Michael L. Smith, St. Mary's University School of Law, has posted History as Precedent: Common Law Reasoning in Historical Investigation, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
The United States Supreme Court frequently looks to history when interpreting the Constitution. On some occasions, it does so to determine the original public meaning of the Constitution’s text. Other times, it looks to historical traditions recognizing or restricting rights. The Court emphasizes the objectivity of these historical methods, contrasting them with alternate approaches the Court casts as dangerously manipulable. But the Court’s resort to history is virtually identical to alternate methodology the Court purports to avoid—namely, reasoning and arguing from precedent. Skilled advocates craft favorable rules from precedent, and portray dubious precedent as controlling and unfavorable precedent as irrelevant. The Court does the same with historical evidence, framing inquiries to all but guarantee favored outcomes. Contrary evidence is minimized or deemed irrelevant under unspoken, malleable standards. In short, the Court treats history as precedent.--Dan Ernst
The Court’s manipulation of history raises profound concerns beyond those typically associated with the manipulation of case law. While precedent may be manipulated, its use is subject to an array of rules and norms, including rules of controlling and persuasive precedential value, recognition of the difference between holdings and dicta, and standards for when precedent may be overruled. Historical evidence lacks these norms. Additionally, most legal actors also lack the expertise, resources, and incentives necessary for rigorous historical analysis, increasing the probability of mistaken conclusions. In the face of these problems, I propose two ways forward. Courts can recognize that they are treating history as precedent and develop rules for the process, including rules for sufficiency of evidence, relevance, and persuasive value. Or courts can instead take history seriously and subject history to more rigorous analysis, using discovery mechanisms, expert testimony and cross-examination, and a recognition of complexity to engage seriously with the history.
