Originalism and Historical Fact-Finding

• Pages: 699-748
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Joseph Blocher,Brandon L. Garrett

ARTICLES

Originalism and Historical Fact-Finding

JOSEPH BLOCHER* & BRANDON L. GARRETT**

Historical facts are more central to constitutional litigation than ever

before, given the Supreme Court’s increasing reliance on originalism and

other modes of interpretation that invoke historical practice and tradition.

This raises a central tension. The case for originalism has rested largely on

the idea that it is simultaneously fact-bound and a theory of adjudication ca-

pable of resolving questions of constitutional law. In practice, however, the

historical facts central to originalism typically are not litigated in accord-

ance with standard practices for fact-f‌inding: introduction at trial, expert

testimony, adversarial testing, deference on appeal, and so on.

In the absence of the usual fact-f‌inding protocols, many recent Supreme

Court rulings have based the scope of constitutional rights on claims of his-

torical fact—with those claims drawn primarily from amicus briefs and

involving some serious factual errors. This is signif‌icant in two broad sets

of cases: those that rely on history to apply a constitutional rule (as lower

courts are doing with the historical-analogical test prescribed by New

York State Rif‌le & Pistol Ass’n v. Bruen) and those that rely on history to

set the content of a constitutional rule (for example in Dobbs v. Jackson

Women’s Health Organization’s rejection of a constitutional right to abor-

tion). The latter—which involve what we call “declarative historical

fact”—have become especially prominent in recent years.

In this Article, we explore the promise and peril of treating historical

fact-f‌inding like other kinds of fact-f‌inding in our legal system. Doing so

calls into doubt originalism’s near-exclusive focus on historical fact-f‌ind-

ing at the appellate level, informed by amicus briefs and judges’ or

Justices’ own historical research. Our legal system gives trial courts pri-

mary authority over fact-f‌inding, and many trial judges attempting to

implement the Supreme Court’s originalist decisions have turned to his-

torians as experts, holding hearings and calling for brief‌ing at the trial

level. Such trial-level historical fact-f‌inding imposes serious burdens and

faces signif‌icant limitations, but also has important institutional and con-

stitutional advantages over appellate f‌indings of historical fact.

* Lanty L. Smith ‘67 Professor of Law, Duke University School of Law. © 2024, Joseph Blocher &

Brandon L. Garrett.

** L. Neil Williams, Jr. Professor of Law, Duke University School of Law.

Many thanks to Stuart Benjamin, Aaron-Andrew Bruhl, Jacob D. Charles, Barry Friedman, Tara

Grove, Allison Orr Larsen, Maggie Lemos, Henry Monaghan, Haley Proctor, and the participants at an

ideas lunch at Duke University School of Law for their feedback on earlier drafts.

699

In addition to emphasizing the proper role of trial courts, our analysis sug-

gests a more important role for Congress both in f‌inding historical facts and

in regulating appellate review of historical facts. Courts arguably owe defer-

ence—perhaps substantial deference—to congressional fact-f‌inding, and it is

not immediately apparent why historical fact-f‌inding should be any different.

Congress might also legislate standards of review for judicial fact-f‌inding,

including for historical facts used in constitutional litigation. This type of

“fact stripping,” a form of jurisdiction stripping, is consistent with congres-

sional power over Article III courts, as we have developed in prior work.

If originalism is to maintain its claim on being fact-based, it must

grapple with these fundamental issues regarding the litigation of facts in

our legal system. If it is not practically possible for judges to develop a

sound record of historical facts, then any approach to interpretation rely-

ing on such facts will not produce convincing, legitimate, or lasting inter-

pretations of the Constitution.

