Originalism’s Founding

Aaron Hall holds a JD from Harvard Law School and a doctorate in history from the University of Calfornia, Berkeley. He is currently a Presidential Postdoctoral Fellow at Cornell University and will join the faculty of the University of Minnesota as an Assistant Professor of History in 2020. His article, “‘Plant Yourselves on Its Primal Granite’: Slavery, History, and the Antebellum Roots of Originalism” appears in the Law and History Review symposium on originalism and legal history (volume 37.3).

What is originalism? No shortage of law review articles offer answers to this question. In the legal academy, writers have spent decades crafting, revising and policing the house of originalism. Together, they have built a populous world of normative constitutional theory that can be marked in terms of generations and rival siblings – as monumental footnotes and periodic retrospectives attest.[1] Along with overt theorization, an ever-growing genre of scholarship announces original constitutional meanings as known through one or another methodology. Largely, these publications of definition and application are the work of “originalists,” legal scholars who “believe in” originalism or otherwise follow its precepts. As a result, the dominant account of originalism under discussion comes from inside the house. But do current descriptions of the theory and its rationales actually capture what originalism is?

In the introductory note to the August 2019 issue of the Law and History Review, Editor Gautham Rao summarizes the core postulates of the prevailing account of originalism: “that the original public meaning of the Constitution of the United States of America can be made known” and “that this meaning should guide contemporary constitutional interpretation.”[2] Few originalists would disagree. Yet originalism is not simply a legal theory. Scholars continue to demonstrate how contemporary originalism is embedded in the rough fabric of American political culture.[3] It is a community, an instrument, a rallying cry, a career, a shibboleth; it does not exist apart from bitter conflicts and deeply-felt ideologies about government, power, rights and belonging in the United States. As such, in studying its development and the historical materials recruited or abjured by its exponents, historians need not let originalists define originalism. Dialogue between historians and originalists, though quite generative at times, has borne out a certain asymmetrical pattern: historians have been moved to criticize originalist historical assumptions and methods, emphasizing complexity and context at the founding. In response, originalists have pirouetted away from such critiques by developing new linguistic heuristics and new definitions of what originalism is and does.[4] Originalism is dead; long live originalism.

My contribution to the LHR forum on originalism and legal history“‘Plant Yourselves on its Primal Granite’: Slavery, History and the Antebellum Roots of Originalism” – takes a different tack. Instead of focusing on the founding moment itself, the piece examines the development and deployment of the founding’s authority in antebellum courts. I discuss how jurists confronted cases implicating the constitutional place of slavery by seizing upon an emergent public discourse of historical veneration. Through conflicts over slavery and state power during the Early Republic, Americans built up a revered Founding containing ascribed original visions that ventured beyond the text of the Constitution; at the same time, judges and lawyers brought the power of this public constitutional culture to bear on prosecutions and adjudications involving the same fraught subject matter. Through narratives and invocations of Founding understandings in courtroom arguments, jury instructions and judicial opinions, they sought to impose authoritative, historical settlements where the Constitution’s text was silent, ambiguous, simply unwelcome or unbelievable. Like actors in other political forums, legal officers participated in making and remaking a constitutional past to govern slavery.

For the article, I selected a few examples of court proceedings from my research on the invention and use of U.S. constitutional history to show how the process unfolded. Together, they represent an arc in which the authority of narratives of original meaning spread through courts facing constitutional slavery cases. Pro-slavery interests relied on that authority to ordain new and increasingly favorable rules, but it also opened the door to popular counter-narratives that challenged judicial proclamations of historical truth. While not the focus of the essay, I also tried to give a sense of the production and presence of a Founding-centered constitutional culture in popular understanding and among lawyers. In the larger project associated with this article, I attend to these themes in depth by exploring how white Americans acquired and practiced their constitutional faith and how black Americans negotiated its force. This book project traces the rise and consequence of an authoritative Founding from the post-ratification moment through Reconstruction.

My LHR contribution dives into this story as the Founding coalesced in the early 1820s. The crisis over Missouri statehood was a crucial period for constitutional vernacular genesis. As I indicate in the article, courts shared in this moment, making claims upon and reproducing idioms of original understandings to stabilize proceedings relating to fugitive rendition.

