History for Dummies

March 5th, 2011

Patrick Charles, a historian who writes about the intersection of originalism and history, has an interesting post titled Placing “Context” Back in “Historical Context”~History for Dummies 101. Charles challenges the methodologies that most attorneys (and I would argue most judges) use when incorporating historical/originalist arguments into cases/articles/etc. The title of the post reminds me of one of the first articles I wrote, titled Originalism for Dummies, though I’m pretty sure Patrick would assert my approach was that of a dummy.

Rather than focusing on original intent, or original public meaning, it seems that Charles is asserting a different approach–original context. Here are a few bits from the piece:

I am daily reminded of how poorly lawyers use history in litigation tactics and how many legal scholars continue to make unsupported constitutional inferences.  The general use of history by lawyers and many legal scholars comes in a couple of forms.

Prior histories of the Declaration have made this interpretation plausible, but none of those histories have found a workable model to American constitutionalism in the context of the late eighteenth century.  Instead, it is standards are merely theorized to support a predisposed personal preference.  Such forms of originalism are not history, for there it is devoid of the context required for “historical context.”

I am not a historian, so I will not make any generalizations about the approach Patrick suggests. My comments are more broader, and rather jurisprudential. Previously, I made some comments about Patrick’s “ground rules for originalism

I have no doubt that the methodology and approaches originalist scholars and judges use conflict with generally accepted historian practices. I’m also fairly certain that the approach Judges use to deal with Intellectual Property differs from the approaches of engineers and scientists (think of a Daubert hearing). The approach Judges use to deal with economics and antitrust law differs from the approaches economists take. The approach Judges use to deal with issues of faith differs from the approach members of the clergy and philosophers take, and…. (I can go on…).

Judges aren’t historians.  Judges aren’t engineers. Judges aren’t philosophers. Judges judge.

To the extent that Judicial methodologies, like originalism, can be improved by adopting the techniques of the experts in the field, as Charles suggests that is probably a good thing. But to assert that because Judges do not adopt the procedures of a field  renders the findings of the court (or scholars) invalid would likely invalidate a wealth of jurisprudence. Originalism, as hot as it is, represents such a tiny part of our legal system. Most cases are decided irrespective of original meaning. While critiques on originalism in this sense are fair, I think the critique cuts much more deeply to the core of what judges–who are not experts in various areas–actually do.

I suppose attorneys could delegate the entire field of brief/article writing to historians (that would make many a grad students rather happy). But invariably, an attorney will be the person arguing the case. Notwithstanding the proliferation of historians writing amici, at the end attorneys at the lectern will be trying to persuade other attorneys wearing robes. To expect such a high level fo fidelity to a field of expertise (such as history) from non-experts may be asking too much. No doubt most originalist research is rather shoddy, and lawyers can learn from historians. I am just hesitant about excoriating attorneys from getting involved. If market forces hold true, high quality amici from historians will nudge attorneys towards crafting more precise historical narratives.

Patrick continues to shine a light on a topic that fascinates me. Keep an eye on his blog.