History and Memory in Constitutional Adjudication

DOI10.1177/0067205X1704500101
Date01 March 2017
Published date01 March 2017
Subject MatterArticle
HISTORY AND MEMORY IN CONSTITUTIONAL
ADJUDICATION
Daphne Barak-Erez*
ABSTRACT
This article considers the different ways in which judicial decisions use and narrate
history. It distinguishes between several forms of judic ial recourse to history, including
the difference between decisions which refer to general history and decisions that refer
to the history of legal document s; and the difference between decisions on factual
controversies that have historical significance and dec isions that take judicial n otice of
history. At the same time, this article recognises t hat the division between these
categories is not clear-cut. An analysis of constitutional case law sheds light on the ways
in which courts harness historical events in order to justify their normative choices. More
specifically, while some judicial decisions cite history in order t o justify continuity with
the past, others regard history as a cautionary tale that calls for a change of direction. In
between, some decisions opt for a middle route, supporting continuity with historical
decisions but offering new interpretations of their lessons. This article concludes by
examining decisions that try to ‘learn’ from history, illuminating the enduring challenge
in drawing different and even conflicting lessons from the very same historical event.
I INTRODUCTION
The interplay between history a nd judicial decision-making is complex.
1
Sometimes,
judicial decisions, as well as court records,
2
are part of the historical materials or even
the historical events studied by historians. Occasionally, however, the courts themselves
* Justice, Supreme Court of Israel. This article is based on a lecture delivered on 5 August 2015,
the 18th Geoffrey Sawer Lecture at the Australian National University. I would like to thank
ANU, and in particular Professor Kim Rubenstein, the Director of the Centre for International
and Public Law, ANU College of Law, for inviting me to present this lecture. Additional
thanks go to Professor Roy Kreiner, Professor Assaf Likhovki, Dr Heather Roberts, Dr Yair
Sagy and Dr David Schorr for their helpful suggestions; to Noam Kolt for his research
assistance throughout the writing process; and to Kurtis G Anderson for his research
assistance at the final stages.
1
See generally Larry D Kramer, ‘When Lawyers Do History’ (2003) 72 George Washington Law
Review 387.
2
See Kim Rubenstein, Ann Genovese and Trish Luker’s ongoing Australian Research Council
research project entitled The Court as Archive: Rethinking the Institutional Role of Federal Superior
Courts of Record (DP 130101954).
2 Federal Law Review Volume 45
_____________________________________________________________________________________
act as historians and endeavour to use history or even write history in their decisions.
3
This history writing should be of interest for several reasons. First of all, it resonates with
the growing awareness of the crucial role played by the narrators of history, including
their potential to influence the historical narrative offered for public consumption. Even
a ‘neutral’ account of facts may conceal choices of meaning.
4
Secondly, the writing of
history by judges has additional significance. Indeed, judges are not ex pert historians.
Much has been written about their lack of experience and lack of appropriate training
when it comes to engagi ng in robust history writing.
5
In fact, historians even c hallenge
the very idea of deciding on one definitive version of history, as implied by judicial
references to past events.
6
However, judicial decisions, by their very nature, have
normative conseque nces and, at times, impact upon the process of shaping collective
memory.
7
As such, judicial history writing, despite being cr iticised by expert historians
for its shortcomings, is an important phenomenon worthy of scholarly examin ation.
In the following analysis I attempt to shed light on the different kinds of history
writing in judicial decisions, the various roles which they play, and their lasting impact.
As I will demonstrate, it is not only in the context of constitutional adjudication that
courts find t hemselves dealing with the issue of addressing history. Yet, the relevance
of history is particularly critical in the context of constitutional law. As Jack Balkin has
stated:
behind every constitutional interpretation there lies a narrative, sometimes hidden and
sometimes overt, a story about how things came to be, injustices fought or still to be rectified,
3
This may come to us as no surprise, considering the focus of judicial decision-making on past
events: ‘[b]oth law and history are interested in what happened in the past; both collect and
assess evidence; and both are required to evaluate competing and contradictory accounts of
the same events’: Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption:
History, Law and Indigenous People (UNSW Press, 1st ed, 2008) 16.
4
See E H Carr, What Is History? (Penguin Books, 2nd ed, 1986). According to Carr, ‘[t]he facts
speak only when the historian calls on them: it is he who decides to which facts to give the
floor, and in what order or context’. Ibid 5. It is worthwhile to note the word ‘he’ in this
sentence, which reflects the importance of the narrator from a different perspectivethe
gender one. This aspect of the matter is, however, beyond the scope of this essay.
5
See Paul Finkelman, ‘The Constitution, the Supreme Court, and History’ (2009) 88 Texas Law
Review 353; Helen Irving, ‘ Constitutional Interpretation, the High Court, and the Discipline
of History’ (2013) 41 Federal Law Review 95.
6
Joshua Stein, ‘Historians Before the Bench: Friends of the Court, Foes of Originalism’ (2013)
25 Yale Journal of Law & the Humanities 359, 388 (‘Historians appreciate a past that is untidy
and complicated; jurists hope to identify a single, correct result’). See also Jack Rakove, ‘Tone
Deaf to the Past: Mor e Qualms about Public Meaning Or iginalism (2015) 84 Fordham Law
Review 969.
7
In the words of Austin Sarat and Thomas Kearns, law is ‘an active participant in the process
through which history is written and memory constructed’. See Austin Sarat and Thomas R
Kearns, ‘Writing History and Registering Memory in Legal Decisions and Legal Practices: An
Introduction’ in Austin Sarat and Thomas R Kearns (eds), History, Memory, and the Law
(University of Michigan Press, 1999) 1, 3. See also Charles A Miller, The Supreme Court and the
Uses of History (Harvard University Press, 1969) 25 (‘[b]y writing history into its opinions the
Court contributes to the public’s view of the American past as much as, and sometimes even
more than, professional historians and other historical writers do).

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