Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning

10 Pages Posted: 21 May 2018

Date Written: 2015


Little appreciated, in an otherwise greatly appreciated opinion, is Justice Robert Jackson’s lyrical rejection of originalism in Youngstown Sheet & Tube Co. v. Sawyer. There, he waxed that “just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. . . . [T]hey largely cancel each other.” He deftly underlined the point with a footnote demonstrating how two of the most prominent Founders, who were also two of the three personalities that made up “Publius” (the author of The Federalist)—James Madison and Alexander Hamilton—utterly disagreed with one another about the Constitution’s meaning as soon as major controversies arose.

Yet, as with Mark Twain, the announcement of originalism’s death has proven to be premature. As this forum shows, whatever else originalism is, it is alive and well. Fortunately, the Essays in this forum come from historians. As such, the contributions issue from the very discipline on which originalism’s claims depend. Precisely that insight serves as the dominant, though not necessarily unanimous, theme of this collection. From this insight comes ways to confine originalism to a possibly legitimate, but far more circumscribed, role than its adherents desire.

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Suggested Citation

Flaherty, Martin S., Historians and the New Originalism: Contextualism, Historicism, and Constitutional Meaning (2015). Fordham Law Review, Vol. 84, No. 3, 2015, Fordham Law Legal Studies Research Paper No. 3182737, Available at SSRN: https://ssrn.com/abstract=3182737

Martin S. Flaherty (Contact Author)

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