Historians Before the Bench: Friends of the Court, Foes of Originalism

Abstract

Historians, I contend, can more effectively influence the Court and reclaim their authority to interpret the past without surrendering their professional principles. They must first understand that their attempts to get involved in originalist debates fall short in three ways: (1) they traffic in certitudes, which are anathema to the historical vocation; (2) they accept and legitimize the normative, originalist premise that the past ought to inform the present; and (3) they search for historical analogies to satisfy the Court’s originalists when they are better served locating or contextualizing persuasive case law. This Note will examine these three matters in turn in Parts One, Two and Three. In Part Four, I argue that historians can and should pursue alternative approaches in their briefs. Responding to each of the three issues named above, respectively, they should (1) attack originalist arguments by destabilizing their historical conclusions, (2) adopt alternatives to originalist advocacy in their amicus briefs, or (3) craft briefs narrowly in the fashion of a historical "special master." All three approaches would bring an urgent relevancy to historical advocacy without sacrificing historical principles.