including lawyers with academic affiliations, are agenda-driven hacks, who purposefully seek to build one-sided arguments for ideological reasons or to serve a client. In one legal history listserv I participate in, the listserv editor has from time-to-time insisted that participants state why they have posed a question to the listserv members. My own view is that such information risks biasing answers. I flagged my concern to the listserv editor and his response was that members want assurances that their answers will not be used on behalf of clients and causes who and which they do not wish to benefit or associate with. . . .

I also have come to believe that some historians just do not like lawyers (which would hardly make historians unique in American society). Such historians see academic lawyers and law schools as a poor fit in wider university culture. And the first thing such historians point to are student-edited law journals which do not fit the customary arts & sciences peer-reviewed journal model. . . .  I [also] sense that outside of the U.S. in other English-speaking and common law jurisdictions, (foreign) historians are more friendly to academic lawyers. One reason for this may be that outside the U.S., academic lawyers frequently do not teach in free-standing law schools – which may be somewhat isolated from other university departments. . . .  Finally, outside the U.S., most legal academic have PhDs, not JDs, which sometimes have little or no significant research component.

Finally, some (American) historians are just unhappy with their fellow citizens and America as it is constituted today. They lay the status quo at the foot of lawyers, who they see as serving the moneyed, the powerful, the vested interests, and the status quo. To some extent this view is tied to professional jealousy. They see lawyers as peculiarly relevant to politics (via litigation and legislation). By contrast, their own expertise and views are (as they see it) largely sidelined, even though they (believe they) have greater expertise than the judges/Justices (i.e., lawyers) who are tasked with examining concrete historical questions affecting lives and liberty. . . .

Seth’s explanations ring true to me, although I have had less personal experience with some of them.

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).

About the Author

Comments

  1. Kevin R. Hardwick says

    Mike–

    I think there is a lot of truth to the adage “where you stand is where you sit.” You learn useful information about someone’s stances on issues by looking at the perspective from which they are working. This is especiallly true of anecdotal evidence, of the kind off of which Seth Tillman generalizes above.

    I do not doubt at all that there are some historians who ground a distrust of lawyers in the rationales that Tillman develops, above. But in the absence of something more substantive, all I can report is anecdotal evidence of my own. I am an historian, I work in a department of history in which I know reasonably well the stances of my colleagues, and I can honestly say that in my experience, Tillman’s generalizations do not hold up well.

    I also think he is looking in the wrong places. I would contest his initial assumption, which is that (all!) historians are hostile to (all!) lawyers. I find this unlikely a priori, and unconfirmed by my actual experience. So the question with which Tillman begins–“why do all historians dislike all lawyers” is to my eye a false question, and it is false even if we replace it with less sweeping language, for example by replacing “all” with “most.”

    I suspect that this question is not really the one of interest, either to us here or (I am supposing) to Tillman. I think the better question is something like “why are historians inclined to be critical of the historical scholarship of lawyers? (and vice versa)” And here, I think the quotation you adduced from (Barnett? do I recall his name correctly?) gets closer to the answer. It really *is* the case that just about every academic historian is trained in certain basic methods, and that that training conditions their thinking. And I’d also suggest that the same is, very broadly speaking, true of lawyers as well. Historians do not think like lawyers, any more than they think like political theorists (who also do history) or theologians (who also do history) or historical anthropologists (who also do history) . Debates aboout the nature of interdisciplinary criticism, in my experience, usually hinge on apprehension of the modes of thought that distinguish one discipline from another.

    As an aside, the word “discipline” is meaningful. All of these various professional groupings are disciplined, in the sense that they approach what they do with distinct methodologies for accomplishing it. If we want to get at the differences, I think we are better served attending to the methods, and the habits of mind that accompany them, rather than indulging in shallow and anecdotal interest/political analysis of the kind that Tillman offers above.

    All best wishes,
    Kevin

  2. gabe says

    Interesting piece and response.

    Kevin is absolutely right with respect to methodology and effect on outcomes / views. If we are not careful, we may become trapped within that view.

    I think there is, however, another element that factors in to the discussion and that is impact. Consider the varying impacts between a historians output (books, articles, scholarly research) and the legal professionals “work product” as they may prefer to call it. Were this product limited to only a legal brief, perhaps the public mind would not be so concerned about “lawyering.” However, it is the end game that is of concern to the populace (including other academics). While the historian may author a book, which may be read by many thousands of people, one always has the choice to not purchase it – or to disagree with it – and as Jefferson said, “..it neither picks my pocket, nor breaks my leg.”
    The outcome of legal efforts may, in fact, pick my pocket or in the case of Affordable Care Act, deny me certain services to fix my broken leg. Thus, the potential scope of the effect of the lawyers work product may be the cause of the concern. Unlike the historian, I am compelled by the force of law to adhere to the lawyer’s decisions.
    This, at times, has made me uncomfortable – I suspect it has had a similar effect on my fellow citizens.

