The Constraint of History

Abstract

[This article is the most recent version of "Law Office Originalism," also posted here on SSRN, which was cited in Steven Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).]

Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of the 328 cases referencing the Constitutional Convention provides evidence that history can con-strain judicial interpretation of the Constitution.

As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes and the ideological outcome of the case more broadly. On average, we find evidence to suggest that the Justices are more likely to vote against their political priors when using secondary sources—predominantly, historical characterizations of the Convention in previous cases—and more likely to vote along ideological lines when relying only on primary sources. Further, our results suggest a Justice’s ideology alone provides an incomplete picture of judicial behavior.

This Article vindicates and challenges the major previous study, nuancing its findings by demonstrating that the constraint of history likely turns on the type of historical source that a Justice relies upon and challenges the assumption that only political preference matters in explaining case outcomes. Further, our evidence indicates that history matters and may even be called our law, though it requires a reckoning of how primary sources have been used and manipulated, calling for more transparent, humble, and deeper engagement with the historical record through expanded tools and training.

Keywords: constitution, US Constitution, Supreme Court, constitutional history, constitutional interpretation, legal theory, Originalism, Pluralism, Moral Reading, law office history, Constitutional Convention