Constitutional originalism continues to have a strong hold on Anglo-American
political discourse, and an even stronger hold on academic debate about the
The most recent development in this story is the rise of the
There has been a flurry of writing about new
originalism and much of it has been critical of the theory.
One area that remains underdeveloped in this burgeoning literature is the relationship between originalism and history.
Paul and Diane Guenther Chair in American History, Fordham University.
I would like to
thank Ben Zipursky, Abner Greene, and the participants in "The New Originalism in
Constitutional Law Symposium" for helpful comments and suggestions.
I would also like to
thank Scott Soames, a philosophical pragmaticist, and James Kloppenberg, the participants in the Fordham Faculty
Workshop, and the students in a constitutional history seminar for constructive comments
on an earlier draft of this essay.
See generally JONATHAN O’NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A
On the cultural and political appeal of originalism, see
Jamal Greene, Selling Originalism, GEO. L.J. 657 (2009).
Randy Barnett argues that
originalism has made quite a splash and has proven to be significant in litigation.
Randy E. Barnett, The Gravitational Force of Originalism, 82 FORDHAM L. REV.
Others have argued that the actual impact of originalism on Anglo-American law has been
far more modest.
See Lawrence Rosenthal, Originalism in Practice, 87 IND. L.J. 1183, 1232–
42 (2012) (argues that the number of cases actually resolved by originalist methodology
See Daniel A. Farber, "The Originalism Debate: A Guide for the Perplexed" 49 OHIO
ST. L.J. 1085 (1989).
On the notion of a new originalism, see Keith Whittington, The New
Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004).
For some leading examples of new
originalist approaches, see Randy E. Barnett, An Originalism for Non-originalists, 45 LOY. L.
REV. 611, 613 (1999).
Gary Lawson, "Delegation and Original Meaning", 88 VA. L. REV. 327,
John O. McGinnis and Michael Rappaport,
"Original Interpretive Principles As the
Core of Originalism", 24 CONST. COMMENT. 371, 374
John O. McGinnis and Michael B. Rappaport,
Original Methods Originalism: A New Theory of Interpretation and the Case Against
Construction, 103 NW. U. L. REV. 751, 751 (2009); Lawrence B. Solum, District of Columbia v. Heller and
Originalism, 103 NW. U. L. REV. 923, 925–26 (2009)
Lawrence B. Solum, Semantic Originalism (Ill. Pub. Law Research Paper No.
07–24, 2008), available at http://ssrn.com/abstract=1120244.
For a recent critique of originalism, see Mitchell N. Berman, Originalism Is Bunk,
84 N.Y.U. L. REV. 1 (2009).
A number of commentators have argued that a relatively
722 FORDHAM LAW REVIEW [Vol. 82
Although originalism focuses on the
meaning of historical texts, originalist practices are largely antithetical to
accepted historical methodology.
The fact that originalists have used and
abused history in a variety of academic debates has been well documented
by a number of scholars.
Far less attention has been devoted to analyzing
the flaws in the underlying historical theory associated with originalism.
anemic form of originalist argument is so pervasive in contemporary Anglo-American law that the
theory has been drained of any real power.
Thomas B. Colby, "The Sacrifice of the
New Originalism", 99 GEO. L.J. 713, 749–55
Thomas B. Colby and Peter J. Smith, "Living Originalism", 59 DUKE L.J. 239, 247–67
Michael C. Dorf, "Integrating
Normative and Descriptive Constitutional Theory: The Case of Original Meaning" 85 GEO.
L.J. 1765, 1796–99 (1997);
Peter J. Smith, "How Different Are Originalism and Non-Originalism?"
62 HASTINGS L.J.
Two important historical critiques of originalism may be found in:
Griffin, "Rebooting Originalism", 2008 U. ILL. L. REV. 1185, and
Jack N. Rakove, "Joe the
Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism", 48 SAN
DIEGO L. REVIEW.
This essay builds on these astute critiques of originalism.
forceful statement that rigorous originalism must adhere to the methods of intellectual
history, see David A. Strauss, Originalism, Conservatism, and Judicial Restraint, 34 HARV.
J.L. and PUB. POL’Y 137 (2011).
A few originalists have employed the tools of intellectual
history to explore questions about the original meaning of the Constitution.
Michael Treanor, "Against Textualism", 103 NW. U. L. REV. 983 (2009).
William Michael Treanor, Judicial Review Before Marbury, 58 STAN.
L. REV. 455 (2005) [hereinafter Treanor, Judicial Review Before Marbury]; Keith E.
Whittington & Amanda Rinderle, Making a Mountain Out of a Molehill? Marbury and the
Construction of the Constitutional Canon, 39 HASTINGS CONST. L.Q. 823 (2012).
See ROBERT W. BENNETT and LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM:
A DEBATE 57 (2011); Barnett, supra note 2, at 621; Solum, Semantic Originalism, supra
note 2, at 112
See also ANTONON GREGORY SCALIA and BRYAN A. GARNER, "READING LAW: THE
INTERPRETATION OF LEGAL TEXTS."
Gary Lawson, "No History, No Certainty,
No Legitimacy . . . No Problem: Originalism and the Limits of Legal Theory" 64 FLA. L.
REV. 1551 (2012).
See Martin S. Flaherty, History Right?: Historical Scholarship, Original
Understanding, and Treaties As “Supreme Law of the Land,” 99 COLUM. L. REV. 2095
(1999); Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAW &
CONTEMP. PROBS. 169 (2004).
On the historical problems with Second Amendment
scholarship, particularly in District of Columbia v. Heller, see David Thomas Konig, Why
the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture
of Written Constitutions in Revolutionary America, 56 UCLA L. REV. 1295 (2009)
Sunstein, Second Amendment Minimalism: Heller As Griswold, 122 HARV. L. REV. 246,
272–73 (2008); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of
Law, 95 VA. L. REV. 253 (2009).
Richard A. Posner, In Defense of Looseness: The Supreme
Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 38–40; see also Saul Cornell,
Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69
OHIO ST. L.J. 625, 639–40 (2008); Reva B. Siegel, Dead or Alive: Originalism As Popular
Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008).
Much originalism takes the form of law office history.
Such work is typically result-oriented,
generally ignores recent scholarly developments in the relevant historiography, and
approaches historical texts in an anachronistic manner.
For critiques of various aspects of
law office history, see generally:
EDWARD A. PURCELL, JR., ORIGINALISM, FEDERALISM, AND
THE AMERICAN CONSTITUTIONAL ENTERPRISE: A HISTORICAL INQUIRY.
Festa, "Applying a Usable Past: The Use of History in Law" 38 SETON HALL L. REV. 479.
Alfred H. Kelly, "Clio and the Court: An Illicit Love Affair" 1965 SUP. CT. REV. 119.
Larry D. Kramer, "When Lawyers Do History"
72 GEO. WASH. L. REV. 387 (2003). Some
THE INTELLECTUAL HISTORY ALTERNATIVE
This essay considers the problems of originalist methodology in light of
recent work in intellectual history and the philosophy of language.
The first part of this essay explores the contextualist methodology favoured by
most contemporary Anglo-American intellectual historians.
Although there is
considerable methodological eclecticism among intellectual historians
working in Anglo-American universities, the field of Anglo-American intellectual history
has coalesced around a common set of interpretive practices.
In contrast to
recent work in originalism that generally eschews a focus on
communicative Griceian intent, recent writing in both the philosophy of language
and intellectual history remains committed to linking meaning with
While such inquiries necessarily start with the semantic
meaning of texts, in many cases, the words on the page often
Rather than fix constitutional meaning, readers
of the original Constitution would have drawn on a range of interpretive
rules and background assumptions to help them make sense of the meaning
of the text.
Constitutional theory must move beyond a focus on the
semantic content of legal texts to an analysis of the historical pragmatics of
It is impossible to reconstruct an accurate
account of what the Constitution or other legal texts meant in the eighteenth
century without some understanding of these pragmatic processes.
We should also analyses the philosophical and historical flaws in contemporary
originalist theory and practice.
There are many different strains of
originalism, but all of them suffer from similar historical problems.
originalists have countered that history and originalism seek different types of meaning. See
Solum’s argument in BENNETT & SOLUM, supra note 5, at 54.
Other originalists have waged
a counterattack and argued that historians are prone to engage in forms of history office
law—a sort of mirror image of law office history, an approach that fails to understand legal
and constitutional ideas.
See Michael P. O’Shea, Modeling the Second Amendment Right To
Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense, 61
AM. U. L. REV. 585 (2012); see also Nicholas J. Johnson, Rights Versus Duties: History
Department Lawyering, and the Incoherence of Justice Stevens’s Heller Dissent, 39
FORDHAM URB. L.J. 1503 (2012) (presenting a somewhat more petulant argument). Robert
Post notes that historians are typically most comfortable with externalist explanations.
scholars are steeped in doctrinal analysis, which is a type of internalist explanation.
Robert C. Post, Defaming Public Officials: On Doctrine and Legal History, 1987 AM. B.
FOUND. RES. J. 539.
Post recognizes that internalist and externalist forms of analysis are
both essential in constitutional and legal history.
See generally PHILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW (Andrei
Marmor and Scott Soames eds., 2011).
Andrei Marmor, The Pragmatics of Legal Language,
21 RATIO JURIS 423.
A.P. Martinich, A Moderate Logic of the History of Ideas, 73 J.
HIST. IDEAS 609 (2012).
See generally James T. Kloppenberg, Thinking Historically: A Manifesto of
Pragmatic Hermeneutics, 9 MODERN INTELL. HIST. 201 (2012); cf. William W. Fisher III,
Texts and Contexts: The Application to American Legal History of the Methodologies of
Intellectual History, 49 STAN. L. REV. 1065 (1997) (concluding that the field lacked a
10. See infra Part I.
Scott Soames, What Vagueness and Inconsistency Tell Us About Interpretation, in
PHILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW, supra note 8, at 31, 35.
pragmatics, see Kepa Korta & John Perry, Pragmatics, STANFORD ENCYCLOPEDIA PHIL. (Mar. 21,
724 FORDHAM LAW REVIEW [Vol. 82
originalists assume the existence of a constitutional consensus where none
existed and gather evidence in an arbitrary and highly selective fashion.
Early American history was not characterized by broad agreement on
constitutional matters, but rather was deeply divided on a variety of
fundamental issues about constitutional interpretation and meaning.
Selecting texts and evaluating their probative value requires some
understanding of how texts were produced, distributed, and consumed by
different groups in the Founding era.
For originalists all texts are created
equal, an approach that has facilitated ideological distortions and generated
a deeply flawed account of America’s constitutional past.
Finally, we should also analyse the originalist methodology employed in District of
Columbia v. Heller.
Although praised by originalists and hailed by gun
rights activists, the decision has been vigorously attacked from scholars at
both ends of the academic political spectrum.
Rather than vindicate
Scalia’s methodology provides a catalogue of the types
of errors, distortions, and manipulations that originalism encourages.
Scalia’s use of dictionaries rests on a set of false assumptions about
the relationship between early dictionaries and the history of the English
These early dictionaries were not compiled according to modern
scholarly rules, but were idiosyncratic reflections of their authors who
generally sought to prescribe, not describe, contemporary patterns of usage.
Even more troubling is Scalia’s misreading of the Quaker opposition
to bearing arms.
Quakers (Members of the Religious Society of Friends)
did not oppose bearing guns, but they did oppose bearing arms, a vital
distinction blurred by Scalia’s a-historical approach.
Rather than cite
Quaker sources to support his warped view of history, Scalia
substitutes his own interpretation of what Quakers believed for the actual
beliefs of eighteenth century Friends.
Finally, Scalia compounds his
distorted reading of history by ignoring Founding-era legal rules and
applying interpretive conventions drawn from decades after the framing of
the Second Amendment to justify reading the text backwards.
This is an
interpretive move that allows him to effectively discount the preamble’s
discussion of a well-regulated militia.
As a conclusion we should examine the original debate over freedom of the press in 1788.
Federalists and Anti-Federalists used different rules of construction to make
sense of what the words “freedom of the press” meant.
On the problem of multiple intents and constitutional meaning, see generally JACK
N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION
(1997), and Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L.
REV. 204 (1980).
On the tensions within Anti-Federalism, particularly between elite and
popular opposition to the Constitution, see SAUL CORNELL, THE OTHER FOUNDERS: ANTIFEDERALISM
AND THE DISSENTING TRADITION IN AMERICA 1788–1828 (1999).
See infra Part II.
A number of originalists distinguish between the task of interpretation, which is
what the Constitution meant, and construction, which is the application of constitutional
meaning to legal problems. See Lawrence B. Solum, Originalism and Constitutional
Construction, 82 FORDHAM L. REV. 453, 455–57 (2013); Lawrence B. Solum, The
Interpretation-Construction Distinction, 27 CONST. COMMENT. 95 (2010). The Founding
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 725
rules favored by most originalists for reading constitutional texts would
require overturning core elements of First Amendment doctrine.
