Introduction
Historical Facts and Constitutional Law: New Challenges for Lawyers, Judges, and Scholars
Joseph Blocher, Brandon L. Garrett & H. Timothy Lovelace Jr. | PDF
Articles
Unwanted Histories
Christen Hammock Jones & Karen M. Tani | PDF
The Supreme Court’s turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article takes as a given that history is now part of judges’ work. It then invites judges to think more expansively about the type of history they could—and perhaps should—be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.
This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of past perceptions and experiences, drawn from diaries, letters, oral histories, and other types of testimonials. Professional historians highly value such sources, even though they require caution, because they often provide glimpses of the past that are missing from more formal or “official” documentary records. In doing so, they enrich and sometimes even transform our answers to important historical research questions. Courts, by contrast, tend to resist these sources, even when they might be relevant to the historical inquiry at hand. This Article illustrates such resistance via examples from the realms of disability and reproductive rights, both of which currently receive weak constitutional protection.
The Article closes by underscoring that, when judges engage in historical interpretation, they are not simply making law; they are also making history, upon which other courts and the broader public may rely. This reality implies responsibility. Judges could lean into that responsibility by bringing a critical eye to the traditional “high law” historical sources that are most readily available and by shepherding into the record voices and perspectives that enrich our collective understanding of the American past.
Falsifying Tradition
Darrell A. H. Miller | PDF
From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that basic issue.
Part I surveys the ways in which courts use tradition in different constitutional and interpretive modalities. Part II explores the instrumental reasons courts and other lawmakers resort to tradition. Part III supplies the basic definitional parameters of a more fact-bound, empirical notion of tradition. At the very least, tradition—in any non-rhetorical form—has a phenomenological, demographic, and temporal component. This observation may seem trivial, but the simplicity of these parameters disguises significant complexity about what phenomenon to code, among what demographic, and over what duration. Part IV discusses the implications of adopting a definition of tradition along the lines explored here and outlines procedural devices to apply this more rigorous notion of tradition. The Article concludes by explaining the benefits of a more empirically grounded notion of tradition, even if the factual truth of a tradition cannot itself dictate a normative conclusion.
Note
Historians for Hire: Evaluating Historian Expert Witnesses After Bruen
Jake McAuliffe | PDF
The Supreme Court in New York State Rifle & Pistol Association v. Bruen introduced a history-and-tradition test for Second Amendment challenges, directing courts to compare modern firearm regulations to past ones. To conduct this historical inquiry, litigants and judges have increasingly turned to professional historians as expert witnesses. This Note qualitatively examines how historian experts are used and received in post-Bruen federal litigation. It finds that a small group of repeat players—sixteen historians—make up this emerging field, typically appearing exclusively for either challengers or governments. These historians serve primarily in civil litigation, leaving a relative expertise gap in criminal cases, and they are often asked to produce rushed historical research for preliminary motions. The Note further identifies two competing judicial conceptions of the historian expert’s role. Some judges treat historian experts as archivists who merely identify past laws, while others treat them as analysts who interpret those laws within their broader context. This Note advocates for the latter approach: Treating historian experts first and foremost as analysts allows courts to practice better law and better history.