Peerless History, Meaningless Origins

by Martin S. Flaherty

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History in service of originalism has become sufficiently rich that it invites at least some attempt at unpacking. This essay proposes a basic framework comprising key markers that a historian would use to assess the plausibility of an originalist historical claim, and the types of approaches and evidence that might justify acceptance of even initially dubious claims. A presumption against acceptance of an originalist argument should arise where one or more of the following red flags is raised: the historical claim (1) is utterly unprecedented, or just about; (2) rests on a single “eureka” insight; (3) flies in the face of a more general and established scholarly narrative; or (4) obviously advances a modern jurisprudential result. This presumption of skepticism has not been rebutted where the argument rests on some combination of the following evidentiary shortcuts: the argument (1) rests entirely on inference, with no express, affirmative evidence; (2) relies heavily on an unsupported claim of influence by “great thinkers” or “great books”; (3) relies heavily on founding era dictionaries or hypothetical persons rather than evidence of actual public understandings. “The International Law Origins of American Federalism” ticks all the boxes necessary to establish a high presumption against the historical claim it advances. While Bellia and Clark could in theory overcome this presumption by acknowledging the conventional wisdom to be challenged, exposing the flaws in the prevailing narrative, and assembling a compelling array of sources and evidence, “International Law Origins” indulges in exactly the techniques designed to avoid these labors.