    • says

      “…with respect to methodology and effect on outcomes / views. If we are not careful, we may become trapped within that view” and “impact”.
      I would like to add within the scope of gabe’s comments – the greater effect it has had on our fellow citizens. The greater effect is where that lawyer becomes a Supreme Court Judge. His “work product” is now within the framework of a living Constitution. Unfortunately, his work product may turn the history of the historian — to a different “view” and “impact”. And we are … compelled by the force of law to adhere to the decisions.” A compelling force of law, though not really a product of the true history relating to that law, rather – being “trapped within that view” and the uncompromising “impact” it has — on our fellow citizens.
      (For those of you who have read my past comments – the law I refer to is “the free exercise of religion”.)

  3. Seth Barrett Tillman says

    Dear Professor Hardwick,

    You wrote: “I also think he [Tillman] is looking in the wrong places. I would contest his initial assumption, which is that (all!) historians are hostile to (all!) lawyers. I find this unlikely a priori, and unconfirmed by my actual experience. So the question with which Tillman begins–’why do all historians dislike all lawyers’ is to my eye a false question, and it is false even if we replace it with less sweeping language, for example by replacing ‘all’ with’“most.'”

    Professor Hardwick — no where do I attempt to ask or answer the question you ascribe to me: “Why do all historians dislike all lawyers”. It is as simple as that. I did not ask that question; I did not answer it. So your use of quotation marks is misconceived. (Your two-time use of “all!” is simply atrocious.) And you don’t save your argument by transmuting “all” to “most” — again, wrongly using quotation marks. Nowhere do I say “all” or, even, “most”. I trust you do not handle primary documents as carefree as you use quotation marks here. Rewriting other people’s arguments in order to knock them down is not best practice, in any field or discipline.

    I say “some”. Unless you are willing to say that “no” historians subscribe to such views as I put forward, you are not meaningfully contradicting my position. How large or substantive that “some” may be is something we potentially could discuss civilly. But before we have that civil conversation, I would still like a correction.

    Sincerely,

    Seth

  4. Kevin R. Hardwick says

    Seth–

    You are right–when I reread the piece, you were careful to qualify your comments. I caught my error earlier today, but did not have time then to correct it. When I came on to check the blog tonight in order to make that correction, I was sadly too late. For making the error, and likewise for failing to correct it quickly, I wish to apologize.

    But I don’t think you were writing to say, in essence, “hey, a few historians whom I know something about are hostile to the historical work of lawyers.” I took your larger point to be that many historians, even a lot of historians, are so hostile. And moreover, I took your larger point also to be that many historians, maybe even a lot of them, were hostile for the reasons you describe. So despite your care in your language, for which I did not give you credit, I am not entirely convinced that I missed the larger thrust of your argument. Since I did not read your words in the original context in which you wrote them, I advance this only as a possibility. How far did you wish to pursue the generalization?

    So my criticism is not a challenge to your experience, but very much a challenge to anyone inclined to generalize from it. I find it plausible to believe that some historians are skeptical of the historical work of lawyers for the reasons you ascribe to them, but I don’t think you (or anyone else here) has provided adequate reasons to ascribe such motivations to the profession as a whole.

    So you are absolutely correct to take offense at my post, and I apologize for writing with undue haste, and for assigning to you arguments that I do believe have been implied by others on this board–in essence, the logical fallacy known as “sweeping generalization.”

    And I will stand by my suggestion that to the extent we wish to understand criticism across disciplines, we are better advised to begin assessing them by taking due account of the methodological differences in the way they approach their subjects.

  5. Kevin R. Hardwick says

    Seth–

    One more point, on a somewhat technical issue of grammar. The most typical use of quotation marks is to bracket off a direct quotation. But it can also be used to bracket off one’s own understanding of someone else’s argument. Thus, for example, if I write, “in my post above, I wrote, in essence, to say ‘I acknowledge I made an error, and wish to apologize for it; and I also wish, I hope, to redirect the conversation to what I understood to most interesting,'” I would trust that everyone here would understand that the language enclosed in the inner brackets is not a direct quotation would be clear enough. That is what I took to be what I was doing, when I used quotations in my original post.

