There is a well-known gulf between the way many originalist scholars and jurists think about constitutional law and the way many credentialed historians do. (This conference at the Stanford Constitutional Law Center a few years ago (1, 2, 3, 4, 5) is a great introduction.) Why do so many legal scholars rely on Founding-era history even when historians say they shouldn't? How can responsible legal scholars expect to find answers where historians find ambiguity and disagreement? And how can we apply any of what we find in the Founding era to today's legal problems, given that the basic facts of modern life would have been beyond the ken of even Hamilton and Madison and Jefferson?
In Originalism and the Law of the Past, a short piece forthcoming in the Law and History Review (a peer-reviewed history journal), co-author/co-blogger Steve Sachs and I try to provide some answers.
Read more at The Volokh Conspiracy