On finding (and losing) our origins.

• Author: Kramer, Larry
• Position: Panel II: Original and Historical Truth - Federalist Society 2002 Symposium on Law and Truth

I

Suppose I asked a hundred people to write an article describing what happened yesterday in, say, France. We could even agree more specifically on the question, like what happened in the City Council of Paris; or, what did the French government do with respect to the Middle East? I doubt there would be much disagreement if we limited ourselves to a factual account of what occurred. But if I asked the same people to interpret what happened, if I asked them to explain events so that I could understand why those particular things happened, a range of arguments and ideas would emerge. And we could talk about it for weeks or months or forever and never achieve consensus.

Nor would it be different if we ran the same experiment with respect to what happened yesterday in California or New York City. Just read the op-ed pages in different newspapers. The editorialists are all being honest in explaining things as they see them; there is simply a lot of disagreement about the "true" explanation. Though many premises are shared, people have different views about what is more or less important, about how to interpret why people did things, and about what the influence was of this or that occurrence in any particular context. Yet no one ever suggests that we cannot talk about or analyze current events, whether in France or right here at home. We accept that explaining human behavior is complex. It turns on how we see things, and we may see things, even the same things, very differently.

History is like this. I speak as an amateur historian, of course: an autodidact, albeit one who has had assistance from some very fine historians. But my own sense after having spent about a decade rummaging around the Founding era is that history is just a kind of comparative study and that we can do it about as well and with about as much certainty as we do any kind of comparative study. One tries to immerse oneself in the culture of an earlier era in much the same way one tries to immerse oneself in any culture. We try to learn as many facts as we can, but more than that, we try to get a feel for the culture. The task is collective, and we learn from what others have discovered as well as from our own research. Slowly, we come to better understand the people in a particular place at a particular time. (I think this is why historians, unlike scholars in most fields, continue to get better with age.)

Obviously, there are limitations on how well I can get to know the past. I may not be able to obtain all the information I need, and I can't meet and talk to someone from the Founding era in the same way that I can travel to France and talk to French people. (I can, however, read their private diaries and letters, which few of my French friends are likely to share with me.) All things considered, in any even, we can do pretty well--especially when dealing with a period like the Founding, which is not too distant and which has left us more material than any one person could seriously hope to absorb in a lifetime.

The Founding will, to some extent, always remain foreign. We are not "of" the culture and can never be more than observers. But we can do about as well in grasping the Founding as any of our contemporary comparativists or anthropologists do with their respective cultures. There will always be room to disagree, and there will always be room for new interpretations to emerge, or for old ones to come back into vogue. But that simply is not an indictment of any consequence. No more here, at least, than in any other discipline that purports to be descriptive and interpretive rather than purely theoretical.

So when it comes to the question implicit in the title of this panel, "originalism and truth," my answer is that we can find "truth" in the context of the Founding--if by that we mean accuracy, as I take the organizers of the panel to have intended--in roughly the same manner and to roughly the same extent as we can find truth in any context that requires judgment and interpretation. What that manner and extent are I leave readers to decide for themselves. I insist only that historical inquiry is not exceptional in this regard. It does not follow that there are no problems with originalism as an approach to constitutional interpretation, but its problems do not, in any important sense, turn on an inability to discern or understand what the Founding was all about.

To put the same point another way: it is ultimately irrelevant whether there is an objective truth about what happened at the Founding (or at any other time, for that matter, including yesterday). Even if such a truth exists, we are inevitably and unavoidably trapped by our own subjectivity in trying to apprehend it. Discussion will call for judgment and interpretation and so always be subject to revision and never a matter of settled, irrefutable fact. But that is true of practically everything that counts or is worth doing in life. Certainly it is true of every method of legal interpretation, whether we are talking about textualism or pragmatism or moral philosophy or any other approach one might advance.

II

So what is wrong with originalism as a historical method of legal interpretation? I want to sketch two problems in this brief comment. The first relates directly to our topic in that it turns on difficulties in interpreting history. The second is less methodological and more normative.

A

Originalism rests on a conventional theory of positive law: (1) something becomes "law" through a process of enactment, and the law "is" what those who enacted it meant it to be. Laws are commands, issued by some body that has been delegated authority to issue those commands. (2) Pure textualism is not a viable strategy under this conception because the language used in an enacted law is merely the means by which its underlying command is conveyed. The language may be the best evidence of that command, but where it is unclear--either because inherently so or because the passage of time has made it so--we must look elsewhere to determine what the law "is," which is to say, what the lawmaker meant to command or sought to accomplish.

This model of positivism has obvious and well-known problems, most of which I do not want to talk about here. Among the difficulties I am not interested in are things like whether the command theory makes sense or whether we can talk about the intent of a group. As with the general question of historical research, these are not difficulties unique to originalism, and they would exist in pretty much the same form had the Constitution been ratified yesterday instead of in 1788. There is, however, one methodological problem inherent in originalism that does grow directly from the fact of historical distance and that seems to me intractable. This is the problem of translation.

I said above that with time and hard work we could do a reasonably good job understanding what the Founders saw as their problems and what they came up...