Martin S. Flaherty (Princeton University - Program in Law & Public Policy; Columbia Law School; Columbia University - Barnard College; Fordham University School of Law) has posted Peerless History, Meaningless Origins (1 Journal of American Constitutional History 671 (2023)) on SSRN. Here is the abstract:
As with any major law review article, Anthony Bellia and Bradford Clark’s “The International Law Origins of American Federalism," raises the question of whether modern constitutional scholarship is part of the problem, part of the solution, or both. “International Law Origins” qualifies as a representative case study on several grounds. Its authors are prolific constitutional scholars who teach at elite law schools. The piece itself appears in the Columbia Law Review, not only one of the nation’s leading law journals, but one that frequently features constitutional history. As is typical of constitutional history in law reviews especially, Bellia and Clark offer an original, indeed revisionist, argument about major aspects of the Founding. Finally, and perhaps most importantly, the authors self-consciously offer their insights to the Supreme Court as an originalist basis for several important areas of current and controversial doctrine. This essay will consider “International Law Origins” mainly in the broader context of originalist legal scholarship and its relationship as an appeal to historical expertise. Part I reviews the rise of such scholarship in response to the emergence of modern originalism, with a focus on its relation and reception among professional historians. In Part II, this essay considers the historical standards that constitutional historians have proposed and how those standards might usefully be applied to originalist scholarship. Among other things, this essay will suggest when certain presumptions should be applied against originalist accounts and how these might be rebutted. Part III then considers whether those presumptions should apply against “International Law Origins.” Next, in Part IV, the essay will briefly consider whether those presumptions have been overcome in this case, leaving the more direct and detailed work to the other scholars in this issue. Finally, this essay will conclude with a reconsideration of the feasibility of originalism as a method of constitutional interpretation.
