History for the Non-Originalist

By Brown, Rebecca L. | Harvard Journal of Law & Public Policy, Winter 2003 | Go to article overview
Save to active project

History for the Non-Originalist


Brown, Rebecca L., Harvard Journal of Law & Public Policy


It has always seemed a perversion of language to use a name to signify what something is not, rather than what it is. (1) A name is related, in some way, to understanding and to mastering, indeed to being human, as suggested by the Old Testament's delegation to man to name every living creature. (2) Yet tot those of us who believe that the meaning of the Constitution includes more than what any group of persons thought or intended in 1789, a name is an honor that has eluded us. We have long borne the stigma of identification by negative appellation. Whoever it was, who first used the term "non-originalist," she did us no favors. This non-name concedes a great deal to its negative referent, originalism. At one point, Professor Thomas Grey tried to help out by introducing the term "noninterpretiv[ist]," (3) but that has ultimately turned out even less charitably: not only are we thought not to care much what the Constitution originally meant, but now it appears we are not concerned with interpreting the document at all!

The issue of appellation is not problematic in name only. It carries over into our very essence, perhaps even contributing to a widespread defensiveness about what we think the Constitution is. The insecurity runs rampant through the pages of constitutional theory literature as, one by one, we have tried to construct an affirmative definition of constitutionalism that exists without use of the word "not."

The members of the Federalist Society are very proud of their love of originalism. Even though there is no unanimity about what originalism actually means, (4) or what it calls upon judges to do in a close case, its adherents gain a great deal by sharing one name that offers the appearance, if not the reality, of agreement. They also gain the strategic advantage of claiming, by virtue of their name alone, the baseline from which departures must be justified. (5) By this reasoning, it is no wonder that the Anti-Federalists--another group with a derivative identity--never quite captured the high ground in the framing of the Constitution, even though many of their ideas were well-accepted and had an important influence on the substance of the political outcomes at the founding. They did not have a name to call their own. And so it is to be a non-originalist at a Federalist Society Symposium.

The topic of this panel, "Originalism and Historical Truth," adds to the conundrum. Can the non-originalist have anything to say about "originalism and historical truth?" Does she necessarily disavow historical truth by claiming to be a non-originalist? Does she compromise non-originalism by claiming an interest in historical truth? That is the issue that I would like to address: not so much the perils of originalism itself, which have had ample attention in the literature, (6) but more the implications of this particular predicament for a non-originalist like me. Why does the non-originalist care about historical truth?

It is today very popular to level criticism against legal academics, practitioners, and judges for their (our) irresponsible use of history by disregarding professional standards that ought to guide historical inquiry. (7) Some of that critique is no doubt extremely helpful and deserved, and will ultimately improve the quality of legal scholarship. But only with a theory that explains why we care about history in the first place and how the past fits into our view of the appropriate manner for interpreting the Constitution, can we even begin to address the methodological questions regarding how to be appropriately rigorous in the use of historical evidence in furtherance of that theory. Our conclusions about why we look to history could support a defense against the criticism for certain uses of history that appear irresponsible if offered for one purpose, but may prove appropriate if offered for another. Indeed, "[t]he constitutional lawyer interested in history need not be a politically motivated scavenger of real historical work, but a different sort of creature altogether, with a special and not dishonorable function.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

History for the Non-Originalist
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?