Originalism, Bullshit, and Overconfidence

A while back, I wrote an article entitled, "Is Originalism Bullshit?" The current version of the piece is available here, and it will eventually be published in the Lewis & Clark Law Review. Those eager for invective and name-calling--please download and cite to the article before reading on.

Is Originalism Bullshit?

Reading past the article's third page reveals that my goal in the piece is to discuss originalism in both practice and theory in the context of theorizing on the nature of bullshit. As it turns out, a fairly robust literature on bullshit exists, and scholars of philosophy, sociology, rhetoric, and law have grappled with defining the term and applying it to discourse in various contexts. Harry Frankfurt's foundational essay, "On Bullshit," is largely credited with getting the ball rolling, and my article applies the lessons learned from interdisciplinary engagement with the concept. My focus is constitutional interpretation, and particularly interpretation that resorts to history to inform claims about constitutional meaning. While the title of the article addresses originalism, I'm similarly concerned with the Court's attention to history and tradition--a traditionalist approach that I've argued elsewhere is distinct from originalist interpretation.

Bullshit--simplified and summarized--is typically defined as statements made without regard to the truth of their content, made in service of some purpose other than communicating the truth to the listener. In the article, I address how bullshit may manifest in legal contexts and suggest that originalist and traditionalist methodologies lend themselves to abuse by bullshitters. Originalism, in its most typical form, urges interpreters to determine the original public meaning of a constitutional provision. This is--at least in theory--a historical inquiry. One must determine what the general public (or a reasonable member of the general public--whoever that is) believed a provision to mean at the time of ratification. This inquiry, originalists acknowledge, may require a variety of methods, including immersion in the source material and attention to a broad array of contemporaneous comparable usages.

Unfortunately, performing a careful, balanced historical investigation is difficult, given the time, ethical, and professional demands attorneys and judges face. Those purporting to engage in historical analysis frequently goof up, infusing their investigation of the past with present-day concepts and assumptions (among other errors). This is unsurprising. Those engaged in originalist inquiries--at least on the ground--tend to be lawyers and judges. They are not trained historians. They are, instead, trained in legal argument and reasoning, and tend to slip into these modes of analysis when purporting to engage in historical investigations. 

Legal academics, as well, frequently lack the training and experience required for rigorous historical investigation (including training to avoid importing their present-day perceptions onto the materials they analyze). Making things more concerning, originalist legal scholars tend to eschew the work of historians--distinguishing the legal questions originalism resolves from the more abstract and unbounded questions that occupy the attention of professional historians. Even those with historical training may face temptation to skew their analysis--conscious or unconscious--as they may have particular cases in mind, or wish to reach conclusions that are sufficiently firm and dramatic to draw the attention of law review editors, judges, and Justices.

All of these motivations, combined with a general lack of historical training (and not infrequent disdain for the historians) are fertile ground for bullshit to thrive. Originalists--particularly practicing originalists--may be educated enough to know the complexity of which they speak, but willing to paper over that complexity in their own claims in order to accomplish their goals. Lawyers need to advocate for their clients. Judges need to reach a decision, rather than wallow in the uncertainty of a potentially contradictory and sparse historical record. The result is a tendency to make uninformed, overstated, and potentially false claims about historical meaning in service of these goals. This, I argue, is bullshit.

Throughout the article I discuss examples of bullshit from the bench. I decline to identify any originalist scholars as bullshitters. Despite the title, I try to keep things a bit classy throughout the piece. I'm not sure if naming names accomplishes that goal.

Robert Natelson

Robert Natelson, depending on which of his many online biographies you read, is "one of America's best-known constitutional scholars," and is "widely acknowledged to be the country’s leading scholar on the Constitution’s amendment procedure and among the leaders on several other topics." "His publications are too numerous to list," (is such a thing possible?) and while he was once a law professor, he is "currently the Senior Fellow in Constitutional Jurisprudence at the Heartland Institute in Arlington Heights, IL, the Independence Institute in Denver, Colorado, and the Montana Policy Institute in Bozeman, Montana."

While his own website includes no CV, it includes the following regarding his expertise and experience:

There are several keys to Professor Natelson’s success as a scholar. Unlike most constitutional writers, he has academic training not merely in law or in history, but in both, as well as in the Latin classics that were the mainstay of Founding-Era education. He works to keep his historical investigations objective. He also has the benefit of lessons and habits learned in the “real world,” since prior to entering academia he practiced law in two states, ran his own businesses, and worked as a journalist and at other jobs.