    There are, I suppose, two ways to look at such usage. One is that I am being egregiously sloppy and dishonest by doing so. But another, more generous understanding, and what I took myself to be doing, was to make it easy for you to respond by making explicit just what I took you to be arguing. In this case, it made it easier for you to call me to task for misreading your argument and for, in practice anyway, erecting a strawman. But even if I had not made a mistake in reading your words, I would still have made it easy for you to take issue with my characterization of your thought. Summarizing what one takes someone else to be saying is all about making honest intellectual conversation easier, by preventing misunderstandings. It is in that spirit that I used the quotation marks that have so offended you.

    In other words, the usage to which you have taken offense, I intended as a courtesy to you.

    All best wishes,
    Kevin

  6. Seth Barrett Tillman says

    Dear Kevin,

    Like you I cannot always reply as quickly as I would like to. You wrote back on Friday, and now (Monday) is my first good opportunity to reply. I hope you (and others) remain interested enough in our exchange to read and consider my reply.

    I appreciate the your (two-part!) response’s sincerity, fullness, apology, and partial defense. I assure you, I never took offense – so do not worry about my feelings. I have published in law and allied fields for some 10 years now – and so, I have grown a skin as thick as a rhinoceros (or, at least, as thick as a young rhino). Likewise, I always assume my interlocutor’s good faith — unless I have stand-up-in-court-proof-by-photographic-evidence that someone’s motives are less than wholesome. Obviously, I do not think your motives are less than wholesome – if I did, I would not have bothered at all with a reply.

    In that spirit, let me turn directly to your partial defense. This seems to be your argument (as I understand it). Tillman is saying “all,” or “most,” or–at least–“some significant” percentage of the body of academic historians do not like lawyers, i.e., they see academic lawyers as engaged in something other than disinterested and reasonable inquiry. If Tillman were merely saying just “some” academic historians (as in some minuscule part) see academic lawyers this way, then Tillman’s claim is not meaningful or significant. So Tillman must be saying the former. And where is Tillman’s evidence for that?

    Your interpretation of my position is partially correct. I do not have any independent evidence of my position. I opened my e-mail to Professor Rappaport by stating that my views arose in the context of my “personal experience.” So we are in agreement there. And anyone reading my blog post would have and should have understood that: it is not a new concession — it is just my original position.

    Your interpretation of my position is also partially incorrect. My view is still an empirically falsifiable, meaningful, and significant view even if the number of historians who hold the views I described is very small percentage wise – if that small group is active, loud, repetitive, and intransigent, and the remainder of the historical community remains uninterested in the issue (or, at least, it remains unwilling to contest the minority’s views). And, of course, in such circumstances, what the public (including the legal community) will hear, as the authentic or significant voice of the community of academic historians, will be the active, loud, repetitive, and intransigent.

    Let me put it to you this way – if you knew a young all-but-dissertation candidate in history moving into finishing his/her dissertation and applying for academic jobs, and if such a candidate was about to write a short article in an university alumni magazine praising the work of academic lawyers for adding to the body of historical research, would you be inclined – as a friend – to advise him/her not to publish such a short article in some legitimate fear for the article’s effects on the candidate’s future prospects? If the answer is anything but a resounding “no, go ahead and publish—it is exceedingly improbable that there will be any untoward consequences,” and “no” without regard to which history departments the candidate will seek work in, then I think you must concede that my position is largely correct, and your position is substantially incorrect. Please give this hypothetical some close thought. Imagine a close friend’s child were involved. Or your child (if you have any). If you are inclined to have the candidate kowtow to a cult of omerta, then certain inferences naturally flow from that. Right?

    Now onto your second point, which you made on more than one occasion, where you have indicated that lawyers and historians are engaged in different disciplines and these disciplines involve “methodological differences.” That is easy to say in a blog post – but where is your evidence? And, yes, I am quite serious. So here is a challenge. I am going to send you two SHORT articles written by a legal academic (me), both involving fields which (I think) you have written on. Give either a read, and explain how a historian would have negotiated the issues to be discussed differently.

    Sincerely,

    Seth Barrett Tillman
    http://ssrn.com/author=345891
    http://works.bepress.com/seth_barrett_tillman

  7. Kevin R. Hardwick says

    Seth–

    What a lovely and gracious reply–thank you.

    Your question is provocative and interesting, and I have to confess I don’t know how to answer it. Because I don’t advise Ph.D. students, I don’t have my finger on the pulse of how R1 academic history departments hire candidates. All I can speak to with any authority is how my own department, or those handful of other departments about which I know anything, handle hiring. Since I do not have to worry about placing my own students in academic jobs, I just don’t keep up with these kinds of thing.

