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Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning

Published online by Cambridge University Press:  25 July 2019

Saul Cornell
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Abstract

Moving beyond the current flaws in originalism will require developing a genuinely historical approach to reading Founding era texts that draws on the best inter-disciplinary methods available. Reading legal texts historically will require originalism adopt standard historical practices, not reject them. Scholars must get the history right before deciding if any of the historical meanings recoverable from a careful study of the original debate over the Constitution might be relevant to modern law. Determining which meanings might be probative or dispositive for modern legal issues is a separate task from the process of uncovering the legal meaning of Founding era constitutional texts. Deciding what, if any relevance, such historical meaning ought to have in contemporary law is at its core a legal question, and not one that history can answer. Still, if legal scholars are going to cite history as authority, they have an obligation to get the history right.

Type
Invited Article
Information
Law and History Review , Volume 37 , Issue 3 , August 2019 , pp. 821 - 845
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

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Footnotes

He thanks Gautham Rao, Charles Barzun, Frank Cogliano, Jonathan Gienapp, and Calvin Terbeek for valuable suggestions. This article was written during his time as a fellow at the Florsheimer Center for Constitutional Democracy at Cardozo Law School. He thanks the center's codirectors Kate Shaw and Deborah Pearlstein for their support. Excellent research support was provided by Jonah Estess.

References

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29. Developing a genuinely Gricean approach to history would necessarily focus on speakers’ meaning, not on sentence meaning. For an effort to explore such a possibility, see Martinich, “A Moderate Logic of the History of Ideas.”

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33. For other examples of originalist theories that erroneously apply a simple model of communication to constitutional debate in the Founding Era, see Alexander, Larry and Prakash, Saikrishna, “‘Is That English You're Speaking?’ Why Intention Free Interpretation is an Impossibility,” San Diego Law Review 41 (2004): 967–95Google Scholar; and Wurman, Ilan, A Debt against the Living: An Introduction to Originalism (Cambridge: Cambridge University Press, 2018)Google Scholar.

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45. Ibid., 747.

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47. McGinnis and Rappaport, “Original Methods Originalism”; and McGinnis, John O. and Rappaport, Michael B., Originalism and the Good Constitution (Cambridge, MA: Harvard University Press, 2013)CrossRefGoogle Scholar.

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50. See note 42 above and note 52 below.

51. Kaminski, John P., Saladino, Gaspare J., Leffler, Richard, Schoenleber, Charles H., and Hogan, Margaret A., eds., The Documentary History of the Ratification of the Constitution, Volume VI: Massachusetts, No. 3 (Madison: Wisconsin Historical Society Press, 2000)Google Scholar (hereafter DHRC), 1345–46. For the erroneous view that the common people were essentially mute bystanders during ratification, see Prakash, Saikrishna and Yoo, John, “Against Interpretive Supremacy,” review of Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar, in Michigan Law Review 103 (2005): 1539–66Google Scholar. For correctives to this condescending view, see Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007)Google Scholar; Cotlar, Seth, “The View from Mount Vernon Versus the People Out of Doors: Context and Conflict in the Ratification Debates,” William and Mary Quarterly 69 (2012): 369CrossRefGoogle Scholar; and Estes, Todd, “Power and Point of View in the Ratification Contest,” William and Mary Quarterly 69 (2012): 398, 400Google Scholar. For a discussion of the role of popular constitutionalism in early American constitutional development and numerous examples of ordinary Americans making their voices heard in the Founding Era, see Leonard, Gerald and Cornell, Saul, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders Constitution 1790s–1830s (Cambridge: Cambridge University Press, 2019)CrossRefGoogle Scholar.

52. On traditions of intensive Bible reading and anti-Federalism's constitutional hermeneutics, see Cornell, Saul, “Constitutional Meaning and Semantic Instability: Federalists and Anti-Federalists on the Nature of Constitutional Language,” American Journal of Legal History 56 (2016): 21–28CrossRefGoogle Scholar.

53. For additional examples of popular anti-Federalism anti-lawyer rhetoric, see Cornell, “The People's Constitution vs. the Lawyer's Constitution.”

54. Cornell, Saul, The Other Founders Anti-Federalists and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: The University of North Carolina Press, 1999)Google Scholar.

55. Illiteracy in this context meant the absence of a Latin education and not an inability to read or write. For a discussion of Singletary's speech in this context, see Warner, Michael, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Cambridge, MA: Harvard University Press, 1992)Google Scholar. Massachusetts enjoyed one of the highest rates of literacy (in the modern sense of being able to read and write) and the biblical references in Singletary's speech further illustrate the profound influence of Protestant traditions of intensive Bible study on reading cultures in early America; see Gross and Kelly, eds., A History of the Book in America.

56. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 758 note 79. Thus, they argue that “lawyer's view was over time becoming less intentionalist and more textualist, and therefore closer to the ordinary language approach.” In fact, a variety of eminent judges continued to embrace intentionalist modes of analysis and often looked beyond the text to the spirit of the law in the Antebellum Era; see, Peterson, Farah, “Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation” Maryland Law Review 77 (2018): 734–35Google Scholar.

57. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 747, at note 36.

58. McGinnis, John O. and Rappaport, Michael B., “Unifying Original Intent and Original Public Meaning,” Northwestern Law Review 113 (2018): 1394Google Scholar.

