THE CONSTRAINT OF HISTORY.

• Author: Toler, Lorianne Updike

INTRODUCTION

In no fewer than three major decisions in the 2021 Term--Dobbs v. Jackson Women's Health Organization, Kennedy v. Bremerton School District, and New York State Rifle & Pistol Association v. Bruen--the Supreme Court announced that historical considerations are not only relevant, but required in determining constitutional rights relevant to substantive due process, religion, and gun control. (1) Yale Law Professor Scott Shapiro sharply criticized the Court's use of history in these opinions, tweeting: " Amazing how originalism tracks the political positions of the Republican Party," (2) and "There is something poignant about debates over originalism, as if it were a real interpretive methodology, and not just a Joker Card for getting the results originalists want." (3) The Court's application of historical reasoning in more-recent cases like SFFA v. Harvard engendered similar ire from some commentators. (4)

This criticism mirrors decades of scholarship that presumes history incapable of constraining Justices' political predilections--for either conservatives or liberals. (5) Such criticism was crowned with "proof" in 2013 with Frank Cross's book The Failed Promise of Originalism, which claimed to offer quantitative evidence of a lack of a relationship between the use of historical sources and the Justices varying from expected policy outcomes. (6) The Court has changed significantly since then, (7) and, with that change, history is not only being used, but now seems to be required by the Court in making seismic constitutional decisions, raising its stakes as a method of interpretation. With these shifts, the time is ripe to test Cross's conclusion that history fails to constrain. Can history, in fact, constrain?

This Article's answer is a confident, but nuanced, "yes." In arriving at that answer, this Article conducts two investigations. First, it identifies the entire universe of the Supreme Court's references to the Constitutional Convention since the Court's inception to gain a clearer understanding of which sources the Justices tend to rely on when doing historical analysis. (8) In addition, this study then analyzes the relationship between the use of historical citations and case outcomes across all 201 cases making reference to the Convention between the 1937-2021 Terms.

Our descriptive results show that Justices of all political backgrounds since the Court's inception have used a variety of primary and secondary sources. The top two sources relied upon were Max Farrand's Records of the Federal Convention of 1787 and previous cases wherein the Court acts as historian, interpreting primary sources directly. Further, the empirical models provide significant evidence that the use of history can in fact, constrain. Specifically, we find that citation to secondary sources bears a strong, positive relationship to the Justices voting against policy preferences. (9) Primary sources, however, seem to have a negative relationship with cross-partisan voting. That is, such sources appear instead to reinforce directional voting, with conservatives voting more conservatively, and liberals voting more liberally. This relationship maintained even when a Justice's ideology was held at a constant, indicating that history may better explain judicial behavior beyond what policy preference alone can predict.

Granted, these results are limited only to cases which reference the Constitutional Convention. We hypothesize that the inability of primary sources of the Convention to constrain Justices to vote against their priors may be due, in part, to the thinness of James Madison's notes. Madison acted as the Convention's primary scrivener, and his notes trailed off during the Convention's latter half when they became most legally relevant. Other plausible reasons include Justices' lack of familiarity with primary sources and their manipulability when considered in a vacuum. Secondary sources, on the other hand, are not only more familiar to the legal community, but they aggregate and synthesize primary sources into historical or legal arguments. They, therefore, are less manipulable and can withstand being used in the service of other arguments.

That Justices of all stripes (and across time) are turning to history supports positivist findings which may be explained by a natural instinct to understand and recreate origin stories. Our results also indicate that primary sources are not performing the job assigned them by originalists, vindicating Cross in part and requiring a reckoning by those advocating or requiring the use of history in constitutional interpretation. Because history is now required in at least some areas of constitutional interpretation, these authors advocate the hard work of digging into history so as to increase primary sources' purchase power. To that end, this Article concludes by providing a primer on primary source hierarchy, a new citation format for primary sources, and several proposals for expanding constitutional history tools and training.

