Historians & Originalists

August 18th, 2013

I was really sad to hear of the death of Pauline Maier, one of the most eminent historians of our generation. I found her work on the American founding so insightful. Her recent book on the Ratification of the United States Constitution filled in a huge gap in my (and I’m sure others) mind of how to understand the framing beyond Philadelphia in the sultry summer of 1787.

The blogosphere has had many glowing tributes to her work. And then there was a post by Mike Rappaport on the Law & Liberty blog. Mike finds an inherent conflict, as historians often see several answers to a historical question, while originalism strives for one original public meaning.

Another is that they [historians] appear to be trained to be skeptical of reaching conclusions that suggest a single (or dominant) view at a time or employing their own judgments about what the materials would have meant to people at the time. And a third is that people are not necessarily good at everything and if one has the skills to be a historian, he or she may not have other skills.

I was reminded of all this when I saw that Pauline Maier had passed away, just a few years after publishing her very well received book Ratification. While Maier clearly knew a lot about the past, she appeared to have had the weaknesses typical of historians.

I think this reflects a similar tone Mike took in recent posts, criticizing libertarian and liberal originalists.

Last year Randy Barnett blogged about how Maier’s book relates to originalism. I think this is a much more appropriate stance for originalists to view the work of brilliant historians:

Given my views on originalism, some may wonder what implications Maier’s book has for original meaning interpretation.  I can think of one: this work undercuts claims by some originalists that, where the general public meaning of the text is vague, the ratification debates clarify that meaning by rendering it more specific. For example, some cite the Virginia ratification debates in which the Federalist defenders of the Constitution denied that states could be sued by citizens of another state in federal court as Article III appears clearly to authorize. The claim is that vague original meaning was “fixed” by the views that supporters of the Constitution offered to clarify meaning.  For example,the claim is made that that debates in Virginia support the conclusion that Chisholm v. Georgia, which rejected Georgia’s claim of sovereign immunity from citizen suits, was wrongly decided and that the Eleventh Amendment reversing that holding restored the original meaning. The alternative view is that the Constitution’s text did authorize such suits (though this may or may not have been an oversight), and once the Supreme Court correctly so held, Congress and the states revised the Constitution’s text to eliminate this federal jurisdiction over states.  (I have written about Chisholm here.)

Maier’s narrative makes it abundantly clear that few outside the walls of any convention would have been aware of any statements by the Constitution’s supporters, and convention delegates in one state knew very little about what transpired in the others. Although convention statements both for and against the Constitution are evidence of original public meaning, public statements by Federalist supporters cannot provide a definitive gloss on that meaning.  To the contrary, the very fact that the Antifederalists read the provisions in Article III this way, which then required an extra-textual admission of sovereign immunity by the Constitution’s supporters, is some evidence that the Supreme Court in Chisholm was right about the public meaning of the text.  (Of course, one can see why a historian like Maeir who, in her NYT op-ed, makes claims about “original intent” might think otherwise, but she makes no such “originalist” claims in this book.)

No one should read Pauline Maier’s wonderful book looking for insights about interpretive methodology or the original meaning of various clauses. One should read this book if you are at all interested in how the Constitution came to be, and what American political discourse was like during this crucially important and formative period of American history. And one should also read this book if one simply wants an engaging and entertaining story that you may have thought you already knew, but didn’t really.

There seems to be a sentiment that there is one true mode of originalism, and those that do not adhere to it (such as  Balkin’s “text and principle” approach) must be placed outside the originalist tent.