I’m traveling today, but I thought many of you might like this article in Dissent from Saul Cornell. Joining what seems to be a ground-swell of historians criticizing constitutional originalism, Cornell points out that so many historians oppose originalism not because they are leftists. They oppose originalism because it employs bad history.
Cornell’s argument reminded me of another, written by my Georgia State colleague H. Robert Baker in Common-Place. The article considers the Court’s 2004 Boumediene v. Bush decision, which struck down the Bush administration’s arguments about habeas corpus. Baker notes how deeply historical narrative is implicated in legal opinions and especially in legal divides. He writes: “Both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s dissent turn to the past to justify their interpretations of habeas corpus. In doing so, they demonstrate just how immediate the past can be—but also just how divisive it remains. Choosing between the five justices in the majority and the four in the minority is, in essence, choosing between two very different histories.”
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Cornell was apparently quite comfortable deploying an essentially originalist argument in his book about the Second Amendment. Mind, his version of originalism has different roots and motivations than that of the version he criticizes, but it is still a form of originalism.
NB: I have not read read the book and base my comments on reviews of it.