Michael Ramsey has a very good post entitled Gienapp on Barnett on Gienapp on Originalism. Here is a key passage from Gienapp:f
Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians?
And from Ramsey:
I'm struck by how uncompromising this is. Is Professor Gienapp really saying that no part of the Constitution can be understood as the Framers understood it, except by historians with the kind of training he describes? That seems implausible. I feel pretty confident that the Framers understood that under the Constitution each state would select two Senators regardless of population. And with just a little background reading, I can get an (admittedly superficial) understanding of why they thought this was a good idea (or at least were willing to agree to it) -- at least enough of an understanding to be confident that I am reading their text as they would. I assume he would not disagree.
This is a deep and interesting question, and my inclination is that originalists and historians ought to discuss these ideas with an attitude of mutual respect and openness. I think that intellectual progress is not promoted by "scoring debating points" or "digging in" so that we can engage in "intellectual trench warfare." Thus, I welcome Gienapp's very thoughtful remarks as an opportunity to engage in serious reflection.
Consider the three examples we are working with:
Qing dynasty legal texts.
The United States Constitution.
The Qing dynasty began in 1644 and its legal texts are not written in English; I don't know whether the early texts are in Manchu or in some version of classical Mandarin. Although I have written about Confucian legal theory, I do not know to what extent early Manchu texts reflect Confucian and NeoConfucian ideas, as opposed to ideas drawn from Manchu culture. Nonetheless, as a speculative hypothesis, I am inclined to believe that early Qing texts would be relatively inaccessible to American legal scholars, even if they were well translated. For example, from my work on Confucian legal thought, I have come to understand that the classical Confucian concept of "Li" (usually translated as "ritual") is frequently misunderstood by contemporary readers, because they do not fully grasp the virtue-centered role-based nature of Confucian thought; a literal translation of "Li" as "ritual" can be very misleading. I would not be confident about my ability to analyze the content of early Qing legal texts for precisely the reasons that Gienapp identifies.
The case of Justinian's Code is different. I have more confidence in my ability to gauge the difficulties in translation in this case for several reasons. I did coursework in Roman Law at UCLA, and hence have a basic understanding of the historical processes from which Code emerged. Moreover, I have read many sections of the Code, and I am also familiar with contemporary Roman Law scholarship on a variety of topics. Because of the influence of Roman law on the civil law tradition and on the development of the common law, there is an ongoing tradition of interaction between Roman law concepts and contemporary legal concepts. There are obstacles to translation, but in my opinion, careful work by contemporary lawyers can enable them to understand many Roman law texts. It would certainly come as a big surprise to contemporary civilian lawyers if they were told that are incapable of working with Roman law materials, in the original language or in translation to one of the civilian vernaculars such as German. I would be cautious about my attempt to grasp the communicative content of some provision of Justinian's Code, but I would not view this as an impossible task for anyone other than a professional historian of Roman law. Take for example, the dispute during the early imperial period between the the Sabinians and the Proculians about the ownership of chattels in cases where an artisan had transformed raw materials into a new kind of thing in a way that added value. The Sabinians took the position that the owner of the raw materials retained the ownership interest, whereas the Proculians took the position that if the artisan or manufacturer had created a new kind of thing, that person would become the owner. I last studied this issue more than 30 years ago, so I may be misremembering the details, but I have a very strong impression that with sufficient effort I could obtain a fairly precise understanding of the two positions. The conceptual world of ancient Rome is closer to our world than the early Qing Dynasty (or so I believe), but it is more distant than the conceptual world of the Framers and Ratifiers of the United States Constitution.
I am open to the argument that the communicative content of the text of the United States Constitution is epistemically inaccessible to anyone who does not immerse themselves in the conceptual world of the late eighteenth-century, but I do not believe that this argument can be made on the basis of a priori assumptions about the accessibility of the past in general. The conceptual world of the late Eighteenth Century is closer to our conceptual world than is the conceptual world of Justinian's era. The legal texts of Justinian's era are in Latin, not English; Justinian's Code was drafted from 529 to 565 well more than a thousand years before the drafting the United States Constitution. The text of the unamended United States Constitution was written in the American English of its era; although there has been a considerable amount of linguistic drift or semantic shift, approaching founding era texts is not like reading Old English ("ond þa cyningas begen ofslægene, ond sio laf wiþ þone here friþ nam) or Middle English ("the hooly blisful martir for to seke"). For example, I have a fairly high degree of confidence that I can discern the communicative content of sentences like, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." To be clear, that does not mean that I fully understand the reasons for which this provision was adopted or the effects that it was intended to produce: what I claim to be able to grasp is the communicative content of the text.
So I welcome the opportunity to reflect further on Gienapp's very thoughtful remarks. I suspect that we agree on much, although difference may remain. In this regard, it might be helpful for me to quote a passage from my forthcoming essay, Originalist Methodology (out very soon in the University of Chicago Law Review). This passage discusses what I call "immersion" and it preceded by discussions of (1) linguistic intuitions, (2) dictionary definitions, (3) corpus linguistics. Here is what I say:
A fourth technique might be called “immersion.” In the case of a native speaker of a natural language, immersion normally occurs very early in life and continues so long as one is a member of the linguistic community. Contemporary judges, lawyers, and legal scholars are not immersed in the linguistic culture of late eighteenth-century American English. General immersion in eighteenth-century linguistic culture would be difficult. One technique would involve immersion into the written texts of the period—ideally a wide spectrum of texts, including personal diaries, fiction, newspapers, pamphlets, and written records of oral events. The traditional sources of information regarding framing and ratification might form part of such immersion, but acquiring linguistic competence would require exposure to a wider variety of texts. Whether such immersion succeeds in producing true linguistic competence is a difficult empirical question. Partial immersion might be achieved using methods familiar from history as a discipline. This might involve consulting the usual sources and then reading relevant texts familiar to those sources, leading to further texts, and so forth. Partial immersion might or might not lead to full linguistic competence.
When discussing this paper, I suggest that immersion is likely to require years of work. How do the various techniques relate to each other? My essay continues:
In practice, multiple techniques can all be employed, with each acting as a kind of check on the others. Contemporary linguistic intuitions can be checked against dictionary definitions to reveal possible anomalies. Dictionary definitions can be checked against the results of corpus linguistics and those results checked against the linguistic intuitions generated by partial immersion in the relevant linguistic world via written texts. When all these techniques converge on a single hypothesis regarding the conventional semantic meaning of a word or phrase, we would have strong evidence in favor of that meaning. When the techniques do not converge, then we would look for explanations for divergence.
One tentative thought I have is that no one of the various techniques for the recovery of communicative content is sufficient. For example, I think it is likely that historians using the technique of immersion will benefit from the rigorous methods of corpus linguistics. This thought is suggested by the fact that the best contemporary lexicography uses corpus linguistics, but contemporary lexicographers are competent speakers of the language they are studying. Moreover, it seems likely that the best overall understanding will emerge a division of intellectual labor. Some scholars may specialize in corpus linguistics, whereas others may employ immersion. Yet other scholars may specialize in synthesizing original research done by specialists.
There is another important point about the role of immersion in the context of contemporary debates about constitutional originalism. Translation requires more than competence in conceptual world of the "object language"--in the case of the unamended Constitution, late eighteenth-century American English. It also requires competence in the conceptual world of the language into which the translation occurs. This means that historical study of the constitutional text requires competence in the conceptual world of contemporary constitutional law and constitutional theory.
I look forward to further discussion with Barnett, Gienapp, Ramsey and others on these deeply interesting topics.