Over at Dissent, legal historian Saul Cornell has a very thorough piece on why most historians oppose “original intent” as the best way to interpret the United States Constitution.
Cornell argues that historians do not oppose original intent because they are liberal (although this may have something to do with it). Instead they tend to oppose this method of interpreting the Constitution because they are historians.
Cornell writes:
AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.
At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”
And he concludes:
Justice Scalia may believe we have a dead Constitution, the legal equivalent of a fly in amber. This was not how most Americans in the Founding era would have viewed the matter. Originalists, both old and new, argue that the theory of the living constitution lacks the legitimacy of their own theory. In fact, the historical pedigree of the theory of the living constitution is it least as good as traditional originalism, and far better than that of new originalism. The fact that Americans are deeply divided today over the relative merits of originalism and the rival theory of the living constitution ought to come as no surprise—Americans were divided over the very same issue when the Constitution was first proposed more than two hundred years ago.
Read the entire piece here.
” As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”
—Madison, Letter to Ritchie, 1821, BF mine
Now, we need not accept Madison's authority as “Father of the Constitution” here, but it's an elegant argument and pretty good political philsoophy per “consent of the governed,” and it pretty much describes Scalia's “originalist”/textualist approach to Constitutional interpretation.
I have not yet seen a similar argument from that era for “living constitutionalism.”
Even if there is, there's no ground to condemn Scalia's fealty to Madison on this point.
And for the record, “originalism” also takes in custom and practice in implementation during the immediate time after passage, to seek clues on how the text was commonly understood. It's not just hitting old dictionaries. Originalists are allowed to use common sense, contrary to the caricature.
Naw, there's no partisan reason historians such as Dr. Cornell argue against “originalism.” Just coincidence, I'm sure.
I wish that Cornell had given some hint of where he saw a tradition of “living constiutionalism” in American history. Who were the proponents or what were the key documents? This is a counterintuitive claim (at least to me) that requires support. I know this is a short piece but a few names or documents would be helpful.
Also, I wonder if there can be some middle ground between the two camps. Is it possible to have a living document, yet one that is grounded in the text in a more than passing fashion? While Cornell might disagree, I think both sides share the danger of being ahistorical. As a pastor, I can't help seeing parallels between this debate and debates over the interpretation of Scripture. Only here there is no doctrine of “illumination” and work of the Holy Spirit to mitigate some of the sharp edges of the debate.