History as Precedent: The Post-Originalist Problem in Constitutional Law

Article excerpt


"[T]he `historical' past ... is a complicated world,"(1) the political philosopher Michael Oakeshott wrote. "[I]n it events have no over-all pattern or purpose, lead nowhere, point to no favoured condition of the world and support no practical conclusions."(2) The U.S. Supreme Court does not share Oakeshott's skepticism about the practical application of historical knowledge. As the constitutional historian William Wiecek has noted, the Supreme Court "is the only institution in human experience that has the power to declare history,"(3) and the Court exerts that power frequently. The Court, however, does not derive clear lessons from forgotten events in the crude manner disfavored by Oakeshott. Instead, the Court invokes history in order to ground its decisions in the original Framing and ratification of the Constitution and its amendments.(4) Even Justice Brennan, who decried excessive reliance on history in constitutional interpretation,(5) commented in one decision that "the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers."(6)

The rise and impact of originalism has turned the Supreme Court's use of history into a controversial subject. For most originalists, when the plain meaning of a constitutional provision is unclear, the original understanding of that provision should be privileged above all other possible understandings and applied to the specific case at hand. Otherwise, as Robert Bork has argued, the Court merely "imposes its own value choices" and "violates the postulates of the Madisonian model that alone justifies its power."(7) Some originalists go further and claim that the original intent of the Framers regarding the meaning of the Constitution, above and beyond even the plain meaning of its text, should be dispositive.(8) Reacting to the Warren Court's activist stance, proponents of originalism have demanded that the Court's jurisprudence be synchronized with the text and original understanding of the Constitution.(9)

The originalist project, by all accounts, relies heavily on historical analysis. In order to elucidate the original meaning of the vague terms that pervade the Constitution, Justices often either delve into primary sources or rely on historians to explain those sources. Referring to the process of historical inquiry in constitutional law, Justice Scalia admitted, "It is, in short, a task sometimes better suited to the historian than the lawyer."(10) Yet originalists minimize the difficulty of gaining a clear understanding of the Constitution and its amendments through historical research.(11) Edwin Meese, for example, declared that "the Constitution is not buried in the mists of time."(12) If Meese was right, the originalist project is relatively simple.(13) Given the opportunity to interpret a vague constitutional provision in the appropriate case, an originalist judge will consult the text and relevant historical sources and bring the law into line with the original understanding. The originalist thus ascribes excessive doctrinal change to nonoriginalist adventurism and defends further short-term change on the grounds that it will bring the Court's jurisprudence permanently back to its historical foundations.(14) As one scholar put it, originalism "seeks to freeze meanings against erosion by time."(15)

The postulate that originalism, because it seeks to ground constitutional law in a particular moment, must lead to a set of "frozen" results is widely affirmed,(16) but it is not always accurate. Despite the best efforts of historians to reach decisive historical conclusions, the most plausible interpretation of a historical text changes over time. Historians' understanding of the Constitution and its amendments develops as they interpret and synthesize documentary evidence. Further, since research about particular historical questions intensifies after Justices "declare" history, historical conclusions that are incorporated into the law can be particularly vulnerable. …