This Article proceeds in three Parts. Part I canvasses the role of history in constitutional interpretation and the critique of its constraint, including an overview of Cross's study. Part II presents this study's methodology and results, and Part III explains those results and discusses three major consequences.

1. THE PRESUMED NON-CONSTRAINT OF HISTORY

   To date, the accepted scholarly presumption is that history has no constraining impact on the Supreme Court's constitutional judgments. After 60 years of qualitative scholarship criticizing the Supreme Court's use of history as polemical, a quantitative study published in 2013 apparently "proved" this true, once-and-for-all, (10) and even history's advocates accepted defeat. Before laying out results that both challenge and support this presumption, this Part situates this study within current scholarship on the Court's use of history qua history and provides the first publication history of the Constitutional Convention's records.

   1. The Role of History in Constitutional Jurisprudence

      Although Frank Cross targets originalism, the subject of his study and this counterpoint is more properly the Court's use of history writ large. Cross presumes that the use of certain sources is originalism. (11) Yet as Jack Balkin has so carefully shown, sources can be used in a variety of ways, not all of them originalist. (12) Thus, though this study looks at just one of the sources Cross investigates--the records of the Constitutional Convention (and canvasses it in much more depth)--it does not presume that its use constitutes originalism. Rather, it approaches its use as illustrative of all uses of history, leaving to a future study to parse how that source is being used by the Court.

      With this important distinction in mind, this Section identifies all theories of constitutional interpretation that utilize history in some fashion and then canvasses the scholarly work to date on the constraining impact of history on the Supreme Court. Although three major theories employed by various Justices (originalism, pluralism, and the moral reading) use history, only originalism has been the subject of any qualitative or quantitative study on constraint. This is likely due to originalism's primordial purpose--to cabin the judicial overreach by the Warren and Burger Courts.

      1. Constitutional theory and history at the Supreme Court

         An exhaustive exposition of constitutional theories is beyond the scope of this Article, and overviews in other works can better serve the purpose. (13) Additionally, a brief overview of originalism's history was provided in this study's prequel. (14) However, as it pertains to the Supreme Court's use of history, a very brief overview of constitutional theory is in order. (15)

         The precursors to modern constitutional theory, or the theory that still holds sway among jurists and theorists, can be found in Joseph Story's Commentaries on the Constitution (16) and its antecedents--James Kent's Commentaries, (17) James Wilson's Lectures, (18) William Blackstone's Commentaries, (19) and even Coke's Institutes, (20) among others. (21) Yet its more palpable beginnings lay in James Thayer's 1893 Harvard Law Review Article wherein he outlined the "rule" of judicial review to be limited to clear cases of constitutional abrogation by the legislature. (22) What came to be known as "Thayerian Deference" was followed assiduously by Justice Frankfurter, (23) which he famously expanded into the political question doctrine in his Baker v. Carr dissent. (24)

         Baker v. Carr and the reapportionment questions it addressed were situated within the great incorporation debates of the Warren Court era, with Justice Hugo Black at its fulcrum. In his Adamson v. California dissent, Black argued for total incorporation of Bill of Rights guarantees as against the states under the Fourteenth Amendment. (25) This he based in the historical intent of the framers of both the Bill of Rights and Fourteenth Amendments, (26) presaging originalist theories.

         Black was not the only Justice of the Warren Court to hold fast to a theory of Constitutional interpretation. Justice Brennan is associated with the moral-reading theory (or moral or natural-law theory) of constitutional interpretation, (27) most famously theorized by Ronald Dworkin in Law's Empire and further developed by James Fleming. (28) Moral reading engages history by espousing fidelity to the Founders' broad purposes, which facilitates the "best reading" of the Constitution as found in a broader array of sources. (29)

         The Warren Court and, to a lesser extent, the Burger Court that followed, was marked by great upheavals in the law. Reapportionment, Establishment, Free Speech, and Civil Rights jurisprudence were reimagined. (30) Theorists responded in kind, of which two main threads will be followed here, starting with the originalist thread. In 1977, Raoul Berger...