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“It is also that, in the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law.”

Legal history transforms stories into state-backed power. Courts, acting as historical exegete, foreclose possible historical worlds to create law. However, in recent years, the kind of “history and tradition” courts and originalists have been prepared to grace with legal meaning has become myopic. This is so not just because of the limited range of historical subjects on which courts have focused their attention, but also because of the normative questions originalist methodology eschews and the teleology it obscures. However, originalism need not have the final word on legal history.

This Note will argue that one way to move beyond originalism and toward liberatory legal meaning is to embrace a postcolonial approach to American legal history—a postcolonial legal historiography. Certainly, this approach, like postcolonial theory more broadly, seeks to understand the world in relationship to the history of imperialism and colonial rule. But that understanding requires more than just a critique of what history is told. A postcolonial legal historiography requires a radical shift in methods—especially relative to how originalism engages in legal historiography. To illustrate how different a postcolonial historiographical inquiry could be, this Note will discuss the debates engendered by the Subaltern Studies Group, a group of postcolonial historians who raised issues of representation in traditional historiographies of India. While those debates occurred decades ago and are just one facet of postcolonial approaches to telling history, I argue that looking at them afresh might allow advocates to chart a way out of originalism.

This Note will proceed in four parts. Part I will briefly summarize originalism’s methodology and justification before moving into an overview of two of its critiques, with an eye toward underscoring what might already be obvious: Originalism prevents liberatory approaches to legal history from emerging. Part II will introduce postcolonial approaches to historiography, focusing on the discourse around the Subaltern Studies Group and, in particular, the tensions between two giants of postcolonial studies: Ranajit Guha and Gayatri Spivak. Guha’s and Spivak’s respective contributions and disagreements offer alternative answers for how and why we engage in historical inquiry. Part III will then compare and contrast postcolonial historiography with originalism and argue that postcolonial historiography has a stronger answer to the questions of how and why we do legal history in the first place, particularly for those interested in liberatory legal meaning. Part IV will conclude by briefly examining how a postcolonial approach to American legal history might create alternative and liberatory legal meanings—especially as questions of colonialism and conquest begin to take a more prominent role in domestic American legal scholarship.