At The Originalism Blog, Michael Ramsey has a post on a forthcoming article by Mark Graber on the meaning of "insurrection" as it appears in Section Three of the Fourteenth Amendment. From the abstract, Graber claims to demonstrate "that the constitutional/common law of insurrection was well-established and well-understood in 1866," and that the term had "'a precise and well-understood meaning.'"
Michael Ramsey follows up on Graber's abstract with the following spicy commentary.
Some very confident statements here from a respected legal historian using history to establish a determinate original meaning of constitutional text relevant to a modern controversy.
So will historians and others who think history is too contingent and ambiguous to support the originalism project protest these conclusions?
Hypothesis: the 'history is indeterminate' critique of originalism applies only to originalist arguments that produce conservative results. Originalist arguments that produce left-leaning results are fine. For example, in addition to Trump disqualification: emoluments, presidential immunity, birthright citizenship, presidential war power, and that's just a start. I would like to be proved wrong on this.
I've critiqued the use of history by originalists before. In this article, for example, I argue that legal originalists tend to use history as precedent--bending it to fit the needs of clients, preferred arguments, or the need to reach a conclusion in a dispute. To an extent, the ambiguity of historical evidence poses problems to endeavors to determine original meaning. But I'm more concerned with attempts at doing history in the context of legal disputes, which may lead to selective or opportunistic citations and framing of historical evidence to fit the goals of those presenting the evidence.
Do I have a beef with Graber's claims? I don't pretend to be an originalist or a historian, so I have little to say on the merits of the claim. I do think that as a matter of "original public meaning" originalism, questions remain--as Graber's argument appears to proceed primarily from legal authorities of the time, such as court opinions, legislative history documents, and legal treatises. Whether the evidence demonstrates what a member of the public would have taken Section Three to mean at the time of ratification is, I think, a distinct question that I'm not sure this evidence fully answers--largely because I'm not sure if that question can be answered.
I don't think this raises any real problems with Graber's arguments. He's explicit about the sources he's using and the types of meaning discussed. It's my understanding that he doesn't claim (here or elsewhere) to be an originalist or to engage in originalism.
To tell the truth, though, I'm not all that invested in diving into the issue. Beyond my lack of expertise, I don't see much of a point in sifting through the historical evidence of what a bunch of long-dead folks thought about Section Three not so much because I don't think nothing's there, but because nothing will come of that work.
When originalism counsels against politically conservative results, today's Court simply avoids the method. Despite a sudden tsunami of scholarship and commentary on the original meaning of Section Three of the Fourteenth Amendment, the Court simply brushed aside a Section Three challenge to Trump's eligibility with structural arguments rather than a consideration of original meaning. This happened later in the same term when the Court decided Trump v. United States, granting Trump broad immunity from criminal prosecution on structural constitutional grounds. With a Court that picks and chooses its methodology in a manner that aligns with the political goals of its conservative supermajority, what is the point of devoting attention (favorable or unfavorable) to "left-leaning originalism" that one knows the Court will simply dodge?
As for where I devote my attention in my own work, I'm most interested in how originalism is employed by legal actors and calling out errors in originalism's execution. As a result, I focus on questions of history and original meaning the Court has purported to resolve. The Court's selective use (and avoidance) of originalist methodology results in a body of law in which its few originalist or traditionalist analyses lead to conservative outcomes. Because my work is drawn from what the Court does, I'm left with little to critique beyond goal-oriented facades of historical analysis in the service of conservative political goals. I'd welcome a change of pace, but I won't be holding my breath.