Thursday, May 7, 2015

Charles on History and "the Originalism Disclaimer"

Patrick J. Charles, United States Air Force, has posted The "Originalism is Not History" Disclaimer: A Historian's Rebuttal, which appears in Cleveland State Law Review Et Cetera 6 (May 1, 2015): 1-11.
A number of originalists are on record asserting the disclaimer that “orginalism is not history,” therefore claiming that originalism does not suffer from the problems typically associated with history-in-law. This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations — therefore falsely giving rise to the presumption that originalism and history are one and the same — and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history. This Article further argues that if originalists want to issue an accurate disclaimer, it should state that “originalism is not intended to be accurate history.” This would correct many of the public’s misconceptions as to what does and what does not constitute originalism.
My Georgetown Law colleague Lawrence Solum has commented on Charles's paper on his blog.

1 comment:

Shag from Brookline said...

I read Larry Solum's comment before reading Patrick Charles' article. I don't think Charles' footnote 44, nor Solum's reaction to it, will compete with US v. Carolene Product's famous footnote 4, but "history" on originalism may prove me wrong. Solum does not speak for all of originalism, as it has evolved over the years. (Consider conservative originalist Joel Alicea's critique of conservative "new originalism's" Randy Barnett, the latter's response and the former's rejoinder. Also, the Originalism Blog demonstrates differing views among originalists.) But the thrust of Charles' article deal with the use of history by originalists, perhaps in different ways. Now I'm not a historian by any means, my long years of legal practice being as an advocate in support of clients. I respect the disciplines and roles played by professional historians in addressing how the Constitution is to be interpreted/construed. Some aspects of the Constitution are quite clear in utilizing the fixation thesis. But how does the fixation thesis function when the Constitution is not clear and the "new originalism" calls for utilizing construction (as opposed to interpretation)? This is an area of dispute between originalists Alicea and Barnett. I'm not sure of Solum's position.

I trust that professional historians (including legal historians) will respond to Solum's comments as well as to Charles' article in its entirety. History should not take a back seat to the legal community on the meaning of the Constitution.