Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
Starting in the 1960s, jurists and scholars such as ex-New Deal liberal Raoul Berger, Supreme Court nominee Robert Bork, and Attorney General Edwin Meese charged the liberal activist justices of the Warren Court and the Burger Court with usurping legislative authority in violation of the intent and design of the Constitution. Sticking to Progressive “living constitutionalism,” liberal strategists pinned the “originalist” label on critics of judicial activism.
Even as it faced vigorous criticism, originalism was rightly recognized as a legal-theoretical problem worthy of philosophic and historical investigation. It was hard to deny, as constitutional scholar Richard Kay observed, that the issue of adherence to original intent was “vital in a political system where power is delegated and limited by a constitution.” In the view of historian Johnathan O’Neill, the doctrine’s initial expositors such as Berger “made originalism impossible to ignore.”
Consistent with its semantic meaning, originalism provoked novel and creative responses in the domain of jurisprudence. This effect has not been a function of the “climate of opinion.” Rather, it is a necessary and proper constitutional preservation and maintenance project for the sake of limited and responsible federal republican government. But critics such as James E. Fleming, a follower of Ronald Dworkin’s moral reading of the Constitution, rue the proliferation of originalist interpretations. Fleming’s list of varietals includes original meaning, Framer intent, interpretivist, constructionist, original methods, and public meaning.
Another critic, the Stanford historian Jonathan Gienapp, invites historians and legists to reflect on original intent jurisprudence in a recent series of essays. Gienapp instinctively perceives originalists as conservatives driven by presentist aims who need a “methodological corollary” to pursue those aims. Referring to the pioneering 1980s scholarship of Berger and Bork as “Originalism 1.0,” Gienapp says its goal was to recover what the Constitution’s Framers intended. When challenged on conceptual grounds, conservative judges and legal theorists later introduced the concept of “original public meaning,” referred to by Gienapp as “Originalism 2.0.”
Under the latter approach, constitutional text and discourse are understood in the manner employed by a competent speaker of the language at the time of the Constitution’s framing and ratification. Gienapp dismisses Originalism 2.0 as “studying word usage,” which leads to semantic nitpicking. It omits the historical context of American constitutionalism, according to Gienapp. Because it “claims to have escaped history,” the new originalism poses an urgent threat to the practice of history. Debates over it have “gravitated . . . towards the philosophical foundations of historical meaning.”
Originalists, he says, in insisting that “the document’s meaning could not evolve with the times” but must remain “fixed and constant over time,” have “stopped trying to beat historians at their own game—by re-writing the rules by which that game is played.” Instead of fighting a losing empirical battle, originalists “stake out different conceptual foundations altogether.” In D.C. v. Heller (2008), for example, the new originalists sought to engage historians on a “non-historical turf,” dismissing historians’ contextual reading of the Second Amendment as a misunderstanding of the concept of original meaning.
Gienapp exhorts historians to fulfill their professional obligation and rise to the originalist challenge. The dispute is not over Founding-era facts, he says, but over “what methods are needed to identify the original historical meaning of a historical text.” The new originalists, conceiving of historical knowledge in terms of cognition, profess “a certain kind of historical meaning” that they believe makes them “immune from historical critique.” In other words, Gienapp avers, public meaning originalism defines history as “a form of knowing that rather than a form of knowing how.”
He posits a different conception of historical epistemology. Historians gather and organize facts to produce “empirical knowledge,” but their expertise “is that they know how to read historical sources and properly decipher their historical meaning.” This is the meaning sources have “in their original historical context.” To think historically, therefore, means “knowing how to bracket the assumptions, values, and logics that shape contemporary consciousness,” in order to replace them with the assumptions, values, and logics that framed the very different mental universe of those living in a different time and place.” This “know-how” in “reading historical sources,” Gienapp declares, “is the defining attribute of historical expertise, organizing the profession and guiding its training.”
To grasp the meaning of words “in their original historical context requires first reconstructing the foreign conceptual world from which they issued.” It means “taking up residence with the natives of the historical past” and “learning how to think and reason as they once did.” In relation to the Constitution, Gienapp explains, it requires “knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have, . . . learning how to think historically, . . . behaving like a historian.”
