In a 1988 lecture Supreme Court Justice Antonin Scalia declared that originalism was “The Lesser Evil” over other methods of constitutional interpretation. (1) Born out of a resentment against what was perceived as an activist liberal Supreme Court, the movement to make originalism the way to interpret the Constitution did not begin with Scalia’s speech, but his appointment to the Supreme Court in 1986 was a watershed moment for it. In the 1970s conservatives began calling for a return to the Constitution and its “fixed” original meaning as a way to restrain Justices and “depoliticize the law.” (2) As the movement expanded, history, as a resource in which to discover the original meaning, was set to go from a side-show in constitutional law to the main event. A contested past was now required to yield certainties, and to do so without the appearance of ideological bias. Nonetheless, it soon became clear that the push for originalism was a political strategy to reshape constitutional law in favor of conservative principles. (3) But for this to happen, originalism had to yield the “correct” original meanings. This need to yield the “correct” history ensured that the well-known abuse of history in law would reach new heights. Despite their ideological underpinnings, the products of originalist jurisprudence are packaged in the language of certainty and impartiality. For this reason, as noted by Eric Berger, “Originalism is particularly worthy of criticism.” By “creat[ing] an especially misleading illusion of certainty” it operates by deception. (4) Contrary to Scalia’s assertion, originalism is not, in fact, the lesser of two evils, but by virtue of its pretense to objectivity the greater evil. It is politics disguised as legitimate scholarship.
Associate Justice Antonin Scalia during the group portrait of the U.S. Supreme Court at the Supreme Court Building in Washington, Friday, Oct. 8, 2010. (AP Photo/Pablo Martinez Monsivais)
Despite its many flaws, especially the very problematic historical record, originalism has gained in popularity and enjoyed broad application. (5) Given its popular appeal and the fact that so many legal scholars and organizations are dedicated to this method it is unlikely to disappear any time soon. Even if the jurisprudence of originalism faded into obscurity, there is no doubt that history will remain a crucial resource to bolster legal arguments. History is seen to confer legitimacy upon constitutional arguments and enjoys broad popular appeal. But the motives, sensibilities, and training of legal scholars diverge considerably from that of a historian. This makes it more likely that they will abuse history in order to bolster their arguments in favor a pre-determined conclusion.
In response to the frequent misuse of history in law some have recommended that its use by jurists be abandoned altogether, but others recognizing the implausibility of this solution have instead offered advice and/or rules to help them use history responsibly. (6) Regrettably, there is little evidence that lawyers, judges, justices or legal scholars have taken the advice of these well-meaning scholars. With busy schedules and no professional consequences, other than the occasional historian calling them out for their mischief, there is little incentive to change. There are two factors that work in tandem to encourage the abuse of history. The first comes from within the field itself. Lawyers are trained in the adversarial method in which the point is to make the best possible argument in favor of a particular claim. This methodology is well-suited in the service of ideological goals. This gets to the second factor, which gets at the incentives and motives driving the abuse of history, and in part explains why attempts to improve historical scholarship in law have failed. The desire to further one’s ideological agenda is encouraged and supported by the proliferation of partisan political organizations, funded by wealthy donors. To understand how these considerations contribute to the poor state of historical scholarship in the legal profession, it will be necessary to examine each in more detail. Continue reading