LAWYERS AND HISTORIANS ARGUE ABOUT THE CONSTITUTION.

• Author: Balkin, Jack M.

1. INTRODUCTION

   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. (1)

   Kelly's target was not today's movement conservatives. He criticized the Supreme Court's practices throughout the nineteenth century. (2) 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." (4) 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." (5) 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.

   Even to speak of "lawyers" as a group neglects the fact that there are many kinds of lawyers. Some are judges deciding cases. Some are advocates before courts, legislatures, and administrative agencies. Some are legal academics writing learned studies that argue for the best interpretation of constitutional provisions. And some are legal academics who study history much as professional historians do, focusing not on which interpretation of the law is correct but on how law and society developed in the way they did.

   The opposition between "lawyers" and "historians" runs together two distinctions. The first opposition concerns professional training and professional culture. Lawyers are educated to be lawyers and have law degrees. They are trained in an adversary culture and they are taught to assert and dispute claims about legal authority, to enter into and win arguments about what the law is or should be. They think about history and use history in ways that reflect this adversarial culture of authority claiming. (7) Historians are trained differently. Their central task is not winning legal arguments, or establishing or demolishing legal authority. They are interested in the past for many reasons other than present-day legal debates. (8) They are taught to relish and respect ambiguity, the inevitability of multiple interpretations, the complexity and multivocality of the past, the fact that the world of the past was quite different from the world of the present, and that that the concerns and understandings of people living in the past were often very different from concerns and understandings of people living in the present. (9) This first distinction--in professional training and professional culture--is neither clear-cut nor universal, because many law professors (and some practicing lawyers) have been trained as historians and hold history PhD's.

   The second, and more important, distinction concerns rhetorical aims and rhetorical structure. This is not a distinction between those people who have law degrees, practice law, sit on the bench, or teach in law schools, and those who don't. It is a distinction that concerns how one makes an argument and what one is trying to achieve in making that argument. One the one side are those I will call "legal advocates"--most but not all of whom are trained as lawyers. This group includes judges, lawyers, and citizens: anyone who wants to make--or wants to win--an argument about the proper legal interpretation of the Constitution. On the other side are those I will call "scholar-historians"--who may include people in or out of the academy, including the legal academy. This group includes those who study history for reasons other than winning legal arguments or establishing the correct interpretation of the law.

   The difference between these groups does not consist in the fact that one group makes arguments and the other doesn't. (Historians can be very argumentative when they want to be!) The difference is not that one group just focuses on the facts and the other has normative values. Historians' work may be strongly normative, in their interpretations, in the presuppositions they bring to their work, in their choice of subject matter, or in all three. And the difference is not that one group's work is aimed at influencing contemporary politics and public policy and the other eschews any ambition for influence or consequences. Historians, like legal advocates, may be very much in the world. Their histories may reflect present-day concerns. Their choice of subject matter, their treatment of that subject matter, and the conclusions they draw may be designed to comment critically on the present. (10)

   Rather, the key difference between the categories of lawyer-advocates and scholar-historians is that lawyer-advocates make arguments that are legally prescriptive as well as normative. Their work prescribes the correct interpretation of law. It asserts what the law is, or, when the law is unsettled, unclear, or in need of reform, what the best interpretation of the law should be. This way of arguing does not simply assert what is moral or immoral, prudent or imprudent, true or false. Rather, it claims legal authority, or it offers facts and arguments to support such claims of authority. (11)

   Lawyers learn to argue for and against legal interpretations, to claim legal authority for their positions and to undermine the claims of legal authority of those they disagree with. They try to reduce uncertainty into certainty, and turn complication into persuasive argument. Lawyers believe that their audiences want clear cut answers, and so they provide them.

   The tensions between the work of lawyer-advocates and scholar-historians are at their greatest precisely when lawyer-advocates are most adversarial and most prescriptive, when they are most determined to establish clear legal authority for their arguments and undermine or explode the claims of authority made by their opponents. (12) Historians have noted this tension repeatedly when they write or join amicus briefs in high profile cases, for example, concerning abortion and gun rights. (13)

   In the legal academy, this assertion of legal authority may be several steps removed. Legal academics may renounce any interest in prescriptive arguments about legal authority. They may insist that they are not telling courts how to decide cases. But if courts are interested in a particular ground of decision--for example, the original meaning of the Constitution--this, and not that, is the correct answer to the question. (14) In this way, a legal academic, disclaiming all normative ambitions, may focus intensively on uncovering the original meaning of a particular constitutional provision, with the implication that if courts want to be faithful to the original meaning, they should see it the same way.

   In the quest for authority, lawyers do not merely condense and simplify. They also extend legal authority from the past. They seek to infer, from an incomplete historical record reflecting a different historical context, how the past would bear on present-day problems. They complete arguments that may have never been completed; they draw inferences and apply insights that may never have been drawn or applied by people living in the past. This act of extension in pursuit of authority is always creative. (15)

   Because they focus on cases, statutes, and other legal materials, professionally trained lawyers may not pay very much attention to what professionally trained historians think about the topics on which they expound. As Michael Rappaport puts it succinctly, "[T]he originalist is not looking for 'what the past tells us about a matter.' The originalist is looking for the original meaning." (16)

   But when historians do criticize them, lawyers may tend to react defensively. In a blog post entitled "Challenging the priesthood of professional historians," (17) constitutional scholar Randy Barnett argued that historians' criticisms of originalism were often misguided: "some [historians] apparently believe that they, and they alone, can recover the meaning of a law enacted in the Eighteenth Century when they would not be able to understand the meaning of a law enacted in the Twenty-First. That's either hubris or chutzpah." (18) Reviewing Jack Rakove's Pulitzer Prize-winning book Original Meanings, (19) Saikrishna Prakash complained that "Rakove's primary problem is that he approaches the law as a historian.... Rakove recounts events in the time-honored tradition of the historian less concerned about the meaning of legal text and more concerned with ideas." (20) Confronted by historians' critiques, lawyers may argue that historians do not...