Wednesday, March 29, 2017

Randy Barnett: "Challenging the Priesthood of Professional Historians"

The always incisive and provocative law prof Randy Barnett echoes my criticism of academic historians asserting an authority outside the bounds of their actual expertise [my case in point: one Andrew Shankman, an Associate Professor of History at Rutgers University-Camden, who absurdly claims Alexander Hamilton was a "living constitutionalist"].

Randy Barnett

But the converse problem with this claim is that some historians seem to think they can investigate the meaning of legal terms and concepts in the past without any legal training. For this it helps to be a lawyer. True, some of the best legal historians do have legal training, but not all who opine on the “meaning” of the Constitution do.

If this does not seem immediately plausible, consider this: do historians think they can understand the philosophical arguments of thinkers in the past with no training in philosophy? Or, to be more specific, how well can a modern reader who thinks natural rights are “nonsense on stilts” truly understand the Founders references to and disquisitions on natural rights? For this, it helps to have philosophical training. Indeed, it also helps to believe in natural rights in the way the Founders did–to actually be a natural rights theorist–to appreciate the substance of their natural rights arguments. But, though I suspect most historians realize that they cannot fully appreciate philosophical arguments “by taking up residence with the natives,” some apparently believe that they, and they alone, can recover the meaning of a law enacted in the Eighteenth Century when they would not be able to understand the meaning of a law enacted in the Twenty-First. That’s either hubris or chutzpah.

Perhaps, in part for this reason, historians who opine on constitutional “meaning” or political argumentation (without legal or philosophical training) tend to avoid the substance or merits of legal or philosophical arguments made by their historical subjects and choose instead to focus on the hopes, fears, ends, objectives, agenda, and expected applications of historical figures, groups and movements. If all you have is an hammer, then everything is a nail. If all you have is the historical method–as defined by Professor Gienapp–then the meaning of “meaning” must be reduced to the import or purpose of a constitutional provision, not the communicative content of what it said.

As always, read the whole thing.

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