By Saul Cornell
The emergence of a new variant of constitutional originalism has been heralded by its supporters as a major step forward in constitutional theory. The new originalism claims to have met the profound objections leveled at earlier versions of this theory by shifting attention away from a focus on the subjective belief of the framers and/or ratifers of the Constitution. Rather than concentrate on original intent, this “new” method focuses on the plain meaning the text would have had to Americans at the time it was adopted. The authoritative meaning of any constitutional text according to this theory is the plain meaning the words would have been given at the time the document was crafted. Upon closer inspection this new variant of originalism is nothing more than a repackaged version of the old law office history that mars so much constitutional scholarship. Although in theory the new originalism ought to lead to a more sophisticated approach to history, in practice it has produced results that are almost the mirror image of the historical reality it purports to represent. The easiest way to illustrate the problems with this methodology is to look at its application in the contentious debate over the Second Amendment, a vibrant field of constitutional study in which originalism continues to play a large role.
One of the central issues in the debate over the Second Amendment concerns the meaning of the phrase “bear arms.” Although the debate over this issue cuts across disciplines and even across the contemporary political spectrum, methodologically there is a sharp divide. Supporters of the individual rights theory are disproportionately originalists, while critics of this theory are historicists or contextualists. Second Amendment originalists claim that the well accepted public meaning of the phrase bear arms at the time of the Founding included non-military use of arms. Opponents of this interpretation, argue that the dominant understanding was militia-based. (Supporters of this militia- based understanding disagree over the character of this right. Some view it as a right of the states, and others who see it as civic in nature, and some embrace a pluralist conception that includes elements of all three theories. )
Supporters of the military reading of the phrase have cited dozens of examples of the term being used in a military context during early congressional debate. In addition to this evidence one might point to the usage of the term in the contemporary press, pamphlets, and books of the day. Together with my colleague Nathan Kozuskanich, we are compiling a database of every use of the term “bear arms” in the period between the American Revolution and the adoption of the Second Amendment. Out of the more than 150 occurrences we have documented thus far less than a handful fit the individual rights model!
If one looks closely at the evidentiary base for originalist claims one can see the problems with this method. The individual rights thesis does not rest on an exhaustive survey of the surviving historical materials, but on a handful of texts reprinted in modern documentary editions. These texts have been endlessly recycled in one law review essay after another. Rather than cite dozens of texts, originalists cite the same text dozens of times. (The arguments of originalists have even been picked up and recycled on the internet where gun rights extremism flourishes.) Thus, a text whose language was never emulated by contemporaries, such as the Anti-Federalist Dissent of the Pennsylvania Minority, is given more weight that the writings of the Federalists who actually wrote the Second Amendment in the First Congress (a body that contained few Anti-Federalists.)
Rather than engage in the necessary historical research that an intellectually honest originalism requires, individual rights scholars have created something like an alternate history science fiction fantasy. In this wacky world of Second Amendment originalism Anti-Federalists are miraculously transformed from losers into winners and idiosyncratic texts such as the Anti-Federalist Dissent of the Minority are magically transmogrified into the texts that reveal the assent of the Federalist majority.
To appreciate the difference between orignalist methods and contextualist methods one need only look at two of their favorite texts, the 1776 Pennsylvania Constitution and St. George Tucker’s edition of Blackstone. In both cases Second Amendment originalists have produced readings of the texts that wrench these texts out of context and distort their meaning. In essence originalists have read these texts from the point of modern gun rights ideology, not the eighteenth century Whig ideology of the Founders.
Saul Cornell is Associate Professor of History at Ohio State University and Director of the Second Amendment Research Center at the John Glenn Institute. His most recent book is A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Check back on Thursday and Friday for parts two and three of “Originalism Right or Originalism Lite.” If you just can’t wait check out Cornell’s email dialogue with Mark Tushnet.