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History Twitter is out in force ridiculing the latter portion of ACB’s claim here, which, sure, fair.
But there’s something to the first part too, something I now only see and understand as a result of @TheGNapp’s work. https://twitter.com/sahilkapur/status/1316003676918513664?s=20
But there’s something to the first part too, something I now only see and understand as a result of @TheGNapp’s work. https://twitter.com/sahilkapur/status/1316003676918513664?s=20
Full disclosure: what I’m about to write is a distillation of @TheGNapp's works he’s been doing recently, not my own ideas!
(Look, he’s busy today, so you’re getting the bootlegged version.)
(Look, he’s busy today, so you’re getting the bootlegged version.)
ACB’s claim that she “interpret[s] the Constitution as a law," is doing a lot of work, even if you don’t notice it at first.
Why? Because it’s a pretty weird thing to say about the Constitution.
Do *you* think that the Constitution is just like any old statute? A law imposing speed limits, for instance? A municipal regulation against chicken-keeping?
Do *you* think that the Constitution is just like any old statute? A law imposing speed limits, for instance? A municipal regulation against chicken-keeping?
No, you probably don’t. Somewhere, I bet you sense that the Constitution is fundamentally different. Maybe, when you think about it, the comparison even seems a bit insulting—like analogizing the Bible to some Chinese restaurant menus. (I mean, they’re both writing, right?)
Originalist jurists make this move all the time though.
Why? So they, as lawyers, can claim some kind of exclusive or special ownership over it. So they can keep, say, a historian, or, you know, any ordinary person, from claiming to have any expertise over what it means.
Why? So they, as lawyers, can claim some kind of exclusive or special ownership over it. So they can keep, say, a historian, or, you know, any ordinary person, from claiming to have any expertise over what it means.
They’re gate-keeping.
But let’s return, for a moment to your newfound appreciation for the strangeness of this claim—its prima facie absurdity.
It turns out you aren’t alone in thinking this way. You know who else thought this way? Most of the founders.
It turns out you aren’t alone in thinking this way. You know who else thought this way? Most of the founders.
They argued long, and hard, about what kind of “thing” the Constitution was. (Originalists might know this if they actually cared to study the past.)
The notion that the Constitution was just “a law,” was hardly the most popular take in the late 18th century.
The notion that the Constitution was just “a law,” was hardly the most popular take in the late 18th century.
Only later--wink, wink, when the Constitution evolved in people’s minds as originalists say it shouldn’t—when John Marshall and other jurists began treating the Constitution just like a statute to try to take control of it, did this bonkers notion gain supremacy.
Can’t get enough of this? Great, enrich my family by buying the @TheGNapp’s prize-winning book: https://www.hup.harvard.edu/catalog.php?isbn=9780674185043
Also, stay tuned for the sequel, coming somewhat soon.
Want a different but related set of observations on the relationship between originalism and history? (And why originalists say some of the wacky things they say?) Start here: https://www.processhistory.org/originalism-history/
Then catch the chaser: https://www.processhistory.org/gienapp-knowing-how/
Some more awesome works? How about literally anything by the amazing Saul Cornell? Maybe start here:
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1372&context=yjlh
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1372&context=yjlh
Or Larry Kramer’s tremendous book: https://global.oup.com/academic/product/the-people-themselves-9780195306453?cc=us&lang=en&
