History as precedent: the post-originalist problem in constitutional law.

• Author: Kleinhaus, Emil A.

1. INTRODUCTION

   "[T]he `historical' past ... is a complicated world,"(1) the political philosopher Michael Oakeshott wrote. "[I]n it events have no over-all pattern or purpose, lead nowhere, point to no favoured condition of the world and support no practical conclusions."(2) The U.S. Supreme Court does not share Oakeshott's skepticism about the practical application of historical knowledge. As the constitutional historian William Wiecek has noted, the Supreme Court "is the only institution in human experience that has the power to declare history,"(3) and the Court exerts that power frequently. The Court, however, does not derive clear lessons from forgotten events in the crude manner disfavored by Oakeshott. Instead, the Court invokes history in order to ground its decisions in the original Framing and ratification of the Constitution and its amendments.(4) Even Justice Brennan, who decried excessive reliance on history in constitutional interpretation,(5) commented in one decision that "the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers."(6)

   The rise and impact of originalism has turned the Supreme Court's use of history into a controversial subject. For most originalists, when the plain meaning of a constitutional provision is unclear, the original understanding of that provision should be privileged above all other possible understandings and applied to the specific case at hand. Otherwise, as Robert Bork has argued, the Court merely "imposes its own value choices" and "violates the postulates of the Madisonian model that alone justifies its power."(7) Some originalists go further and claim that the original intent of the Framers regarding the meaning of the Constitution, above and beyond even the plain meaning of its text, should be dispositive.(8) Reacting to the Warren Court's activist stance, proponents of originalism have demanded that the Court's jurisprudence be synchronized with the text and original understanding of the Constitution.(9)

   The originalist project, by all accounts, relies heavily on historical analysis. In order to elucidate the original meaning of the vague terms that pervade the Constitution, Justices often either delve into primary sources or rely on historians to explain those sources. Referring to the process of historical inquiry in constitutional law, Justice Scalia admitted, "It is, in short, a task sometimes better suited to the historian than the lawyer."(10) Yet originalists minimize the difficulty of gaining a clear understanding of the Constitution and its amendments through historical research.(11) Edwin Meese, for example, declared that "the Constitution is not buried in the mists of time."(12) If Meese was right, the originalist project is relatively simple.(13) Given the opportunity to interpret a vague constitutional provision in the appropriate case, an originalist judge will consult the text and relevant historical sources and bring the law into line with the original understanding. The originalist thus ascribes excessive doctrinal change to nonoriginalist adventurism and defends further short-term change on the grounds that it will bring the Court's jurisprudence permanently back to its historical foundations.(14) As one scholar put it, originalism "seeks to freeze meanings against erosion by time."(15)

   The postulate that originalism, because it seeks to ground constitutional law in a particular moment, must lead to a set of "frozen" results is widely affirmed,(16) but it is not always accurate. Despite the best efforts of historians to reach decisive historical conclusions, the most plausible interpretation of a historical text changes over time. Historians' understanding of the Constitution and its amendments develops as they interpret and synthesize documentary evidence. Further, since research about particular historical questions intensifies after Justices "declare" history, historical conclusions that are incorporated into the law can be particularly vulnerable.(17) To the extent that Justices rely on historians when they declare history, Justices' conception of the document's original meaning must change along with historians'. Moreover, to the extent that Justices engage in independent historical inquiries, their conception of the document's original meaning can change even more dramatically as they encounter previously overlooked documents or compelling secondary interpretations of those documents. Therefore, even if the Supreme Court's jurisprudence were to coincide exactly at a particular point in time with the Justices' conception of the original understanding, that coincidence would not spell the end of non-amendment-based constitutional development, unless Justices simply ignored new information after that point. Ultimately, the more Justices use historical research as a decisive interpretative tool, the more substantial the body of law that one scholar has called the "common law of history"(18) becomes, and the more vulnerable the Court itself becomes to extralegal historical criticism.(19)

   This Note poses the post-originalist problem, or the problem of how Justices committed to an originalist approach deal with historical analysis that challenges the historical narrative created in earlier decisions. This precise question has continually presented itself to the Rehnquist Court,(20) and because so many Rehnquist Court opinions contain extended historical argumentation, it will undoubtedly present itself more in the future. But as this Note illustrates, Justices have adopted conflicting approaches to innovative historical inquiry, which has led to unpredictable results when "official" history has been challenged. Despite the practical impact of originalism, however, few scholars have directly addressed the Court's treatment of its own codified historical narrative.(21)

   Part II shows that originalists' attitudes toward precedent, as well as the emergence of credible historical studies that challenge longstanding assumptions about the Founding period and Reconstruction, heighten the need for a systematic approach to relevant new historical evidence. Part III briefly outlines the different types of "new" historical evidence that are presented to the Court, concluding that the evidence used by the Court cannot be divided into the two rigid categories--"primary" and "secondary" evidence--often used by historians. Part IV, borrowing terms from Sanford Levinson's Constitutional Faith,(22) isolates two opposing strands of historical analysis employed and defended by Justices, and concludes that the strands lead to divergent postures toward persuasive historical argument that challenges the Court's official history. While one strand of historical analysis, which is analogous to Levinson's "protestant" strand of constitutional interpretation, leads to the conclusion that innovative historical argumentation can have a profound effect on constitutional doctrine, the other strand, or the "catholic" strand, leads to the conclusion that it usually should be ignored.(23) Both strands, however, have notable shortcomings when employed on their own, and neither strand accurately captures the Court's practice, which often involves using the two strands together.

   While Parts II through IV lay out the post-originalist problem, the remainder of the Note offers a preliminary response to the problem by drawing a comparison between originalism in American constitutional law and Jewish law. Like judicially generated post-originalist constitutional change, legal development within the Jewish tradition often results from a complex process of historical rediscovery. Part V looks at some of the ways in which rabbis, who have integrated various forms of historical analysis into the law throughout Jewish history, have engaged in that process of rediscovery. While acknowledging the limitations of the analogy between constitutional and religious law, Part V argues that an interpretative framework derived from certain modern rabbinic decisions--or a multitextual approach--combines some of the advantages of the two historical approaches described in Part IV. The multitextual approach leads judges to inquire into the original understanding of a foundational text, but grounds that inquiry in the traditional understandings of the text. In doing so, the approach minimizes the doctrinal instability that might result from constant historical reinterpretation without compromising the originalist's commitment to genuine historical inquiry. Finally, Part VI synthesizes Parts IV and V by measuring the substantive contributions that a multitextual approach could make to an originalist's treatment of history. Drawing on cases from the sovereign immunity context, Part VI shows that the multitextual approach defines boundaries for the treatment of innovative historical analysis, but does not compel specific results in most cases. Therefore, while the analogy to Jewish law yields no complete response to the post-originalist problem, it points toward a genre of judicially generated history, as well as criticism of that history, that can be reconciled with the multiple goals of the originalist project.

2. STARE DECISIS AND THE REPUBLICAN REVIVAL

   This Part makes two related claims. First, it argues that the originalist critique of stare decisis renders originalists' own historically grounded opinions vulnerable to criticism on historical grounds. Second, it argues that the republican revival in constitutional history, which has seeped into judicial opinions, endangers the body of official history that rests on longstanding historical assumptions. The Part concludes that the originalists' posture toward precedent and the "turn to history"(24) in constitutional scholarship make originalists' approaches to new historical evidence especially worthy of examination.

   1. Stare...