Constitutional Interpretation and the Discipline of History

Federal Law Review, Vol. 41, No. 1, pp. 95-126, 2013

Sydney Law School Research Paper No. 13/41

36 Pages Posted: 17 Jun 2013 Last revised: 29 Sep 2014

Helen Irving

The University of Sydney Law School

Date Written: June 1, 2013

Abstract

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

Irving, Helen, Constitutional Interpretation and the Discipline of History (June 1, 2013). Federal Law Review, Vol. 41, No. 1, pp. 95-126, 2013; Sydney Law School Research Paper No. 13/41. Available at SSRN: https://ssrn.com/abstract=2280210

Helen Irving (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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