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.