Gienapp presents the case for “know-how” historicism in matter-of-fact terms. He does not consider the influence of modern and postmodern contexts on interpretive modalities concerning “how to think historically” and “behaving like a historian.” If he means what he says, however, it is unlikely that he would affirm the truth-value of thinking historically.
The source of historicism is Giambattista Vico’s 18th century treatise New Science claiming that people think differently in different eras. Vico defended rhetoric and culture against Cartesian rationalism aimed at detecting error and falsity in discourse. Historicism is the modern philosophical principle holding that historical knowledge is relative to the standpoint and circumstances of the historical investigator. Historicism, or historical relativism, denies ontological reality and truth. Whether its practical function is to serve as an instrument of moral confusion or as an agent of truth is debatable.
Gienapp is a full-fledged historicist and proud of it. Asserting that the “issue at the heart of originalism” is “the phenomenon of historical difference in language use,” he adopts historian Bernard Bailyn’s claim that the “past is a different world”—one so foreign that “a different form of translation is required.” Public meaning originalists, according to Gienapp, assume that the conceptual vocabulary of the Founding is still very much in view and in practice, and thus never tackled the phenomenon of historical difference in language use.
The key to the historical problem of language use is not so much putting things in context but “figuring out which context and why.” How do historians actually conduct the linguistic translation that is needed? This is where “historical know-how” comes in, Gienapp explains. For discernment on this issue historians need to find the right philosophers to lead them from darkness into light. Historicist revelation enters most propitiously by knowing “how to speak the language in which the text was originally written, knowing how to play the so-called language games—as the philosopher Ludwig Wittgenstein famously put it—in which the text was originally embedded.”
If “the past is indeed so foreign,” Gienapp reasons, “then a different form of translation is required: holistic translation.” What historians need to do is “first to translate the whole language of which the words were mere components,” processing individual meanings or arguments. Historicism is essential to “appreciate the foreignness of the past,” and “historicism and holism mutually reinforce each other.”
In Gienapp’s account, contemporary historicism is grounded in the intellectual authority of pioneering philosopher-psychologists William James and John Dewey, analytic philosophers Ludwig Wittgenstein and W.V.O. Quine, and neo-pragmatists Richard Rorty and Donald Davidson. These mind-reading savants provide the intellectual capital required to construct a historicist-holistic idiom for understanding the foreign world of the past. Moreover, the philosophers Michel Foucault, Thomas Kuhn, and Clifford Geertz have advanced historicist understanding in the social sciences “by stressing the holistic, and thus contingent, character of human concepts,” he writes. The bottom line for Gienapp is that “historical know-how,” the coin of the realm in postmodernity, is grounded in Wittgenstein’s assertion that the key move in acquiring philosophical insight is “knowing how to play language games.”
Holism is based on the proposition that the whole is greater than the sum of its parts, in contrast to inductive verification in which the parts function within the whole. In semantic holism, words acquire meaning not in isolation but in the context of sentences that constitute a language. Gienapp’s project depends on Wittgenstein’s theory of linguistic game-playing as the platform on which holistic historicism is constructed. In place of a “representational picture of language,” Wittgenstein adopted “a functionalist account of meaning” in which “the content of sentences is a product of how words are used in contingent discursive contexts.” Wittgenstein wrote that “only when language was returned to the messy reality of its everyday usage could usage, and thus meaning, be illuminated.” As Gienapp says, “Wittgenstein saw language as fundamentally a social practice,” not as a medium essentially tied to something external. Thus “he considered the constitutive elements of language to be contingent and historical.” Reading a historical text in the “language game” contest to restore original meaning “was thus primarily about the recovering original language games.”
The object of Gienapp’s anti-originalist project is not obvious. Ostensibly, he intends to protect the community of professional historians from a hostile takeover by originalists, while converting originalist-minded legists and historians to the discipline of historicist-holistic ratiocination. He laments that historians and originalists have not enjoyed meaningful exchanges because “originalism plays an ever-growing role in contemporary political culture.” The question, in Gienapp’s view, is “what relationship does historical inquiry as practiced by professional historians have to theories of originalism that legal scholars have refined?”