 Historical expertise and objectivity? You got it. From his Independence Institute bio:

[U]nlike most other constitutional writers, he has academic training in history and in the Greco-Roman classics that were the mainstay of Founding-Era education. Finally, he does not enter a research project to promote some pre-determined conclusion. His agenda is to find and publish the truth.

Natelson's opinions on "the truth" sometimes lead to conflict. In 2022, Natelson took issue with a brief that by Gregory Ablavsky that addressed Natelson's work. Natelson's characterization?

When I finally got a chance to review it, I was stunned. Disagreement is part of the scholarly and legal process. But this was more than disagreement: The section of the brief directed at me had a “shyster” quality that rendered it out of place for a legal scholar and, indeed, for any brief submitted to a federal court.

The brief repeatedly misrepresented my positions—and on one occasion, the position of Justice Thomas. It threw unfair imputations on a careful, objective—and, I believe, accurate—examination of how the Constitution’s ratifiers understood the Indian Commerce Clause. It wrenched quotations out of context to make them appear to say things they did not. And it contradicted statements Ablavsky himself had made in his 2015 article.

Natelson went on to critique various examples of what he claimed were misrepresentations of his work, as well as what he asserted were mistakes in Ablavsky's historical analysis.

Ablavsky, in turn, responded with a lengthy takedown of Natelson's critique and methodology. It's available here. In brief, Ablavsky critiqued Natelson for unwarranted certainty over the intention of certain founders, incorrectly stating that Ablavsky relied on nonexistent sources, and confusing differences of interpretation with factual errors. From Ablavsky:

All of these issues frame a larger disagreement between Mr. Natelson and me. He finds great certainty in his interpretations of the past and of other scholars—so much so that, when I earlier pointed out much of his argument rested on an inaccurate version of a quotation that, when corrected, directly contradicted his original interpretation, he insisted that the corrected quotation still did not trouble his original conclusion. You will find a similar attitude throughout his “cite check”: deep confidence that not only is his interpretation right and mine wrong, but that my view is so egregiously incorrect as to not warrant publication.

Sam Bray and Paul Miller have pointed out missteps in other areas of Natelson's work--the uncritical repetition of which have had ripple effects throughout the academy. Natelson's evidence for his bold conclusions is--as Richard Primus argues--"thin." Yet, as we'll see, Natelson remains quote confident in his abilities.

Natelson and Infinite Regress

Years later, Natelson wrote a series of articles (based on this piece) contending that the Constitution permits states to act independently of the federal government to address the entry of undocumented immigrants due to various provisions detailing what states may due in cases of invasion. In response to this...questionable claim, David Weisberg warned against a "Paradox of Originalism," in which discussion of a historical definition of a term requires inquiries into the historical meaning of the definition and its terms--which continues ad infinitum. 

In response, Andrew Hyman conveyed Natelson's thoughts:

Infinite regress is possible only if the researcher has no substantial background in 18th century discourse and has to rely on a dictionary to look up every word in every definition. However, competent originalist scholars make themselves familiar with 18th century discourse. In my case, for example, I've been immersed for many years in a vast array of official 18th century letters, newspaper reports, essays, legislative records, case reports, handbooks, legal treatises, and other material. I've also read the founding generation's educational canon and a fair amount of contemporaneous literature.

Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But even before beginning our "state war powers" project, I knew that one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.

I don't expect lawyers and judges who interpret the Constitution to make that kind of commitment to learning 18th century English. That's what scholars are for. Scholars should publish to provide accurate guidance. It is regrettable that so many legal writers publish before they have acquired the necessary tools---and not to provide accurate guidance but to influence.

(On a side note, that very last sentence is interesting, in light of Natelson's pride over the Supreme Court's citation of his scholarship, his work on amicus briefs, and his explicitly stated goal in the article at issue of "enabl[ing] the judiciary to change course. Sounds like "influence" to me.)

Where is all of this going, and what does it have to do with originalism and bullshit?

I quoted a small portion of Natelson's response in a portion of my article in which I raised concerns over originalists who disregard the work of historians and the critiques of historians. As noted above, some originalists tend to distinguish their work from that of historians--critiquing historians as addressing fundamentally different issues than those of legal interpretation which concern originalists. Natelson's overconfident rejoinder to Weisberg seemed a fitting example.

