The Right Coast

December 14, 2004
History Office Law
By Mike Rappaport

Two interesting posts by Larry Solum on originalism. The first is part of his very useful Legal Theory Lexicon. In response, history professor Saul Cornell writes:

Most historians, as I am sure you are aware are deeply skeptical about originalism. The problems is not that it is impossible to reconstruct original meanings, (plural-not singular!) but that most scholarship in the last fifty years points to a complex and deeply contested debate in 1787-1788.

The recent critiques of Kramer, “When Lawyers Do History” and Flaherty’s expose of “History Lite” argues that originalist scholarship starts with a set of assumptions about the past that bears little resemblance to historical reality. Kramer likens the originalist world to a fun house mirror in which the past is distorted almost beyond recognition. Until originalism moves beyond “history lite” it is not likely to be taken seriously by historians as a genuine intellectual contribution, but derided as an ideological stance.
Solum powerfully responds to this critique with several points, including this one:

One final point: history and law involve different enterprises. The method of law is forensic--judges must select between competing interpretations of the constitutional text, because their institutional role requires that they make such choices. Historians are not required to act in this way. They can say things like, "I am not sure yet" or "the evidence is indecisive," or "more research needs to be done." And because historians are not lawyers, I find that many historians are quite unclear about legal methods and theories of constitutional interpretation. In particular, I rarely see a clear distinction made in historical writing between historical evidence about the legal meaning of particular legal texts and historical evidence about the attitudes of various groups about the desirability of those texts. That difference is crucial to the law, but largely irrelevant to history. Neither academic lawyers nor legal historians have a monopoly on intellectual virtue or intellectual vice. (Emphasis added.)
In short, while history professors criticize lawyers for having an impoverished view of history, law professors can criticize history professors for having a distorted view of law. While originalists are aware of the problem of law office history, many historians look blankly when you mention "history office law."