    In my department, there would be no ill consequences for publishing the kind of argument (praising lawyers for their academic history) that you describe, and especially not in the kind of venue (a non-scholarly magazine) you describe. Indeed, it is highly unlikely that anyone in my department would even read a non-scholarly publication (ie., something in a non-peer-reviewed journal) as part of the hiring process. But even if anyone did read it, I find it very hard to imagine that such an opinion, especially if backed by reasoning and warrants, would offend anyone. The animus against lawyers who write history simply does not, at least so far as I am familiar, exist.

    So the reply I would have to give, were a young ABD colleague request my opinion on the wisdom of publishing the kind of piece you describe is 1.) I find it hard to imagine that it would harm you to publish, because the world as I know it simply does not work in such a fashion that that kind of opinion could harm you, even if it did offend the sensibilities of a majority of our more senior peers; 2.) I do not believe that such an opinion would cause offense, at least within the circle of historians about whom I know enough to judge; and 3.) I am the wrong person to ask for this kind of advice, because my situation does not require me to develop an informed opinion on such matters–go ask, and here I would direct my young colleague to my friends at places like the University of Virginia, Georgetown University, UNC Chapel Hill, or Johns Hopkins University, who do have a much stronger interest and responsibility in keeping tabs on this sort of thing.

    In essence, that amounts to “I really don’t think it possibly could harm you, but you probably are best advised to talk about this with someone more informed than am I.”

    Now all of that said, I do advise students who go on to study at R1 universities in History Ph.D. programs. And here I am on much sounder ground. I can say with complete confidence that were one of my students to write the kind of opinion piece you describe, it would have no harmful effect whatsoever on his or her ability to get into a good Ph.D. program.

    I also thought a bit about what the kind of essay you describe would look like, coming from an historian. Historians, by the nature of their training, tend to hone in on the particular; it is a discipline that tends to avoid making broad generalizations, but rather moves very quickly to detailed discussion of the particular. Even when they make broad generalizations, they usually do so on the basis of a number of case studies. So an essay with the broad thesis “Lawyers who write history tend to do a pretty good job with it” would very likely consist largely of the discussion of the work of two or three particular works of history produced by lawyers. That of course is much more defensible ground. Suppose I did a good job of arguing, for example, that John Ragosta’s scholarship is pretty darned good (Ragosta was trained as a lawyer before he acquired his Ph.D. in History), and then followed that with a careful discussion of the scholarship of Kevin Gutzman (another lawyer/Ph.D. historian). Even if there was a systematic bias among historians against my thesis, if I handled the case studies well, that would almost certainly insulate me from any damage.

    I apologize for the clumsiness of this post–hopefully my thinking and exposition make some modest degree of sense.

    All best wishes,
    Kevin

  8. Kevin R. Hardwick says

    Seth–

    I was much fascinated by both essays. It is hard to answer your question directly, since the *mode* of scholarship is to some degree different from what I would consider writing or could likely get published. Both essays were very tightly argued and analyzed critiques of arguments advanced by other scholars. That sort of thing does happen between historians–I am thinking, for example, of the special issue of the William and Mary Quarterly devoted to criticism of Michael Bellisles ARMING AMERICA–but it is not the norm.

    I don’t have time right now to do justice to either essay, nor to try to disentangle the subtle differences (such as they are) that distinguish them from the typical scholarship of academic historians. Indeed, I don’t wish to prejudge the issue by asserting with any confidence that there *are* meaningful differences. They were organized and argued differently than I am used to reading, so I am comfortable asserting that they are on the surface different than just about anything I’ve read by an academic historian. But that those differences are something that cut especially deeply is not something I wish to claim at this point–whether the differences are substantive, in other words, is something on which I will need to reflect more thoughtfully than I am capable of doing at this hour. (The first day of returning to a teaching schedule is always just brutal, and it gets no easier as I get older.)

    But I did wish to acknowledge both that I had read them and that I hope to continue what I think may be a most interesting conversation, as time and energy permit.

    I am curious whether there is anyone other than you and I reading the conversation. *I* certainly find this to be intriguing and worthy of reflection, and I gather it is a topic in which you have interest too. But if we are entirely idiosyncratic, I am happy to take the conversation elsewhere. I hate to waste bandwidth on somethng that may well be a complete distraction for others here. And this does strike me as at least some small distance from the purposes of this site.

    Mike–have we strayed too far afield from your original posting? Can you advise?

