The Lawyer vs. the Historian

Historians in the News
tags: Constitution, originalism

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His new book is Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (HarperCollins 2016).

HNN Editor:  On March 20 Stanford historian Jonathan Gienapp wrote a long piece for the Organization of American Historians blog about the history of originalism.  In the article, which we excerpted on HNN,  he noted that originalists have evolved.  They no longer claim that it's wise to try to establish the original intentions of the founding fathers when interpreting the Constitution since there were so many founding fathers it's implausible to believe they held uniform views. Instead, originalists now focus on the public meaning of the words in the Constitution.  Gienapp's essay prompted this response  by a leading originalist writing for the legal blog Volokh Conspiracy. 

... Perhaps it is no surprise ... that, in addition to trashing originalist lawyers–and, for that matter, originalist historians though he doesn’t even acknowledge they exist–Professor Gienapp also trashes some philosophers of language, who he dismisses in passing as “a very narrow brand of philosophy of language with which originalists have become uniquely obsessed.” Philosophy? Philosophy? Historians don’t need no stinkin’ philosophy.

To repeat, I do not wish to paint with too broad a brush. Some of the best legal historians do have legal training. And law is not rocket science. Some careful historians without legal training like James Oakes (as I noted above) and many others turn out to be good readers of legal texts. (It helps when their agenda is not writing amicus briefs to the Supreme Court to help decide constitutional controversies.)  But neither is history astrophysics. It is possible for lawyers without PhD’s like Columbia’s Philip Hamburger or my colleague James Oldham  somehow to pick it up and do creditable historical work.

On the other hand, a PhD historian like former-Emory professsor Michael Bellesiles can write a massive peer-reviewed book like Arming America, calculated to engage directly in the debate over the “meaning” of the Second Amendment, that was based on fraudulently-manufactured evidence. And before his fraud could be exposed, he had been awarded Columbia’s prestigious Bancroft Prize. I can personally attest that it was no small feat to expose his fraud as academic historians sympathetic to the political implications of Bellisiles “findings” closed ranks around their colleague. In the end, academic historians and “peer review” did not discover and expose the fraud. That took a law professor and a nonacademic historian to do, over the staunch resistance of academic historians.

I raise this not to impugn the integrity of all historians, or even those academic historians who defended their colleague until compelled to yield, but merely to say that evidence matters, and nonhistorians with integrity can read this evidence without a PhD. And that “behaving like a historian” does not assure accurate conclusions. Neither does it assure that the inadvertant–or even intentional–inaccuracies of other historians will be exposed when the results of the historical method of immersion with the natives are politically welcome....

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