HISTORY IN CONSTITUTIONAL ARGUMENTATION

alexander hamilton, writing in the federalist, declared: "Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries" about how best to frame a government. The Founders—the individuals who framed, debated, and ratified the Constitution—drew heavily from experience, both their own immediate past as well as the experience of governments long past. james madison, for example, often cited the experience of ancient Greece. james iredell turned to England under the Stuarts. Hamilton himself drew lessons from the fall of the Roman Republic. Just as the founding generation turned to the past when establishing the Constitution, many who seek to interpret the Constitution draw from its history, especially the experience of the Founders themselves.

The practice of using history in this interpretive sense dates back to the Constitution's earliest days. Historians tend to agree that the Founders initially had little desire for their own understandings of the Constitution to bind future generations. Yet many scholars also point out that this goal was increasingly honored more in theory than practice. Foes in constitutional disputes sought to bolster contending positions with what the authors of the document desired as early as the ratification debates. By the time President george washington left office, arguments about the Constitution's meaning appealed to its history frequently—often with different Founders offering different accounts about the origins of the same provision. In one celebrated dispute, Hamilton and thomas jefferson differed over whether history showed an original understanding that Congress have the power to charter a national bank. In another, Hamilton and Madison appealed to founding understandings in arguing radically different positions concerning presidential power in foreign affairs.

The Supreme Court soon followed this lead. Faced with Jeffersonian appeals to original intent, Chief Justice john marshall responded in kind. When, for example, Marshall needed to refute the claim that the states established the Constitution in mcculloch v. maryland (1819), he turned to history. On his account, "the Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention."

The Court has invoked history along similar lines, off and on, ever since. Chief Justice roger brooke taney in part justified the infamous result in dred scott v. sandford (1857) by making the disputable assertion that no, even free, African American could have been considered part of "We the People of the United States" when the Constitution was first established. In more recent times history has continued to serve as a cornerstone in a number of significant opinions. In reynolds v. united states (1878), Chief Justice morrison r. waite relied on an 1802 letter Jefferson wrote to a group of Connecticut Baptists to conclude that the Framers meant for the first amendment to create a "wall of separation" between church and state. At the same time the Justices have engaged in a continuing historical debate over the original understanding of reconstruction and the fourteenth amendment. Deploying history in a somewhat different fashion, Justice harry a. blackmun's majority opinion in roe v. wade (1973) surveys abortion practices from contemporary America to the ancient Middle East.

In many ways the use of history in constitutional law has never been more central or controversial than today thanks to the ongoing debate over originalism. This debate intensified during the 1980s when a number of advocates opposed to the perceived excesses of the warren court contended that judges should interpret the Constitution based primarily on the original views of those who wrote and ratified particular provisions. Champions of originalism, many of whom were associated with the administration of President ronald reagan, included Attorney General Edwin Meese, Judge Robert Bork, and Justice antonin scalia. After some initial hesitation, some more liberally inclined thinkers themselves responded in kind, asserting that more rigorous historical study often showed original understandings that were either more flexible or progressive than the original "originalists" contended. Leaders in this group include Bruce Ackerman in the academy and, to an extent, Justice david h. souter in the judiciary. Perhaps as never before, appeals to history now come from the political left as well as right, practitioners as well as academics, and even those who are not otherwise concerned with history in the first place.

Whether recent or longstanding, there have always been nearly as many reasons for using history as there have been persons using it. Among the most common, though least commonly stated, justifications for citing the past is simply that it appears to add authority, weight, and even "class" to what might otherwise be a mundane constitutional argument. The practice takes its most dubious form as "law office"—or more benignly, "forensic"—history, in which a lawyer or judge will "dress up" a preconceived conclusion with a few out-of-context quotations from celebrated historical figures.

Other justifications rely on good, or at least better, faith. The most obvious commitment to history comes from those who emphasize the Constitution's democratic foundations. For a wide array of thinkers, the keys to constitutional provisions lie with those who first established them. Since "We the People" ratify constitutional provisions and later generations govern themselves within the framework of that law, these later generations must follow the command of the "People" unless one of those generations successfully amends the Constitution and so acts as the "People" in its own right. Originalists take this claim the furthest in arguing that the historical understandings underlying constitutional provisions are dispositive.

Reliance on the past also figures heavily in those theories that emphasize the Constitution's commitment to rights and justice. The history that these approaches invoke, however, is less the background to certain constitutional clauses than to ongoing traditions that shape our constitutional culture. Nowhere do accounts of our evolving traditions figure more prominently than in the Court's substantive due process jurisprudence. It was partly in this context that the majority in Roe considered historical abortion practices relevant to modern case law.

Yet however much lawyers cite to history, they are less enthusiastic about learning it. Constitutional law is replete with historical assertions that are at best problematic or at worst just plain laughable. Among historians, the reputation of lawyerly use of history is dismal. More than a few scholars agree that this reputation is not unjustified. Most lawyers, judges, and even legal academics lack the perspective, time, patience, and knowledge of sources to pursue historical study well. Some commentators defend this result by asserting that historians, in their attempts to reconstruct the past, and lawyers, in their effort to use it to win arguments, simply pursue different types of history. Many in both camps would agree, however, that at some point those who draw from history for greater authority must provide accounts that are at least minimally accurate and credible.

One obvious—though not uncontroversial—solution for this state of affairs would be for lawyers to respect standards that genuine historians employ in studying the past, including relying on the work of historians themselves. One scholar recently suggested what such guidelines would mean for examining the framing era, or by extension other periods of constitutional change: (1) examine specific sources on point such as the records of the Federal Convention; (2) survey more general sources, including contemporary newspaper articles and correspondence; (3) explore the general intellectual setting of the period; and, perhaps most important; (4) understand the political experience and context of those establishing the constitutional norms. Following just these guidelines is time-consuming work, often too time-consuming to meet the demands of legal calendars. But if lawyers cannot follow these strictures themselves, at least they can rely on those who do. The legal community would improve its reliance on history by first relying on respected and relevant accounts of such noted historians as Gordon S. Wood and Eric Foner, among many others. While this modest reform is itself hard work, it is more efficient than reading through the hundreds of sources that historians themselves study and more rigorous than quoting snippets of The Federalist without context or corroboration.

The past generation's turn to history in constitutional law has arguably led to some improvement in the level of historical scholarship that lawyers, judges, and legal academics undertake. Only time will tell whether that level will ever become generally adequate. Until then, students wanting to learn about American history and tradition on its own terms should treat the accounts offered in legal writings with caution.

Martin S. Flaherty
(2000)

Bibliography

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