Adjusting the Rear-View Mirror: Rethinking the Use of History in Supreme Court Jurisprudence

Abstract:     
Originalists contend that the main use of history is to implement the Framers' "original understanding." This Article suggests another way to think about history. Classical rhetoricians distinguished between forensic discourse, which is concerned with what happened in the past, and deliberative discourse, which is concerned with what should happen in the future. The Article introduces the term deliberative history to describe what Supreme Court justices do when they use history not merely to argue about what was, but also to argue for what should be.

The Article also considers the content of deliberative history, through the ideas developed by Richard Neustadt and Ernest May in their book Thinking in Time (1986). The Article suggests that these tools might be adapted to help us understand what justices do when engaged in deliberative history. The Article then applies these ideas to three opinions, all relating to emergency powers. The Article concludes (1) that the concept of deliberative history does help describe what justices do when using history; and (2) that Neustadt and May's suggestions might improve the decision-making of those wishing to use history better.

Number of Pages in PDF File: 52

Keywords: Supreme Court, Constitutional History, Constitutional Interpretation, Original Understanding, Legal History, Emergency Powers

working papers series