I'm excited to join the conversation on Legal History Blog this month. In particular, I hope to offer a grad student perspective in some of my future posts.
Today, though, I wanted to address an entirely different topic--namely, the role of legal historians as advocates, an issue raised for me by Justice Scalia's dissent in the recent decision in Arizona v. U.S. The dissent attracted attention (at least until Thursday) for its critique of the Obama administration's immigration policy, but I was struck by its heavy reliance on historical argument, even for an originalist like Scalia. Parts invoked strange counterfactuals, like Scalia's assertion that the delegates to the convention would have run to the exits when confronted with the prospect of an exclusive federal power to limit immigration (an unlikely fear when states were anxious to attract, not exclude, immigrants). But it also rested on more solid ground, in particular drawing heavily from Gerald Neumann's article on the "Lost Century of Immigration Law." (My sense is that Neumann's account of antebellum immigration policy is respected and influential; my adviser steered me to it to crib for a lecture on the history of immigration in a legal history survey.)
My point is not to critique Justice Scalia's historical claim about state authority, nor to evaluate the argumentative leap from the descriptive conclusion that states regulated aspects of immigration in antebellum America to the normative conclusion that their continued exercise of this authority does not conflict with federal policy. What struck me was that Scalia's historical argument went unchallenged, either by the majority or by an amicus brief by legal historians. (I haven't read all the amici, so it's possible others made a historical argument; the United States did not in its brief, apart from a couple citiations to the Federalist). Scalia lost, so it wasn't necessary to rebut him; still, his reliance on states' antebellum regulation efforts, which Neumann and others have recognized were heavily intertwined with race and slavery, and the omission of any mention of the Reconstruction amendments, left his claims open to an easy line of criticism.
Many legal academics I've talked to are sometimes frustrated by historians' unwillingness to give them what they want--namely, a useable past that can be used in advocacy, and, particularly for those of a liberal bent, to challenge the arguments advanced by conservative originalists. And my coclerk asked me why historians criticize decisions after the fact, rather than try to influence them during deliberation.
These criticisms are somewhat unfair, since historians do file amicus briefs, particularly in prominent cases: for instance, in Heller, in Lawrence, and this term, in Kiobel (among others). And there are good reasons for historians to abstain from advocacy in certain cases. Besides the general concern about the distorting effect of advocacy on scholarship, briefs rarely capture the complexity that good history depicts. Historically oriented cases also attract briefs by historians on both sides, in a sort of arms race that may end--at least in the mind of a non-historically-trained outsider--as a wash. Finally, it may not be effective: much compelling historical scholarship on legal issues has had little effect on the direction of jurisprudence.
Despite these caveats, I feel that legal historians have an obligation to speak up during some of these debates. Since we have a foot in both methodologies, we are especially well-positioned to craft legally convincing historical arguments, in a field where history matters. And there is no shortage of ideologues of all stripes who will peddle pseudo-scholarship and much-maligned "law office history" to achieve their desired results. As someone who studies the history of Indian law--where history plays such an important role and yet is often poorly understood--I feel this responsibility particularly keenly.
I would love to hear the views of readers on this topic in the comments, particularly if (unlike myself) they have experience in employing their scholarship in public debates.
