The University of New Hampshire Law Review
Abstract
In recent years, under the moniker originalism, the United States Supreme Court has relied heavily upon history to delineate the scope and contour of various constitutional rights.[1] The Court’s justification for that approach is that defining the meaning of the Constitution according to its original or historical meaning limits a judge from engaging in unbridled discretion when deciding a case. The Court’s focus on history continued in its 2023 term. Justice Breyer has called the history-heavy analytical approach a “rigid history-only approach.”
For a number of reasons, the history-only approach is flawed and does not, in fact, limit judicial discretion. History changes. Historians revise historical explanations all the time. That is the nature of the study of history. Historical meaning is not fixed, and the history-only approach to constitutional interpretation attempts to fix historical meaning in a manner which is inconsistent with the underlying nature of the study of history. Necessarily, because history changes, historians do not agree; they pose various and competing interpretations of the past. All history is essentially provisional. Moreover, where the historical record is undeveloped or unclear, the potential for error increases. Add in that all history is contextual—every historian is a creature of the time and place where they write, so perceptional bias is inherent in any study of history.
The history-only approach necessarily involves discretion when a judge must decide the relevant time frame to use for analyzing the historical issue before them. Ratification of the Constitution? Ratification of the Bill of Rights? Ratification of the Fourteenth Amendment when considering issues of incorporated rights, due process as applied to the states, or equal protection. The history-only method itself does not answer those questions. Nor does it resolve how generally or specifically to ask the relevant constitutional question.
Critically, a history-only analysis freezes the meaning of a constitutional provision or right in the past. It eschews a more purposive interpretive style which the Supreme Court has employed since Chief Justice John Marshall’s opinion in McCulloch v. Maryland. By freezing meaning in the past, the history-only program privileges the views of the limited class of people (white men) who wrote and ratified the original Constitution, the Bill of Rights, and many of the Constitution’s Amendments. The past can be a guide; it should not be more than that.
[1] See, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023).