The recent issue of Yale Journal of Law and Humanities has an interesting student note by Joshua Stein (Yale Law '14, UCLA History Ph.D '09) titled Historians Before the Bench: Friends of the Court, Foes of Originalism. It's not available on line except through subscription services, but is well worth a look. Here is the introduction (footnotes omitted):
Historians' amicus briefs play a special role before today's Supreme Court as it grapples with the law's "original meaning."' Since 2000, professional historians have participated in forty-six amicus briefs before the Supreme Court. Thirty-two of these came after 2006. Historians had signed only six between 1989 and 1999. In spite of their enthusiastic participation, historians are neither getting the results they would like nor using means they particularly want to employ. This Note is directed toward historians, who I hope will continue to attempt to influence the Court, and legal practitioners, who should reconsider how they argue over the past.
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.
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, on facts rather than arguments. These briefs would target discrete precedential and factual questions that historians believe can help the Court decide a particular case.
Before homing in on key vulnerabilities in historical advocacy, it is helpful to first try to understand how history as used in the law is quite different from history as interpreted by a historian. William Novak has a good vantage point over this divergence. Formerly of the history department at the University of Chicago, now professor at the University of Michigan Law School, Novak observes, "[H]istories written by lawyers and historians often seem to be composed by entirely different animals — hedgehogs and foxes in Rakove's application of Isaiah Berlin's famous typology — after distinctly different kinds of intellectual prey."' Novak accuses jurists of adhering to a kind of "constitutional theology" that distorts the past.
Professional historians long ago slew the Whig dragons that had generations of Americans learning to worship the "heroes" of the past at the expense of a more complete and nuanced history.' The histories that dominate the American law, both in scholarship and practice, have gone through no such fire trials. This is especially a problem with originalism.
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, lawyers' past is about precedent. And when lawyers turn to a past beyond case law, they handle history as dilettantes. Lawyers 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 at any cost, but they are entrusted with the responsibility of zealous advocacy. Just as they hunt for favorable precedent, so too they try to illuminate a sympathetic past. Lawyers view history as they do any other expertise hired for trial-as a tool to win. This results in a cynical view of the past that historians cannot quite abide.
Amicus briefs afford professional historians an as yet unseized opportunity to change how legal practitioners approach history. Were historians to engage the legal world over the use of history, historians could be more effective in influencing adjudication and advocating on behalf of a more complicated version of the past that matches their own, a past that is neither determinate nor worthy of wholesale emulation. Lawyers, judges, and legal scholars may prefer easy answers. But litigation and the law have become more and more complex. The legal world has adapted to these complexities. It can adapt to a more complicated understanding of the past too.
Such a substantial change in the use of history in the law would require a major paradigm shift. If that change comes about, the law's use of history will be better equipped to survive originalism's inevitable obsolescence. Legal theories rise and fall; this is to be expected. Rather than twist historical advocacy to fit the latest fashion, most of the approaches suggested here can find some sort of permanence by honestly hewing to historical methodologies.
The article continues with a series of very interesting case studies, especially of the Second Amendment litigation in Heller and McDonald, and also same-sex sexual conduct in Lawrence v. Texas and habeas corpus rights in the Guantanamo cases.
(Thanks to Michael Perry for the pointer)
Posted at 6:19 AM