The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For decades, critics have argued that originalism as a doctrine cannot resolve contemporary questions of constitutional law. However, now that the majority of the Supreme Court is decidedly originalist, the criticism has shifted. In the wake of Bruen, there has been a common refrain: the conservative Court cherry picked history to support its result. After all, professional historians support Justice Breyer's dissent.
I am grateful that the narrative has evolved. Historians cannot simultaneously argue that originalism is bunk and that originalism supports a particular position. They have to pick one side. And those historians who argue that originalism supports a particular position undermine those historians who maintain that originalism is not a valid jurisprudence.
Yet, many historians claim that they are uniquely qualified to engage in constitutional originalism. And, by contrast, untrained, non-professional historians lack those qualifications. Allison Orr Larsen, for example, criticizes the conservative Justices for relying on amicus briefs written by "motivated groups that are pressing for a particular outcome," while disagreeing with "the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately."
These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, "The truth of history does not flow from its usefulness." But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.
Larsen does not use the phrase "biased," but she does use the word "motivated" throughout her piece. Here, she channels the concept of motivated reasoning. Non-historians who file originalist briefs are more at risk of motivated reasoning, while trained and disciplined historians who file originalist briefs are less at risk of motivated reasoning.
I'll admit, my view of professional historians is, well, biased by the Emoluments Clauses litigation. In an amicus brief, tenured professors of legal history at elite institutions claimed that Alexander Hamilton signed a document. They were incorrect. Seth Barrett Tillman and I responded with declarations from experts who have authenticated Hamilton's signature. The legal historians withdrew their claim and sincerely apologized. Yet, to this day, the legal historians have never explained how and why they reached their conclusion. Or, to use Larsen's framing, what was their motivation to make the claim in an amicus brief?
Everyone is subject to motivated reasoning especially in high-profile litigation, such as those cases involving guns, abortion, even emoluments. No one--not even a professional historian--is infallible.