Lorianne Updike Toler (Information Society Project, Yale Law School; NIU College of Law) & Robert Capodilupo (Yale Law School JD candidate '23) have posted The Constraint of History (65 pages) on SSRN. Here is the abstract:
Accepted wisdom dictates that history does not constrain. It is no more than a tool in the judicial kit that legitimizes legal outcomes pre-determined by policy. Recent studies have confirmed this state of play, providing “proof” for the cynic and impetus for history’s apologists to fashion new theories justifying its use in constitutional interpretation.
Yet this study of 338 cases containing 601 references to Constitutional Convention records provides evidence that history can constrain judicial interpretation of the Constitution. As proof of concept, this study tested whether Supreme Court Justices’ use of primary and secondary sources when referencing the Constitutional Convention caused them, on the discrete level, to vote against political preferences. Consistently and significantly, the Justices were more likely to vote against their policy preferences when using secondary sources of the Constitutional Convention’s history or when adding primary to secondary sources. This robust evidence suggests that history can constrain constitutional interpretation.
This finding casts serious doubt on the rigor of previous studies. It also anticipates a major shift in constitutional theory. If history can constrain after all, using it as a methodology for constitutional interpretation is viable and credible. Constitutional theorists need no longer seek other justifications for history’s methodology, and resources should be sought by bench and bar to pursue the best history for constitutional interpretation.
Posted at 6:18 AM