The many and varied roles of history in constitutional adjudication.

• Author: Fallon, Richard H., Jr.
• Position: Introduction into I. Some Varieties of Constitutional Pertinent History K. Changed Historical Circumstances, p. 1753-1793

INTRODUCTION

Appeals to history, and to the authority of decisions made in the past, occur nearly ubiquitously in constitutional law. For the most part, these appeals occasion little specific notice or methodological controversy. There is, of course, a sharp, ongoing, frequently overheated debate about constitutional originalism--a theory, or family of theories, that holds, roughly, that the original meaning of the constitutional language is both unchanging and, insofar as it is clear and determinate, almost invariably controlling. (1) But increasingly tired, stylized debates of the form "Originalism: For or Against?" tend to obscure three deep truths about constitutional interpretation.

First, nearly all of those who characterize themselves as nonoriginalists readily acknowledge the importance to constitutional adjudication of evidence bearing on the original meaning of constitutional language. (2) Cases in which nonoriginalist Justices of the Supreme Court have cast their arguments almost exclusively in originalist terms are revelatory in this respect. A much noted example comes from District of Columbia v. Heller, (3) in which the majority and principal dissenting opinions debated the scope of the Second Amendment right to bear arms almost entirely on originalist grounds. (4)

Second, few originalists are exclusive originalists. That is, very few believe that evidence from the Founding era is the only consideration that ought to matter to constitutional adjudication. (5)

Third, and most important, an obsession with debating the merits of a frequently underdefined notion of originalism as opposed to an equally underspecified conception of nonoriginalism distracts attention from the wide varieties of historical inquiry that both originalists and nonoriginalists recognize as relevant in constitutional decisionmaking. When the debate about originalism is temporarily put to one side, it emerges that the most familiar foci of originalist concern--original intent, original understandings, and original public meanings (6)--constitute just three of a myriad of historical reference points that nearly everyone, originalists included, at least implicitly accepts as mattering to constitutional law. Moreover, when the multiple dimensions of history's pertinence are laid out, it becomes evident that even when the original intent, understanding, or public meaning possesses agreed determinative significance, that state of affairs is contingent, not necessary--as widespread practice, including that of most self-described originalists, attests.

My principal aim in this Article is to develop the third of these points, involving the multiplicity of roles that history plays in constitutional analysis, though I shall also say a few things in connection with the first two. Much of my effort will be taxonomic, aimed at mapping some of the kinds of historical inquiry in which participants in constitutional debate--including judges and Justices--frequently, and mostly unselfconsciously, engage. A systematic rethinking of the roles of history in constitutional practice, beginning with an effort at taxonomy, ought to cool the temperature of debates about originalism by revealing that nearly all originalists share a very broad swath of often unacknowledged methodological common ground with nearly all nonoriginalists. In so saying, I do not claim that methodological overlap is complete. Indeed, partly because there has been so little specific attention to the varied roles of nonoriginalist history in constitutional adjudication, (7) I do not expect full agreement either among originalists or among nonoriginalists about how much weight specific kinds of historically grounded considerations should exert in all cases. But I do hope to spur further conversation concerning the justifiability of reliance on particular kinds of history, including nonoriginalist history, in particular kinds of cases, in which most originalists and most nonoriginalists could profitably engage with one another. For this purpose, the outlier positions--which are the only positions at which I shall direct critical fire in this Article--are exclusive originalism, which holds that nothing should matter except the best available evidence of Founding-era meaning, and the view, if anyone actually holds it, (8) that the present should not submit to rule by "the dead hand of the past." (9)

In developing the theses just sketched, I shall rely primarily, though not exclusively, on illustrative examples drawn from federal courts law. Among the advantages of this focus, federal courts cases seldom present issues of high political salience. To the extent that ideological divisions exist, they tend to be entangled in partly independent debates about the nature and significance of constitutional federalism. (10) Perhaps as a result, arguments in and around federal courts cases have tended to exhibit less methodological self-consciousness and defensiveness, and to elicit fewer line-in-the-sand denunciations of either originalism or nonoriginalism, than debates in some other areas of constitutional law. In a search for common ground, the federal courts field therefore offers a promising place to start. (11)

In arguing that many kinds of history matter to constitutional adjudication, I partly follow in the footsteps of a recent, insightful article by Jack Balkin, (12) who also sought to identify varieties of historical argument that figure in constitutional debate. Although I am much indebted to Balkin, my analysis and conclusions diverge from his in as many respects as they overlap. Balkin's central theses focus on rhetoric and persuasion in the process of what he calls constitutional "construction," not interpretation. (13) He eschews claims concerning the legal obligations of judges and lawyers to weigh many of the kinds of historically grounded considerations that he identifies. (14) By contrast, my argument involves the implicitly recognized duty of judges to take account of a variety of sometimes contested historical phenomena in order to render legally proper decisions. Perhaps as a result, of the eleven types of historical argument that Balkin identifies, (15) as many as five have no counterparts in my catalogue, which also includes a number of entries of which Balkin makes no mention.

Beyond documenting that a diverse set of historically based considerations influences and sometimes governs constitutional adjudication, this Article develops three main themes. First, even when historical analysis focuses on the Founding era, either the original public meaning of constitutional language or the proper application of that meaning to particular cases frequently cannot be identified as a matter of simple historical fact. Although there are many historical facts with a bearing on constitutional adjudication, original public meanings and especially their proper applications often lie outside the category of empirical fact.

Second, partly as a result, although historical analysis is empirically and appropriately pervasive in constitutional adjudication, a blending of historical with normative analysis is also empirically and appropriately pervasive. My argument for the evaluative aspect of these claims reflects an assumption, which I shall defend, that American legal argument and adjudication constitute a "practice," the norms of which inhere in the often tacit understanding of judges, lawyers, and others trained in law and legal argument concerning how to "go on." (16) According to a practice-based theory, it is a mistake to assume, as some do, that the ultimate determinant of legal validity necessarily inheres in the commands of the Framers, the expectations of the Constitution's ratifiers, or any other single historical phenomenon. Rather, claims of constitutional validity and authority depend on current agreement manifest in the judgments of officials, judges, lawyers, and others concerning the contemporary legal significance of past events. This agreement begins with foundational matters. We agree, for example, that the Constitution is valid law and that the Articles of Confederation no longer are. We also agree about many matters bearing on legal interpretation, as I shall elaborate in complex detail. We accept, for example, that decisions of the Supreme Court have at least some capacity to determine correct outcomes in future cases. Insofar as exclusive originalists maintain that events in the Founding era necessarily determine what the law of the United States is or requires today, and deny that the authority and meaning of the Constitution depend on widely shared, often tacit norms of practice, they stand on faulty jurisprudential foundations.

Third, despite the controlling significance of norms of practice, no simple, algorithmic formula dictates how pertinent kinds of history fit together to yield determinate conclusions in many cases that provoke constitutional controversy. The best model for understanding how norms of practice operate in such cases is that of the common law. (17) Although statements of controlling interpretive norms are helpful, human foresight is limited, and history teaches that efforts at rule-like formulation of methodological principles should, accordingly, be viewed as revisable.

The argument develops as follows. Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution's application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered.

Part II offers a preliminary exploration of why so many kinds of...