Historians and the Courts

Interesting piece by Adam Liptak (NY Times) noting that as the Supreme Court has gotten more involved in "originalism," academic historians have been submitting more and more briefs to the court.

I find this intriguing. If you care about the original intent of the constitution, you really should throw yourself into the intellectual and political history of both the Revolutionary period and the end of the Civil War, when the vital 13th and 14th amendments were enacted. I have long thought that the approach to this question taken by e.g. the Federalist Society was rather shallow; their idea of "originalism" seems to me to focus too much on reining in certain liberal interpretations of the 1960s and 1970s, not actually understanding the past. To actually understand the past you have to do history.

A couple of thoughts:

Anyone who has paid the slightest attention to the constitutional convention would have to immediately dismiss Trump's claim to be able to impose tariffs on his own authority. One of the major ideas of the whole revolutionary period was that kings should not be able to impose taxes without popular consent, so the framers very carefully and specifically limited this power to the House of Representatives. And since at that time tariffs were the Federal government's main source of revenue, and since grievances over tariffs had played a part in the Revolution, yes, they absolutely thought tariffs were taxes.

I think they would also be baffled by contemporary interpretations of the Second Amendment. They meant what they said about a "well-regulated militia," and understood the difference between such an organization and a mob like the Paxton Boys. No court over the whole nineteenth century ever struck down any of the many local gun control ordinances in America on Second Amendment grounds.

On the other hand, I cannot imagine any American of the nineteenth century thinking that the constitution protected a right to abortion. This is part of why I was always personally queasy about Roe v. Wade; you're telling me that ths Constution protects a practice that all the men who wrote it and voted for it found abhorent?

But that gets be to a broader question; is a document written in the 1780s really the best guide for politics in the 21st century? This is a question that much preoccupied the great pragmatist judges of early 20th century, men like Oliver Wendell Holmes and Learned Hand. The cases that came before them often turned on matters that the constitution's authors had never even imagined, like industrial trusts and anarchist cells. It was no good, Hand wrote, looking to the framers for advice on how to handle such questions. They must be answered by people who know something about them, that is, us.

And yet, would casting aside the Constitution help us? I think not. In fact at the moment I find myself wishing for a lot more fidelity to the Constution, along with a Supreme Court that would do its constitutional job.

So we are left trying to find our way through these thickets as best we can, relying on our political heritage because we must, but reaching beyond it because sometimes we must also do that.