Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography – the critical study of how history is written, developed by professional historians – is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation. But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources – particularly originalist ones – can and should be critiqued on historiographical grounds. These methods show that general historical sources are unlikely to generate precise and objective constitutional meaning but can be used to develop and constrain many constitutional arguments, including those concerning constitutional practice, purpose, or values. Historiographic methods are important for lawyers and judges seeking to critique or make constitutional arguments grounded on general history.
Partlett notes
The use of history in constitutional adjudication has generated a vast literature and polarised debate. On one side are those who uncomfortable with the use of history in constitutional adjudication because it can be abused or pull courts into the dangerous area of contested history. On the other side are those who assume that history provides external authority for an objective answer to constitutional questions. In constitutional law, this approach has been dominated by originalism, which uses founding-era history to find the fixed meaning of constitutional text. Former United States Supreme Court Justice Antonin Scalia writes that the historical meaning of a particular constitutional provision at the time of adoption is ‘easy to discern and simple to apply’.
A key question in this debate is the role of historiographical insights from the discipline of professional history. Many originalists (and some others) take the ‘separationist’ position that historiographical criticism is irrelevant to historical constitutional reasoning. Professional historians, it is argued, are trained to ‘relish and respect ambiguity, the inevitability of multiple interpretations, [and] the complexity and multivocality of the past.’ Lawyers, by contrast, are trained to work with legal authority in finding answers to legal questions. Thus, law and history are and should remain separate disciplines. Historiography, the methodology of professional historians, should not inform constitutional reasoning at all.
This article will argue that this ‘separationist’ claim mistakenly assumes that all sources from the past carry legal authority. This assumption misses a critical distinction between legal and general historical sources. Legal sources – such as cases and legislation – are special types of sources from the past that carry (or carried) legal authority. These authoritative sources of state law are therefore catalogued, hierarchical, and written in ways that make them easily applicable to present-day constitutional disputes. Lawyers and judges are specially trained to read and apply these kinds of legal authorities; they are therefore arguing from an internal position within the law. In this internal position, they are making arguments based on ‘a competence learned and exercised through participating in a common practice.’ In this context, the separationists are correct and historiography has little relevance to arguments grounded on legal sources.
But many constitutional arguments are not grounded on legal sources. They are instead based on ‘general’ historical sources. These general sources are not sources of legal authority but are instead incomplete or non-hierarchical sources produced for a number of different audiences. These sources include a large amount of historical information, from primary sources (such as convention debates) to secondary sources (books written by historians). When making arguments grounded on these sources, lawyers are no longer operating in an internal position; they are instead occupying an external position. When lawyers rely on these general historical sources, historiography provides lawyers and judges with two key critical insights.
First, historiography shows how general history constitutional reasoning (GHCR) should be evaluated on the selectivity of its particular historical account. This inquiry turns attention to the way that a historical account is framed and whether particular general historical sources are used selectively to advance an argument. Lawyers and judges generally do not have the time and skills to carry out this critical work through primary-source, archival research. But they can evaluate these aspects of a historical account in the context of the secondary source literature written by historians on the question in issue. This external context will often show whether the historical account is framed and written in a way that is widely accepted by professional historians.
Second, historiography demonstrates how GHCR should be critiqued on whether it is over-claiming about its application to current constitutional meaning. Unlike legal sources, general sources are not sources of legal authority intended to be used to in future legal disputes. They are instead highly complex and unlikely to provide ‘didactic precepts’ that lead to textual constitutional meaning. The complex interaction of historical and current meaning means that general historical sources will frequently not alone provide objective answers to constitutional questions. Instead, they are far more likely to yield partial arguments that shape or constrain other arguments that form a persuasive constitutional decision.
These insights yield two main conclusions. First, the separationist position goes too far. It is correct that historiography has little relevance to internal legal reasoning grounded on legal sources. But when legal actors rely on general historical sources, they shift to an external position. In this position, historiography is an important tool for critiquing any constitutional argument based on general history (including originalist ones). Second, historiography shows that although widely accepted general historical accounts are unlikely alone to generate fixed constitutional meaning, they can be an important technique in ‘guiding’ other forms of constitutional reasoning.For instance, they can develop and constrain arguments about constitutional practice, purpose, values and therefore help to ensure that lawyers and judges make more persuasive arguments. Used responsibly, therefore, GHCR is an important technique that can and should be used widely to contribute to constitutional decisions.
It might at first seem unrealistic for these historiographical methods to be applied in constitutional adjudication. But lawyers have strong incentives to use these historiographical lessons when opposing counsel make arguments grounded on general history. In fact, these insights – which can be obtained by consulting a historian as an expert – provide important new ways ‘to rebut, cast doubt on, or complicate’ the other side's use of history. Judges also have good reasons to rely on these insights to ensure they use general history in a way that remains true to the judicial role and does not draw them into contested history. If the litigants do not provide this information, courts can also make use of expert evidence such as amicus briefs or a process requiring competing experts to provide a joint report to the court on where they differ and why.
This article will make this argument in six parts. The first part will demonstrate how the influence of originalism has contributed to a common view that history supports a formalist and conservative form of reasoning to which historiography is irrelevant. The second part will introduce the central distinction in this paper between constitutional arguments based on legal and general historical sources. The third part will show why historiography has little relevance to constitutional reasoning based on legal sources. The fourth will describe the insights of historiography for the argumentative use of general historical sources. The fifth will show how historiography exposes serious problems in the reasoning of two landmark originalism cases grounded on general historical sources. The sixth part will provide examples of how general history can be productively combined with other forms of constitutional argument, grounded on constitutional practice, purpose, or values. The final part will conclude.
