Gary Lawson, University of Florida Levin College of Law, has posted Does Good Originalism Need Good History? which is forthcoming in the Florida Law Review. (As we read the abstract, Betteridge's law of headlines yet prevails.)
One might think that originalism by definition is largely about history. After all, what does it mean to be "originalist" if not to be concerned primarily, if not exclusively, about the past? And if history is relevant, surely good history is better than bad history?--Dan Ernst
That seemingly obvious conclusion is not actually obvious. The role of good history, as with the role of any discipline – be it linguistics, epistemology, economics, classical studies, or political theory – depends on what questions one asks. And at least some forms of originalism ask questions for which the role of good history, as historians might define good history, is limited.
Originalism can be a theory of interpretation – of ascertaining meaning – or of adjudication – a means of resolving disputes. The questions posed, and thus the tools for answering the questions, are quite different in those two contexts.
For interpretative originalism, history (good or bad) can be an input, but because the ultimate inquiry focuses on the legally constructed intentions of a hypothetical author ("We the People"), facts about those intentions are legal facts rather than historical facts. History is surely important for ascertaining the appropriate constitutional ontology; one needs to know what one is interpreting in order to interpret it well. Jonathan Gienapp is right about that in Against Constitutional Originalism: A Historical Critique – an important book that I will address at length in a subsequent article. My modest point in this short essay is only that history's role in originalism, like the role of other disciplines, is limited by the nature of the originalist inquiry.
For good adjudicative originalism, good history is likely to be less rather than more important than it is to good interpretative originalism. Adjudicative originalism must navigate a series of problems involving resource constraints, second-best concerns, and standards of proof, none of which are likely to be helped much by history. Again, the point is not that history is irrelevant to originalism but that its role is more constrained than many, including many originalists, sometimes seem to think.
