Thursday, April 6, 2017

Gienapp Strikes Back

At Randy Barnett that is. From Jonathan Gienapp here. A taste:
For even if he thinks I get originalism right, Professor Barnett otherwise finds most of my essay’s claims mistaken, particularly those centered on the relationship between originalist method and historical interpretation. In my initial post, I primarily sought to acquaint historians with the current state of originalism and to explain why they ought to care about these debates. Accordingly, my discussion of historical method was relatively brief, in part, because I hoped historians would already grasp a good bit of what I was suggesting, but also since I had already plotted out much of the methodological relationship between historical practice and Originalism 2.0 in a prior published article in the Fordham Law Review, one to which I directed interested readers in the footnotes.[2] In order to answer Professor Barnett’s critiques, however, I will need to change course—from explaining to historians what originalists do, to explaining to originalists what historians do. For it is plain that this is the primary area of confusion: much of what Professor Barnett thinks I was getting at in describing what historians do was not in fact what I was getting at. (Accordingly, much of what follows draws upon my aforementioned Fordham article and readers interested in a more detailed sketch of some of the arguments presented here are encouraged to consult it.)

To move forward, then, it is helpful to return to the core claim of my initial essay: that historians’ methods are needed every bit as much to discover the original public meaning of the Constitution (the target of Originalism 2.0) as to discover any other kind of original constitutional meaning (the various targets of Originalism 1.0). I have no doubt that certain kinds of original meaning are unknowable. I grasp that many parts of the Constitution are open textured and thus not easily subject to historical analysis. And I appreciate that Originalism 2.0’s favored figure—the so-called average Founding-era reader—is a highly problematic construct, one that Jack Rakove has skillfully critiqued in “Joe the Ploughman Reads the Constitution.”[3] ...

1 comment:

Tom Van Dyke said...

The debate at this point is over. Randy Barnett and the legal scholars do indeed use the same historians' philological methods of discerning the common context of words and phrases in the eras when our Constitution and laws were originally being written and ratified. Barnett's argument is that few historians understand their common understanding in legal and philosophical contexts as well, which are just as, indeed, more relevant.



Barnett, getting past the hand-waving and the fog, and down to business with specifics:

"My own view is less extreme that Professor Gienapp suggests. I do think the techniques of historians are useful to investigate and reveal the original meaning of the text–provided that is what the historian is looking for. But I also think that more quantitative methods are valuable to screen out the cherry-picking of sources to which even historians can succumb.


It was precisely to avoid cherry-picking that, in my University of Chicago Law Review article on The Original Meaning of the Commerce Clause, which Professor Gienapp cites, I surveyed every use of the word “commerce” in the Philadelphia convention, the Federalist Papers, and the state ratification debates. I then reported to the reader on any usage of the terms that even came close to supporting a reading of the word commerce that was broader than the trade and transport of things that had been produced by manufacturing, agriculture or husbandry. In a sequel article, I followed the same protocol with a survey of some 1600 uses of the term “commerce” in the Pennsylvania Gazette between 1715 and 1800. To my knowledge, no historian has contested my findings on the meaning of “commerce,” and I would be very interested in reading anyone who has has evidence to the contrary. (As an aside, given the contemporary contestation of the meaning of that word, I fully expected the historical usage to have been similarly divided and was surprised at the uniformity of meaning I discovered. Given that my research methodology was transparent, anyone is free independently to examine the evidence for herself.)

What matters as much as the search tools–that Professor Gienapp calls the “how”–is the object of the search: identifying the communicative content of the text at the time it was enacted."


Without an understanding of law and the political philosophy of the time, the historian comes underqualified to the inquiry. Barnett protests this "priesthood" of historians who don't know what the hell they're talking about.