Later, revisiting the notorious case of Prigg v. Pennsylvania (1842) case, I find a jurisprudential watershed.[5] Entertaining arguments sounding in historical reverence and armed with an expanded archive, the Court made a new national law of slavery by claiming to merely carry out the will of the Founding. Assuming the role of official constitutional historians granted the justices potent means for legitimation. But the Founding was a source of popular constitutional authority semi-independent of the Court. The final portion of the article discusses how people and even judges in the late antebellum years invoked original understandings and the superior authority of the Founding to mount resistance to the prevailing proslavery constitutional order.

The brief essay leaves much unsaid about the construction and work of constitutional history in antebellum America. Yet I hope that it is effective in illustrating how the antebellum judicial turn to the Founding represented an effort to harness the power of popular constitutional culture and to manage the constitutional politics of slavery. This is part of the history of originalism, I contend, because originalism is an invocation of public faith in the Founding–whether or not originalists concede this source of power and legitimation.[6] From outside the house of theory, where people, law and constitutionalism meet, originalism converts public faith in a knowable and good original moment into restrictions on the democratic present, alternative relationships with the Constitution, and progressive readings of its possibilities. By its very name, originalism in public conception recruits and reproduces faith in an authoritative Founding populated by wise Constitution-makers. Thus, as the conclusion of my LHR article intimates, contemporary originalists, even as they experiment with linguistic philosophy, cannot stand apart from the antebellum history in which their approach was forged. The public authority of the Founding remains the sine qua non of originalism.[7]

[1] E.g. Randy E. Barnett & Evan D. Bernick, “The Letter and the Spirit: A Unified Theory of Originalism,” Georgetown Law Journal 107 (2018), 1-55; Keith E. Whittington, “Originalism: A Critical Introduction,” Fordham Law Review 82 (2013), 375-409; John O. McGinnis & Michael B. Rappaport, “Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction,” Northwestern University Law Review (2009), 751–802; Randy E. Barnett, “An Originalism for Nonoriginalists,” Loyola Law Review 45 (1999), 611-654.

[2] Gautham Rao, “In This Issue,” Law and History Review 37, no. 3 (August 2019).

[3] E.g. Eric J. Segall, Originalism as Faith (New York: Cambridge University Press, 2018); Daniel T. Rogers, The Age of Fracture (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 232–42; Mary Ziegler, “Originalism Talk: A Legal History,” Brigham Young University Law Review (2014), 869–926; Jamal Greene, “Selling Originalism,” Georgetown Law Journal 97 (2009), 657-721; Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (2008), 191-248; Robert Post & Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitutionalism,” Fordham Law Review 75 (2006), 554-574.

[4] On this dialogic process, see, e.g., Jonathan Gienapp, “Constitutional Originalism and History,” Process: a blog for american history, at http://www.processhistory.org/originalism-history; Lawrence B. Solum, “The Fixation Thesis: The Role of Historical Fact in Original Meaning,” Notre Dame Law Review 91 (2015), 1-78; “Forum: Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning,” Fordham Law Review 84 (2015), 905-976; Saul Cornell, “Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism,” 82 Fordham Law Review 82 (2013), 721-755; Jack N. Rakove, “Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism,” San Diego Law Review 48 (2011), 575-600; Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996).

[5] Prigg v. Pennsylvania, 41 U.S. 539 (1842).

[6] For an untroubled quasi-acknowledgment of this principle, see William Baude, “Is Originalism Our Law?,” Columbia Law Review 115 (2015), 2347-2408.

[7] My entry in The Docket has a critical tone. It was written in the days immediately following the publication of “The 1619 Project,” The New York Times Magazine’s special issue on American Slavery and its legacies. Through digital media, I saw that a number of prominent originalists were quick to complain of the irrelevance or error of reflecting on how the United States was founded on slavery. In this moment, outside the confines of law reviews, I saw public meaning originalists reveal a fuller sense of what originalism is: as their reaction affirms, a venerated Founding must endure in public constitutional culture for originalism to work. See Ashley Feinberg, “Who Got the Maddest About the New York Times’ Slavery Coverage?” Slate, August 19, 2019, at https://slate.com/news-and-politics/2019/08/the-conservative-backlash-against-the-new-york-times-1619-project.html