In short, a
rigorous and neutral application of originalist theory leads to highly
Part V briefly contrasts the more sophisticated model provided by
contemporary intellectual history with the flawed approach to the past
favored by originalists. Abandoning originalist method in favor of
intellectual history would encourage scholars and judges to grapple with the
different meanings that various provisions of the Constitution had at the
Founding moment. Building on this more solid historical foundation would
facilitate a more serious debate over the proper role of history in the future
of constitutional theory and adjudication.
In a recent essay on the state of American intellectual history, James Kloppenberg provides a concise overview of this vibrant
Kloppenberg notes that most contemporary American intellectual
historians have written about ideas and beliefs with three guiding precepts
in mind. Intellectual historians, he observes, strive to write about ideas as
“embodied, embedded, and extended.”
While ideas were once studied in a disembodied way, most intellectual
historians now believe that historical texts must be connected to the
intentions of the individual authors who created them. In the case of
anonymous authors and collective authorship, most intellectual historians
would follow David Hollinger’s model of rooting texts within particular
It is easy to see how this new model of
intellectual history differs from the classic approach to the history of ideas
found in the pioneering studies of scholars such as Perry Miller.
pathbreaking study, The New England Mind, Miller wove together different
Puritan texts to create a single Puritan mind.18 His emphasis lay on
systematic thought, such as Ramist logic and the “Augustinan strain of
piety.”19 Although more recent studies of Puritanism have not abandoned
era’s own understanding of construction seems rather different.
In the Founding era,
“construction” referred to the complex process of discovering the meaning of a legal text.
The term appears hundreds of times in Founding-era cases and in legal writing. See, e.g.,
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Chisholm v. Georgia, 2 U.S. (2 Dall.)
419 (1793). In contrast to Solum, many within the Founding era recognized that
construction was as much a political process as it was a legal one. For a good illustration in
the context of freedom of the press, see TUNIS WORTMAN, A TREATISE CONCERNING
POLITICAL ENQUIRY AND THE LIBERTY OF THE PRESS 228 (N.Y., George Forman 1800).
15. See generally Kloppenberg, supra note 9; see also James T. Kloppenberg,
Intellectual History, Democracy and the Culture of Irony, in THE STATE OF U.S. HISTORY
199 (Melvyn Stokes ed., 2002).
16. Kloppenberg, supra note 9, at 201.
17. DAVID A. HOLLINGER, IN THE AMERICAN PROVINCE: STUDIES IN THE HISTORY AND
HISTORIOGRAPHY OF IDEAS (1985).
18. PERRY MILLER, THE NEW ENGLAND MIND: THE SEVENTEENTH CENTURY (1954).
19. Id. at 3.
726 FORDHAM LAW REVIEW [Vol. 82
theology, the field has adapted the insights of cultural history, bringing a
fresh perspective to one of the most studied fields in American history.
David Hall’s work is representative of the recent trends in contemporary
intellectual history. His analysis of the Puritan diarist Samuel Sewall
devotes as much attention to the way Puritans in New England experienced
darkness as it does to the traditional questions that vexed Miller, issues such
as covenant theology.20
The notion of embedding intellectual history in multiple contexts has
shifted the focus away from an entirely internalist approach to ideas.
impact of this approach on legal history has been especially profound.
Studies of legal doctrine or Supreme Court–centered histories have not
disappeared, but many newer studies strive to move beyond these sources to
illuminate constitutionalism outside of the courts and other aspects of
The theory of popular sovereignty figures
prominently in standard constitutional histories of the pre–Civil War era.
Typically this body of scholarship focuses on the ideas of legal and political
elites. Important events such as the Kansas-Nebraska Act, the Dred Scott v.
Sandford case, or the Lincoln-Douglas debates once framed the scholarly
discussion of this issue.
By contrast, legal historian Elizabeth Dale uses a
sensational antebellum murder case to analyze the way ordinary Americans
understood issues of law and constitutionalism in the same era, providing a
bottom-up perspective to complement the traditional top-down approach.23
The practice of much traditional intellectual history was analogous to
rummaging among the volumes in the library of the great thinkers of the
past. A classic model of such an inquiry is H. Trevor Colburn’s Lamp of
Experience, a book that charted the role of historical thought in the world of
the Founders.24 More recent writing in intellectual history has moved well
beyond the libraries of great men and the four corners of individual printed
texts. Louis Menand’s celebrated study of pragmatism, The Metaphysical
Club, ranges widely over major and minor intellectual thinkers and
canvasses a host of cultural movements in an effort to understand
20. DAVID D. HALL, WORLDS OF WONDER, DAYS OF JUDGMENT: POPULAR RELIGIOUS
BELIEF IN EARLY NEW ENGLAND (1989).
21. Compare LEONARD W. LEVY, SEASONED JUDGMENTS: THE AMERICAN
CONSTITUTION, RIGHTS, AND HISTORY (1995) (following the traditional approach to
constitutional history), with 2 THE CAMBRIDGE HISTORY OF LAW IN AMERICA (Michael
Grossberg & Christopher Tomlins eds., 2008) (applying the methods of social history and
intellectual history to legal history and constitutional history).
22. DON E. FEHRENBACHER, SLAVERY, LAW, AND POLITICS: THE DRED SCOTT CASE IN
HISTORICAL PERSPECTIVE (1981). For a more recent discussion of the issue, see Christopher
Childers, Interpreting Popular Sovereignty: A Historiographical Essay, 57 CIV. WAR HIST.
48, 49, 63 (2011).
23. For an example of how popular sovereignty and popular constitutionalism can be
studied by looking at a less traditional type of source, see Elizabeth Dale, Popular
Sovereignty: A Case Study from the Antebellum Era, in CONSTITUTIONAL MYTHOLOGIES:
NEW PERSPECTIVES ON CONTROLLING THE STATE 81 (Alain Marciano ed., 2011).
24. H. TREVOR COLBOURN, THE LAMP OF EXPERIENCE: WHIG HISTORY AND THE
INTELLECTUAL ORIGINS OF THE AMERICAN REVOLUTION (1965).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 727
pragmatism, America’s best known philosophical movement.
connection between Dewey’s thought and major philosophers such as
Charles Pierce and William James receives its due, but so does the
influence of less familiar sources, including the Vermont Hegelians who
shaped Dewey’s first exposure to philosophy at the University of Vermont.
Non-philosophical influences also figure prominently in Menand’s account,
including Dewey’s influential friendship with Jane Addams and his
exposure to popular political radicalism in Chicago during the Pullman
Finally, the last of Kloppenberg’s guiding principles, the extension of the
range of subjects worthy of historical attention, recognizes the profound
impact of social history on intellectual historians. One subfield that has
blossomed in recent years is the history of the book. Indeed, the second
volume of the American Antiquarian Society’s five-volume History of the
Book in America focuses on the print culture of the Founding era.
Kloppenberg notes, the history of the book has refined the way that scholars
approach the “production, distribution, circulation, and reception of
texts.”28 Appreciating the dynamics of this vibrant sphere of print culture is
essential for any scholar interested in understanding the original debate over
the Constitution’s meaning.
Intellectual biographies remain a popular genre, particularly with the
general reading public. In the case of the Founding era, the phenomenon of
“Founders Chic” shows no sign of disappearing anytime soon. New
biographies of leading Founders and forgotten Founders appear with some
regularity and often grace the New York Times’s Best Sellers list.29
Although biographies of Thomas Jefferson show no sign of going out of
fashion, historical attention has broadened its focus to take in the other
denizens of Monticello. Annette Gordon Reed’s prize-winning study of the
African American Hemings family has taken its place alongside the many
fine studies of Thomas Jefferson.30 Intellectual history is no longer
exclusively a study of the history of intellectuals and other elites, but rather
is a study of individuals and groups, men and women—thinking, acting,
Contemporary intellectual history has not abandoned classic texts such as
the Declaration of Independence, but the treatment accorded these texts has
25. LOUIS MENAND, THE METAPHYSICAL CLUB (2001).
26. Id. at 264–66, 306–12, 353–58.
27. 2 DAVID D. HALL ET AL., A HISTORY OF THE BOOK IN AMERICA: AN EXTENSIVE
REPUBLIC: PRINT, CULTURE, AND SOCIETY IN THE NEW NATION, 1790–1840 (2010).
28. Kloppenberg, supra note 9, at 206. For a study of ratification that focuses on the
production, distribution, and reception of Anti-Federalist pamphlets, broadsides, and
newspaper essays, see CORNELL, supra note 12.
29. H.W. Brands, Founders Chic: Our Reverence for the Fathers Has Gotten Out of
Hand, 292 ATLANTIC MONTHLY 101 (Sept. 2003); David Waldstreicher, Founders Chic As
Culture War, 84 RADICAL HIST. REV. 185 (2002).
30. See ANNETTE GORDON-REED, THE HEMINGSES OF MONTICELLO: AN AMERICAN
728 FORDHAM LAW REVIEW [Vol. 82
been transformed by new approaches. Morton White’s classic study, The
Philosophy of the American Revolution, approached the Declaration with
the tools of philosophy, focusing considerable attention on John Locke.31
More recent work on the Declaration has highlighted topics ranging from
the way Francesco Geminiani’s treatise on violin playing shaped the
cadences of Jefferson’s writing, to the role that popular political discourses
played in the origins of the Declaration of Independence.32
Finally, Kloppenberg reminds us that ideas often cross conventional
political boundaries. One can discern an increasingly transnational trend in
recent intellectual history, a development that Kloppenberg’s own work on
pragmatism has helped to encourage.33 It is no longer remarkable to
explore American ideas in a transatlantic context. In her recent study of
America’s reception of Nietzsche’s thought, historian Jennifer RatnerRosenhagen
crisscrosses the Atlantic and surveys more than a century of
shifting responses to one of Germany’s most enigmatic but influential
In one sense, Ratner-Rosenhagen’s study parallels Merrill
Peterson’s classic study of the shifting assessments of Jefferson in
American culture, The Jefferson Image in the American Mind.
marks her work as emblematic of the new approach to intellectual history is
its anti-essentialist approach to texts. Her study fits historian Daniel
Rodgers’s notion that intellectual history ought to be framed around
narratives about “men and women thinking: making, consuming, and
remaking ideas and language, arguing and conversing.”36
The current model of intellectual history, what Kloppenberg calls
pragmatic hermeneutics, also acknowledges an important debt to the work
of the Cambridge School’s approach to the history of political thought. The
leading theoretician associated with the Cambridge School, Quentin
Skinner, published a number of influential essays using modern language
philosophy to ground the contextualist method of intellectual history. In an
early essay elaborating his approach to interpreting historical texts, Skinner
concisely states one of his most important theoretical claims about
contextualist historical method: to understand a historical text one must
first define the range of possible meanings an utterance might have had at a
given historical moment.37 The first rule of any truly historicist method, he
asserts, is that: “[N]o agent can eventually be said to have meant or done
something which he could never be brought to accept as a correct
See MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION (1978).
32. See JAY FLIEGELMAN, DECLARING INDEPENDENCE: JEFFERSON, NATURAL LANGUAGE,
AND THE CULTURE OF PERFORMANCE (1993); PAULINE MAIER, AMERICAN SCRIPTURE:
MAKING THE DECLARATION OF INDEPENDENCE (1997).
33. See JAMES T. KLOPPENBERG, UNCERTAIN VICTORY: SOCIAL DEMOCRACY AND
PROGRESSIVISM IN EUROPEAN AND AMERICAN THOUGHT 1870–1920 (1986).
34. See JENNIFER RATNER-ROSENHAGEN, AMERICAN NIETZSCHE: A HISTORY OF AN ICON
AND HIS IDEAS (2012).
35. MERRILL D. PETERSON, THE JEFFERSON IMAGE IN THE AMERICAN MIND (1960).
36. Daniel T. Rodgers, Thinking in Verbs, 18 INTELL. HIST. NEWSL. 21, 21–22 (1996).
37. See generally Quentin Skinner, Motives, Intentions and the Interpretation of Texts, 3
NEW LITERARY HIST. 393 (1972).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 729
description of what he had meant or done.”
This rule might be dubbed the
injunction against anachronism. In the view of philosopher Richard Rorty,
this aspect of Skinner’s method is central to any effort to understand the
meaning of historical texts, including texts in the history of philosophy.
The second rule states, “The success of any act of communication
necessarily depends on . . . a whole complex of conventions, social as well
as linguistic.”40 Skinner’s point is not that meaning is objective, but rather
that it is public and hence intersubjective.
Moreover, the public and
intersubjective nature of language enjoins historians to recognize that the
meaning of a text is determined by a range of contextual factors, some
linguistic and others social. Cast in these terms, the task of the historian is
similar to the cultural anthropologist.
