The Volokh Conspiracy
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There is a well-known gulf between the way many originalist scholars and jurists think about constitutional law and the way many credentialed historians do. (This conference at the Stanford Constitutional Law Center a few years ago (1, 2, 3, 4, 5) is a great introduction.) Why do so many legal scholars rely on Founding-era history even when historians say they shouldn't? How can responsible legal scholars expect to find answers where historians find ambiguity and disagreement? And how can we apply any of what we find in the Founding era to today's legal problems, given that the basic facts of modern life would have been beyond the ken of even Hamilton and Madison and Jefferson?
In Originalism and the Law of the Past, a short piece forthcoming in the Law and History Review (a peer-reviewed history journal), co-author/co-blogger Steve Sachs and I try to provide some answers. Here is the abstract:
Originalism has long been criticized for its "law office history" and other historical sins. But a recent "positive turn" in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed.
This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday's "no vehicles in the park" ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.
And from the introduction of the piece (without footnotes):
In 2011, a federal appellate court rejected the United States's claim to own a parking lot on the Alexandria waterfront. According to the court, the plot in question used to lie in the Potomac riverbed, which was granted by Charles I to Cecilius Calvert in 1632 and then ceded by Maryland to the United States in 1791. Because it lay past the old high-water line, the plot remained in the District of Columbia after the rest of Alexandria was retroceded in 1846. At some point the reclaimed land was transferred to the Old Dominion Boat Club, which claimed title under Maryland's rules of riparian ownership—not as they stand today, but as they stood in 1801, when Congress fixed in place the law governing Maryland's portion of the District. "Thus," the court concluded, "despite the fact that the plaintiff is the United States, the defendant is a private club in Virginia, and the year is 2011, the district court correctly held that '[r]iparian rights within the District of Columbia are governed by Maryland law as it existed in 1801.'"
What is striking about this episode is precisely how ordinary it is, notwithstanding its unusual facts. Tracing a chain of title or a chain of legal authority decades into the past is normal lawyers' work. The kind of research necessary to adjudicate claims to riparian land in Maryland is also necessary to identify the scope of modern intellectual property rights, to interpret our civil rights statutes, and more. Courts solve today's cases through the application of yesterday's laws—not out of admiration for their ancient wisdom or fealty to the dead hand of the past, but simply because those old laws remain good law today.
Episodes like this one shed useful light on the debates over constitutional originalism. Much has been written about the special historical problems that originalism poses. Yet at its core, originalism demands no more of the past than ordinary lawyering does.
The recent "positive turn" in originalist scholarship takes the theory as a claim about positive law, something that varies from one society to another. Today's law is equally free to rest a claim to property on an old conveyance or this morning's bona fide purchase. Similarly, today's law is free to rest a claim to government authority on older legal instruments. An executive-branch agency might trace the authority of its regulation to a prior statute, which traces its own authority to a constitutional grant of legislative power to Congress. Determining the regulation's validity requires looking to what law that statute made in the past, which might in turn require looking to what power the Constitution vested in the past. Viewed in these terms, originalism is unexceptional, no different from our law of property: it simply reflects a decision by today's law to grant continuing force to the law of the past.
This brief article suggests that this form of originalism may help explain the proper domains of history and law. Whether and how past law matters today is a question of current law, not history. This may be easier to see in the case of property or statutes, but constitutional law is no different: giving current force to past rules is simply our way of allocating authority in the present.
To be sure, applying the law of the past requires knowledge of the past, and lawyers must often defer to historical expertise on the relevant questions. But we should also recognize that the legal inquiry is a refined subset of the historical inquiry. It looks to legal doctrines and instruments specifically, rather than intellectual movements more generally. It interprets these instruments in artificial ways, properly ignoring certain facts about their historical authors and audience. And when there is uncertainty, law also has various evidentiary principles and default rules that can give us confidence about today's law, even when yesterday's history remains obscure.
Applying this old law to new facts may seem daunting, even anachronistic. Yet here, too, originalism demands no more than ordinary lawyer's work. Deciding whether a "no vehicles in the park" ordinance forbids motorized wheelchairs and reviewing warrantless GPS searches under Founding-era trespass doctrines differ only in degree. Such reasoning is part and parcel of any system that treats prior rules, not as mere curiosities, but as current and operative law.
It's short, so if you're interested, please do (as we used to say in the blogosphere) read the whole thing!