In 1959, John Pocock published what has become a key text in the history of English Political thought. The Ancient Constitution and Feudal Law charts the development of a set of ideas about the English past in the thought and political ideology of a number of lawyers: it suggests through an exploration of the paradigmatic figure of Sir Edward Coke, that this understanding of England's past played a vital role within seventeenth century history and controversy. Pocock's work touches on a vast theme which is that there are two groups of people interested professionally immediately in the past- one group are historians, the others are lawyers. History has not ceased to be important to lawyers today: currently in the US there are a group of conservative lawyers, headed by Justice Antonin Scalia, who argue for an originalist interpretation of the American constitution. The constitution, according to Scalia and his allies, should be interpreted in the way that it was written: the words should be applied with the intentions of the founders in writing those words down in mind. There are many problems with this idea about the constitution: some are picked up on in this article on History News Network, but there are deeper methodological problems involved in Scalia's project. First of all any constitution is a compromise document: the words are vague because they are intended to appeal to everyone in the room at the time- whose interpretation should a judge pick later as the 'original' interpretation?
There is however a greater problem implicit in Scalia's logic. Lawyers and historians do not think in the same way and do not want the past to work in the same way. Historians are in general interested in what the past has to offer as a totality: as a historian if I analyse eighteenth century America I want to see it in all of its complexity and abundance, I do not want to isolate (any more than I have to for reasons of practicality and time) any aspect of it from any other aspect. My enterprise is to understand the world as they saw it. Lawyers are not in that business. They are in the business of finding a precedent and abstracting it from that time forward into this time: they weigh and discuss precedents against each other. The discipline is very different: and the failures of lawyers in conceiving of history from Sir Edward Coke forwards was one of the subjects of Pocock's work. But it is important that we realise why lawyers fail as historians: it is not that they are stupid or wrong, but that they want to use the past for a different act- Justice Scalia is not interested in anything that does not effect his precedent. His problem is that everything, accurately understood, effects his precedent in the period he wants to abstract the law from. Consequently he has to be selective to do his job, ie be a judge, consequently he cannot find the original intention he so desires to abstract.
Originalism is not a sensible judicial doctrine not because it is unappealing as law but because it is unsound as history. Lawyers cannot recover the original intention of an act or a constitution, particularly something which was formed as a consequence of many intentions. They can arbitrarily insist upon a fragment of history that they choose to drag forwards, but in doing so they must abandon the argument that what they are doing is in any sense originalist. They must concede that they like their opponents are creating interpretation as opposed to restating interpretation. Sir Edward Coke may have been fixated on the past and the unchanging essense of English law: actually as Pocock showed he never understood the context of the law he quoted and became thus a great legal innovator rather than a great legal conservator.
Methinks despite the rhetoric of originalism and traditionalism, the fate of conservatives like Scalia is to become radicals who misuse historical evidence.