Indeed, in his later work, Skinner
acknowledged the profound influence of anthropologist Clifford Geertz,
whose theory of “thick description” inspired a generation of intellectual and
In a much-cited essay, Geertz explored how an
anthropologist might distinguish a wink from a facial tick.43 To understand
38. Quentin Skinner, Meaning and Understanding in the History of Ideas, in MEANING
AND CONTEXT: QUENTIN SKINNER AND HIS CRITICS 29, 48 (James Tully & Quentin Skinner
eds., 1988); see also 1 QUENTIN SKINNER, VISIONS OF POLITICS: REGARDING METHOD
39. Richard Rorty, The Historiography of Philosophy: Four Genres in Philosophy in
History, in PHILOSOPHY IN HISTORY 50 (Richard Rorty et al. eds., 1984).
40. For an endorsement of this aspect of Skinner’s method, see Thomas L. Haskell,
Responsibility, Convention, and the Role of Ideas in History, in IDEAS, IDEOLOGIES, AND
SOCIAL MOVEMENTS: THE UNITED STATES EXPERIENCE SINCE 1800, at 5 (Peter A. Coclanis
& Stuart Bruchey eds., 1999).
Among originalists, Solum has been especially critical of
Skinner. Solum’s critique of Skinner’s earliest theoretical writings anachronistically argues
that Skinner’s forays into the philosophy of language were obviously wrong-headed at the
time they were published. See BENNETT & SOLUM, supra note 5, at 57.
It is hard to reconcile
this claim with the fact that Skinner’s essays were published in the leading peer reviewed
British philosophy journal in a special issue on the philosophy of language. Quentin Skinner,
Conventions and the Understanding of Speech Acts, 20 PHIL. Q. 118, 133 (1970).
article responded to one of the most influential articles in the modern philosophy of
language, Sir PETER FREDERICK STRAWSON, Intention and Convention in Speech Acts, 73 PHIL. REV. 439
Admittedly, Skinner’s article drew two critical responses, but this does not diminish
the article’s significance at the time; rather, it suggests that his article was taken very
seriously by philosophers of language. See Peter Mew, Conventions on Thin Ice, 21 PHIL. Q.
352 (1971); B.C. O’Neill, Conventions and Illocutionary Force, 22 PHIL. Q. 215 (1972).
Skinner’s early writings now seem dated, especially given that the ascendant paradigm in the
philosophy of language seems to favour Sir Peter Frederick Strawson and Herbert Paul Grice’s intentionalism over Skinner’s
For an overview of the debate concerning speech act theory in the
philosophy of language, see Mitchell Green, Speech Acts, STAN. ENCYCLOPEDIA PHIL. (July
3, 2007), http://plato.stanford.edu/archives/spr2009/entries/speech-acts/.
On the danger of
reading the history of philosophy in an anachronistic manner, see generally PHILOSOPHY IN
HISTORY, supra note 39.
For an example of one prominent originalist who argues in favor of the idea of
objective meaning, see Randy E. Barnett, Interpretation and Construction, 34 HARV. J.L. &
PUB. POL’Y 65, 66 (2011).
42. CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 9–10 (1973).
43. See id. Skinner notes that during his appointment at the Institute for Advanced
Study in Princeton, his work took a more Geertzian turn.
See Skinner, Reply to My Critics, in
MEANING AND CONTEXT, supra note 38, at 231, 234 & n.15. Skinner also credits his
discussion with other members of the Institute, most notably Thomas Kuhn and Richard
730 FORDHAM LAW REVIEW [Vol. 82
the meaning of this gesture, one must embed the action in a “web of
signification” and recover the actor’s intention, assuming that what had
been witnessed was a wink and not an involuntary muscle spasm.
Skinner’s earliest writings drew heavily on JOHN LANGSHAW AUSTIN’s theory of speech
According to Skinner, the recovery of meaning required analyzing
both the locutionary act and its illocutionary force.
Scholars must not
only pay attention to what an author said, but must also ask what an author
was doing by making a particular statement on a given occasion.46
Skinner’s use of Austin and his conventionalist account of meaning has
prompted a lively debate among historians, political theorists, and
philosophers of language.
In responding to his critics, Skinner has stressed that his own early views,
based on Austin’s speech act theory, have evolved in light of insights
derived from subsequent scholarship by Herbert Paul Grice, Sir Peter Frederick Strawson, and
John Rogers Searle.
Unfortunately, Skinner has never fleshed out what a fullscale
revision of his method would look like at a theoretical level. Instead,
he has focused most of his scholarly energy on substantive historical
questions in the history of political thought.
The task of envisioning what
such a Griceian revision of intellectual history would look like has been
made somewhat easier to imagine because of the efforts of philosophers of
language working on issues of historical method and legal interpretation.
One of Skinner’s more sophisticated theoretical critics, the philosopher
of language A.P. Martinich, has framed such a neo-Griceian model of
intellectual history. Martinich notes that intellectual historians must begin
with the semantic content of texts, but he also emphasizes that historians
must move beyond semantics, to discern commutative intent, which is what
a speaker meant by using a particular sentence on a given occasion.
Rorty. Id. Among the tangible outcomes from that period was the important volume,
PHILOSOPHY IN HISTORY, supra note 39; see also GEERTZ, supra note 42.
44. GEERTZ, supra note 42, at 9.
Skinner’s emphasis on Herbert Paul Grice’s notion of non-natural
meaning is very close to his gloss on Geertzian thick description.
See generally GEERTZ,
supra note 42
HERBERT PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989); MEANING AND
Recent intellectual history probably owes a much greater debt to
Geertzian thick description than it does to modern philosophy of language.
debt to Geertz, see William H. Sewell Jr., Geertz, Cultural Systems, and History: From
Synchrony to Transformation, 59 REPRESENTATIONS 35, 35 (1997).
45. Skinner, supra note 38, at 61.
46. See generally id.
47. See generally MEANING AND CONTEXT, supra note 38. Mark Bevir casts his critique
of Skinner in the antifoundationalist terms of postanalytical philosophy. MARK BEVIR, THE
LOGIC OF THE HISTORY OF IDEAS (1999); Mark Bevir, Anglophone Historicism: From
Modernist Method to Post-analytic Philosophy, 3 J. PHIL. HIST. 211 (2009).
48. Quentin Skinner, “Social Meaning” and the Explanation of Social Action, in
MEANING AND CONTEXT, supra note 38, at 79, 89.
49. For two recent works representative of Skinner’s historical work on early modern
political thought, see QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998), and QUENTIN
SKINNER, REASON AND RHETORIC IN THE PHILOSOPHY OF HOBBES (2009).
50. See infra notes 51–61 and accompanying text.
51. Martinich, supra note 8, at 610–11.
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 731
Philosophers of language working on legal interpretation have made much
the same point.
Martinich’s application of Griceian insights to the practice of intellectual
history is an important step forward in the evolving effort to clarify the
practice of intellectual history.
The essays gathered in "Philosophical
Foundations of Language in the Law" provide additional insights on how
pragmatics can clarify the search for constitutional meaning.
they do not offer a detailed critique of contemporary originalist theory, they
do analyze the textualist methods of statutory construction employed by Scalia, a methodology which closely parallels aspects of new
Scott Soames and Andrei Marmor note that Scalia’s textualism conflates and confuses two distinct conceptions
of meaning elaborated in recent scholarship in the philosophy of language:
the semantic content, which is the linguistic meaning of a text, and the
assertive content, which is what a text stipulates or asserts.
Marmor make a powerful argument that it is asserted content, not semantic
content, that ought to define the legal meaning of a text.
In many situations, determining assertive or communicative intent
requires moving beyond the actual words on the page to consider the
pragmatic features of communication.
In other words, determining
semantic meaning is not the end of the inquiry, it is merely the start.
follows HERBERT PAUL GRICE's programme, particularly the way it has been developed in
contemporary philosophy of language, one must move beyond semantics to
As Marmor notes regarding semantic theories of constitutional
meaning, the semantic considerations employed in this debate are
inconclusive; the way concepts are used in a given context depends on
various pragmatic determinants, and those, in turn, depend on the nature of
the conversation in question.
Elaborating the differences between ordinary communication and legal
communication is a first step in analyzing the pragmatics of legal
Marmor’s work in this area is especially useful in
52. For an interesting critique of Skinner’s methodology in expressly Gricean terms, see
Martinich, supra note 8, and A.P. Martinich, Four Senses of “Meaning” in the History of
Ideas: Quentin Skinner’s Theory of Historical Interpretation, 3 J. PHIL. HIST. 225 (2009).
For another critique of the methods of the Cambridge School from the perspective of English
constitutional history, see D. Alan Orr, A Prospectus for a “New” Constitutional History of
Early Modern England, 36 ALBION 430, 448 (2004).
53. Martinich, supra note 8, at 610–11.
See generally PHILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW.
See Andrei Marmor, Meaning and Belief in Constitutional Interpretation, 82
FORDHAM L. REV. 577, 577 (2013).
For a discussion of the problems of applying ordinary conversational models to legal
texts, see generally Mark Greenberg, Legislation As Communication? Legal Interpretation
and the Study of Linguistic Communication, in PHILOSOPHICAL FOUNDATIONS OF LANGUAGE
IN THE LAW, and Heidi M. Hurd, "Sovereignty in Silence," 99 YALE L.J.
Soames concedes that collectively authored texts complicate the process of
discerning intent, but he does not believe that this poses an insurmountable problem. See
732 FORDHAM LAW REVIEW [Vol. 82
thinking about the practice of constitutional history.
Legal texts are not
typically produced according to the cooperative rules of communication
that govern ordinary language situations, but are generally modeled on
strategic, not cooperative, principles.
In many cases, Marmor observes,
legal texts are often products of tacitly acknowledged incomplete
Another distinguishing feature of legal communication is that
it is not always clear who the relevant parties to a legal conversation are,
particularly when the text in question is a constitutional document.
relevant parties might be framers, ratifiers, judges, or some other body of
actors, depending on the background assumptions of the participants in the
HERBERT PAUL GRICE'S method has a number of important consequences for
understanding the historical meaning of the Constitution and other
Founding-era legal texts.
Most originalists have assumed that
constitutional communication involves a process of fixation that is largely
anchored by the semantic content of the Constitution’s text.
neo-Griceian framework suggests that meaning may not be fixed by the
semantic content of the Constitution’s text.
To achieve consensus at the
moment a text is enacted, the parties involved might agree on a common
language but not on a common meaning.
By compromising on language
that underdetermines constitutional meaning, legal actors can leave the
resolution of what a text means to subsequent actors to sort out through
politics or judicial determination.
If Marmor is correct, there may well be
no original constitutional meaning to discover for many of the more openended
provisions of the Constitution.
Instead of establishing a fixed
original meaning, the text of the Constitution may do no more than set some
minimal constraints on a range of possible constitutional meanings to be
determined by pragmatic features of the original constitutional
If this is true, then the fixation thesis, central to so much of
originalism, may rest on a philosophical error.
The process of fixation of
constitutional meaning would not be semantically encoded at a founding
moment, but would be resolved by pragmatic processes.
Scott Soames, Toward a Theory of Legal Interpretation, 6 N.Y.U.
J.L. & LIBERTY 231, 232
The problem of collective intent has attracted considerable interest among
See Abraham Sesshu Roth, Shared Agency, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Dec.
13, 2010), http://plato.stanford.edu/archives/spr2011/entries/shared-agency/;
Tollefsen, Collective Intentionality, INTERNET ENCYCLOPEDIA PHIL.,
Andrei Marmor, "Can the Law Imply More Than It Says? On Some Pragmatic
Aspects of Strategic Speech", in PHILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW.
Grice’s conversational model assumed that communication was cooperative.
GRICE, supra note 44; Stephen Neale, Paul Grice and the Philosophy of Language, 15
LINGUISTICS AND PHIL. 509 (1992).
See BENNETT & SOLUM, supra note 5, at 12; Lawrence B. Solum, What Is
Originalism? The Evolution of Contemporary Originalist Theory, in THE CHALLENGE OF
ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION 12, 33 (Grant Huscroft &
Bradley W. Miller eds., 2011).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 733
resolution of these issues may be even more complex. There may have
been conflicts over which sets of assumptions and interpretive rules were
part of the background knowledge available to the actors. Indeed, there
may well have been disagreements over who the relevant parties to the
original constitutional conversation were: Framers, ratifiers, judges, or
some other segment of the population of America in 1788. All of these
issues are empirical questions that require historical investigation to answer.
B. Originalism and the Flight from Historical Reality
According to Lawrence Solum, “original public meaning originalists
believe that the original meaning of the Constitution is a function of the
original public meaning—or ‘conventional semantic meaning’—of a given
constitutional provision at the time the provision was framed and
ratified.”62 Semantic meaning, in his view, is largely a function of the
“linguistic facts” at the time the Constitution was written and adopted.63
Moreover, “[n]ew Originalists (or original public meaning originalists)
believe that patterns of usage by the public at the time of adoption fixed the
meaning of the Constitution.”64
Another advocate for a semantic version of
originalism, Randy Barnett, adopts much the same stance.
originalism as a method of constitutional interpretation is the belief that the semantic meaning of the written Constitution was fixed at the time of its
Semantic originalist theories reject the search for intent that characterized
earlier versions of originalism.