TABLE OF CONTENTS

INTRODUCTION ..................................................... 701

I. THE ROLE OF HISTORICAL FACT-FINDING IN CONSTITUTIONAL

LITIGATION ................................................... 708

A. HISTORICAL FACTS IN CONSTITUTIONAL INTERPRETATION . . . . . . . . . 709

B. HISTORICAL FACTS AND ORIGINALISM .......................... 712

C. THE APPEAL AND CRITIQUES OF HISTORICAL FACT IN ORIGINALISM . 716

II. WHAT KIND OF FACTS ARE ORIGINALIST FACTS?.................... 721

A. ADJUDICATIVE AND LEGISLATIVE FACTS ........................ 721

B. DECLARATIVE CONSTITUTIONAL FACTS......................... 724

1. Distinguishing Other Types of Judicial Fact-Finding. . . . . 725

2. Distinguishing Mixed Questions of Law and Fact........ 726

3. Distinguishing Questions of Law....................... 727

C. HISTORICAL FACTS AND STARE DECISIS......................... 729

III. IMPLICATIONS: EMBEDDING HISTORICAL FACT-FINDING IN OUR

LEGAL SYSTEM ............................................... 732

A. TRIAL COURT ORIGINALISM: THE LESSER EVIL? .................. 733

1. History on Trial ...................................... 733

700 THE GEORGETOWN LAW JOURNAL [Vol. 112:699

2. Historians as Experts ................................. 737

3. Standards of Review for Historical Facts................ 743

B. LEGISLATURES’ ROLE IN HISTORICAL FACT-FINDING .............. 745

1. Historical Fact-Finding by Legislatures................. 745

2. Stripping Historical Fact-Finding ...................... 747

CONCLUSION ....................................................... 748

INTRODUCTION

Constitutional adjudication—and any constitutional theory that seeks to explain

or guide it—depends at least in part on fact-f‌inding.

1

Different constitutional

claims, doctrines, and theories prioritize different kinds of facts and direct judges

how to identify and evaluate them. One might look to empirical evidence about

the contemporary functioning of a challenged law,

2

for example, or evidence about

whether a particular practice comports with contemporary constitutional commit-

ments.

3

Under the tiers of scrutiny, judges must evaluate whether the government

has asserted a suff‌icient interest and whether the challenged action is suff‌iciently

tailored to serve that interest.

4

Such familiar uses of facts involve the application

of a constitutional standard to a set of relevant facts, whether they are economic,

psychological, medical, statistical, or scientif‌ic. Judges’ reliance on expertise from

a range of academic disciplines is both essential and appropriate.

In originalist constitutional approaches, historical facts are privileged above

other types of fact.

5

Originalism is “almost wholly fact based”

6

and “supposes

1. See, e.g., DAVID L. FAIGMAN, CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL

FACTS 46 (2008); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV.

75, 75; Allison Orr Larsen, Constitutional Law in an Age of Alternative Facts, 93 N.Y.U. L. REV. 175,

178 (2018).

2. See, e.g., Glossip v. Gross, 576 U.S. 863, 930–31 (2015) (Breyer, J., dissenting) (discussing

empirical evidence concerning administration of the death penalty).

3. See, e.g., Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (plurality opinion) (“The basic concept

underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must

draw its meaning from the evolving standards of decency that mark the progress of a maturing

society.”).

4. For an overview, see generally RICHARD H. FALLON JR., THE NATURE OF CONSTITUTIONAL

RIGHTS: THE INVENTION AND LOGIC OF STRICT JUDICIAL SCRUTINY (2019).

5. See infra Part I; see also Richard H. Fallon, Jr., Are Originalist Constitutional Theories Principled,

or Are They Rationalizations for Conservatism?, 34 HARV. J.L. & PUB. POL’Y 5, 8 (2011) (“Proponents

of originalism agree that historical facts at the time of a constitutional provision’s adoption normally

determine its meaning.”); Mark A. Graber, Original Expectations, 52 CONN. L. REV. 1573, 1579 (2021)

(“Both original public meaning and original intentions/expectations purport to be facts about

constitutional politics at the time the constitution was ratif‌ied.”); Tara Smith, Originalism’s Misplaced

Fidelity: “Original” Meaning Is Not Objective, 26 CONST. COMMENT. 1, 5 (2009) (“What unites all

forms of Originalism is deference to history: It is facts about what was intended, written, or understood

in the past that decide the meaning of laws that contemporary judges are to apply.”).

6. FAIGMAN, supra note 1, at 46.

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