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.