Intentionalists sought something akin to
Griceian speaker meaning, the communicative intent, or what a utterer intended to communicate on a given occasion.
Griceian theory uses
ordinary face-to-face conversation as its model, a situation where speakers
conform to a set of conversational maxims aimed at promoting mutual
Supporters of semantic originalism acknowledge that
constitutional communication does not fit the model of a simple
Building on this insight, they accept the earlier critique of
originalism that the collective authorship of the Constitution confounds any
attempt to identify speakers’ intent.
Abandoning speakers’ meaning,
semantic originalists turn to another Griceian concept: sentence meaning.
Solum describes this concept as follows: the sentence meaning (or
‘expression meaning’) of an utterance is the conventional semantic meaning.
Solum, Heller and Originalism, supra note 2, at 946.
63. Id. at 944.
64. Id. at 947.
65. Barnett, supra note 41, at 66.
For a discussion of Griceian speaker meaning and its relevance to intentionalist
theories of originalism, see L. Alexander, "Originalism, the Why and the What" 82
FORDHAM L. REV.
Alexander argues that when multiple authors of a
collectively authored text have different understandings of what they intended to
communicate, the resulting text would have no meaning at all.
It would be more
accurate to describe such a text as having a range of possible meanings.
Fixing the meaning
of such a text would generally be accomplished by pragmatic processes.
734 FORDHAM LAW REVIEW [Vol. 82
of the words and phrases that constitute the utterance.”67
purports to avoid the problem of discerning intent by focusing on
commonly shared public meanings. Accordingly, semantic originalists
accord considerable weight to historical dictionaries as a source for
recovering these linguistic meanings.
The problem with such an approach
is it rests on a mis-reading of Herbert Paul Grice and a misunderstanding of the history of
Herbert Paul Grice’s entire philosophical project was to link sentence
meaning to his intentional understanding of speaker meaning.
words, to build a theory of historical meaning from Herbert Paul Grice’s idea of sentence
meaning requires establishing what speakers in the Founding era typically
intended when they uttered specific sentences.
Sampling dictionaries, a
favorite tactic of semantic originalists, will not suffice.
Even if one
expanded the range of sources consulted and examined other usages, this
would not be adequate to illuminate sentence meaning.
To analyse Griceian
sentence meaning historically one would need to look at how patterns of
usage correlated with patterns of intentionality at a given historical
moment. In other words, new originalists would need to engage in
precisely the forms of historical inquiry the theory was designed to obviate:
reconstructing, weighting, and summing the multiple and potentially
conflicting intents of Framers, ratifiers, and other relevant populations.
Rather than mark a step forward, semantic originalism leaves us essentially
at the same impasse traditional originalism faced over the problem of
Solum, Heller and Originalism, supra note 2, at 949.
For two general discussions of Herbert Paul Grice and his project linking an intentionalist theory
of speaker meaning with sentence meaning, see:
WILLIAM G. LYCAN, PHILOSOPHY OF
LANGUAGE: A CONTEMPORARY INTRODUCTION
MICHAEL MOORE, AN
INTRODUCTION TO THE PHILOSOPHY OF LANGUAGE.
S. Neale notes that sentence meaning (more broadly, utterance-type meaning)
can be analyzed (roughly) in terms of regularities over the intentions with which utterers
produce those sentences on given occasions.
Solum has refined
his notion of context and now accords greater significance to forms of pragmatic enrichment
in the current version of his theory.
Public Meaning Originalism’ names the version of
originalist theory holding that the communicative content of the constitutional text is fixed at
the time of origin by the conventional semantic meaning of the words and phrases in the
context that was shared by the drafters, ratifiers, and citizens.
See Lawrence B. Solum,
Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, 459 (2013). The
role of pragmatic enrichment in Solum’s theory remains under-theorized. Finally, the
current form of the theory does not acknowledge the need to link usage with intent. When
one acknowledges this flaw in semantic originalism, the theory becomes just another variant
of intentionalism. For a critique of the new originalism along these lines, see Larry
Alexander, Constitutional Theories: A Taxonomy and (Implicit) Critique 23 (San Diego
Legal Studies, Paper No. 13-120, 2013), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2277790 (arguing that new originalist theory is actually parasitic in
relation to intentionalist theories of meaning).
70. See generally, e.g., Barnett, supra note 2. Barnett has expanded his research agenda
beyond dictionaries to include a wider range of sources, but his approach is still essentially
ahistorical. For the latest statement of Barnett’s methodology, see Barnett, supra note 1;
supra note 41 and accompanying text.
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 735
intentionality—it lacks a genuine empirical historical methodology to deal
with multiple and potentially conflicting intents.71
A number of prominent new originalists have adopted a less
philosophically self-conscious approach, and advocated the use of a variety
of different types of fictive readers as a means of reconstructing original
meaning: a representative Founding-era lawyer, a competent speaker of
American English, the typical rational man on the street.
personas are then used as the basis for reconstructing what the Constitution
meant in 1788.72 Gary Lawson favors a hypothetical reasonable person
trained in the law.73 Michael Stokes Paulsen posits a reasonable reader as
the ideal construct.74 Scholars invoking such imaginary readers do not
seem to be familiar with the rich scholarly literature on reader-response
literary criticism, the history of publishing and reading, or recent historical
writing on the social and cultural history of the Founding era. The use of
fictive readers in literary criticism was all the rage about thirty years ago,
but the practice fell out of favor among many literary scholars when
problems with this methodology became evident. Once literary critics
began investigating actual readers and comparing their responses to the
ideal readers posited by theorists, it soon became apparent that many of
their critical assumptions about reading practices were simply false.
Equally troubling was the discovery that many critics unconsciously poured
their own ideological prejudices into the ideal readers they constructed.75
While work on the history of publishing and reading has evolved over the
last two decades, recovering the actual reading practices of long dead
readers is still among the most elusive historical goals.76 None of the
originalist advocates for using fictive readers appears to be aware of these
methodological problems or the scholarly controversies occasioned by
them. Indeed, Lawson argues that the advantage of using fictive readers
over the actual historical readers is that this approach avoids the political
biases that may have distorted the views of individuals who actually read
71. This critique of originalism is most closely associated with Paul Brest, supra note
72. On the history of reader-response criticism, see generally Philip Goldstein, ReaderResponse
Theory and Criticism, in THE JOHNS HOPKINS GUIDE TO LITERARY THEORY AND
CRITICISM 793 (Michael Groden et al. eds., 2d ed. 2005). For an effort to use Gricean theory
in literary criticism, see generally MARY LOUISE PRATT, TOWARD A SPEECH ACT THEORY OF
LITERARY DISCOURSE (1977).
73. Gary Lawson & Guy Seidman, Originalism As a Legal Enterprise, 23 CONST.
COMMENT. 47, 79 (2006).
74. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the
Constitution’s Secret Drafting History, 91 GEO. L.J. 1113, 1144–45 (2003).
75. See generally JANICE A. RADWAY, READING THE ROMANCE: WOMEN, PATRIARCHY,
AND POPULAR LITERATURE (1984).
76. See generally Martyn P. Thompson, Reception Theory and the Interpretation of
Historical Meaning, 32 HIST. & THEORY 248 (1993). On the empirical problems of using
reader theory on historical texts, see Ian Jackson, Approaches to the History of Readers and
Reading in Eighteenth-Century Britain, 47 HIST. J. 1041 (2004), and Eric Slauter, Reading
and Radicalization: Print, Politics, and the American Revolution, 8 EARLY AM. STUD.
736 FORDHAM LAW REVIEW [Vol. 82
the Constitution and interpreted it two hundred years ago.77 Apparently,
Lawson believes that the historical actors who wrote, ratified, and later
interpreted the Constitution were somehow compromised by their political
biases, but a modern law professor is able to rise above any similar
ideological blindness or bias.78
John McGinnis and Michael Rappaport dub their approach “original
methods originalism.”79 This theory argues that “to find what an informed
speaker of the language would have understood the Constitution’s meaning
to be, one must look to the interpretive rules that were customarily applied
to such a document.”80 The two scholars define an informed speaker as “a
competent and reasonable speaker at the time of the Constitution’s
enactment.”81 Exactly what criteria define such a person is a bit of a
mystery. The theory does not articulate any clear rules for constructing
such a person. Nor does the theory make clear what body of historical
sources would define this imaginary person’s worldview.82 The basic
assumption undergirding this theory is that there was a broad consensus on
interpretive methods in the Founding era. In reality, the Founding era was
characterized by serious divisions and conflict, including a deep rift
separating Federalists from Anti-Federalists and an even larger divide
between popular and elite approaches to constitutional texts.83
McGinnis and Rappaport insist that the Constitution must be read as a
legal document, but they treat Founding-era legal culture in an
anachronistic manner and assume the existence of a consensus on issues
that were actually deeply contested in 1788. Consider their ungrounded
assertion that ordinary Americans would have simply deferred to lawyers
when interpreting the Constitution.
To justify this approach, McGinnis and
Rappaport make the following unsubstantiated claim:
It is a common, if not universal, reaction for a layperson to read a legal
document—whether a contract, a statute, or a constitution—and have the
following reaction: “Well, it seems to mean X to me, but I am not a
lawyer. To be sure of its meaning, we will need a lawyer to read it.”84
The assertion that a deferential attitude toward lawyers represents some
type of universal transhistorical truth about the way Americans have
77. Lawson, supra note 2, at 341 n.51.
78. One need not subscribe to radical skepticism or nihilism to recognize that there is no
objective scholarly stance from which to understand the past. Historians are just as
historically situated as the historical actors they study. This does not mean that efforts to
understand the past are impossible or that all accounts of the past are equally plausible or
hold the same analytical power. For a refutation of such a simplistic claim, see Richard
Rorty et al., Introduction, in PHILOSOPHY IN HISTORY, supra note 39, at 1, 8.
79. See generally McGinnis & Rappaport, Original Interpretive Principles, supra note
2; McGinnis & Rappaport, Original Methods Originalism, supra note 2.
80. McGinnis & Rappaport, Original Methods Originalism, supra note 2, at 752.
81. Id. at 761.
82. See examples infra note 84 and accompanying text.
83. See infra notes 92–93.
84. It is odd that such a sweeping claim would be unsubstantiated by any scholarly
support. See McGinnis & Rappaport, Original Methods Originalism, supra note 2, at 765.
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 737
approached legal documents, including texts as different as contracts,
statutes, and constitutions, is hard to reconcile with existing scholarship
about contemporary attitudes toward the law in America.85 In particular, it
blurs the vital distinction between the way Americans approach
constitutional texts and other legal texts such as contracts. While some
Americans might defer to lawyers when reading a contract, there is no
compelling evidence that they show the same deference when looking at the
meaning of the Constitution. Many Americans have very clear views about
what they think the Constitution means, and on the issues that matter to
them, such as the right to bear arms, the idea that they would defer to
lawyers who opposed their views seems wildly out of touch with reality and
is contradicted by a mountain of evidence.86
The deference hypothesis makes even less sense in the context of the
Founding era. Ratification was not marked by polite deference, but by vocal
contestation. Anti-Federalist Amos Singletary’s impassioned speech at the
Massachusetts Ratification Convention is perhaps the best known and most
often repeated example of the profound antilawyer sentiment articulated
during ratification.87 Clearly, McGinnis and Rappaport have not spent
enough time with Founding-era sources, or they would have encountered
other texts articulating similar attitudes:
These lawyers, and men of learning, and monied men, that talk so finely
and gloss over matters so smoothly, to make us poor illiterate people
swallow down the pill, expect to get into Congress themselves; they
expect to be the managers of this Constitution and get all the power and
all the money into their own hands, and then they will swallow up all us
little folks, like the great Leviathan, Mr. President, yes, just as the whale
swallowed up Jonah.88
85. For a very different view of popular attitudes toward lawyers in modern America,
see MARC GALANTER, LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE (2005). In
a November 2012 survey of how Americans view various professions in terms of honesty
and ethics, lawyers ranked near the bottom of the list. Honesty/Ethics in Professions,
GALLUP, http://www.gallup.com/poll/1654/honesty-ethics-professions.aspx (last visited Oct.
21, 2013). Interestingly, Congress scored even lower. Only 10 percent of Americans
surveyed believed members of Congress were honest and ethical. Id. Among the professions
listed, only car salespersons were seen as less honest and ethical. Id.
86. Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011, 2042 (2012)
(reviewing JACK M. BALKIN, LIVING ORIGINALISM (2011), and DAVID A. STRAUSS, THE
LIVING CONSTITUTION (2010)) (noting, correctly, that most gun owners would not change
their view of the Second Amendment if scholarly evidence contrary to their view was
presented to them). Indeed, most gun owners and gun rights advocates never accepted the
orthodox collective rights view of the Amendment that most courts and legal experts adopted
in the seventy years leading up to Heller. See Siegel, supra note 6, at 211–12.
