Monday, September 23, 2019

Schmidt on "New Approaches to the History of Originalism" (reviewing Baumgardner and Hall)

Over at JOTWELL, Christopher Schmidt (American Bar Foundation/Chicago-Kent College of Law) has posted an admiring review of two recent articles on the history of originalism: Paul Baumgardner, Originalism and the Academy in Exile and Aaron Hall, “Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism. Both appear in Volume 37 of the Law and History Review (2019). Here's a taste of Schmidt's review (footnotes omitted):
Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. . . .

Although this latest round of contributions on the history and theory of constitutional originalism offers an array of insights and provocations that merit more attention, in this review essay I focus on the fresh perspective on the history of originalism offered in the articles by Aaron Hall and Paul Baumgardner. Building on the work of Robert Post and Reva Siegel, Jamal Greene, and others, they explore the genealogy of originalism as a phenomenon not only of legal theory but of American cultural and political history. Side-stepping the issues that have dominated discussions about originalism in recent decades—debates about the merits of originalism as a theory of constitutional interpretation, about whether originalist analysis and historical inquiry are reconcilable, about the original meaning of particular constitutional provisions—Hall and Baumgardner instead focus on how this particular theory has become such a dominant presence in American life. Central to this line of scholarship is the close attention they give to how developments outside the courts made possible the success of originalism inside the courts.
Read on here.

-- Karen Tani