The Role of the Historian as Amicus

December 6th, 2010

For some time I have considered the role of the historian as an expert witness to aid in originalist inquiries. While Justice Breyer is quite comfortable with relying on doctors, scientists, engineers, mechanics, economists, etc. as experts to help explore other areas of the law, he is very uncomfortable with relying on historians (unless the historians happen to agree with him). This is an area to keep your eye on going forward.

The Legal History Blog has an interesting post on just this topic.

In “The Profession” column of the November 2010 issue of Perspectives in History (the American Historical Association’s monthly newsmagazine), Michael Grossberg (Indiana University) discusses historians’growing participation in legal cases.

Grossberg co-authored (with Nancy Cott) a historians’ brief in Goodridge v. Department of Public Health, the recent Massachusetts same-sex marriage case. From that experience, Grossberg concludes that “professional historians can, and should, intervene when the past is central to a particular case.”

Participating in the litigation also, he writes,

reinforced [his] belief that historians’ briefs, like other forms of history for audiences beyond our peers, should be recognized as a distinctive kind of historical analysis and one that ought to be critiqued accordingly. They should not be dismissed as mere works of political opinion. Instead we should grapple with the important questions about the use of historical expertise in advocacy raised by this new and increasingly expected role for historians in the judicial process.