87. Convention Debates, 25 January, A.M., in 6 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION 1344–48 (John P. Kaminski & Gaspare J. Saladino eds.,
88. Id. at 1346–47. Illiteracy in this context connotes the absence of formal learning,
particularly knowledge of Latin, and not an inability to read or write. For a discussion of
Singletary’s speech in this context, see MICHAEL WARNER, THE LETTERS OF THE REPUBLIC:
PUBLICATION AND THE PUBLIC SPHERE IN EIGHTEENTH-CENTURY AMERICA (1992).
738 FORDHAM LAW REVIEW [Vol. 82
McGinnis and Rappaport do not cite any of the rich scholarly literature
on the history of publishing and reading that has transformed the way
historians and literary scholars approach Founding-era texts. Rather than
grounding their approach in this scholarly literature, they engage in a
typical originalist dodge, citing another originalist scholar with no expertise
to support propositions that are well beyond the scholarly expertise of the
person being cited. In the case of the publishing history of ratification,
McGinnis and Rappaport cite the work of originalist scholar John Yoo.
Setting aside the controversial nature of Yoo’s work on executive authority
and foreign affairs, the decision to treat him as an authority on Foundingera
political, social, or cultural history is hard to fathom.
Based on Yoo’s
pedestrian observation that pamphlets were used to help spread ideas during
ratification, McGinnis and Rappaport jump to the following wildly
[T]he people decided whether to ratify the Constitution based on an
explanation of its meaning by those with legal knowledge. Pamphleteers
of all kinds wrote lengthy explications of the Constitution precisely so
that the people could be informed. It is not too much to say that they
translated the condensed, sometimes technical language of the legal
document into familiar language more easily accessible to the electorate
as a whole.89
At the time the Constitution was framed, most lawyers were trained by an
apprenticeship system. In contrast to modern law, there was no system of
accredited schools, no standard textbooks, and no uniform examination
system to determine who passed the bar. In the Founding era, none of these
attributes of a modern profession existed. James Wilson was one of the
most eminent lawyers in the new nation. Although respected by many,
Wilson was not well regarded by all Pennsylvanians. Anyone familiar with
ratification in Pennsylvania would know that Wilson was mocked,
denounced, and burned in effigy because of his status as a member of the
state’s legal elite.90 He stood at one extreme of this legal spectrum. At the
other extreme were ordinary citizens who gained most of their knowledge
89. McGinnis & Rappaport, Original Methods Originalism, supra note 2, at 771 (citing
John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1375 (1997)).
Yoo bases his assessment on a “glance” at the Documentary History of the Ratification of the
Constitution and does not cite any relevant historical scholarship on the complex history of
ratification. On the controversy around Yoo’s abuse of historical sources, see Janet Cooper
Alexander, John Yoo’s War Powers: The Law Review and the World, 100 CALIF. L. REV
331 (2012). Other scholars have also challenged Yoo’s approach to history. See Martin S.
Flaherty, History “Lite” in Modern American Constitutionalism, 95 COLUM. L. REV. 523
(1995); Martin S. Flaherty, The Practice of Faith, 65 FORDHAM L. REV. 1565 (1997); see
also Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U. CHI. L.
REV. 377 (2011).
90. On attitudes toward Wilson in Pennsylvania, see PAULINE MAIER, RATIFICATION:
THE PEOPLE DEBATE THE CONSTITUTION, 1787–1788, at 121 (2010), and Saul Cornell, The
People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the
Original Debate over Originalism, 23 YALE J.L. & HUMAN. 295, 324 (2011).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 739
from the popular press.91 In the middle of this vast spectrum were the
majority of practicing lawyers who had served in an apprenticeship and
may have owned a modest law library of a small number of essential texts
such as Blackstone. On almost any constitutional question of any
significance debated during ratification, there was likely to be a range of
As a generation of scholarship in the history of the book has shown,
American readers seldom acted like empty vessels into which elites might
pour their own ideological wine. Reading the Constitution was no
exception to this general pattern. Singletary’s charges at the Massachusetts
Ratification Convention that Federalists wished to cram the Constitution
down the people’s throats were hardly unique; Anti-Federalists made
similar claims in many states. Anti-Federalists rejected Federalist pleas for
deference and were not passive consumers of constitutional texts. The
surviving evidence clearly demonstrates that Americans actively sought out
a range of different texts to read and drew their own conclusions about what
the words of the Constitution meant. Thus, an essential first step to
reconstructing constitutional meaning in this era requires analyzing the
process of literary production, the circulation of published materials, and,
most crucially and where possible, the reader responses of individuals and
particular groups within both the Federalist and Anti-Federalist movements.
Only once we have fully analyzed these processes can scholars begin to
understand the pragmatics of constitutional communication in the Founding
The circulation of Mercy Otis Warren’s Columbian Patriot Essays is a
good illustration of the complexity of these processes. The New York City
Anti-Federal Committee forwarded 1,700 copies of the essay to various
Anti-Federal committees throughout the state. The Albany Anti-Federal
Committee expressed its gratitude for this gesture, but remarked that the
pamphlet was “a well composed piece, . . . [but] in a stile too sublime and
florid for us common people in this Part of the Country.”93 Clearly, the
preferences of leading Anti-Federalists in New York City did not mirror
those in other parts of the state. Backcountry Pennsylvania provides
another example of the same dynamic. William Petrikin, an Anti-Federalist
from Carlisle, Pennsylvania, also made clear his ideological preferences
about what sort of pamphlets and newspaper essays would be most
welcome among common folk in western Pennsylvania. He requested that
copies of Centinel, one of the most radical democratic voices within the
ranks of the Anti-Federalist opposition, be forwarded to him for
distribution. Centinel’s popularity and influence among ordinary readers in
the Pennsylvania backcountry was considerable. Rather than follow the
91. See Cornell, supra note 90, at 329–30.
92. See Alfred S. Konefsky, The Legal Profession: From the Revolution to the Civil
War, in 2 THE CAMBRIDGE HISTORY OF LAW IN AMERICA, supra note 21, at 68.
93. On the differences between popular and elite reactions to various Anti-Federalist
pamphlets, see CORNELL, supra note 12, at 36.
740 FORDHAM LAW REVIEW [Vol. 82
simplistic top-down model in which constitutional meaning trickles down
from elites—the view implicit in virtually all originalist scholarship—it
would make far more sense to heed Kloppenberg’s advice and study the
production, distribution, and reception of constitutional texts in the
Founding era. Only after one has mapped the interpretive landscape of the
Founding era and arrived at a plausible account of how to weight the
different texts surviving from this period, can one begin to explore the
pragmatics of constitutional meaning in 1788 or 1791.
District of Columbia v. Heller has been praised by originalists as the
best example of the interpretive power of their methodology.
the decision has been equally scathing and has been leveled from across the
contemporary ideological spectrum.
Ironically, some of the most intense
attacks have come from conservatives who have accused Scalia of
abandoning judicial restraint for activism, applying his own methodology in
a selective fashion, constructing an incoherent theory of the constitution,
and conjuring up a fantasy version of America’s constitutional past.
Leading advocates of new originalism are among the most conspicuous
defenders of Scalia’s methodology in Heller.
praises the decision, observing that District of Columbiva v. Heller is certainly the clearest and
most prominent example of originalism in contemporary Supreme Court
Randy Barnett extols Scalia’s textual analysis as state of the art.
Barnett may well be right about the artfulness of
Scalia’s opinion, but the art in Distrinct of Columbia v. Heller is more akin to a surrealist painting
than a faithful effort at rendering the past.
Rather than reconstruct the
historical reality and meaning of the second amendment as Americans in
1791 understood it, Scalia constructs a Salvador Dali–like historical
landscape of melted clocks, eerie landscapes, and grotesque caricatures.
Lawrence Solum applauds Scalia’s emphasis on "semantic
meaning" and commends his methodology, particularly his decision to use
historical dictionaries to ferret out the meaning of the second amendment.
The most obvious problem with using historical dictionaries to sort out the
meaning of key terms in the second amendment is that contemporary
dictionaries did not define the term “bear arms.”
This fact did not deter Scalia, who simply chose to treat the words “bear” and “arms”
separately, concluding that the former, "to bear", simply meant, "to carry:, and the latter referred to 'guns'.
94. 554 U.S. 570 (2008).
For criticism on the right, see Richard A. Epstein, "A Structural Interpretation of the
Second Amendment: Why District of Columbia v. Heller Is Probably Wrong on Originalist Grounds, 59
SYRACUSE L. REV. 171.
Charles Fried, The Second Annual Kennedy Lecture: On
Judgment, 15 LEWIS and CLARK L. REV. 1031 (2011), and Wilkinson, supra note 6, at 264–75.
For an equally devastating critique from a liberal perspective, see Siegel, supra note 6.
96. Solum, Heller and Originalism, supra note 2, at 980.
For Barnett’s view of the case, see Barnett, supra note 1, at 423.
Through this sleight of hand, Scalia effectively rewrote the second amendment so that it read:
i. the right of the people to keep and
carry guns shall not be infringed.
Given that there were a small number of English dictionaries to consult
from this era, one might have expected Scalia to look at them all
with some care.
One text Scalia obviously did not consult was Nathan Bailey’s "Universal Etymological English Dictionary", which actually uses the phrase
“to bear arms.”
Bailey discusses this phrase, "to bear arms," in the context of defining another
key concept from the period, "political arthmetic," the forerunner of
modern social science, the application of arithmetical calculations to
After summarizing one author’s statistical observations
about birth rates and mortality rates, Bailey notes that another important
ratio of interest for students of political economy is the proportion of
men able "to bear arms", which he reckons from 18 to 56 years old, and
accounts about a quarter of the whole.
Bailey clearly understands the phrase "to bear arms" to define a portion of the population able to participate in
Yet, even if Scalia had not cherry-picked his evidence from early
dictionaries, and had consulted the full range of extant sources, there are
still serious limits to using these types of texts to research the historical
meaning of words.
See generally, District of Columbia v. Heller, 554 U. S. at 576.
Early dictionaries were not assembled according to the American dictionaries post-date the second amendment, a fact that Scalia ignores.
Thus, Scalia cites "The American Dictionary of the
English Language" from 1828, but shows no awareness that the forty-year gap separating the
drafting of the second amendment and the publication of Webster’s dictionary was a period
of profound change in American culture.
Indeed, the radical transformation in American life
in this period is central to one of America’s most important literary tales from this era, Rip
On Scalia’s Rip Van Winkle problem, see Saul Cornell, District of Columbia v. Heller, New
Originalism, and Law Office History: “Meet the New Boss, Same As the Old Boss,” 56
UCLA L. REV. 1095.
Gordon Wood uses Washington Irving’s story of Rip
Van Winkle’s slumber and rude awakening as the narrative anchor to open his prize-winning
contribution to the Oxford History of the United States.
See GORDON S. WOOD, "EMPIRE OF
LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789–1815.
NATHAN BAILEY, THE UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY.
(London, Thomas Cox 1731).
Rickie Sonpal notes that Justice Thomas used three
Founding-era English dictionaries in his Lopez opinion:
1) Samuel Johnson’s A Dictionary of
the English Language (1773)
2) Nathan Bailey’s An Universal Etymological English
Dictionary (1789), and
3) Thomas Sheridan’s A Complete Dictionary of the English Language
Rickie Sonpal, Note, Old Dictionaries and New Textualists, 71 FORDHAM L. REV.
It is curious that only two of these three were consulted in District of Columbia v. Heller.
only one to actually use the term "to bear arms" (implicating military activity) was curiously omitted.
of evidence is further compounded by the fact that Bailey was clearly popular in America.
Advertisements for Bailey’s dictionary in American newspapers underscores this fact.
PENN. PACKET, September 21, 1784, at 3.
On the history of political arithmetic and its relationship to modern statistics and
social science, see TED MCCORMICK, WILLIAM PETTY AND THE AMBITIONS OF POLITICAL
101. BAILEY, supra note 99, at 606.
None of the dictionaries cited by Scalia
include an entry for “to bear arms.”
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (Edinburgh, Tho. Brown, R. Ross & J. Symington, 11th ed. 1797); TIMOTHY
CUNNINGHAM, A NEW AND COMPLETE LAW-DICTIONARY (Dublin, Sar. Cotter, Hen. Saunders
& Jam. Williams, 1764).
742 FORDHAM LAW REVIEW [Vol. 82
rigorous scholarly procedures developed by modern lexicographers.
Historical dictionaries are far from complete, are generally assembled in
an idiosyncratic manner, and are often prescriptive, not descriptive in
Indeed, as the example of Bailey suggests, Scalia does not
even bother to fully survey all the dictionaries from the period.
than document and analyse the actual usage of "to bear arms" in a systematic
fashion, Scalia simply plucks a few isolated examples to further his
Heller’s manipulations and misrepresentations of the past are not simply
a function of a failure to sample enough sources.
