Balkin on Lawyers, Historians, and the Constitution

Jack M. Balkin, Yale Law School, has posted Lawyers and Historians Argue About the Constitution, which is forthcoming in Constitutional Commentary 35 (2020):

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

--Dan Ernst