The Historical Argument in American Legal Culture what is simply because it has come gradually to be. They are philosophic radicals: positivists, who search the legal universe for authoritative commands, preferably those reducible to the form of code-like rules of general application. The purpose of studying the past is to furnish us withdefinite rules of decision. The “rule of law is a lawof rules” as Justice Scalia has expressed it.^^ Ironically the New Originalism is very anti-traditional in one sense; it swims against the main current of American historical jurisprudence, which is common-law dynamic adaptationism, given content and direction by liberal modernization theory. Nineteenth century American lawyers generally resisted codification, for example, because they supposed that its formulas would straitjacket legal development.^^ Progressive jurists’ strongest objections to classical legal science were that it had become too rigid to cope with changed conditions. Real codes are of course more flexible than the originalists’ rules: in a legal regime that instructs judges to look each time only at the code and not at the subsequent glosses, applications will change, if only unconsciously, as social contexts and linguistic usages change. Strict originalism seeks to freeze meanings against erosion by time; and this is rather hard to achieve. One can of course seek to state the original principle at a high enough level of abstracted that it can be lifted above context altogether, which leaves it free to float and soak up later experience; or, more imaginatively, to work tc^- ward a faithful “translation” of the principle, so that it will have smiliar or analagous effects in the new context to those aimed for in the old;**^ but in choosing either of these strategies one will leave strict originalismfar behind. If one takes one’s originalismas a serious project of historical reconstruction, if one goes back in time to dredge up all the concrete practices of reading and applying the rule that once defined its practical meaning- one will inevitably discover a quite unmanageable degree of conflicting and ambiguous views. One will find that the meanings of even the most basic terms — “property” and “liberty” and “legislature” and “court” - have been wholly altered between that day and this. One will also find a lot of stuff that one does not want and cannot possibly convert to modern use. NewRight jurists like to point out, for example, that in 1787 nobody could have dreamed that one day lawyers would be able to persuade some courts that the Constitution prohibits legislatures from enacting the death penalty or criminal penalties for abortion or for homosexual acts: on such issues arguments from “original meanings” seem to have clear present value. But the original Framers also believed some much less convenient 191 Antonin Scalia, “The Rule of Law is as a Law of Rules,” University of Chicago Latv Review 56 (1989): 1175. Charles M. Cook, The American Codification Movement (Westport, CT: Greenwood Press, 1981). See Mark Tushnet, “Following the Rules Laid Down,” Harvard Law Review (1983): 781; Lawrence Lessig, “Fidelity in Translation,” Texas LawReview 71 (1993): 1165.
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