Professors Scott Gerber and Gordon Wood recently had a discussion on “The Supreme Court’s Uses of History,” at Ohio Northern University, a transcript of which is available online. Professional historians tend to be quite skeptical of originalism, so I was intrigued to see that Gordon Wood’s remarks, while mixed, were much more accommodating than I expected. A few excerpts:
[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.
And on Scalia:
Now those who call themselves originalists, as Scott does, do need history and it’s they who have probably created the “history lite.” Although I think all judges go back to history—to the Constitution in one form or another—they all use history in different ways. There are, of course, many different kinds of originalists. Justice Scalia calls himself an originalist and he has been called an originalist, but he is better understood as a textualist, which is a different thing—it’s kind of a subcategory of originalists. Thus, he disclaims any effort to recover the intentions or the historical circumstances under which the Constitution was created, which absolves him of a lot of the problems that other jurists get into. All he wants to do is recover what the words meant to the people back then. He does not want to know what went on in the Convention, he doesn’t care what went on in the ratifying conventions, he just says, “what did the words mean?” It absolves him from a lot of—he escapes a lot of—the problems that we have.
We do not, and cannot, base our constitutional jurisprudence on the historical reality of the Founding. Our constitutional jurisprudence has to rest on a historical fiction that is developed over time through an accumulation of decisions by the courts. And again, I emphasize it’s a necessary fiction; it doesn’t mean that it’s wrong. It may not be historically accurate by an historian’s standards; but it’s necessary and it’s created by you jurists, and it has its own integrity. But we should not ever get this law-history mixed up with real history that historians write.
While I think this somewhat overstates the gulf between “law-history” and “real history,” I nonetheless agree with a lot of what Wood says here.