Gregory Ablavsky authored a critical review of Akhil Amar's book, The Words That Made Us. Ablavsky's review was recently published in the Michigan Law Review. Here's the abstract:
This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.
One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.
At his Legal Theory Blog, Lawrence Solum has a brief response to Ablavsky's review that includes a lengthy quote from a primary source Ablavsky cites, and the following note:
This is just one passage from a rich and interesting pamphlet, link above in the abstract.
The review itself is worth reading, but the tone is sharp and the substantive analysis of the actual content of the voices that Amar does not take into account is frequently thin. So, read Warren herself. Then track down and some of the other primary sources.
Amar will surely write another book about this period. Wouldn't it be lovely if he were to take up the challenge and write about "The Words That Could Have Made Us?"
Solum is an originalist who argues (like most academic originalists) that the Constitution should be interpreted based on the original public meaning of the text, as understood when the provision at issue was enacted. Solum is also one of the few originalists who've taken implementing originalism seriously, and has written extensively on how interpreters may attempt to derive original meaning.
Many originalists, however, are more cursory in how judges and attorneys can take on the difficult task of uncovering the meaning of constitutional text written hundreds of years ago, and how the general public (or a reasonable, well-educated reader--there are variations) may have understood the constitution's text. For them (and, even for Solum), the job of uncovering original meaning falls to academics, and courts may then rely on their work.
Take Solum, who does extensive work to set forth a method of "triangulating" results reached through analysis of founding-era documents, historical immersion, and corpus linguistics. And yet, this method is ultimately one for the scholars rather than the practitioners. He acknowledges that in-depth historical immersion is beyond the capacity of judges, attorneys, and clerks, leading him to write:
[I]t seems likely that implementation of the Method of Triangulation will involve the production of originalist scholarship in the academy with consumption of that scholarship by the courts. (p. 1681)
Similarly, in their book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport write that in an ideal originalist world, scholars will take the lead in determining original meaning:
[I]n a world dominated by originalism, academics would work to create the knowledge that would improve the performance of originalist judges and reinforce their inclination to be consistently originalist. (p. 198)
Randy Barnett, another originalist, argues in his book, Restoring the Lost Constitution: The Presumption of Liberty, that the original public meaning of quite a few terms have been discerned through recent legal scholarship. As it turns out, much of that scholarship was written by Barnett himself!
(This last book, unfortunately, is out of my reach as it's buried in a box in advance of a cross-country move. But the pages I'm referencing are 116-117 (of the 2014 revised edition), and I strongly suspect that the footnotes to Barnett's own work reference his writing on the Necessary and Proper Clause and the Commerce Clause).
What does this diversion have to do with the Ablavsky review and Solum's response? According to Solum, readers ought to dig into the primary sources themselves, as Ablavsky's "substantive analysis" of those sources is "thin." To be sure, Solum notes that the review is worth reading. But urging readers to dig into the sources--to "do their own research," as it were--suggests that something is lacking.
If such a label of primary source thinness holds against a twenty-page book review, does the same standard apply to judicial opinions? And, if so, what does this say to originalists' claims that judges can rely on legal scholarship that parses out the original meaning of constitutional provisions? Those books and articles aren't primary sources themselves. So should judges, like the readers of Ablavsky's book review, do their own research into the primary sources as well? Or are we to expect a lower standard of investigatory rigor from judges (whose decisions affect not only the parties before them, but all others affected by the constitutional provision at issue) than from legal academics?
All of this illustrates the bind that would-be originalist judges are in when attempting to determine original public meaning. These judges don't have as much time as legal scholars--they have non-constitutional cases to resolve, and dockets to clear. Resources before them are thin: the parties' briefs will be far from unbiased, and the same will likely be true of many amicus briefs, many of which are ultimately drafted by attorneys seeking to tailor their historical arguments and evidence to the interests of the clients they represent. And yet, if we take these circumstances into account and give judges the go-ahead to rely on secondary sources (many of which are authored by legal scholars rather than historians and edited by non-expert law students), we expect a lower level of historical rigor from the courts that end up making the law. It seems strange to expect less of those whose determinations end up making the difference.
As Ablavsky's review demonstrates, even experienced, prestigious legal scholars may overlook large swathes of relevant historical evidence when writing about the Constitution. This risk is amplified for judges--whose primary resources for determining meaning are the goal-oriented submissions of interested parties. I argue (along with Al Hiland) at length elsewhere that this poses serious problems for originalist theory. Amar's book, Ablavsky's review and Solum's response are further illustrations of this issue.