Scalia’s opinion does not
lack evidence, but the sources are selected for ideological reasons, not
according to any neutral scholarly criteria.
All surviving texts are of equal
weight because they can be invoked as evidence of original public meaning.
Once one severs meaning from Griceian communicative intent, words can be read in
almost any way that serves the ideological agenda of contemporary judges
This approach leads to absurd conclusions in District of Columbia v. Heller.
the most egregious examples of this process of ideological manipulation
occurs in Heller’s treatment of Quaker opposition to bearing arms.
essence, Scalia substitutes his own twisted interpretation of Quaker
belief for the actual historical ideas and practices of eighteenth-century
Quakers in several states, including Pennsylvania, sought exemptions
from mandatory service in the militia because they were religiously
scrupulous about bearing arms.
Indeed, Madison’s original draft of the second amendment includes a provision that would have exempted those
scrupulous about bearing arms from militia service.
This language is dropped when Elbridge Gerry raised the alarm that a potentially tyrannical
government might use this power to decide who was scrupulous about
bearing arms and disarm them, effectively undermining the state militias.
There was no discussion of private uses of arms in this congressional
debate, but Scalia simply discounts this fact because he treats the
entire episode as a type of legislative history and hence irrelevant to establishing original public meaning.
See Samuel A. Thumma and Jeffrey L. Kirchmeier, "The Lexicon Has Become a
Fortress: The United States Supreme Court’s Use of Dictionaries", 47 BUFF. L. REV.
See generally ANTHONY PAUL COWIE, THE OXFORD HISTORY OF
America’s first dictionaries post-date the Constitution.
ROLLINS, THE LONG JOURNEY OF NOAH WEBSTER.
The modern Oxford English
Dictionary, by contrast, does include a listing for “to bear arms” and offers this definition:
serve as a soldier,
(b) to do military service,
(c) to fight.” 2 THE OXFORD ENGLISH DICTIONARY (Edmund
S. Weiner and John Simpson eds., 1989).
Nathan Kozuskanich, "Originalism, History, and the Second Amendment: What Did
Bearing Arms Really Mean to the Founders?" 10 U. PA. J. CONST. L. 413.
Kozuskanich, "Originalism in a Digital Age: An Inquiry into the Right To Bear Arms," 29 J.
EARLY REPUBLIC 585, 585–606 (2009) documents that the vast majority of the uses of the
term “to bear arms” support the modern Oxford English Dictionary’s historical definition and
contradict Scalia’s claims in District of Columbia v. Heller).
On the complex history of the Quaker Peace Testimony, see generally MEREDITH
BALDWIN WEDDLE, "WALKING IN THE WAY OF PEACE: QUAKER PACIFISM IN THE
Even if one accepted Scalia’s somewhat incoherent objections to the use of legislative history
and his philosophically flawed claim that one can understand meaning
without establishing Griceian communicative intent, his tendentious reading of
Quaker belief is an example of ipse dixit bordering on the hallucinatory.
Scalia provides his own novel interpretation of Quaker pacifism.
According to him, Quaker teaching prohibited going to war and personal
“Quakers opposed the use of arms not just for militia
service, but for any violent purpose whatsoever.”
It is not exactly clear
what Scalia is alluding to when he talks about Quaker opposition to personal gun fights.
This term conjures up an image more appropriate for
the classic Hollywood westerns of Scalia’s youth than it does to the
realities of the eighteenth century.
Quakers opposed dueling, as did
many others in eighteenth-century America, and the practice was illegal in
Rates of interpersonal violence among Quakers living in
Pennsylvania were among the lowest in America
Scalia suggests that because Quakers opposed all forms of violence, their appeals to
be exempt from legal arms-bearing requirements were simply an extension
of a more general opposition to the use of guns.
Quaker attitudes toward
self-defense and guns are a bit more complex than Scalia’s account
Friends acted as magistrates and justices of the peace in
Pennsylvania and were responsible for keeping the peace.
were not always armed in the Founding era, so it is not clear if Quakers
would have ever been armed in this context.
The orthodox interpretation
of the Quaker Peace Testimony categorically prohibited any war-like action of any kind.
Quakers took the ideal of peace and harmony seriously
and could be disciplined by their local meeting for offenses as minor as
striking another individual or spreading malicious gossip.
Yet, the use of
guns by Quakers was never an issue for Friends.
Indeed, the distinguished Quaker historian, Jack Marrieta notes that neither the disciplinary rules of the Friends nor the extant records of the sect’s monthly meetings in Pennsylvania reveal any evidence that Friends were ever disciplined for owning or using firearms outside of the context of militia service.
ANTONIN SCALIA, "A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW"
For critiques, see:
Abner S. Greene, "The Missing Step of Textualism", 74 FORDHAM L.
REV. and Soames, supra note 11, at 42–43.
See Carlton F.W. Larson, "Four Exceptions in Search of a Theory: District of
Columbia v. Heller and Judicial Ipse Dixit," 60 HASTINGS L.J. 1371 (2009).
The temporal distortions of Heller are discussed in Siegel, supra note 6.
District of Columbia v. Heller, 554 U.S. 570, 590 (2008).
Scalia’s reference to gun fighting Quakers is bizarre and profoundly anachronistic.
On the importance of the “gun fighter” myth in modern Hollywood Westerns, see RICHARD
SLOTKIN, "REGENERATION THROUGH VIOLENCE: THE MYTHOLOGY OF THE AMERICAN
The gun fighter became one of the most powerful and iconic
images to emerge in post-war America cinema.
Interestingly, Quakers figure prominently in
two of the most popular and celebrated westerns of this period:
(a) John Wayne’s "Angel and the
(b) Gary Cooper and Grace Kelly’s "High Noon".
In "Angel and the Badman", John
Wayne plays a gun fighter who becomes involved with a family of Quakers and ultimately
gives up his gun.
ANGEL AND THE BADMAN (Republic Pictures 1947).
In High Noon, Gary
Cooper is saved by Grace Kelly, his Quaker wife, who rejects her faith’s non-violence and
takes up a gun to save her husband.
HIGH NOON (Universal Pictures 1952).
See RANDOLPH ROTH, AMERICAN HOMICIDE 92 (2009).
744 FORDHAM LAW REVIEW [Vol. 82
Quakers own guns for a variety of different purposes, including pest
control and hunting.
In revolutionary-era North Carolina, a well-known
Quaker gunsmith attracted some notoriety when he tried to buy back guns
he had sold to his neighbours to prevent them from being used for military
Thus, Quaker belief posed no challenge to bearing a gun in a
variety of contexts, but it absolutely prohibited Friends from bearing arms.
The use of a gun or any weapon in legal self-defense was a more complex
religious question for Quakers, but one that would have been dealt with
internally by Friends within the forum of the monthly meeting.
would have been no reason for Quakers to petition their government for an
exemption from being forced to use a gun in self-defense.
The right of self-defense
was well established at common law, and the DECISION to use a gun
to defend oneself was a PRIVATE one.
Scalia clearly confuses Quaker
theology with the historical and legal reality faced by Quakers in
Pennsylvania and other states.
As a theological matter, Quaker opposition
to violence derived from the New Testament’s belief that one ought to “turn
the other cheek,” rather than meet violence with violence.
This was clearly
not the issue Quakers were addressing in their repeated efforts to gain a
religious exemption from bearing arms from individual states and
eventually from Congress.
Quakers were seeking to avoid involvement
with the military.
Scalia violates an elementary rule of any sound historical inquiry.
He substitutes his own views of the motivations behind Quaker action and
belief for the Friends’ own account of their behavior and ideals.
how one Quaker described the sect’s position on bearing arms to non-Quakers.
Posting of Jack Marietta, to Pennsylvania@h-net.msu.edu (Jan. 30, 2008) (on file
with author); see also J.D. MARIETTA and G.S. ROWE, TROUBLED EXPERIMENT: CRIME AND
JUSTICE IN PENNSYLVANIA, 1682–1800, at 50 (2006) (concludes that levels of interpersonal
violence within the Quaker communities of Pennsylvania were remarkably low and vindicate
the Friend’s vision of themselves as a peaceful community).
See generally Kevin Sweeney, Firearms, Militias, and the Second Amendment, in
SAUL CORNELL & NATHAN KOZUSKANICH, THE SECOND AMENDMENT ON TRIAL: CRITICAL
ESSAYS ON DISTRICT OF COLUMBIA V. HELLER 310 (2013).
Quakers did oppose hunting for
113. SETH HINSHAW, QUAKER INFLUENCES ON AMERICAN IDEALS: AN OVERVIEW 17
Quakers did use arms to defend Indians during the Paxton uprising in 1763, a fact
that prompted considerable commentary in the contemporary press and was addressed in the
See Nathan Kozuskanich, "Defending Themselves: The Original
Understanding of the Right To Bear Arms", 38 RUTGERS L.J. 1041, 1051–53 (2007).
In the colonial era, some colonies required individuals to bring guns to church.
e.g., 1631 Va. Acts 155.
No similar law was enacted in Pennsylvania where Quakers
dominated politics for much of the colony’s history.
Indeed, Pennsylvania was the only
colony without a militia for much of the colonial era.
See Kozuskanich, supra note 114, at
We have a clear and strong Testimony to bear against Wars and
We cannot appear ourselves in Person, as Soldiers, Military
Men, nor can we hire one another to or serve in our stead, neither comply
with the Payment of any Fine or procure another Man to supply our
This prohibition also extended to procuring items that might
further the goals of warfare, including the purchase of drums, colours, and
other military attire.
If one looks at documents intended strictly for
consumption by other Quakers, the exclusive military focus of this concern
is even more clearly articulated by Friends.
To enforce religious discipline
within the Quaker meeting, Friends used a series of “Queries” designed to
ascertain the level of conformity to Quaker teachings on a variety of issues.
The Queries touched on belief and behavior, including attendance at
meetings, abstinence from consumption of alcohol, demeanor in public, and
care for the poor.
Although there was no discussion of private use of arms
in the Queries, the question of military use was a major issue.
One set of
Queries written and distributed to monthly meetings throughout New
England makes this clear:
Do you maintain a faithful testimony against
the payment of priests's wages, bearing of arms, training, or other
Quakers clearly understood bearing arms to refer to
military matters exclusively -- and not 'carry guns' generically.
Nor was this understanding limited to
members of the Society of Friends.
When the subject came up in the press,
this issue dominated discussion.
One of the clearest expressions of this
concern may be found in an essay authored shortly after ratification of the
It addressed the need for an amendment to the Constitution to
protect the militia and responded to Quaker demands for an exemption to
I am, and ever have been a decided friend to the principle of not
compelling men to fight, who are from religious principles averse to
bearing arms, but it would be improper to have an article to that purpose
in the frame of government; it ought merely to be part of the militia law,
and a precise definition should be made of what should really be deemed
conscientious scruples, such as being actually in unity with the Quakers,
Methodists, Menonists, Dunkers, or some other society, who are really
conscientiously scrupulous of bearing arms.
Then people cannot
pretend to conscientious qualms, in case of invasion or insurrection,
merely as a cloak to conceal their cowardice.
Quakers did not fear that the state would force them to take up a gun to
protect their homes or meeting houses, but Quakers did fear that they would
be forced to serve in the militia or pay a fee or fine in place of such service.
There is simply no evidence that Quakers or anyone in the Founding era
understood the notion of being religiously scrupulous about bearing arms to be anything other than a concern over militia service or other involvement with the military.
116. A COLLECTION OF SOME WRITINGS OF THE MOST NOTED OF THE PEOPLE CALLED
QUAKERS 6 (Phila., W. & T. Bradford 1767).
117. The queries were reprinted as a broadside. NEW ENG. YEARLY MEETING OF FRIENDS,
QUERIES (1782), available at http://triptych.brynmawr.edu/cdm/ref/collection/SC_Broad/
118. PENN. PACKET, September 10, 1789, at 4.
746 FORDHAM LAW REVIEW [Vol. 82
Scalia also distorts the interpretive conventions familiar to
eighteenth-century authors and readers of the Second Amendment.
first clause in the Amendment not only referenced a well regulated militia, but the clause was framed as a preamble.
The use of preambles
in legal texts was quite common in the Founding era.120
In District of Columbia v. Heller, Scalia detaches the purpose stated in the preamble from the rest of the amendment’s text, claiming that a prologue can be used only to clarify an
ambiguous operative provision.
The justification for approaching legal
texts in this manner comes not from founding-era sources or practices, but
from a set of legal rules elaborated by two nineteenth-century authors of
legal treatises written over a half a century after the Second Amendment
was framed and adopted.
Scalia literally reads the text of the second amendment backwards, setting aside the meaning of the preamble
until he arrives at his preferred reading of the enacting clause.
