Five questions for a critic of originalism

In today’s Boston Globe historian and Boston College law professor Mary Bilder has an editorial criticizing originalism entitled The Constitution doesn’t mean what you think it means. In it, she offers a long historical narrative about the Founding into which she interjects her criticisms. Today, my Georgetown colleague and fellow-originalist Lawrence Solum has a blog post entitled Professor Bilder, Please Answer These Questions! in which he separates out, and hones in on, the specific objections she offers.

There is one thing each of these passages from Professor Bilder’s editorial have in common. Although she is writing as a historian, and her essay is largely an historical narrative about the Founding, in these passages, she is making explicit or implicit claims about what originalists have said today or in the recent past about the Constitution and how it should be interpreted. Each of Professor Solum’s questions are asking her to substantiate these claims about present-day originalists, not her claims about the past. Because these contentions are unsupported by her historical narrative, he asks her to respond and promises to post her answers. Should she choose to do so, I will link to it on the Volokh Conspiracy so you do not miss her responses.

Of course, Professor Bilder is under no obligation to reply to these questions. But, as a legal scholar, she was under some obligation to substantiate these claims in her original piece. Having failed to do so there–perhaps due to the exigencies of space and forum– it seems only fair to provide her the opportunity to do so now. As it currently stands, however, these factual claims about “originalism” and “originalist scholars” are entirely unsupported, as Professor Solum’s questions make clear.

With his permission, I reproduce his questions in their entirety.

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