Wednesday, December 22, 2010

"More of the Historians Were with Us”

Thus Justice Stephen Breyer, speaking for the dissenters in Heller, in an interview on Fox, as discussed in an op-ed in the New York Times by Pauline Maier, MIT, who demurs.

3 comments:

Shag from Brookline said...

Justice Breyer makes the mistake of focusing just on one founder/framer, which is perhaps similar to "law office history" or as I have called it "SCOTUS history."

Shag from Brookline said...

Mike Rappaport has a 12/27/10 post at his Originalism Blog (which I think is a good blog but doesn't provide for comments) titled "History Law Office" makes reference to Prof. Meier's op-ed that closes with this:

"I recognize that the training of historians does not incline them towards original meaning analysis. But that is no excuse. Historians can complain all they want to about 'law office history,' but at least as big a problem in this area is 'history office law.'"

This calls for a response from legal historians, for which I lack qualifications. I would hope one (or more) would step forward as what I have called "SCOTUS history" in my earlier comment on BOTH sides of Heller has not been adequate.

Shag from Brookline said...

I should have added to my previous comment that Prof. Rappaport made no reference in his post to Prof. Maier's new book "Ratification: ..." that Mary Dudziak had an earlier post on at this Blog. I haven't obtained the book from my library as yet but I wonder if Prof. Rappaport has or will read it. He picks up on Prof. Maier's use of the term "original intent" in her op-ed and magnifies it, focusing on "original meaning." Prof. Maier's book I'm confident addresses "original meaning" with the benefit of not only the framers but the ratifiers as well.