Indeed, Scalia not only reads the text of the amendment backwards, he reads history backwards, drawing on interpretive canons elaborated in texts
written decades after the second amendment’s composition to unravel how
Americans in the founding era would have understood the right to bear
Approaching history and texts backwards lends Scalia’s District-of-Columbia-v-Heller
opinion an Alice-in-Wonderland quality.
It is odd that Scalia does not cite any of the founding-era
cases on preambles.
One might have thought John Jay’s summary of the relevant rule of construction regarding
preambles would have been highly relevant to the facts before the Court in
A preamble cannot annul enacting clauses; but when it evinces the
intention of the legislature and the design of the act, it enables us, in cases
of two constructions, to adopt the one most consonant to their intention and
According to Jay, a preamble may not be used to abrogate the
text, but in cases in which two competing readings of the text are proffered,
119. U.S. CONST. amend. II, cl. 1.
Historian David Konig notes that the only case Scalia cites is an early eighteenth century
English case that had come into some disrepute. '
Konig, supra note 6.
District of Columbia v. Heller, 554 U.S. 570, 578 n.4 (2008).
See JOEL PRENTISS BISHOP, COMMENTARIES ON THE WRITTEN LAWS AND THEIR
INTERPRETATION § 51 (Bos., Little, Brown 1882);
FORTUNATUS DWARRIS, A GENERAL
TREATISE ON STATUTES 268–69 (P. Potter ed., N.Y.C., William Gould & Sons 1871);
THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND
CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 42–45 (Fred B. Rothman & Co.
1980) (2d ed. 1874).
Justice Scalia’s approach to preambles employs a “Cheshire Cat Rule of
Now you see the preamble, now you don’t.
For a discussion of this feature of
Heller’s Alice in Wonderland methodology, see Cornell, supra note 98.
Ironically, in District of Columbia v. Heller, Scalia chided Justice Stevens for his Alice in
See Heller, 554 U.S. at 570.
Jay’s view is developed in Jones v. Walker, 13 F. Cas. 1059, 1065 (C.C.D. Va. 1800)
The issue was also central to the resolution of Lloyd v. Urison, 2 N.J.L. 212,
202 (Sup. Ct. 1807).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 747
the preamble can be employed to illuminate the intention of the lawgiver
and decide which meaning of a disputed text is more consistent with the
purpose of the law.
Jay’s view of preambles was hardly unique in the Founding era.
Although Scalia cites the Pennsylvania Constitution as good
authority, he conspicuously ignores its detailed treatment of preambles.
To the end that laws before they are enacted may be more maturely
considered, and the inconvenience of hasty determinations as much as
possible prevented, all bills of public nature shall be printed for the
consideration of the people, before they are read in general assembly the
last time for debate and amendment; and, except on occasions of sudden
necessity, shall not be passed into laws until the next session of assembly;
and for the more perfect satisfaction of the public, the reasons and
motives for making such laws shall be fully and clearly expressed in the
In his manual on parliamentary procedure, Thomas Jefferson also favored
the use of preambles as a guide to interpreting statutes.
Finally, the most
popular lay guide to the law, a text published in multiple editions and
available in most of the new states, the Conductor Generalis, included a
brief guide to interpreting statutes. Among the rules it reprinted were Lord
The preamble or rehearsal of a statute is deemed true: and
therefore good argument may be drawn from the preamble.
dominant approach to preambles in the Founding era does not support Scalia’s backwards reading of the Second Amendment.
There are many lessons to be drawn from Heller’s tortured use of
Rather than vindicate public meaning originalism, Heller shows
that its methods are easily manipulated and prone to abuse. Heller
demonstrates the danger of focusing on a disembodied “public meaning”
hovering somewhere in the constitutional ether. Public meaning
originalism makes it far too easy for ideologically motivated judges and
lawyers to consciously or unconsciously manipulate the text to suit their
126. Heller, 554 U.S. at 584–85.
127. PA. CONST. of 1776 § 15 (emphasis added).
128. THOMAS JEFFERSON, MANUAL OF PARLIAMENTARY PRACTICE: FOR THE USE OF THE
SENATE OF THE UNITED STATES 79 (Wash. City, Samuel Harrison Smith 1801).
129. RICHARD BURN & JAMES PARKER, THE CONDUCTOR GENERALIS, OR, THE OFFICE,
DUTY & AUTHORITY OF JUSTICES OF THE PEACE, HIGH-SHERIFFS, UNDER-SHERIFFS,
CORONERS, CONSTABLES, GAOLERS, JURY-MEN, & OVERSEERS OF THE POOR (Phila., Matthew
The fact that the two leading proponents of “original methods” originalism
endorsed this erroneous view of Founding-era practice only underscores the problems with
the method. See McGinnis & Rappaport, Original Methods Originalism, supra note 2, at
By shifting attention away from individuals and particular groups, such as Framers
and ratifiers, public meaning originalism actually facilitates the manipulation of evidence by
allowing scholars to engage in more subtle forms of manipulation. See generally Richard S.
Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 NW. U. L.
REV. 703 (2009).
748 FORDHAM LAW REVIEW [Vol. 82
The best way to illustrate the method of historical pragmatics is to
examine a specific Founding-era example. A substantial modern scholarly
literature on the meaning of “freedom of the press” has developed over the
last two generations. One case that typically appears as a footnote in this
story, Respublica v. Oswald,
131 merits further attention because it affords a
rare glimpse into Founding-era conflict over how to read constitutional
As news of ratification spread in the summer of 1788, the outspoken
Pennsylvania Anti-Federalist printer Eleazer Oswald became embroiled in a
libel case when he attacked Federalist Andrew Brown in the pages of his
newspaper, The Independent Gazetteer, or The Chronicle of Freedom. The
Pennsylvania case of Respublica v. Oswald took several unexpected legal
turns before being resolved, including a controversial contempt citation of
Oswald and an unsuccessful attempt by Oswald to impeach Chief Justice
Thomas McKean, the presiding judge in the case.133
The unusual twists in
the case prompted a much more extensive discussion of constitutional
questions in the press, and the issues raised by the case eventually reached
beyond the courts to the halls of the Pennsylvania state house, where the
legislature considered a petition to impeach Chief Justice McKean.134
Although it was adjudicated under state law and did not directly involve
any legal issues presented by the new federal Constitution, the controversy
engendered by the case illuminates the pragmatic processes in play when
Americans tried to make sense of constitutional texts. Indeed, the Oswald
case was the first significant public debate over the general principles of
constitutional interpretation to occur in the wake of the adoption of the
federal Constitution, and merits further scrutiny for that reason alone.
Ratification in Pennsylvania had been exceedingly contentious. The
Pennsylvania press teemed with criticism and defenses of the Constitution.
Crowds took to the streets on multiple occasions to vent their frustrations,
affirm their own political views, and on several occasions engage in violent
protest, including burning James Wilson in effigy. The state ratification
131. 1 U.S. (1 Dall.) 319 (Pa. 1788).
132. See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (1985) (discussing the case but
making several errors in describing the facts and the holding in the case); see also NORMAN
L. ROSENBERG, PROTECTING THE BEST MAN: AN INTERPRETIVE HISTORY OF THE LAW OF
LIBEL (1990); JEFFERY ALAN SMITH, PRINTERS AND PRESS FREEDOM: THE IDEOLOGY OF
EARLY AMERICAN JOURNALISM (1988). For an interesting critique of historical scholarship
on this topic by a prominent legal scholar, see David M. Rabban, The Ahistorical Historian:
Leonard Levy on Freedom of Expression in Early American History, 37 STAN. L. REV. 795
(1985). Rabban’s critique of Levy makes a strong case that historians can easily fall into the
trap of writing law office history. Id.
133. Oswald, 1 U.S. (1 Dall.) at 326.
134. The case report was also published as a pamphlet. See, e.g., A Gentleman of the Law,
in THE CASE OF THE COMMONWEALTH AGAINST ELEAZER OSWALD (Phila., William
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 749
convention also witnessed a number of dramatic moments as Federalists
and Anti-Federalists clashed over the Constitution.135
Anti-Federalists pounced on the absence of a bill of rights as a serious
flaw in the Constitution and were particularly troubled by the Constitution’s
failure to expressly protect freedom of the press. In his widely reprinted
State House Speech, James Wilson argued that the Constitution did not
need a bill of rights. He also derided fears that the Constitution threatened
freedom of the press as absurd.
Anti-Federalists rejected Wilson’s
arguments, including his suggestion that the Constitution posed no threat to
freedom of the press. Writing as “[a]n Officer of the Late Continental
Army,” Anti-Federalist William Findley identified the use of libel as a
particularly effective tool to destroy freedom of the press and stifle political
dissent. In the Pennsylvania Ratification Convention, Wilson responded to
this argument by invoking Sir William Blackstone’s analysis of the law of
libel. Wilson reminded his audience, “What is meant by the liberty of the
press is, that there should be no antecedent restraint upon it; but that every
author is responsible when he attacks the security or welfare of the
government, or the safety, character, and property of the individual.”136
Findley became Wilson’s most vocal opponent in the state ratification
convention. Each man approached the process of constitutional
interpretation from a radically different set of assumptions about how one
ought to read constitutional texts.
The two sparred frequently on the floor
of the convention. One of the most dramatic moments in the convention
occurred during one of these verbal tussles. Findley claimed that Sweden
had once enjoyed the right of trial by jury but had lost it. Wilson mocked
Findley’s claim as preposterous. Angered by Wilson’s arrogance, Findley,
a weaver who had turned to the law and politics and had become a powerful
figure in Pennsylvania, returned the next day and produced a volume of
history and a volume of Blackstone to buttress his historical claims. Rather
than drop the issue and move on, Wilson snidely dismissed his opponent’s
dramatic gesture as pretentious; he reminded the Convention that: “I do not
pretend to remember everything I read.”137 By contrast, his opponent was
one “whose stock of knowledge” was “limited to a few items,” which meant
he could “easily remember and refer to them.”138
The sharp exchange between Wilson and Findley illustrates the profound
rift between the legal vision of Federalist elites and a more popular
democratic vision of law championed by backcountry Anti-Federalists.
135. MAIER, supra note 32.
136. James Wilson’s Speech in the State House Yard, in 2 THE DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONSTITUTION, supra note 87, at 167, 168; The Pennsylvania
Convention, Saturday, 1 December 1787, in 2 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION, supra note 87, at 444, 454–56 (statement of James
Wilson); see also An Officer of the Late Continental Army, in 2 THE DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 87, at 211, 211.
137. See James Wilson’s Speech Pennsylvania Ratification Convention, supra note 136,
at 528, 532, 551.
750 FORDHAM LAW REVIEW [Vol. 82
Wilson’s approach to the law was grounded in the traditions of AngloAmerican
jurisprudence; Blackstone’s science of the law set out clear rules
for interpreting legal texts.
Findley rejected this elite vision of the law.
approach to constitutional interpretation was shaped by precepts drawn
from Anti-Federalist popular constitutionalism. To the extent that Findley
found any use for texts such as Blackstone, it was not as a model of legal
reasoning to be emulated, but as a simple reference work from which
isolated facts could be extracted. In this sense he viewed Blackstone as
little different from a farmer’s almanac. Wilson appreciated the vast
difference that separated his vision of law from his opponent’s. In the notes
Wilson kept of the convention debates, he aptly summarized Findley’s
fundamental objection to the Constitution: “the system ought to speak for
itself; and not need explanations.”139 From Wilson’s point of view,
Findley’s approach to constitutional texts was simply untenable.
never spoke for itself; law always required the application of a set of
interpretive canons. In good Enlightenment fashion, Wilson saw the law as
a science and mastery of it, including the new Constitution, presupposed a
familiarity with a well-established body of rules and methods gleaned from
a close study of legal decisions. Blackstone and others had attempted to
systematize this science of the law, and rough-hewn democrats, including
Findley, simply failed to appreciate that the law required considerably more
than a competency in English to master. In short, from Wilson’s elite
perspective, Findley’s radical textualism was antithetical to orthodox legal
practices in both England and America.
In contrast to the recently ratified federal Constitution that contained no
declaration of rights, the 1776 Pennsylvania Constitution contained a
provision protecting freedom of the press. Pennsylvania’s provision read:
“That the people have a right to freedom of speech, and of writing, and
publishing their sentiments; therefore the freedom of the press ought not to
be restrained.”140 Among Pennsylvania printers, Oswald had emerged as
one of the state’s most ardent defenders of an expansive vision of this right.
Indeed, his aggressive advocacy for press freedom had landed him in
McKean’s court on libel charges in 1782. On that earlier occasion he had
avoided prosecution by appealing to a sympathetic grand jury that refused
to indict him. In 1788, Oswald once again faced his old enemy Justice
McKean, and had things gone according to plan, the jury might once again
have saved the printer. It might have worked out exactly as it had in 1782,
but Oswald overplayed his hand and published an attack on McKean while
his case moved to trial. McKean cited him for contempt, effectively
depriving him of a chance to make his case before a jury.141
139. James Wilson’s Notes on Speech of William Findley, in 2 THE DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 87, at 506. For a discussion
of the contrast between Findley’s popular vision of the law and Wilson’s more elitist views,
see Cornell, supra note 90, at 323.
