Lawyers and Historians Argue about the Constitution

Abstract

The quarrel between lawyers and historians about the proper use of history in constitutional law is an old one. It predates the rise of conservative originalism in the 1970s and 1980s. For example, the term "law office history"-now regularly employed to criticize lawyers who engage in historical arguments that are opportunistic, anachronistic, and unsophisticated-was employed by the legal historian Alfred Kelly in 1965.

Kelly's target was not today's movement conservatives. He criticized the Supreme Court's practices throughout the nineteenth century. Kelly especially objected to the work of liberal Justices in the 1940s, 1950s, and 1960s, who, he argued, had misused the history of the Founding to overturn older, politically conservative precedents.3 The Justices, Kelly complained, had anachronistically invoked history "as a precedent-breaking instrument, by which the Court could purport to return to the aboriginal meaning of the Constitution. It was thus able to declare that in breaking with precedent it was really maintaining constitutional continuity." What historians object to today lawyers sanctimoniously using the authority of the Founding to enact their contemporary policy preferences-was not a modern innovation, Kelly explained. It had been the Supreme Court's standard operating procedure.

The quarrel, however, is not simply one between lawyers on the one side, and historians on the other. Lawyers (including legal academics) are often much more sharply critical of each other's historical arguments than are professional historians. Many law professors have been trained as historians and some hold doctorates in history. Perhaps more important, lawyers may be especially sharply critical of how other lawyers use history because they are trying to win arguments within law and legal theory. (The often heated debates over the meaning of the Second Amendment are a prime example.) 6 The adversary culture of legal argument encourages portraying opposing arguments as incomplete, mistaken, anachronistic, or wrong-headed. So lawyers find themselves on all sides of debates about how lawyers should (and should not) use history in constitutional interpretation.