Wednesday, May 11, 2011

Cornell on "New Originalism"

"There is really only one group in American society that remains largely immune to the lure of originalism: historians." So writes Saul Cornell (Fordham University) in a recent essay on the "new originalist" theory of constitutional interpretation: its provenance, its applications, and, in his view, its errors.

Here's a taste:
THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.
The full essay is here, at Dissent.

Hat tip: RBB


Anonymous said...

I haven't read the article, but this excerpt, on its face, makes no sense. How would applying the original public meaning of the Constitution - presumably based on the arguments of the proponents of the ratification of the Constitution - result in construing the Constitution according to the preferences of the Constitution's anti-Federalist opponents? Yet, this seems to be what the author is saying.

Karen Tani said...

To Anonymous -- Here's the next paragraph of the essay, if it helps. Perhaps I should have provided a fuller excerpt:

Indeed, in Heller, Justice Scalia used an Anti-Federalist text written by the “Dissent of the Pennsylvania Minority” as one of the keys to unlocking the meaning of the Second Amendment. His methodology makes it easy for him to take a text articulating the beliefs of the dissent of the minority of a single state ratification convention and transform it into a proxy for public meaning. In the wacky world of new originalism, dissent becomes assent, minorities become majorities, and the interpretive method of the Anti-Federalist losers supplants the methods of the Federalist winners. Such creative rewriting of the past makes for interesting alternate histories, but it is not a serious scholarly methodology for understanding the historical meaning of the Constitution. It is a legal scam.

Shag from Brookline said...

Perhaps disclosing the full title to Prof. Cornell's article:

"New Originalism: A Constitutional Scam"

might have been more revealing. I'm not a historian, but Prof. Cornell provides, once again, an important observation for legal scholars:

"When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda--what historians derisively cal 'law office history.'"