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. …