Historians and Originalism

May 2nd, 2013

A common theme on this blog is the role that historians (see here and here, and generally), as opposed to lawyers writing about legla history, should play in originalist inquiries. A new note in the Yale Journal of Law and Humanities by Joshua Stein offers three suggestions for how historians can better craft arguments in amici:

Historians, I contend, can more effectively influence the Court and reclaim their authority to interpret the past without surrendering their professional principles. They must first understand that their attempts to get involved in originalist debates fall short in three ways: (1) they traffic in certitudes, which are anathema to the historical vocation; (2) they accept and legitimize the normative, originalist premise that the past ought to inform the present; and (3) they search for historical analogies to satisfy the Court’s originalists when they are better served locating or contextualizing persuasive case law. This Note will examine these three matters in turn in Parts One, Two and Three. In Part Four, I argue that historians can and should pursue alternative approaches in their briefs. Responding to each of the three issues named above, respectively, they should (1) attack originalist arguments by destabilizing their historical conclusions, (2) adopt alternatives to originalist advocacy in their amicus briefs, or (3) craft briefs narrowly in the fashion of a historical “special master.” All three approaches would bring an urgent relevancy to historical advocacy without sacrificing historical principles.

The note adds:

Each of these options would address the aforementioned concerns. Option one puts historians in their methodological comfort zone; they can “tell it like it is” by emphasizing the uncertainty of the past without trying to replace one erroneously certain version of the past with another. Option two makes the Constitution more of a moving target, one that shifts along with society. Option three is so fact- specific and narrowly tailored that partisan politics could be pushed aside by a focus on precedent and, to the extent possible, facts rather than arguments. These briefs would target discrete precedential and factual questions that historians believe can help the Court decide a particular case.

The note also explores the differences between a lawyer writing about history and a historian writing about law:

Historians who offer originalist arguments do not typically share

the philosophical zeal of legal practitioners about the legitimacy of the practice. Nevertheless, when they do jump into the fray, they often offer historical conclusions packaged in originalist terms since doing so represents a sure-fire way to contribute to legal discourse. Yet they may find their efforts blunted by the fact that originalism’s most fervent practitioners rarely find that the historical record forces them to conclude in a way that runs counter to their principles or politics.

The clearest practical distinction between a historian’s history and a lawyer’s is that the lawyer is trying to win a case. For the most part, furthermore, the lawyers’ past is about precedent. And when they turn to a past beyond case law, they handle history as dilettantes. They are not beholden to any vocational ethos about history and can search for handpicked facts and arguments in the history books to advance their cause. Surely attorneys should not seek victory any cost, but they are entrusted with the responsibility of zealous advocacy. Just as they hunt for favorable precedent, so too will they try to illuminate a sympathetic past. Lawyers view history the same way they might see any given expertise and the experts they hire for trial: they want to win. This results in a cynical view of the past that historians cannot quite abide.

H/T Legal History Blog

Update: More from Faculty Lounge.