Leading scholars gathered recently at the American Historical Association’s Annual Meeting in New York City to provide the historian’s perspective on the Supreme Court’s increased use of “originalism.” In a lively roundtable discussion moderated by the Brennan Center’s Thomas Wolf, the historians delved into the problems with the Court’s claiming “history” as the basis for its rulings. The panelists also discussed ways they and others have used their disciplinary training as historians to respond to developments in the courts over the course of their careers.
Read on for selections of their remarks from the afternoon.
Thomas Wolf, Brennan Center Director of Democracy Initiatives and founder of the Historians Council on the Constitution:
The Supreme Court has remade American law in just a few short years with its appeals to the so-called “original meaning” of the Constitution. As the highest court in the land, the Court’s rulings bind lower courts all over the country and their effects reach nationwide, impacting all of us. Despite the Court’s obvious power, the justices aren’t the exclusive owners of constitutional meaning-making. Nor are lawyers more generally. Everyone belongs in the ongoing public conversation over what the Constitution means, and historians have a critical share in that.
Indeed, in making claims on the Constitution’s original meaning, the Court is also making claims on history: It is telling the American people that history dictates the rulings it’s issuing. Historians can speak to these new and startling developments in constitutional law as historical experts, drawing on their discipline’s methods and values. That doesn’t involve discarding their disciplinary commitments, but rather, embracing them.
Jane Manners, Assistant Professor at Beasley School of Law, Temple University:
Originalism’s cornerstone justification is that it is a neutral method that looks to history for correct answers and constrains judges’ subjective value judgements. But as it is practiced today, originalism is too often a justification for discarding decades of discretion-constraining precedent in favor of an “original” meaning: a form of radicalism masquerading as judicial modesty.
Historians have an important role to play in countering this use of history in the Court. Historians know that to truly understand evidence from the past, one needs to understand the context in which it arose. To do that requires immersing ourselves in the sources. A certain kind of humility is central to this work — not a humility that denies the accuracy of the historical method, but one that recognizes that it’s easy to misinterpret evidence from the past without patience and time. Sometimes, when historians point out the complex nature of the past, they hear the critique that they are shying away from asserting answers. This critique is unfair. There are right answers, and historians do find them. But historians’ approach to determining correct answers is different from that employed by many self-professed originalists, including a majority of the members of the current Supreme Court. As British novelist L.P. Hartley once wrote, “The past is a foreign country: they do things differently there.” Historians know this, and we know that understanding the past on its own terms takes sustained immersion: a home stay, if you will, in an era foreign to our own.
The Court’s brand of originalism is not the only way to use history in constitutional interpretation. History can be a hugely valuable resource for lawyers seeking to account for constitutional voices traditionally outside the interpretive lens, demonstrate the historically-rooted nature of seemingly neutral constitutional interpretations, or surface the moral commitments underlying the Constitution. Historians should amplify these types of historical claims, not only to enhance the quality of constitutional argument, but to remind the public of the enduring importance and relevance of our craft.
Jack Rakove, William R. Coe Professor of History and Professor of Political Science, Emeritus at Stanford University:
Over the last two decades, I have been the main author of five amicus curiae briefs submitted to the Supreme Court, most notably in District of Columbia. v. Heller, but also three cases related to congressional gerrymandering and Hamdan v. Rumsfeld. From that experience I have derived three rules of conduct. First, the briefs you write or sign must be consistent with your scholarship. You can’t come aboard simply because you support the outcome. Second, and by extension, briefs are strongest when the academic participants really know the subject, and teams should be formed on that basis. Third, while historians need to rely on the lawyers to ensure their briefs are properly framed, the finished product should be written in our own voice. Fourth, it is beyond our competence to strategize who is the key vote, as lawyers arguing cases often do. (As my Stanford colleague Pamela Karlan likes to say, the first rule of Supreme Court litigation is: Can you count to five?) Our proper task is to frame the best historical arguments possible, making sure that they directly address the stipulated question at hand, and then cast our judicial fate to the winds.
Brief writing, almost by definition, comes with an innate sense of urgency. But there may also be a long game, or at least a long-term strategy, that historians should also pursue — a struggle over mobilizing public opinion. We know these things: mass shootings and school shootings will continue indefinitely; and the Court’s dominant arguments in Heller and Bruen are historically fallacious and falsifiable. There is no school anywhere in the United States where parents (or in my case, grandparents) can be confident their children are safe. This is, to my way of thinking, evidence that we live in a failed state, but are also a nation where a majority of citizens know there is something fundamentally rotten with this state of affairs. So, informing their knowledge and appealing to their judgment remains our long-term objective.
Jennifer Tucker, Professor of History and Director, Center for the Study of Guns and Society, Wesleyan University:
The Supreme Court has put history at the center of the nation’s gun debate. And with that has come a procession of so-called “historical” questions that stretch the limits of normal historical inquiry.
How did we get here? In 2022, the Supreme Court decided Bruen, a case that recast Second Amendment jurisprudence. For the first time, the court ruled that the Second Amendment confers a constitutional right to carry a gun outside the home for reasons of self-defense. The court also rejected the standard tools of constitutional analysis, including the use of balancing tests that weigh the social cost of exercising the right to bear arms: moving forward, courts must confine their analysis to “text, history, and tradition.”
The Bruen approach is what scholars call “originalism by analogy.” Whereas traditional originalism uses historical sources to identify the original public meaning of a constitutional provision, “originalism by analogy” requires judges to reason analogically from the historical record. From now on, the constitutionality of firearm regulations — like prohibitions on guns on airplanes or in the hands of domestic abusers — will depend solely on whether they are, in some ill-defined sense, “analogous” to a historical regulation, not whether they are effective in reducing serious harms to communities and individuals.
Courts are now turning to historians to help assess the constitutionality of gun prohibitions, asking such questions as: Is a musket “analogous” to an AR-15? What did the founders think about guns on mass public transportation? Guns in bars? Or, in the case of “sensitive places” laws, what is “analogous” in the 18th century to 21st century banks, casinos, bars, sports arenas, museums, parks, schools, courthouses, libraries, and medical facilities?
These aren’t the kinds of questions historians generally ask — in fact, they’re pretty outrageous as a matter of history. But this mangling of history and disregard of policy concerns is what the Court’s originalism seems to demand.
