Balkinization: Rahimi and The Constraint of History

Rahimi and The Constraint of History

Guest Blogger

Lorianne Updike Toler & Robert Capodilupo

After all its hype, United States v. Rahimi, wherein the Court ruled this summer that states could bar domestic abusers from bearing arms, proved anti-climatic. Yet below the near-unanimous decision (only Justice Thomas dissenting), at least one debate raged: how history was and should be used by the Supreme Court.

According to Justice Kavanaugh’s concurrence, “absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.” And “[h]istory, not policy, is the proper guide.”

The concurrence then goes on to explain “how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.” In Justice Kavanaugh’s view, “there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.”

And while history and precedent often find themselves at odds in constitutional reasoning, Justice Kavanaugh does not see these modalities as mutually exclusive. Rather, “pre-ratification and post-ratification history[ ] may appropriately function as a gravitational pull on the Court’s interpretation of precedent.” That’s especially true given the vast corpus of prior Courts’ own historical reasoning.

Justice Kavanaugh’s defense of history raises a quibble of many academics: can history work as Justice Kavanaugh assumes it can, to actually constrain a judge’s policy preferences?

Turns out this is just the question we answered in a quantitative study, The Constraint of History, published by the Harvard Journal of Law and Public Policy in 2023.

The answer? Yes. Kind of.

It actually depends on the type of history the Justice uses. After analyzing the outcome of every Supreme Court case that referenced the Constitutional Convention, our results showed that primary sources alone—at best, eye-witness accounts of events as they happen (but sometimes recorded later)—don’t constrain Supreme Court Justices to vote against their policy preferences. In that sense, we were unable to conclude that a Justice’s reliance on pre-ratification sources (and her own historical reasoning) had any constraining effect.

But we also found that a Justice’s reliance on secondary sources is associated with a Justice voting against her policy preferences. One caveat is that the Justices don’t often consult historian’s secondary sources (books or treatises) except for the very famous ones, and only very rarely.

However, Justices do consult judge-made secondary sources, or when the Supreme Court acts as a historian and collates and summarizes primary sources in their cases. It appears, then, that history and precedent can work in tandem to steer the Justices away from their policy preferences.

Our results challenge the conclusions of Frank Cross’s 2013 book, The Failed Promise of Originalism, which claimed to offer quantitative evidence of a lack of a relationship between the use of historical sources and the Justices varying from expected policy outcomes. But Cross relied on only descriptive statistics to back up his conclusions and failed to employ more robust inferential methods. Our study suggests that Cross’s work should not be seen as definitive evidence that Originalism has failed.

The full study is available here and, if you’d like to peak underneath the hood, our data is available here.

Lorianne Updike Toler is Assistant Professor, Northern Illinois University College of Law. You can reach her by e-mail at lautoler@gmail.com.

Robert Capodilupo is Judicial Law Clerk, U.S. District Court for the Southern District of Florida. You can reach him by e-mail at rcapodilupo@gmail.com. All views expressed are of the authors and do not represent the opinions of the federal judiciary.

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