    All best wishes,
    Kevin

  9. says

    Seth, I went into your articles, specifically: Presentation: The Relgious Test Clause and its Public Trust Language
    This document is currently not available here.
    “. Professor Destro also asked me to give a similar lecture to his introduction to constitutional law class (during the current academic year — circa Spring 2013). The topic will be the Religious Test Clause and its “public trust” language.”
    I would like to read your lecture regarding this subject matter, if you would oblige me. Respectfully, John E. Jenkins

  10. Seth Barrett Tillman says

    Dear John,

    I never posted my presentation notes. The presentation merged into this publication (which is posted), and also available on Westlaw (publication on LexisNexis is expected in the course of the next few days). See Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Cleveland St. L. Rev. 285-356 (2013),
    available at http://works.bepress.com/seth_barrett_tillman/164/,
    also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622441. This is one of my lengthy publication; it is rich in lengthy (and nearly unreadable) footnotes. Such footnotes are Tillman-trademarks! Sorry.

    You will also find that I posted many of my obscure sources at the BEPRESS link listed above. You will also find a current citation list to my publication at … http://works.bepress.com/seth_barrett_tillman/201/.

    If you should uncover further primary sources or significant secondary authority not discussed or cited in my paper, please let me know. (Likewise, if you should cite my publication, please let me know.) Let me know if I can be of any further help.

    Finally, I further developed my research on the Constitution’s “public trust” language in Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); 107 Nw. U. L. Rev. Colloquy 1 (2012), available at http://ssrn.com/abstract=2012800, also available at http://tinyurl.com/cdlo3vz. My Northwestern publication was published in 2012, prior to the 2013 publication of my Cleveland article, but, in fact, the Northwestern publication was written roughly 2 years later. (I should point out that Teachout has responded to my opening statement; I replied; and Teachout’s closing statement is expected to come out circa fall 2013.)

    Seth

  11. says

    Dear Seth,
    Thank you for responding. I will certainly let you know if I were to cite your publication.
    I have written on this particular subject matter (pages 74 & 75) in my recent (fictional) publication of The Tribute, in May of this year.
    This subject matter, among other controversial subjects therein, was more than fictional for me personally.
    Respectfully, John

  12. says

    Seth, I must first apologize for going directly to the ‘Religious Test Clause’ of your excellent thesis and suggested solutions, in your “RESPONSE TO PROFESSOR JOSH CHAFETZ”. If you will bear with me you will understand why my interest was in this particular part of your “response”. I find no problem with your conclusions in relation to what you, yourself, have determined.
    The ‘Religious Test Clause’, as enumerated in the Constitution states: “… all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust — under the United States”. The Court has “incorporated” the ‘State ’and any Office or public Trust, (where) no religious Test shall ever be required as a Qualification”. I would like you to examine the circumstances, determined by the Supreme Court, in the case of Torcaso v. Watkins, 367 U.S. 488, June 19, 1961. “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion. Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” … overturning a provision in the Maryland state constitution. “The high court rejected such rationale, saying it “cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.” Roy had asked the court to find the state constitutional requirement in violation of Art. VI of the U.S. Constitution, which mandates that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In a footnote, the court noted: “Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant’s contention that this provision applies to state as well as federal offices.”
    Seth, they certainly have expressed the ‘Religious Test Clause’ in their decision, as described in this court case. They speak of “on other grounds”. The question arises: where did this court find ‘the law’ that was made “in Pursuance of the Constitution” (in their judgment) – “on other grounds”? I read their words – but I cannot find these conversational words in any enumerated law of the Constitution of the United States; certainly not in the Religious Clauses of the First Amendment. That Amendment is entirely prohibitions against the federal government. If the Congress cannot make “no law respecting religion” … in pursuance of the Constitution”, how can any court – they are not legislators?
    Please examine my conclusions regarding the court’s finding in this following case:
    SCHOOL DIST. OF ABINGTON TP. V. SCHEMPP, 374 U. S. 203 (1963) This opinion — was “plainly applicable” to the States — “… no … school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in the public schools of a State”. That is – a religious test “imposing requirements” against “public trust officers” of the State, by the federal judiciary, which is prohibited by Article VI, the Supremacy Clause, and, of course, the non-prohibited free exercise of religion. The School board officers were protected by Article VI against state or federal justices. The federal judiciary usurped Article VI. This is just one scenario of so many cases, of the early and middle 1900’s, of interpretations by the federal courts – which were in actuality – usurpations of Article VI of the United States Constitution.
    This discussion, by all parties of interest, is volatile. I respectfully submit that you have brought the great cause of religious freedom, and the great questionable subjects relating to it, to the reader and the academic community.
    My humble thanks to you, Seth.

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