Academic journal article Harvard Journal of Law & Public Policy

On Finding (and Losing) Our Origins

Academic journal article Harvard Journal of Law & Public Policy

On Finding (and Losing) Our Origins

Article excerpt


Suppose I asked a hundred people to write an article describing what happened yesterday in, say, France. We could even agree more specifically on the question, like what happened in the City Council of Paris; or, what did the French government do with respect to the Middle East? I doubt there would be much disagreement if we limited ourselves to a factual account of what occurred. But if I asked the same people to interpret what happened, if I asked them to explain events so that I could understand why those particular things happened, a range of arguments and ideas would emerge. And we could talk about it for weeks or months or forever and never achieve consensus.

Nor would it be different if we ran the same experiment with respect to what happened yesterday in California or New York City. Just read the op-ed pages in different newspapers. The editorialists are all being honest in explaining things as they see them; there is simply a lot of disagreement about the "true" explanation. Though many premises are shared, people have different views about what is more or less important, about how to interpret why people did things, and about what the influence was of this or that occurrence in any particular context. Yet no one ever suggests that we cannot talk about or analyze current events, whether in France or right here at home. We accept that explaining human behavior is complex. It turns on how we see things, and we may see things, even the same things, very differently.

History is like this. I speak as an amateur historian, of course: an autodidact, albeit one who has had assistance from some very fine historians. But my own sense after having spent about a decade rummaging around the Founding era is that history is just a kind of comparative study and that we can do it about as well and with about as much certainty as we do any kind of comparative study. One tries to immerse oneself in the culture of an earlier era in much the same way one tries to immerse oneself in any culture. We try to learn as many facts as we can, but more than that, we try to get a feel for the culture. The task is collective, and we learn from what others have discovered as well as from our own research. Slowly, we come to better understand the people in a particular place at a particular time. (I think this is why historians, unlike scholars in most fields, continue to get better with age.)

Obviously, there are limitations on how well I can get to know the past. I may not be able to obtain all the information I need, and I can't meet and talk to someone from the Founding era in the same way that I can travel to France and talk to French people. (I can, however, read their private diaries and letters, which few of my French friends are likely to share with me.) All things considered, in any even, we can do pretty well--especially when dealing with a period like the Founding, which is not too distant and which has left us more material than any one person could seriously hope to absorb in a lifetime.

The Founding will, to some extent, always remain foreign. We are not "of" the culture and can never be more than observers. But we can do about as well in grasping the Founding as any of our contemporary comparativists or anthropologists do with their respective cultures. There will always be room to disagree, and there will always be room for new interpretations to emerge, or for old ones to come back into vogue. But that simply is not an indictment of any consequence. No more here, at least, than in any other discipline that purports to be descriptive and interpretive rather than purely theoretical.

So when it comes to the question implicit in the title of this panel, "originalism and truth," my answer is that we can find "truth" in the context of the Founding--if by that we mean accuracy, as I take the organizers of the panel to have intended--in roughly the same manner and to roughly the same extent as we can find truth in any context that requires judgment and interpretation. …

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