Balkinization: Lawyers Masquerading As Historians

Lawyers Masquerading As Historians

Gerard N. Magliocca

I was watching a panel from last week's Federalist Society Conference on YouTube and was surprised to hear a quote of mine discussed. The panel was on "Originalism and Textualism," and the quote comes from an article that I wrote a long time ago in which I said: "Constitutional lawyers are paid to masquerade as historians." This quote can be used to challenge the ability of lawyers to engage in originalism or their sincerity, and was labeled as "a cheap shot" by Randy Barnett.

I thought I'd take a moment to explain what I meant. To some extent, the quote was ironic, as it was the first line of an article that went on to discuss the history of the presidential veto power. But there is a more serious point. Lawyers and historians have different tasks. Lawyers are supposed to make choices about what should be done now. Historians are supposed to describe what happened in the past. When you mix the two, problems can arise.

A historian of the Founding era is no better at determining how we should interpret the Constitution than a lawyer. Much more than history goes into that task. To be sure, history is a useful tool, and historians should step up to correct inaccurate information that lawyers are using. But going further is, in my view, wrong. That's why I don't sign "Amicus Briefs By Legal Historians." In theory, such a brief could just provide background information for a case, but usually it is taking a position in the litigation. At that point, the historian is no longer being a historian.

On the legal side, you have a related pitfall. Lawyers need to reach conclusions. They cannot say (as an advocate or as a judge) that the judgment in a case is indeterminate. Unfortunately, though, a lot of history is indeterminate. This often leads lawyers into the "narrative fallacy" (in other words, you select those facts that make the past coherent and exclude the others) to in order to make an argument or justify a result.

How do I deal with these issues in my work? In books or articles, I try to avoid commenting on current disputes in the guise of history. Now I've strayed at times, but when I have that's reinforced the point that I should not. Blogging is more free-form, so I pay less attention to the distinction when I post, though I think that I still try to keep the history separate from my opinions.

Posted 12:28 PM by Gerard N. Magliocca [link]

Comments:

"When you mix the two, problems can arise."

That's for sure. Trivially, lawyers approach history from an interested standpoint. But it's quite often that historians are guilty of the same sin, where history appears to have some relevance to modern contraversies. (Insert obligitory Belesilles reference here.)

There's no substitute for having your work reviewed by somebody whose motives are different from your own. This is pretty much an automatic part of the adversary process, not so automatic in academic history.

# posted by

Brett : 12:57 PM

I have seen amicus briefs by experts (including in a DNA case) labeled "not for either side."

# posted by

Joe : 12:57 PM

Lawyers constantly work as historians conducting research on the meaning of legal and contract terms and discovery into the past practices of parties. Interpreting the original meaning of the text of the Constitution is simply more of the same.

Academic historians usually only perform the latter part of this work and are of limited use in interpreting the Constitution.

# posted by

Bart DePalma : 2:18 PM

Our SALADISTA who occasionally serves as our HUMPTY-DUMPTY economist now waxes as an "AHISTORICAL HISTORIAN" apparently supportive of "law office history" which fits with the ADVERSARY role of lawyers using history. Legitimate academic historians are not - at least in training and theory - adversarial. Picking and choosing selective quotes from the Federalist Papers in adversarial support of a legal position is what lawyers and many justices and judges do, particularly in attempts to determine the original meaning of the text of the Constitution. Consider critiques of Justice Scowlia's Heller opinion in particular regarding the dicta on Second Amendment limitations as being unsupportable by history according to several originalists who seem to be Second Amendment absolutists.

In the course of the BU Law School conference on dysfunction and the Constitution, Prof. Michael Greve on his panel, stated (to the best of my recollection that "We know more about the framers that they did and the framers knew more about us than we do." [Note: this is not presented as exactly what he said, but it's close. I await his paper in the BU Law Review to see if he specifically referenced this in his paper.] Can legitimate history be adversarial? Historians and lawyers can look into the past but could the framers realistically really know much about us over 200 years later in structuring the Constitution? History as dug up is not always, if ever, 20-20; nor is the adversarial role of lawyers when it comes to history.

# posted by

Shag from Brookline : 4:32 PM

Helen Irving's June 2013 esssay "Constitutional Interpretation and the Discipline of History" is a good read on the topic of this post. It is available at SSRN:

http://ssrn.com/abstract=2280210

It is 35 pages, double-spaced; unfortunately my download does not number the pages. There is no table of contents but here are some headings:

"What is History?"

"What Do Historians Do?"

"The High Court and History: Cole v. Whitefield"

"Must Judges Do What Historians Do?"

While Prof. Irving focuses on Australia's High Court, the essay has connections to American constitutional law, including significant quotes of legal historian Paul Finkelman. Also, the text beginning at footnote 88 refers to Mark Tushnet.

# posted by

Shag from Brookline : 6:46 AM

"When you mix the two, problems can arise."
No way to avoid it. Interpreting precedent is interpreting history. There is no language without aporias. Liberal originalism and fundamentalism looks forward as conservative originalism and fundamentalism looks backwards. I know what I say vs I know what they said. Both silly. What is interpreted will be reinterpreted.
All a game of telephone.

# posted by

D. Ghirlandaio : 10:02 AM

Lawyers' history is like lawyers' statistics, they have no obligation to present a balanced view or even to disclose inconvenient truths. When the originalist methodology arrived on the scene, its opponents were unprepared to debate on that field (and indeed were not ready to admit the validity of so formalist an approach). This phase ended decisively with the 2nd amendment case, with Stevens' dissent for 4 based on history and original meaning. Now with the Solicitor General's brief in Noel Canning we see that the lawyers' history employed by the DC Circuit is selective and unreliable. Examining positions on the meaning of the Recess Appointment clause dating back to George Washington, and setting out instances in substantially all presidencies in which there were intra-session recess appointments and recess appointments to vacancies not initially occurring during a recess, the brief, by its exhaustiveness, is really arguing from praxis rather than from the history or meaning of the clause. In the process, it unveils the role of John Roberts in executive-legislative discussions about the use of recess appointments in the face of pro forma sessions. Obviously, not every constitutional case can be resolved by exhaustive review of historical fact, but we shall soon find out if the argument over the clause will take place on originalist terrain or a different plane.

# posted by

Anonymous : 8:14 PM

Historians and lawyers can look into the past but could the framers realistically really know much about us over 200 years later in structuring the Constitution? History as dug up is not always, if ever, 20-20; nor is the adversarial role of lawyers when it comes to history.Cheap FUT 14 Coins
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# posted by

Unknown : 2:10 AM

adversarial. Picking and choosing selective quotes from the Federalist Papers in adversarial support of a legal position is what lawyers and many justices and judges do, particularly in attempts to determine the original meaning of the text of the Constitution. 英雄联盟皮肤
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# posted by

Unknown : 9:07 AM