On Originalism: Constraints Part II: Usurpation by The Amateur Historian

In the previous part to this series, I discussed the faulty notion of meaning to stand alone when deciphering Constitutional text. This paper asks, if it’s a mistake when a Supreme Court Justice puts on his or her historian hat briefly to interpret the Constitution? I argue that it is a mistake and cannot and should not be done. Indeed, much of what I argue for in what follows in this article can be found in the works by Helen Irving. I argue it cannot because there is, as Professor Irving notes, a methodological “lacuna”1 abound. It should not because the thrust of the historical import subverts the role of the Justice, and if such historical importance is necessary then, by reductio ad absurdum, the historian ought just to make the ruling and discharge the incompetent Justice.

Let me begin by stating that history is not an indeterminate or generally ambiguous discipline. The work of the qualified historian is one that is rigorous. It is just this rigor that even Justice Scalia admits for practical matters the jurist is not up to task for when he rhetorically opines: “Do you have any doubt that [the current Term schedules of the Supreme Court] does not present the ideal environment for [an] entirely accurate historical inquiry?” Indeed, Scalia goes further to admit that the Supreme Court lacks the “ideal personnel.”2 But this only addresses the time-consuming nature of scholarly historical research. What about the very rigor of history as a cautious and skeptical academic discipline? The historian’s work is more contemplative than seeking what some historical person or body politic would say given they were here before us now. Historical understanding requires a multi-faceted approach concerned equally with the fallibility of any particular authority or source. Lacking the rigor of the historian’s acumen could find any dispositive value of the amateur-historian jurist in utilizing history as incidentally and fragmentarily on point.

It is just this cautious and contemplative academic inquiry that makes history epistemological. That is, one pursuing history learns historical answers and historical knowledge, not legal answers. The law isn’t the past. The history of the law is in the past. We certainly carry our procedural jurisprudence from the past, but we do not seek to exercise substantive justice just as those before us would have prescribed. We learn from our past, we don’t seek to revive and relive it. Therefore, the instrumental value of history is absent in the originalist doctrine. As historians seek to understand history they aren’t changing history, but revealing it. The law, as it’s practiced before us in the present, is making history and shaping the public sphere. History must be left to the historian, and the law left to those who seek to administer it.

References

1. Helen Irving, Outsourcing the Law: History and the Disciplinary Limits of Constitutional Reasoning, 84 Fordham L. Rev. 957 (2015).

2. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1989).