140. PA. CONST. of 1776 art. XII.
141. See generally Cornell, supra note 98 (discussing this case).
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 751
Although the 1788 Oswald case technically focused on the scope of
contempt under Pennsylvania law, Justice McKean used the opportunity to
expound on what freedom of the press meant in Pennsylvania. In matters of
constitutional interpretation, McKean was a strong intentionalist. The
“meaning of the [language of the] Constitution,” he intoned, was to be
sought in “its spirit and intention.”142 Oswald and his supporters had used
considerable “ingenuity” to “torture the expressions.”
understanding of freedom of the press, the true meaning of these words
could only be ascertained when one applied the correct canons of
construction that had been elaborated by learned English commentators
such as Blackstone. These rules instructed judges to look first to the words
of the law, and then to follow a prescribed series of rules to ascertain the
intention of the lawgiver. McKean also shared the Federalist view that the
language of the law had to be read against a set of background legal
assumptions, which were well “settled in England, so far back as the reign
of William the Third.”144
The interpretive rules and assumptions McKean extolled in court were
also defended by Federalist lawyer William Lewis when Oswald brought
his case before the Pennsylvania legislature. Infuriated by McKean’s
imperious behavior, Oswald demanded McKean’s impeachment for
violating the constitution of the state.145 Lewis defended the Chief Justice
against Oswald’s attacks, beginning his disquisition by “rescu[ing] Sir
William Blackstone from the stigma of being a courtly writer.”146
Oswald’s paper had reviled Federalists for invoking the authority of the
notorious Tory-leaning judge.
Having absolved Blackstone of the charge
of being hostile to American liberty, Lewis provided “a historical narrative”
demonstrating that the intent of Pennsylvanians in framing such a provision
in their own constitution had been clear: to protect the traditional
understanding of freedom of the press inherited from English law. In
addition to the arguments that McKean had proffered in court, Lewis
invoked another interpretive principle derived from Blackstone: he
identified the baneful consequences that would flow from the opposing rule
of construction favored by Oswald. Moving beyond intention, to identify
the potentially negative “effect and consequences” of Oswald’s Anti-
142. Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788).
145. Blackstone’s rule was as follows:
The fairest and most rational method to interpret the will of the legislator, is by
exploring his intentions at the time when the law was made, by signs the most
natural and probable. And these signs are either the words, the context, the subject
matter, the effects and consequence, or the spirit and reason of the law.
1 WILLIAM BLACKSTONE, COMMENTARIES *59. In addition, Blackstone counseled, “Lastly,
the most universal and effectual way of discovering the true meaning of a law, when the
words are dubious, is by considering the reason and spirit of it; or the cause which moved the
legislator to enact it.” Id. at *59–61.
146. Oswald, 1 U.S. (1 Dall.) at 329 n.(a).
147. See generally Cornell, supra note 12 (discussing the press debate).
752 FORDHAM LAW REVIEW [Vol. 82
Federalist approach to interpreting the law, Lewis claimed that his
opponents’ legal method would “prostitute to the most ignoble purposes”
the venerable idea of freedom of the press and produce licentiousness, not
Oswald’s champion in the legislature was William Findley, who rejected
virtually every aspect of his Federalist opponents’ Blackstonian method.
Findley was a strong textualist, who resolved to stick to the “explicit
language of the text.”149 In his view, formal legal knowledge was not
necessary to understand constitutional texts.150 “Every man,” Findley
asserted, “who possessed a competent share of common sense, and
understood the rules of grammar, was able to determine, on a bare perusal
of the bill of rights and constitution” what its words meant.151 To interpret
a constitution, one need simply have the ability to read ordinary English.
Federalists, by contrast, applied the “jargon of the law,” an approach
Findley believed perverted the plain meaning of the text.152 “If it was once
established, that the technical learning of a lawyer is necessary to
comprehend the principles laid down in the great political compact between
the people and their rulers,” such a development, would “be fatal, indeed, to
the cause of liberty.”153 American constitutionalism was not heir to British
ideas about freedom of the press, but rather marked a clean break with
English legal ideas. The presuppositions that guided Findley’s approach to
constitutional interpretation were an interlocking set of democratic
principles: the Revolution marked a sharp break with English law and the
interpretation of constitutions required no technical knowledge of the law.
The gulf separating Findley’s popular constitutional vision from the
orthodox Blackstonian vision of the law defended by Federalist elites
including James Wilson, Thomas McKean, and William Lewis, was
Most originalists have simply assumed the existence of a broad
consensus on questions of constitutional meaning and interpretation during
the Founding era. Historical scholarship over the last fifty years, by
contrast, has demonstrated that conflict, not consensus, was the norm in this
period.155 The historical divisions within the Founding generation also
encompassed profound disagreements over the most basic questions about
how to read constitutional texts.156 The controversy over the meaning of
freedom of the press in Pennsylvania supports the idea that there was no
interpretive consensus on the most basic issues of constitutional
148. Oswald, 1 U.S. (1 Dall.) at 329 n.(b).
149. Id. at 329 n.(e).
150. See id.
152. Id. at 329 n.(e).
154. Id. at 329.
155. See supra note 57 and accompanying text.
156. Treanor, Against Textualism, supra note 4, at 1006.
2013] THE INTELLECTUAL HISTORY ALTERNATIVE 753
interpretation in the Founding era.157 If one moves beyond the borders of
Pennsylvania and recognizes that thinking about constitutional
interpretation was evolving in the 1790s, the prospect of identifying any
constitutional consensus on such matters seems unlikely.
A number of originalists have argued that we ought to read the
Constitution’s text from the perspective of a fully informed or rational
lawyer. The notion that we might identify a single interpretive paradigm
that such an informed lawyer would have employed when reading
constitutional texts seems illusionary. James Wilson and William Findley
were both lawyers, but each figure approached constitutional interpretation
from a different set of assumptions about the law. Wilson was indisputably
the better-educated lawyer, and Wilson’s career in the law would likely be
viewed as more illustrious than Findley’s, at least if one uses the
conventional measures that the modern legal profession esteems.
attended one of the leading universities in the English-speaking world, St.
Andrews in Scotland. He held a prestigious professorship in law at the
University of Pennsylvania, and became an Associate Justice of the U.S.
Supreme Court. Yet, taking one’s interpretive cues from the Federalist
Wilson, one of the finest legal minds in America, produces some odd, if not
ironic, outcomes. An originalist interpretation using Wilson as a model
would inevitably be forced to conclude that prosecutions for seditious libel
were perfectly consistent with the original meaning of freedom of the press.
By contrast, following the methodology of the less well-educated AntiFederalist
William Findley leads to a result closer to the accepted modern
doctrine and more consistent with a view most modern Americans would
likely endorse.159 Thus, in the case of freedom of the press, interpreting the
Federalist Constitution with Findley’s more democratic and less “lawyerly”
methodology actually produces better results than using the methods of the
better-educated and decidedly more legalistic Federalist James Wilson.160
An interpretive methodology built on the methods of the Anti-Federalist
157. See, e.g., Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L.
REV. 519 (2003); Treanor, Judicial Review Before Marbury, supra note 4.
158. If one moves beyond the borders of Pennsylvania, one finds a wider range of
interpretive models. Adding developments within the 1790s complicates matters even
further. One of the most important developments in this period was Madison’s evolving
theory of ratifier intent. See generally Charles A. Lofgren, The Original Understanding of
Original Intent?, 5 CONST. COMMENT. 77 (1988); Jack N. Rakove, The Original Intention of
Original Understanding, 13 CONST. COMMENT. 159 (1996).
159. This example casts further doubt on the claims of McGinnis and Rappaport that
originalism yields desirable outcomes. A neutral application of originalist methods actually
produces highly undesirable outcomes. See John O. McGinnis & Michael B. Rappaport, A
Pragmatic Defense of Originalism, 101 NW. U. L. REV. 383, 388 (2007); John O. McGinnis
& Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. 1693, 1695
160. Anti-Federalists’ views on freedom of the press were not monolithic. Findley
represented the approach of middling democrats. Elite Anti-Federalists were closer to
Federalist elites, and were generally more sympathetic to a Zengerian model and its
emphasis on the rights of juries to determine the facts and the law. For the diversity of AntiFederalist
thought on this issue, see CORNELL, supra note 12, at 121–136.
754 FORDHAM LAW REVIEW [Vol. 82
losers applied to a Constitution written and ratified by the victorious
Federalists leads to a jurisprudence that would have been historically
impossible to implement in either 1788 or 1791.
While one might justify
interpreting the Federalist Constitution with Anti-Federalist techniques, it
would be hard to defend a claim that this was the dominant original
understanding that prevailed in the Founding era. Originalists seem
unaware of this Anti-Federalist paradox.
Discussions of originalism often speak of a “Brown problem.” Any
viable theory of constitutional law that does not vindicate Brown v. Board
of Education must be cast aside as defective.161 Originalism not only
suffers from a Brown problem, it also suffers from a serious First
Amendment problem as well. Applying originalist theory in an
intellectually honest and historically rigorous fashion leads to the
inescapable conclusion that most of modern First Amendment doctrine is
incompatible with the original understanding of freedom of the press.
What, if any, significance does the intellectual history critique of
originalism, especially new originalism, mean for normative questions of
Despite ambitious claims made by new originalists
that they have solved many of the historical problems associated with
traditional originalism, many of these problems persist.
If anything, the
shift to a focus on original public meaning has exacerbated these problems.
New originalism has made it easier, not harder, for scholars and judges to
manipulate evidence. Neither the recent turn to the philosophy of language
nor the use of fictive readers has solved any of the serious historical
problems associated with traditional intentionalist variants of
See ROBERT H. BORK, THE TEMPTING OF AMERICA 82.
Alexander M. Bickel, "The Original Understanding and the Segregation Decision", 69 HARV. L. REV. 1, 56 (1955);
David A. Strauss, Can Originalism Be Saved?, 92 B.U. L. REV. 1161 (2012); see also
Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947
(1995) (providing an originalist defense of Brown). But see Michael J. Klarman, Brown,
Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L.
REV. 1881 (1995) (opposing McConnell’s view).
There is a vast literature on the First Amendment and originalism.
For a useful
overview that concludes that the modern doctrine is hard to reconcile with any neutral
application of originalism, see Lawrence Rosenthal, First Amendment Investigations and the
Inescapable Pragmatism of the Common Law of Free Speech, 86 INDIANA LAW JOURNAL 1 (2011).
Originalism would undermine many other well-established features of modern constitutional
See Mitchell N. Berman, "Originalism and Its Discontents, Plus a Thought or Two
About Abortion", 24 CONST. COMMENT.
The profound flaws in new originalism have prompted more than one scholar to
quote the lyrics of the rock band The Who’s generational anthem, “Won’t Get Fooled
Again,” which offered this prophetic critique: “Meet the new boss, same as the old boss.”
SOTIRIOS A. BARBER and JAMES E. FLEMING, "CONSTITUTIONAL INTERPRETATION: THE BASIC
QUESTIONS" 94 (quoting THE WHO, Won’t Get Fooled Again, on WHO’S NEXT (MCA
Cornell, supra note 98 (same).
If legal scholars and judges wish to continue to make serious claims
about what the Constitution meant in the Founding era, they will need to
master the basic methods of intellectual history.
Jettisoning originalism in
favor of a method grounded in intellectual history will not eliminate all
Better history will not end results-oriented judging,
but it will facilitate a more honest and intellectually rigorous discussion
about what various provisions of the Constitution meant to different legal
audiences in the Founding era.
Deciding which, if any, of these different
historically grounded interpretations ought to guide us when interpreting the
Constitution today is not a question that history can answer.
are inescapably philosophical or political decisions.
embrace a truly historical approach, originalism will continue to be little
more than an ideology masquerading as a methodology.
Some scholars argue that originalism is more ideological than methodological.
Richard H. Fallon, Jr., "Are originalist constitutional theories principled, or are they rationalisations for conservatism?" 34 HARVARD JOURNAL OF LAW, and PUB. POL’Y 5,
Robert Post and Reva B. Siegel, "Originalism As a Political Practice: The Right’s Living Constitution," 75
FORDHAM LAW REVIEW.
But see Keith E. Whittington, "Is Originalism Too
Conservative?" 34 HARVARD JOURNAL OF LAW, and PUB. POL’Y 29 oppose this argument.
For a good
critique of how liberal originalist textualism leads to an equally distorted and warped version
of history, see William Michael Treanor, "Taking Text Too Seriously: Modern Textualism,
Original Meaning, and the Case of Amar’s Bill of Rights", 106 MICHIGAN LAW REVIEW.