Historiography and Constitutional Adjudication
| Published date | 01 May 2023 |
| Author | William Partlett |
| Date | 01 May 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12771 |
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Modern Law Review
DOI:10.1111/1468-2230.12771
Historiography and Constitutional Adjudication
William Partlett∗
Lawyers and judges often use history in constitutional adjudication to provide context for con-
stitutional interpretation. But there is debate about the extent to which historiography – the
critical study of how history is written, developed by professional historians – is relevant to
constitutional adjudication. This article argues that historiography has little relevance to consti-
tutional reasoning grounded on historic legal sources such as court cases or legislation. But when
constitutional reasoning relies on non-legal,general historical sources, historiography provides
important insights. Arguments based on general historical sources – particularly originalist ones
– can and should be critiqued on historiographical grounds.These methods show that general
historical sources are unlikely to generate precise and objective constitutional meaning but can
be used to develop and constrain many constitutional arguments,including those concerning
constitutional practice, purpose,or values. Historiographic methods are important for lawyers
and judges seeking to critique or make constitutional arguments grounded on general history.
The use of history in constitutional adjudication has generated a vast litera-
ture and polarised debate. On one side are those who uncomfortable with the
use of history in constitutional adjudication because it can be abused or pull
courts into the dangerous area of contested history.1On the other side are those
who assume that history provides external authority for an objective answer to
constitutional questions.2In constitutional law, this approach has been domi-
nated by originalism, which uses founding-era history to nd the xed meaning
∗Associate Professor, University ofMelbourne LawSchool. I wouldlike tothank LaelWeis,Jerey
Goldsworthy, Amalia Kessler, the anonymousreviewers forthe Moder n LawReview, and themem-
bers of the Comparative Constitutional Studies workshop for their valuable comments.All URLs
were last accessed 3 October 2022.Open access publishing facilitated by The University of Mel-
bourne, as part of the Wiley- The University of Melbourne ag reement via the Council of Australian
University Librarians.
[Correction added on 23/11/2022, after rst online publication:Projekt DEAL funding statement
has been added.]
1HelenIrving,‘OutsourcingtheLaw:HistoryandtheDisciplinary LimitsofConstitutional Rea-
soning’(2015) 84 Fordham L Rev 957 (arguing that wise constitutional interpreters ‘avoid using
history’); Tanya Josev, ‘Australian HistoriansandHistoriography intheCourtroom’ (2020) 43
Melbourne L Rev 1069 (citing empirical evidence that judges are less likely to cite history
because ofa fearofgetting pulledinto contested histor y orhistory wars); RichardPosner, ‘Past-
Dependency,Pragmatism, and Cr itique ofHistory inAdjudication ofand Legal Histor y’ (2000)
67 University of Chicago Law Review 573 (concerned about the misuse of history in legal reason-
ing).
2JeGoldsworthy, ‘The Casefor Orig inalism’ in G. Huscroft andB. Miller (eds), The Challenge
of Originalism: Theories of Constitutional Interpretation (Cambridge: CambridgeUniversity Press,
2011) 49; NicholasAroney, ‘Towards the BestExplanation ofthe Constitution: Text,Str ucture,
History andPrinciple inRoach v.ElectoralCommissioner’ (2011)30 University ofQueensland
L J 145, 163 (arguing that the ‘meticulous’use of history alongside text and structure will tend
© 2022TheAuthors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(3) MLR 629–658
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedtheor iginal workisproperlycited.
Historiography and Constitutional Adjudication
of constitutional text.3Former United States Supreme Court Justice Antonin
Scalia writes that the historical meaning of a particular constitutional provision
at the time of adoption is ‘easy to discern and simple to apply’.4
A key question in this debate is the role of historiographical insights from the
discipline of professional history.5Many originalists (and some others) take the
‘separationist’ position that historiographical criticism is irrelevant to historical
constitutional reasoning.6Professional histor ians, it isargued, are trainedto ‘rel-
ish andrespectambiguity,theinevitabilityof multipleinterpretations, [and] the
complexity and multivocality of the past.’7Lawyers, by contrast, are trainedto
work with legal authority in nding answers to legal questions.8Thus, law and
historyare andshould remainseparate disciplines. Histor iography,themethod-
ology of professional historians, should not inform constitutional reasoning at
all.9
This article will argue that this ‘separationist’ claim mistakenly assumes that
all sources from the past carry legal authority.This assumption misses a crit-
ical distinction between legal and general historical sources.Legal sources –
such as cases and legislation – are special types of sources from the past that
carry (or carried) legal authority. These authoritative sources of state law are
therefore catalogued,hierarchical, and written in ways that make them easily
applicable to present-day constitutional disputes.Lawyers and judges are spe-
cially trained to read and apply these kinds of legal authorities; they aretherefore
arguing from an internal position within the law.10 In this internal position, they
are making arguments based on ‘a competence learned and exercised through
participating in a common practice.’11 In this context,the separationists are
to avoid the use of ethical or prudential arguments);Fred Shauer, ‘Formalism’ (1988) 97 Yale L
J 509, 536-537 (discussing the concept of formalism and mounting a limited defense).
3 PhillipBobbitt, Constitutional Fate: ATheory oftheConstitution ( N e wYo r k ,N Y,Ox f o r d :
OUP,1992) 9-24 (limiting historical constitutional argument to originalism).
4AntoninScalia,Matterof Interpretation: FederalCourtsand theLaw(Princeton, NJ: PrincetonUni-
versity Press, 1997)37-47,45.
5JackBalkin, ‘Lawyers andHistor ians Argue abouttheConstitution’ (2020)35Constitutional
Commentary 345; Benjamin Saundersand SimonP.Kennedy,‘Histor y andConstitutional Inter-
pretation: Applying theCambridgeSchool Approach toInterpretingConstitutions’ (2020) 40
Oxford J Legal Studies 591.
6 Michael Rappaport,‘Historians and Originalists’ The Originalism Blog 21 August 2013
at http://originalismblog.typepad.com/the-originalism-blog/2013/08/historians-and-
originalistsmike-rappaport.html.
7Balkin, n5 above, 5.
8Giorgio Resta and Vincenzo Zeno-Zencovich, ‘Judicial “Truth”and Historical “Truth”:The
Case of the Ardeatine Caves Massacre’(2013) 31 Law and History Review 843.
9CassR. Sunstein, ‘TheIdeaof aUsablePast’ (1995) 95ColumbiaLRev601, 605 (arguing
that lawyers and historians are in a dierent ‘tradition’); Mark Tushnet,‘Interdisciplinary Legal
Scholarship: The Caseof History-in-Law’ (1996)71 Chicago-Kent LRev 909, 934-935 (‘Law-
oce history is a legal practice,not a histor ical one.The criteria for evaluating it, for determining
what is a successful performance, must be drawn from legal practice rather than from historical
practice.’).
10JasonVaruhas,‘MappingDoctrinal Methods’ inP.Dalyand J. Tomlinson(eds), Researc hing Public
Law in Common Law Systems (Cheltenham: Edward Elgar, 2022 (forthcoming))(describingthe
dierence betweeninter nal and external positions in legal reasoning) at https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=4087836.
11G.J. Postema,‘Law’s System: TheNecessity of Systemin CommonLaw’(2014)1NZ LRev69,
87.
630 © 2022TheAuthors. The Moder n Law Review publishedby John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(3) MLR 629–658
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