Recently published, in the Harvard Law Review: Note, Historical Absence and Constitutional Interpretation. Here is the introduction (footnotes omitted):
Originalism — a school of constitutional interpretation defined by the pursuit of the Constitution’s original meaning — has long been celebrated and criticized for its forceful prescriptions for litigants, jurists, and historians. As originalism has become increasingly central to jurisprudence, questions about how it may serve “as a workable prescription for judicial governance” have proliferated. From questions of what to do with nonoriginalist precedent to conversations about what exactly originalism is, the school invites as many questions as it purports to answer. Originalism sits uncomfortably with many traditional judicial practices, causing some to reconsider these doctrines to facilitate originalism’s implementation.
This Note charts a different path. It draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning7 of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”
Arguments from historical absence warrant distinct analysis. To begin, they do not map cleanly onto the oft-provided justifications for originalism. Many of the justifications for originalism — from predictability to stability to judicial restraint — are premised upon its reliability and, to those who reject thin originalism, determinacy. Arguments from historical absence are a poor fit for these justifications, as they derive fact from absence and rely upon a shared fiction that the evidence currently known is all there may be. Compared to affirmative evidence, evidence of historical absence may be more easily displaced and, as will be shown, invites judicial misuse. Originalists have discussed this problem and its potential remedies, but jurists have likewise critiqued the solutions put forward.
Moreover, though originalism’s certainty of prescription from the historical record has long drawn the ire of historians, its bases are more contestable when historical absence justifies particular outcomes. The basic contours of this critique are well known. As courts struggle to navigate originalist obligations, historians continually emphasize that “[t]hinking historically” requires time, effort, and expertise. Despite misaligned skillsets and timelines hostile to historical analysis, courts must nonetheless parse historical silence, exacerbating historians’ concerns. Historians contend that, even with a complete record, “the past is a foreign country.” Jurists have been called to navigate these foreign lands, relying upon history that may not exist as their guide. By contrast, though historians may be influenced by personal biases, the historian’s craft does not require them to make meaning from silence where no meaning is warranted.
Furthermore, arguments from historical absence have an awkward relationship with current judicial doctrines. Scholars have long recognized the tension between the implementation of originalism and current doctrines, especially those of stare decisis and party presentation, but historical absence only exacerbates this issue. Regarding stare decisis, a given argument from historical absence may be persuasive the day it is made but patently false the next. No clear judicial off-ramp exists despite this potentiality. Regarding the party presentation principle, litigants may, intentionally or otherwise, improperly argue that the historical record is vacant, leaving courts to determine if this silence is legitimate or merely the result of inadequate historical research. Though the Court may not view itself as strictly bound by party presentation, its stance on lower court party presentation is comparably unclear.
Finally, current structures (or, more accurately, their absence) invite judicial manipulation. Courts may approach historical absence without any guiding rationale regarding burdens of proof, deciding in some cases that arguments from historical absence are meaningful while disregarding them in the next. Despite critiques of bias, these decisions persist for years to come.
At the outset, two assumptions are in order. This Note assumes for the sake of argument that the pursuit of original public meaning, whether thick or thin, is worthwhile. Originalists disagree about history’s certainty, but they are nonetheless aligned in the pursuit of shared meaning. This Note further assumes that judges must sometimes attempt to perform originalism. Though “history and tradition” has become a flashpoint of critique, the Court has bound lower courts to originalist analysis in at least the Second Amendment context. This Note leaves normative debates aside and accepts the theory’s jurisprudential role, proposing a framework to deal with the particularly hairy problem of arguments from historical absence.
This Note proceeds in three Parts. Part I explores the role of arguments from historical absence in judicial decisionmaking, contending that they are essential to originalist constitutional interpretation and construction but bring with them intellectual danger, and concluding that they warrant neither wholesale acceptance nor disregard. Part II puts forward a framework amenable to judicial limitations that courts may employ when presented with arguments from historical absence. Part III applies this framework, showcasing how it addresses various concerns in originalist analysis.
(via Dan Ernst at Legal History Blog.)
Posted at 6:07 AM