A worrying aspect of contemporary constitutional politics is that theories of constitutional interpretation are not just political, they are partisan. During the Warren Court, the New Deal, and at other times, the parties have disagreed about what the constitution means, often fiercely. But today one party is unified around an interpretive method that the other party finds illegitimate. Originalism is not just an academic theory. It is the interpretive method of the Republican Party.
My current book project–tentatively entitled, “Partisan Jurisprudence: A Political History of Originalism”–seeks to explain how we got here, and it was research for that project that produced my contribution to this issue of the LHR. My developing argument is about much more than academic elites, but it recognizes that the embrace of originalism by prestigious academics starting in the 1970s had important effects. Particularly consequential was Raoul Berger’s 1977 Government by Judiciary.[1] When Berger argued that the debates in the 39th Congress conclusively demonstrated that many of the Warren Court’s pivotal 14th Amendment decisions were mistaken–including Griswold v. Connecticut, Baker v. Carr, and even Brown v. Board of Education–both conservative academics and political leaders made a noticeable and durable turn towards originalism.[2]
In contrast, historians, then and now, have largely excoriated the book; this rejection suggests a consistent and perhaps inevitable division between historians and originalists. Archival research in Berger’s correspondence, however, led me to a different conclusion: just as Government by Judiciary had inspired and legitimated a conservative turn towards originalism, his book was itself inspired and legitimated by the work of professional historians.
Government by Judiciary was profoundly shaped by the ‘post-revisionist’ accounts of Reconstruction developed by historians like David Donald, Michael Les Benedict, and Harold Hyman in the 1960s and 1970s. Those historians and others rejected claims that Reconstruction and the 13th, 14th, and 15th Amendments were shaped primarily by Radical Republicans and their aspiration for an egalitarian, bi-racial democracy. Instead, the post-revisionists argued, the principal players were moderate Republicans animated by fears of centralized authority and limited aspirations for racial equality.
Berger’s correspondence explicitly recognized his debt to that work. He wrote Harold Hyman, for example, to ask for comments on his draft. The problem, he complained was that “lawyers have not come to grips with the impact of revisionist studies on construction of the 14th [Amendment].” His work, he told Hyman, “confirmed the revisionist historians, including your own work.”[3] Berger’s association with that historiography also legitimated his claims. “I was seduced,” wrote Hyman in response. “[Y]ou have written an immensely important reconsideration… historians will thank you.”[4] Willard Hurst, the dean of American legal historians, wrote Berger later about the ferocious debate Government by Judiciary spawned in the law reviews: “you confirm again that critics of your historical analysis are not critics of your history–certainly they don’t succeed where they try–but are in pursuit of certain substantive public policy goals which they like.”[5]
The discovery that Post-Revisionism inspired and legitimated Government by Judiciary–and through it, the rise of originalism–led me to two other questions: what other connections between historiography and originalism existed, and what has happened to the relationship of history and originalism since then?
My article argues that originalism’s emergence also drew strength from another historiographical revolution: the ideological interpretation of the founding headlined by Gordon Wood’s Creation of the American Republic.[6] Creation offered a deeply historicist alternative to both consensus and progressive historiography. Its emphasis on the role of ideology and the association of the Constitution with a recognizably modern political theory, however, could be interpreted to establish that the Constitution was the product of a limited set of consensus political principles with continued relevance in contemporary political debates. That interpretation of Creation made originalist research easier by authorizing a focus on public debates. It also legitimated originalism’s implicit claims that the founders had asked and answered the same questions constitutional law was asking today.
If these two historiographical revolutions helped originalism emerge, what happened to that productive but contentious relationship? Several things, I argue. Disciplinary developments played a role: historians increasingly turned to social and cultural history just as originalists developed new theories that directed their focus away from the actual intentions of the founders, which historians unquestionably knew well, to the public meaning of the words of the Constitution.
Technology strengthened that divide. The digitization of founding era sources and computerized analysis of those sources gave originalists new ways to discover that original public meaning without the help of historians. But institutional developments were probably key. The emergence of an informal network of originalists centered around the Federalist Society means today’s originalists—unlike Raoul Berger—need neither inspiration nor legitimation from historians. They provide it for themselves through a community of dedicated, talented, and influential originalist scholars, judges, and think tanks that did not exist in the 1970s.
Where does that leave us now? I am cautiously optimistic about the potential for renewed interaction between historians and originalists. This issue of the LHR demonstrates conclusively, if it had not been demonstrated already, that there are more than enough resources, in the form of an increasing number of methodologically sophisticated originalists and historians, to overcome these disciplinary and technological barriers. A growing cohort of J.D./PhDs in law schools are ideally situated to bridge the divide. And demand for originalist analysis from a new Supreme Court majority that is sympathetic to originalism will likely create new opportunities for dialogue. I admit I am less sure the institutional dynamics that divide history and originalism can be overcome as easily, and it is to that concern that this paper is primarily aimed. Overcoming the institutional incentives to stay within scholarly silos will take effort, and it is hard to provide effort without hope.
My contribution is a small effort to provide
some of that hope. By identifying the role history played in originalism’s
emergence, and identifying the factors that pushed the two disciplines apart, I
hope to show that today’s divisions are neither natural nor necessary. Doing
so, I hope, might encourage a dialogue that can improve our constitutional law,
and perhaps even start to address the divided state of our constitutional
politics.
[1]Berger, R. (1977) Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge: Harvard University Press
[2]Kersh, K. I. (2011) Ecumenicalism through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955–1980. Studies in American Political Development, 25 (April), 86–116; O’Neill, J. (2005) Originalism in American Law and Politics: A Constitutional History. Baltimore: Johns Hopkins University Press
[3]Berger to Harold Hyman, February 2, 1976, Berger Papers, Harvard Law School Special Collections.
[4]Hyman to Berger, March 3, 1976, Berger Papers.
[5]Hurst to Berger, October 5, 1981, Berger Papers.
[6]Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: UNC Press, 1969).