While originalists acknowledge differences between the Founders’ words and ours, in Gienapp’s view they fail to recognize that “the first key to understanding the American Founding is appreciating that it is a foreign world.” He claims that the public meaning originalist Lawrence Solum, for example, “argues for an originalism without history.” Solum denies that the Constitution has a different meaning now than when it was created. Failing “to historicize,” his method of translation proceeds from “the faulty premise that the Founding generation and we occupy the same linguistic world.” Solum and other 2.0 originalists, Gienapp charges, “fail to appreciate the holistic character of meaning—that individual utterances earn their meaning based on how they fit into a linguistic whole.” Originalists err in their interpretation, “focusing on individual words and statements when they must first grasp the broader idioms from which those component parts issued.”
Although historicism and holism can be taken to extreme lengths, that lesson should not minimize their importance. Following Wittgenstein, Gienapp reiterates that restoring original meaning is “primarily about recovering original language games.” The representational understanding of language is replaced by a functional view. Only when language was returned to its everyday usage, said Wittgenstein, could usage and thus meaning be illuminated.
Gienapp cites the political philosopher Quentin Skinner, a linguistic conventionalist, as a convert to Wittgensteinian holism. In place of ahistorical essentialism that elevates texts to the trans-historical level of perennial debates, Skinner “opted for historicist nominalism.” Following in the path of Plato, Machiavelli, and Hobbes, Skinner wrote about “the state.” “[ R]egulated by distinct language games, he found that their uses of the word ‘state’ were so different” that “it was illusory to assume they were picking out identical concepts.” Skinner turned out to be “a far more authentic public meaning originalist,” Gienapp concludes, precisely because he appreciated Wittgenstein’s philosophical teaching “that an appropriately historicist brand of public meaning requires contextualizing original utterances holistically.”
In acknowledging the perdurability of originalism, Gienapp might be attempting to make originalism the best it can be through friendly criticism. Taking his writings at face value, however, it is reasonable to conclude that his principal intention is to fashion a historicist-holistic platform on which Progressive moral aspirations can be fulfilled. Against the background of judicial activist policymaking that provoked originalism, it is conceivable that Gienapp’s historicist-holistic construct may serve as the rationale for Progressive aspirational fulfillment.
Consider, for example, that Justice Kennedy, in Obergefell v. Hodges (2015), cleared away the ontological reality of male-female marriage as so much detritus, declaring that same-sex couples “aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” This is the “whole” in Gienapp’s historicist-holistic paradigm, into which sundry subordinate parts are to be absorbed. In Obergefell Justice Kennedy also appealed to historicism in finding that male-female marriage was based on social convention. As the times change, “reality” changes accordingly.
Postscript: Professor Gienapp, presumably practicing historicist-holistic epistemology, wrote an article in 2015 entitled “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism.” The question at issue was whether the Constitution ought to contain a provision authorizing removal of government officers appointed by the President.
Although this was a technical matter on which the Constitution was silent, delegates in the Federal Convention sensed that it had more than a surface-level significance. They understood the issue “as pertaining to the very meaning and status of the Constitution itself,” Gienapp wrote, adding that the disposition of this question was “a crucial moment in the development of American constitutionalism.”
Upon ratification of the Constitution, “Americans had committed themselves to a written document that would serve as final political arbiter.” The instrument was now “the final judge of political life.” Gienapp concluded that the fundamental issue raised concerned “the concept of the essentialism of the United States Constitution.” An ontologically-minded metaphysical realist originalist could not have said it better.
 Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Johns Hopkins University Press, 2005), p. 131.
 James E. Fleming, Fidelity to Our Imperfect Constitution (Oxford University Press, 2015), pp. 1-24.
 See Jonathan Gienapp, “Constitutional Originalism and History,” essay posted March 20, 2017 on processhistory.org, the website of the Organization of American Historians; Jonathan Gienapp, “Knowing How vs. Knowing That: Navigating the Past,” essay posted April 4, 2017 on processhistory.org; and Jonathan Gienapp, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review, Vol. 84, Issue 3 (2015).
 Jonathan Gienapp, “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism,” Journal of the Early Republic, Volume 35, Number 3 (Fall 2015).