Originalism Without History: A Response to Professor Randy Barnett

By Eric Segall

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Barnett's response was different:
[J]udges should not be doing the historical research that originalism requires... this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.
There are many puzzling things about this paragraph. First, when experts battle it out over the facts it is the jury not the judge who "evaluates" the "testimony." I don't think Barnett wants juries to resolve what to do with the Second Amendment as applied to modern, dangerous guns or what the words "equal protection" mean in the Fourteenth Amendment as applied to school segregation.

Second, few constitutional cases make their way to the Supreme Court. Although amicus briefs are sometimes filed in the lower courts, does Barnett want an army of constitutional law scholars filing dueling amicus briefs in district courts from Montana to New York to Florida? Is that realistic? Does he think judges will read all those briefs?

Third, to cite Scalia's and Stevens' opinions in Heller as good examples of what this kind of process can bring to the table ignores the reality that almost no one (except maybe Barnett) thinks either Justice did a passable job of historical analysis.

Fourth, it is a wild idea that "constitutional scholars" (absent formal training in historical investigation) are competent to decide what words meant hundreds of years ago. Anticipating this argument, Barnett says the following about the relevance of historical evidence to originalism:
[D]iscovering and mustering such evidence is well within the competence of those with legal training. Given enough time--which judges largely lack--lawyers are quite capable of identifying the meaning communicated by a text at the time it was enacted.... One need not be a historian to perform this task, and historians and lawyers rarely reach different conclusions when they are attempting to answer the same question: what meaning was communicated to the public by the words in the text of the Constitution.
One problem with this response is that most historians think it is nonsense that the Constitution "communicated" to the public one single meaning. Here's an example from a fine Washington Post Op-Ed on the subject:
Jack Rakove, the Stanford historian and one of the foremost experts on the revolutionary era, argues that there wasn’t just one meaning of the Constitution at the time it was written and then ratified, but rather the founders had disagreements among themselves over its meaning. He points to the great Chief Justice of the Supreme Court, John Marshall [whose opinion in the famous bank case could be adopted to say] ... 'historians can never forget that it is a debate they are interpreting.' The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not.
Similarly, as historian Saul Cornell has explained
There was no agreement, even among lawyers, on which background assumptions and interpretive rules  ought to govern legal interpretation in post-Revolutionary America.  Indeed, even if we limit our discussion to the Federalist elite in 1788 we are forced to confront the fact that Madison and Hamilton did not agree on how to interpret the Constitution.
Originalist law professor Lee Strang has argued, and Barnett would agree, that "ascertaining the Constitution’s original meaning exerts pressure on judicial competence . . . [and] judges are not historians—though, luckily, originalism is not history." Similarly, originalist Mike Rappaport has said that
Originalism does not require too much of law professors. Originalist scholars can investigate the original meanings; they don’t need to fully understand the history the way that a historian needs to. Thus, they can practice, not really a form of history lite, but rather a subspeciality of history – an investigation of legal meanings. While this is hard, it does not require that originalists be superhuman or understand the past to the full extent that a historian needs to.
This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."

The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.

If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."

Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.