Toler, Lorianne Updike, Cecere, J. Carl, Willett, Don, Harvard Journal of Law & Public Policy
Those who maintain that the Supreme Court historically was an Originalist Court prior to the Warren and Burger Courts have either looked at data sets that paint a very different picture than that we have compiled, or, more likely, have relied upon anecdotal information and taken the Justices' statements at face value. Based on our quantitative and qualitative analyses of cases of constitutional first impression, we believe this conclusion to be wrong. With further research showing that the Justices deliberately applied a common law interpretive method patterned, for example, on the interpretive method of Justice Marshall because they believed him to be a good model of applying Founding legal rules and practices, it could be possible to say the Court practiced something akin to Original Methods Originalism during its first century. Regardless, it is not possible to say that the Court engaged in substantive Originalism until the Warren and Burger Courts. Throughout its entire history, the Court has made consistent and repeated facial commitments to interpret according to the intention of the Framers, yet it was not until the Warren and Burger Courts that the Court began to honor its commitment by citing consistently to the Framers and their documents.
For the first hundred years of its existence and in fifty-six cases of constitutional first impression, the Court relied upon a thin layer of much earlier sources from Antiquity, the Enlightenment, and early colonial and Founding period sources that long preceded the creation of the Constitution. It also increasingly relied upon early Court precedents by analogy, particularly cases from the Marshall Court. The explanation for this phenomenon of claimed reliance upon Framing intent yet true reliance upon much earlier sources may be attributed to a common law or Whiggish interpretation of history, wherein history represents conscious, continual, and forward progress that the Framers would have been assumed to know, and have enshrined in their thinking.
During the second hundred years of the Court's history and the last forty pre-Heller cases of constitutional first impression, the Court continued its shallow commitment to Intentionalistlike rhetoric. Although the number of cited Framing sources increased, so too did the proportional weight of the sources derived from secondary sources and, increasingly, previous cases interpreting other areas of the Constitution. Until Heller in 2008, an anomaly for its prodigious historical rigor, the numerical use of sources climaxed during the Warren and Burger Courts.
Although our study has focused only on cases of constitutional first impression, because it constitutes on unbiased, inclusive, and representative sample of the Court's constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized. The same study repeated by different individuals, or a larger study incorporating a larger universe of cases would yield the same result. Based on the Court's own statements prior to Heller, it seems that the Court saw itself as an Intentionalist Court. Yet it was not. As we have described it here, it would be more accurate to christen it as a "Historicalistic" Court.
Appendix 1: Antiquity Antiquity JJ JR OE JM RT SC MW MF EW1 Atlas 1 Cicero 1 Demosthenes 1 Homer 1 Iliad 1 Isocrates 1 Justinian 1 Roman Law 1 The Ephri of Sparta 1 Troy 1 Unspecified 1 Subtotal 8 0 0 1 0 0 1 1 0 Antiquity WT CH FV EW2 WB WR Tot. Atlas 1 Cicero 1 Demosthenes 1 Homer 1 Iliad 1 Isocrates 1 Justinian 1 Roman Law 1 The Ephri of Sparta 1 Troy 1 Unspecified 1 1 3 Subtotal 0 1 1 0 0 0 13 Appendix 2: English Precedent English Precedent JJ JR OE JM RT SC MW MF Common and Chancery Law 1 3 4 3 1 3 6 Acts of Parliament 5 1 1 1 Magna Carta 1 3 1 1 2 Administrative Practice 2 1 Constitutional Law 1 1 1 1 1 English History 1 English Declaration of Right Anglo-Saxon Law 1 Royal Decrees 1 Unspecified 1 1 4 2 2 2 Subtotal 5 9 10 10 4 9 13 0 English Precedent EW1 WT CH FV EW2 WB WR Common and Chancery Law 1 1 1 1 Acts of Parliament 1 Magna Carta Administrative Practice 1 1 Constitutional Law English History 1 2 English Declaration of Right 1 1 Anglo-Saxon Law Royal Decrees Unspecified 1 1 Subtotal 0 2 2 4 6 0 0 English Precedent Tot. …