History in the Making: Why Courts Are Ill-Equipped to Employ Originalism

By Piller, Rebecca | The Review of Litigation, Winter 2015 | Go to article overview

History in the Making: Why Courts Are Ill-Equipped to Employ Originalism


Piller, Rebecca, The Review of Litigation


I. Introduction........................................................................187

II. Historians Are Not Good Lawyers..................................189

A. Historians Are Not Advocates.........................................189

B. Historians and Amicus Briefs Area Bad Match.............191

III. Judges Lack the Training to Serve as Ad-Hoc

Historians.............................................................................194

A. Judges Lack the Proper Training and Skill Sets to Act as Historians...................................................................194

B. Originalism Enables Stealth Judicial Activism...............196

C. Judges ' Misuse of History Codifies False Conclusions into Law...........................................................................202

IV. Recent Advances in Historical Scholarship.................204

V. Proposals..............................................................................205

A. Amicus Filing Requirements...........................................205

B. Special Master.................................................................206

C. Historians as Court-Appointed Experts..........................208

VI. Conclusion...........................................................................212

I. Introduction

"Who controls the past controls the future: who controls the present controls the past." - George Orwell* 1

As Orwell's quotation suggests, our understanding of the past shapes our approach to the future in many regards. However, in the area of constitutional law, a focus on the original understanding of constitutional law can lead to a variety of practical dilemmas. These dilemmas are most pronounced in the case of originalism.

Originalism is a family of constitutional theories, united by two core ideas. The first of these ideas ("the Fixation Thesis") is that the original meaning ("communicative content") of the constitutional text is fixed at the time each provision is framed and ratified. The second idea ("the Constraint Principle") is that constitutional actors (e.g. judges, officials, and citizens) ought to be constrained by the original meaning when they engage in constitutional practice (paradigmatically, deciding constitutional cases, but also including constitutional decisionmaking outside the courts by officials and citizens).2

Assuming, without concluding, that originalism is a valid method of constitutional interpretation, this Note explores the practical shortcomings of originalism as a theory of adjudication. The principal problem is summed up in the phrase "law office history"-a results-oriented method of adjudication in which judges or lawyers either intentionally distort accounts of history in order to favor their own biases or incompetently analyze history without proper training, skill, or contextual understanding.3 Part II of this Note will discuss the many incompatibilities between historical scholarship and legal advocacy in general, while Part III will focus on the inability of judges to act as historians and the failure of originalism to genuinely restrain otherwise activist judges. Part IV will address advocates of originalism who have argued that these problems are overstated. Finally, Part V will explore a number of solutions that may ameliorate originalism's shortcomings and provide a more workable model for its use in adjudication.

II. Historians Are Not Good Lawyers

A. Historians Are Not Advocates

One contributor to the problem of "law office history" is the incompatibility of the disciplines of law and history. The methodology and objectives of historians are at odds with the purpose and practice of legal advocacy. Historians' frank recognition of the complexity and limits of historical truth is in many regards incompatible with legal advocacy's adversarial nature. Whereas historians aim to present facts about the past in an unbiased light, lawyers best serve their clients by presenting facts in a light that is flattering to their assertions. …

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