Or did it?

Natelson and Hyman Strike Back

Over the weekend, I received an email from Robert Natelson responding to my article on originalism. After a brief word on how the title and tone of the article cheapened the discourse, he took issue with how I'd quoted him in the article. Natelson insisted that he was not rejecting historians' critiques, and noted that he cites "historians of the era copiously" in his work. While I wasn't sure this was particularly responsive (as I was not urging engagement with historians of the era, but, rather, the work of modern historians) I responded with a kind (but ominous) promise to make that portion of the article more precise and thorough.

Two days later, Andrew Hyman wrote a post on The Originalism Blog, essentially repeating Natelson's earlier concerns (though in a more civil tone). From that post:

Natelson’s self-described procedure was applied to “common” words that he had already encountered in writings from the eighteenth century, and if instead obscure words had been involved, which Natelson had not previously encountered, then doubtless he would have consulted the old dictionaries before forming any notions about what he would find in those old dictionaries. In short, I don’t see anything wrong with the way Rob Natelson proceeded in this matter. As a coauthor with Rob, I can attest that we cited many historical critiques, without picking ones supporting our conclusions, and the idea that Rob has no use for such critiques is incorrect.

What might have been an issue to address with a minor revision and a slightly beefier footnote is now out in the open. 

And so...

I appreciate the attention to my work. It's also nice to see that both Natelson and Hyman appear to have made it through 47 pages on why originalism lends itself to bullshitting before finding a flaw. But it doesn't seem right to leave Hyman's characterization of my work as "misleading" floating around without a rejoinder.

To an extent, Natelson and Hyman are right. I don't think that the problems with Natelson's approach to history are precisely the same as those exhibited by originalists who disregard the work of historians as irrelevant to their interpretive inquiry. Natelson's approach is similarly problematic in a somewhat different way.

Natelson, in the excerpt I quote in my article, and as other scholars observe of his work elsewhere, evidences an overconfidence that risks crossing the line into bullshit territory. Ablavsky, Bray, Miller, and Primus (in their pieces linked above) detail examples of how this confidence leads to overambitious conclusions that extend beyond the support of the cited evidence. And in the portion I quote, Natelson expresses a level of confidence in his own abilities such that he need not resort to consulting historical sources to know the answer to a question. Going into the historical weeds and pulling relevant sources is only necessary to appease the editors. But it's ultimately overkill, since Natelson already knows the answer. 

A possible response is that overconfidence in this vein does not lead to bullshitting, but is rather more likely to result in earnest mistakes. One who genuinely believes that they are communicating the truth about original meaning is not a bullshitter, as they care about the truth of their assertion and believe that they are informing the listener of what is true. This may be the case in which the speaker is overconfident. To be sure, the overconfidence is still worthy of criticism--but not on the grounds that it's giving rise to bullshit.

But I don't think this response holds up. To start, I remain skeptical of Natelson's repeated assertions--both in the broader context of the statement I quoted, and in his various biographies--that his primary concern is The Truth. He isn't shy about calling out the distorted perspectives of others--accusing legal academics of being drawn to conclusions by their left-leaning political ideologies. And yet, Natelson has positions with multiple...let's call them, "Think Tanks," which routinely participate in litigation over contentious issues. He isn't shy about his own participation in this litigation, and he flaunts the Court's reliance on his work. Taking on the role of advocate involves the risk that one will interpret ambiguous evidence in a manner conducive to one's goals--including in subtle manners of which one might be unaware. Desiring recognition in the form of judicial citations incentivizes strong conclusions of which Justices might approve--incentives which may be inconsistent with historical evidence that is sparse or contradictory.

To be sure, these concerns are speculative. Perhaps Natelson did indeed immerse himself systematically in the historical evidence (despite lacking any formal training or education in history beyond undergraduate education--at least as far as I can tell), and perhaps the effects of this immersion are so strong that they crowd out the influences of Natelson's current advocacy work and prior political involvement. That voice in the back of his head telling him the true meaning of the Constitution may indeed belong to James Madison, rather than Justice Thomas whispering "I'll cite you!" 

But none of this changes the fact that Natelson has repeatedly been called out on his overconfident approach to interpreting historical evidence--both by legal scholars and trained historians. In the face of these rebukes, Natelson remains steadfast in proclaiming his expertise and knowledge of original meaning, and isn't afraid to lash out at those who dare disagree.

And so in my article he will remain.