Constitutional Interpretation and the Discipline of History
Federal Law Review, Vol. 41, No. 1, pp. 95-126, 2013
36 Pages Posted: 17 Jun 2013 Last revised: 29 Sep 2014
Date Written: June 1, 2013
The use of history in constitutional interpretation is widespread. It is defended by scholars and practiced by judges, both in Australia and, in particular, the United States; it also attracts many critics. Originalism, (as this practice has come to be known), comes in many forms, but common to all is the assumption that the meaning of constitutional provisions is to be found in the past. What originalists and critics alike rarely consider is whether, and if so, how it is possible to know the relevant history. Surprisingly little attention has been paid to this fundamental methodological question: If history is to guide constitutional interpretation, how should the courts ‘do’ history? What are the disciplinary rules of research that should be followed if historical meaning is genuinely to be delivered?
This paper explores what conventional historians do, (and the fallacies and errors they attempt to avoid), and identifies some of the basic rules of historical methodology, an awareness of which is a precondition for any claim to interpret historically. It considers several alternative ways in which judges might approach the use of history methodologically, albeit without becoming historians. It neither defends nor contests originalism, but concludes that history should be used in constitutional interpretation only with great care and only rarely.
Keywords: constitutional interpretation, originalism, historical research
JEL Classification: K10, K30
Suggested Citation: Suggested Citation