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. 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.” ...
Thursday, April 6, 2017
Gienapp Strikes Back
At Randy Barnett that is. From Jonathan Gienapp here. A taste: