Scholarship highlight: The use of history before Originalism

Carl Cecere is an appellate attorney at Hankinson LLP.  Lorianne Updike Toler is founding president of The Constitutional Sources Project (ConSource), founder of her own legal history and international constitutional consulting practice, and currently pursuing an SJD at The University of Pennsylvania Law School.

In the war of words over the role of history in constitutional interpretation, advocates on all sides, Originalist and Non-Originalist alike, try time and again to recruit the Supreme Court itself to their side, by arguing that their own preferred theory is more firmly rooted in the tradition of Supreme Court jurisprudence than all others.

Witness the battle royale that consumed the legal academy this summer, which began when Justice Scalia cited a number of examples from such luminaries as Justice Holmes and Chief Justice Marshall in a book he co-authored with Bryan Garner, Reading Law: The Interpretation of Legal Texts, to demonstrate that his adopted interpretive theory, “textual originalism,” was the “oldest and most commonsensical interpretive principle” and that the Supreme Court had been “firmly committed” to its practice from the earliest days of Chief Justice Marshall’s tenure.

Judge Posner, a skeptic of Originalism, responded with a volley of his own in an essay he penned for The New Republic, in which he turned these same cases cited by Scalia and Garner on their heads, to show that these “occasional paen[s] to textualism” were in reality merely an attempt to “deny the creative—the legislative—dimension of judging” by applying a patina of objectivity and modesty to what was an otherwise wholly subjective judicial enterprise for the judge.

While this effort to recruit the Supreme Court as the ultimate theoretical constitutional arbitrator has always been popular, it has rarely been practiced with much objectivity or effort at completeness.  Treatments of the topic tend toward the selective and episodic, focusing narrowly on a few specific examples from a smattering of famous Supreme Court cases, each marshaled solely to build up one side’s defense of its own constitutional interpretive theory against challengers and viewed through the rosy filter of the advocate’s eye, as the exchange between Scalia and Posner itself amply illustrates.

In our article, Pre-Originalism, we set out to fill this void by providing a systematic, even-handed examination of the pedigree of these theories of historical constitutional interpretation – Originalist and Non-Originalist alike.  We analyzed each of what we term the “cases of constitutional first impression,” those occasions on which the Court has been faced with interpreting individual parts of the Constitution – be they amendments, clauses, or sub-clauses – for the very first time.  With the possibility of resorting to precedent cleared away, we expected the Justices of all interpretive camps to be more likely to grapple with issues of pure jurisprudential theory, and to see how history was used in constitutional interpretation before Originalism and its variants came into being in modern form.

We were not disappointed.  As we had hoped, the Court almost always used history in some form to resolve these cases of constitutional first impression, giving us a rich and detailed data set to analyze.

And the data spoke volumes. During the Court’s first century, there were indeed a great many “paens” to something akin to Original Public Meaning – the Originalist theory, advocated by Justice Scalia, that the words in the Constitution should be examined in light of how they would be understood to people of the Founding Era.  But there were actually more references during the same period to something that sounded a lot more like another Originalist variant, Intentionalism – the belief that the opinions of the Founders themselves were the most authoritative evidence of the Constitution’s meaning.  Nearly as often, Justices invoked different theories in different opinions – sometimes even multiple theories within a single opinion.

What’s more, during this period, the Court did not apply any kind of rigor to its constitutional analysis, with sparse – or often conspicuously absent – citations to Framing-Era sources that would have been available to them.  This suggests that Judge Posner may have been right – the Court could have been using the “fig leaf” of more objective-sounding constitutional theories to cover over what was really something far more akin to common law construction and interpretation of statutes.

During the Court’s second century, evocations of the “Framers’ intent” remained as popular in cases of constitutional first impression as during its first, but the Court became far more serious and scholarly about actually citing to, and applying, Framing-Era sources to determine that intent.  In fact, a supreme irony of our review is that (at least until the advent of the Roberts Court) the Court’s historical rigor may have peaked during the Warren and Burger Courts. Thus, the very Courts most often accused of playing fast and loose with our founding document, and the very Courts against which the modern idea of “Originalism” was first formulated, may have actually set the mark for serious treatment of constitutional interpretation using history.