Law Office Originalism
49 Pages Posted: 16 Oct 2020 Last revised: 2 Mar 2021
Date Written: August 3, 2020
Originalism as practiced by Supreme Court Justices has long been described as “law office history,” or cherry picking shallow historical evidence to achieve pre-determined, political results. However, none has provided a systematic review of these claims, including the Supreme Court’s historical methodology and its purchase power to cabin judicial will. This empirical study—which canvases the entire universe of the Court’s 299 references to the Constitutional Convention—is the first to supply that deficiency. To test both normative historical methodology and Originalism’s constraint function, this study hypothesizes that 1) the Court’s historical methodology is generally bad, 2) that Originalist Justices’ historical methodology was no better; and 3) that Justices’ engagement in better historical methodology would result in significant political deviations.
Results of this study show that the Court references the Convention without having looked at the primary record or, indeed, any source nearly half of the time, over-relies on non-historical secondary sources for context, and fails to cite to both primary and secondary sources in all but a small minority of its references. In all this, the first hypothesis was confirmed: the Court is a poor historian according to history’s standards. Likewise, based on a comparison of eight Justices—three Originalist Justices, three with non-Originalist jurisprudential commitments, and two “index” Justices—to all Justices since 1935, Originalist Justices proved they were no better at historical methodology than their peers, confirming the second hypothesis. Finally, through adding an interactive variable of political deviation to the previous test, the third hypothesis was rejected in large part: deeper historical methodology did not result in consistent significant political deviations.
Originalism may thus appropriately be deemed “law office history.” However, using deeper historical methodology did result in significant political deviations for the two “index” Justices who lacked previous interpretive commitments, and a non-significant deviating trend for all other Justices but Justice Thomas, who deviated not at all. These results suggest that it is better history, not better theory, which constrains judicial will. Herein lies history’s promise for the Court: better historical methodology grounded in primary sources can have the power to constrain Justices, perhaps providing hope for a methodology with bite. To capitalize on its constraint function, this article concludes by making multiple practical suggestions for improving the historical methodology for the Supreme Court bench and bar.
Keywords: Constitutional history, constitutional convention, Supreme Court history, empirical studies, law office history, Originalism, historical methodology
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