![handle is hein.journals/cvdstlw63 and id is 1 raw text is: CLEVELAND STATE LAW REVIEW ET CETERA
VOLUME 63 MAY 1, 2015 PAGES 1-11
THE ORIGINALISM IS NOT HISTORY
DISCLAIMER: A HISTORIAN'S REBUTTAL
PATRICK J. CHARLES*
In the Cleveland State Law Review's symposium issue-History and the
Meaning of the Constitution-both Lee Strang and Scott Douglas Gerber issue the
disclaimer that their competing strands of orginalism are not history,' and that they
therefore do not suffer from the problems generally associated with history-in-law.
It is a disclaimer that a number of originalists make-particularly new originalists.
Michael Rappaport, for one, distinguishes a new originalist inquiry from a historical
inquiry on the grounds that the former is an investigation of legal meanings, rather
than an attempt to understand the past to the full extent that a historian needs to.3
Kurt T. Lash presents a similar line of argument, writing that new originalism is
about identifying historical patterns of usage, not historically unanimous usage.4
* Patrick J. Charles is the author of numerous articles and books on the Constitution, legal
history, and standards of review. Charles received his L.L.M. in Legal Theory and History,
with distinction, from Queen Mary University of London, his J.D. from Cleveland-Marshall
College of Law, Cleveland State University, and his B.A. in History and International Affairs,
with honors, from The George Washington University. Charles currently serves as a historian
for Air Force Special Operations Command 24th Special Operations Wing. The contents of
this article are not those of the United States Air Force or the Department of Defense, and are
solely the author's.
1 Lee J. Strang, Originalism 's Promise, and Its Limits, 63 CLEV. ST. L. REv. 81, 98 (2014)
([A]scertaining the Constitution's original meaning exerts pressure on judicial competence . .
. [and] judges are not historians-though, luckily, originalism is not history); Scott D.
Gerber, Liberal Originalism: The Declaration of Independence and Constitutional
Interpretation, 63 CLEV. ST. L. REv. 1, 9 (2014). Gerber asserts that liberal originalism is a
theory [of constitutional interpretation] that identifies the relevant political theory by
appealing to history . . . [and Supreme Court justices] should use history to identify the
political philosophy of the American Founding and then decide cases in light of that political
philosophy. Gerber, supra note 1, at 9. Gerber further stated that liberal originalism is
grounded in political theory, rather than textualism or history. Id. at 21.
2 For some of the earliest criticisms of history-in-law, see Charles A. Beard, The Act of
Constitutional Interpretation, 1 NAT'L LAW. GUILD Q. 9 (1937); Julius Goebel, Jr.,
Constitutional History and Constitutional Law, 38 COLUM. L. REv. 555 (1938); Alfred H.
Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REv. 119 (1965). For an
expanded discussion of the problems associated with history-in-law, see PATRICK J. CHARLES,
HISTORICISM, ORIGINALISM, AND THE CONSTITUTION: THE USE AND ABUSE OF THE PAST IN
AMERICAN JURISPRUDENCE 5-28 (2014).
3 Michael Rappaport, Gordon Wood on History and Originalism, LIBRARY OF LAW &
LIBERTY (Oct. 24, 2013), http://www.libertylawsite.org/2013/10/24/gordon-wood-on-history-
and-originalism/.
4 Kurt T. Lash, The Fourteenth Amendment, Original Meaning Originalism and How to
Approach the Historical Record: A Response to David Upham, LIBRARY OF LAW & LIBERTY](ViewImageLocal?handle=hein.journals/cvdstlw63&div=1&collection=&method=preview&ext=.png&size=3)
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