The Supreme Court and the uses of history

September 17 is designated by federal law as Constitution Day to commemorate the signing of the United States Constitution on September 17, 1787. The Supreme Court of the United States is charged, in the United States system of separation of powers, with decide on the meaning of the Constitution in specific cases. The first Monday in October marks the start of a new term on the Supreme Court.

The court‘s previous term was the most conservative in nearly a century. The nation’s highest court overturned its two landmark rights precedents in favor of abortion, expanded Second Amendment gun rights, reinvigorated the First Amendment’s guarantee of free exercise of religion against challenges to the establishment clause of religion and restricts the regulatory authority of the administrative branch of executive agencies on the grounds that only Congress is authorized to legislate.

The court’s six-member conservative majority achieved most of these results by looking to history to understand the meaning of the text of the Constitution. Specifically, in what can aptly be called “conservative originalism,” the court has sought to uphold the “original meaning” of the Constitution by ruling on historical sources that shed light on what the men (and they were only men in 1787) who wrote and ratified the Constitution intended the textual provision at issue in a particular case to mean.

Of course, it is impossible for the judges of the Supreme Court who are trained as jurists rather than historians and who rule on dozens of cases on the merits every year to do the historical research themselves, even if they are each supported by four stellar recent law schools. graduates.

Indeed, Justice Clarence Thomas (the court’s longest-serving judge and its most unabashed proponent of conservative originalism) admitted as much in what court watchers should take as the final footnote. more prominent since footnote 4 in the 1938 court decision United States v. Carolene Products Company.

In Carolene Products, the court upheld a federal law regulating “filled” milk, an imitation or adulterated dairy product. Justice Harlan Fiske Stone, writing for the court, said judges would no longer subject economic legislation to scrutiny, but would now apply minimal scrutiny respectful of the legislature.

Justice Stone then inserted a footnote (footnote 4) stating that the court would continue to apply heightened scrutiny in situations where a law conflicts with the protections of the Bill of Rights, where the political process works poorly and when regulations negatively affect “discreet and insular minorities”. .” In short, footnote 4 inaugurated a new role for the federal courts in the American constitutional order.

Jumping back nearly a century to the court’s most recent transformational footnote, Justice Thomas wrote the following in footnote 6 of the court’s 2022 decision expanding Second Amendment gun rights: “The job of judges is not to resolve historical questions in the abstract; it is to resolve legal issues presented in particular cases or controversies. He continued, “This ‘legal inquiry’ is a refined subset” of a larger ‘historical inquiry’, and it relies on ‘various evidentiary principles and default rules’ to resolve uncertainties.” Finally, and most importantly: “The courts are therefore empowered to decide a case on the basis of the historical record compiled by the parties.”

Thomas should be commended for acknowledging in footnote 6 that judges do not do their own historical research. But unfortunately for conservative originalists, what he says in that footnote calls into question the entirety of conservative originalism.

After all, lawyers are known for their history of selectively trying to get the result their clients pay them to get. As Pulitzer Prize-winning historian Gordon Wood said in a public debate on the Supreme Court and the uses of history: “Judges must invent a different kind of history: we call it ‘the ‘history of law firms’ or ‘light history’. … It’s a necessary fiction for judges and other jurists to get along with their work – they need some kind of history to work with. History is far too complicated to be used effectively by judges and courts.

I agree with Dr. Wood. Therefore, my answer to the question of whether Supreme Court justices should use history to decide cases is a mixed yes. That’s what I mean by that: they should use the story to identify the political philosophy of the American foundation and then decide the cases in light of that political philosophy.

In other words, judges should employ “liberal originalism,” which is “liberal” in Locke’s classic libertarian sense that the primary purpose of government is to protect individual rights, and that is “liberal originalism.” in the sense that the framers wrote the Constitution. with this primary government objective in mind. “To secure these rights,” proclaims the Declaration of Independence, “governments are instituted among men.”

Liberal originalism and conservative originalism sometimes (but not often because conservative originalism tends to be mainstream rather than libertarian) lead to the same result in specific cases. To cite an example from the Court’s most recent mandate, liberal originalism, like conservative originalism, reveals that the establishment clause does not render the free exercise clause meaningless. The political philosophy that the Constitution was adopted to implement reveals that America has devoted itself since before the ratification of the First Amendment to the free exercise of religion, which is an individual right par excellence.

Scott Douglas Gerber is a professor of law at Ohio Northern University and a research associate with the Political Theory Project at Brown University. His nine books include “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.”

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