Over at Balkinization, Stephen Griffin, Tulane Law School, has a posted Originalists vs. Historians: Round? It commences:
Originalists are at it again, claiming that their project differs fundamentally from “historical inquiry.” This is the term I employ to denote the ordinary practice and methodology of historians in a just-published article in the Tulane Law Review, “Optimistic Originalism and the Reconstruction Amendments.” But is this contention as plausible as they assume? In my article, I advance the argument in this dispute in a way not reflected in the most recent round of controversy.Dan Ernst
I refer to the exchange between Mary Sarah Bilder in the historians’ corner and John McGinnis and Mike Ramsey for the originalists. Bilder, a legal historian who has made important contributions to our knowledge of the founding period, offered some pointed observations about originalism by way of memorializing the late Bernard Bailyn, surely one of the most distinguished historians of American history. Like many historians, Bailyn was most impressed with the process of intellectual change and exchange involved in making and then implementing the Constitution, not the fixity of the constitutional text. Clearly leaning against influential forms of semantic or public meaning originalism, Bilder is provocative: “[o]riginalism missed everything that mattered about the debate on the Constitution.”