59. In this sense, McGinnis and Rappaport have fallen victim to a corollary of the quantification fallacy described by historian David Hackett Fischer, who offers a useful caution that “many ideational and emotional problems, which lie at the heart of historical problems, cannot be understood in quantitative terms,” Historians Fallacies: Toward A Logic of Historical Thought (New York: Harper and Row, 1970), 90Google Scholar.

60. Gienapp, Jonathan, “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism,” Journal of the Early Republic 35 (2015): 375–418CrossRefGoogle Scholar, and more generally, Gienapp, The Second Creation.

61. On neutral principles, see Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 1, 33CrossRefGoogle Scholar; Friedman, Barry, “Neutral Principles: A Retrospective,” Vanderbilt Law Review 50 (1997): 503–36Google Scholar. On the idea of a rule of recognition, see Hart, H.L.A., The Concept of Law, 2nd ed. (New York: Oxford University Press, 1994)Google Scholar. For contrasting views of the Constitution as a rule of recognition, see Adler, Mathew D. and Himma, Kenneth Einar, eds., The Rule of Recognition and the U. S. Constitution (New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

62. Siegel, “Dead or Alive”; Flaherty, “Can the Quill be Mighter than the Uzi?”

63. For a summary of some of this research, see Kozuskanich, Nathan, “Originalism in a Digital Age: An Inquiry into the Right to Bear Arms” Journal of the Early Republic 29 (2009): 585–606CrossRefGoogle Scholar; and Baron, Dennis, “Corpus Evidence Illuminates the Meaning of Bear Arms” Hastings Constitutional Law Quarterly 46 (2019): 509–22Google Scholar. A number of originalists have touted the potential of corpus linguistics to provide more objective evidence of original meaning. For a thoughtful assessment of the potential and pitfalls of this approach; see Solan, Lawrence M., “Can Corpus Linguistics Help Make Originalism Scientific?” Yale Law Journal Forum 126 (2016): 57–64Google Scholar.

64. Solum's theory conflates the existence of a common linguistic community with the existence of a common speech community. This allows him to treat dictionaries and evidence from corpus linguistics as proxies for meaning, but this approach ignores the way that individuals from different speech communities can read the same texts with different assumptions and interpretive conventions, producing different constitutional meanings. Counting word usage offers some useful information, but without a model of how texts were actually read, it falls far short illuminating constitutional meaning.

65. On the communication circuit and the methods of the history of the book, see Robert Darnton, “What is the History of Books? Revisited.” For a general overview of this important subfield of intellectual history, see Finkelstein, David and McCleery, Alistair, An Introduction to the History of the Book, 2nd ed. (London: Routledge, 2013)Google Scholar.

66. Cornell, The Other Founders. For another example of how this approach can illuminate Founding Era belief and practices, see Cornell, Saul, “‘To Assemble Together for Their Common Good’: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech,” Fordham Law Review 84 (2015): 915–34Google Scholar.

67. In Heller Justice Scalia cites a book review by Randy Barnett for proof that the Dissent's usage was not anomalous, Heller, at 587. Barnett dismissed the argument of historian William Merkel that the Pennsylvania anti-Federalists’ Dissent of the Minority was in fact a statement of a minority position. Actually, Barnett totally misrepresented Merkel's position as “characterizing the Pennsylvania minority report as reflecting the views of wild anarchic deviants”; Barnett, Randy, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, by Uviller, H. Richard and Merkel, William G., Texas Law Review 83 (2004): 248Google Scholar. Merkel's claims were actually uncontroversial among anyone with a rudimentary knowledge of the history of Pennsylvania politics. Anti-Federalists were primarily drawn from the states’ proto-party, the Constitutionalists, who defended the 1776 Constitution against the Republicans, a group that provided the core of Federalist support in the state. The historiography on this topic extends back more than a half a century; see, for example, Cornell, The Other Founders; Arnold, Douglas, A Republican Revolution: Ideology and Politics in Pennsylvania, 1776–1790 (New York: Garland Publishing, 1989)Google Scholar; and Brunhouse, Robert L., The Counter-Revolution in Pennsylvania, 1776–1790 (Harrisburg, PA: Pennsylvania Historical and Museum Commission, 1942)Google Scholar. Curiously, Barnett's argument overlooks basic elements of Founding Era political history, which allows him to dismiss Merkel's affirmation of an undisputed fact about early American politics. This error was compounded when Justice Scalia elevated this mistake to the level of constitutional doctrine. For a more detailed discussion of the Dissent's inflated role in modern debates over the Second Amendment, see Cornell, Saul “Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard,” Constitutional Commentary 29 (2014): 389–403Google Scholar.

68. Cornell, “Conflict, Consensus and Constitutional Meaning.”

69. Ibid.

70. The headnote to the Dissent in the DHRC offers numerous examples of contemporary Federalist and anti-Federalist reactions, see DHRC 15:7–13.

71. Ibid.

72. On Whittington's distinctive approach to originalism, see note 6. For examples of Whittington's empirical work, see Frost, Daniel and Whittington, Keith E., “A Man For All Seasons: Historical Memory and John Marshall,” Polity 49 (2017): 575–602CrossRefGoogle Scholar; and Whittington, Keith E. and Rinderle, Amanda, “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon,” Hastings Constitutional Law Quarterly 39 (2012): 823–60Google Scholar.

73. Charles, “The ‘Originalism is Not History’ Disclaimer: A Historian's Rebuttal.”