Patrick J. Charles (Government of the United States of America – Air Force) has posted The 'Originalism is Not History' Disclaimer: A Historian's Rebuttal (63 Cleveland State Law Review Et Cetera 1 ) on SSRN. Here is the abstract:
A number of originalists are on record asserting the disclaimer that “orginalism is not history,” therefore claiming that originalism does not suffer from the problems typically associated with history-in-law. This Article challenges that assertion, both on the grounds that originalism relies on historical evidence in reaching legal determinations — therefore falsely giving rise to the presumption that originalism and history are one and the same — and also on the grounds that originalists, when advocating before the courts, do not make a distinction between originalism and history. This Article further argues that if originalists want to issue an accurate disclaimer, it should state that “originalism is not intended to be accurate history.” This would correct many of the public’s misconceptions as to what does and what does not constitute originalism."
Charles raises important issues. Recommended.
However, I would strongly suggest that readers not rely on Charles's representations as to what is claimed by originalists. Consider, for example, the following passage:
Essentially, this disclaimer would illuminate that originalism is about the use of historical evidence to determine legal meaning—period—even if said legal meaning is more hypothetical than factual.44
And here is the citation in footnote 44:
Solum, The Fixation Thesis, supra note 6, at 26-27, 31-34 (confirming that the fixation thesis is more of a hypothetical inquiry into legal language as it is understood by the public at large, and not necessarily an inquiry into “legal content” or context).
This is not an accurate representation of my views. Nothing on the cited pages suggests that the determination of original meaning is a hypothetical inquiry (as suggested by the parenthetical): instead it suggests that the semantic component of communicative content is determined by actual (not hypothetical) linguistic facts that determine conventional semantic meanings. These are actual meanings–not counterfactual or hypothetical meanings. Nothing on the cited pages suggests that the determination of communicative content is not an inquiry into context. Somewhat bizarrely, page 27 begins a discussion of the essential role of context in determining the communicative content of the constitutional text, but the parenthetical asserts that these passages stand for the opposite of what is actually argued.
It is true that my view is that "interpretation" (in the sense specified by a stipulated version of the interpretation-construction distinction) concerns communicative content and not legal content. As I have argued, the core of originalist constitutional theory is contained in two claims the Fixation Thesis and the Constraint Principle. The Fixation Thesis is the claim that the communicative content of the constitutional text is fixed by linguistic facts and facts about the context of constitutional communication at the time each provision is framed and/or ratified. The Constraint Principle claims that the legal content of constitutional doctrine and the decision of constitutional cases should be constrained by the communicative content of the constitutional text.
I am not sure what the passage in text ("originalism is about the use of historical evidence to determine legal meaning—period") was intended to convey, but my view is that (1) historical facts determine communicative content, and (2) communicative content should constrain constitutional practice. If the assertion is that originalist constitutional theory claims that the aim of constitutional interpretation is constituted solely by the recovery of legal meaning (in the sense of the legal content of the text), then the assertion is inaccurate as applied to the mainstream public-meaning version of originalism.
I have work-in-progress that addresses the larger claims that Charles makes about the use of history by originalists. As frequent readers of Legal Theory Blog might guess, that work will suggest that historical fact plays an important role in originalist theory, but the methodological orientation of some historians is ill equipped to do the necessary work of recovering the communicative content of the constitutional text. This is not because the methods are ill suited to the tasks for which they were intended, but is instead because those tasks are not the recovery of conventional semantic meanings and what philosophy of language and theoretical linguistics call "pragmatic enrichments" (which for sake of clarity in the context of constitutional theory, I call "contextual enrichments").
The assertion "originalism is not intended to be accurate history" is either itself inaccurate or misleading. If by “originalism is not intended to be accurate history," Charles means to suggest that originalists do not aim accurately to recover the linguistic facts that would establish conventional semantic meanings and facts about context relevant to identifying contextual disambiguation, implicatures, implicitures, and persuppositions, then Charles's assertion is simply inaccurate (as applied to my views and to the views of many other originalists).
If by “originalism is not intended to be accurate history," Charles means that recovery of communicative content is not the aim of "history" as a discipline and hence that what originalists do aim to accomplish is qualitatively different from what some historians aim to accomplish, then the assertion would be literally true but also misleading. The assertion would then be misleading, because the word "accurate" creates the deceptive suggestion that originalists do aim to do "history" (in the sense that they aim at the same ends as do some historians) but they are either deliberately inaccurate or indifferent to accuracy.
Although Charles does cite my work on the Fixation Thesis, he does not discuss the work that I have done to clarify the claims made by originalists in text. Nor does he consider the interaction between originalism, history as a discipline, and work in the philosophy of language and theoretical linguistics. For example, the paper uses the word "semantic" only once in a footnote; there is no discussion of pragmatics (contextual enrichment). From my perspective, this means that Charles has yet to engage at least one important form of originalism.
Read Charles's fine paper!