Criticism of the Supreme Court’s use of history to decide constitutional and statutory cases is common in legal literature. The reproach is understandable; at times the Court has elevated to legal truth contradictory conclusions drawn from the same historical data. Despite repeated controversy focused on its method and use of history, the Court continues to consult historical sources to resolve legal issues. When it does so, it tends to borrow desultorily, sometimes seeking and finding a determinate answer, sometimes appearing to find but not really seeking a determinate answer, and sometimes not even appearing to seek, or seeking but not finding, a historically derived answer. And the Court’s use of history is always instrumental, divorced from the story the historian ventures to tell.

Whose History?

The difficulty and controversy the Court faces when it turns to history are illustrated by *Home Building and Loan Association v. Blaisdell (1934). The case asked whether the Minnesota legislature could, consistent with the constitutional *injunction against state impairment of *contracts, place a temporary moratorium on mortgage foreclosures to save homeowners’ properties during the Great Depression. Justice George *Sutherland’s dissent, using traditional primary and secondary historical sources, made a convincing case that the provision was intended to prevent states from giving debtors relief during times of hardship. “A constitutional provision,” he argued, “does not admit of two distinctly opposite interpretations” (pp. 448–449). What it meant a hundred years before, it meant in 1934: the state law violated the clause. Writing for a five-member majority, Chief Justice Charles Evans *Hughes did not directly refute Sutherland’s historical analysis. Rather, he deemed it largely irrelevant:

It is no answer … to insist that what the provision … meant to the vision of [a century ago] it must mean to the vision of our time. … It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning—“We must never forget that it is a constitution we are expounding … a constitution intended to endure for ages … to be adapted to the various crises of human affairs.” (pp. 442–443)

The majority found in the Court’s own historiography, in *McCulloch v. Maryland (1819), sufficient grounds for refutation.

Any first-year law student who has completed a basic course in constitutional law uncovers almost immediately the apparent sleight-of-hand that produced the desired result. The quote from McCulloch was inapposite, at least on its facts. Chief Justice John *Marshall’s exegesis addressed congressional authority to regulate pursuant to its express powers; Blaisdell dealt with state authority to circumvent an express constitutional limitation.

Yet both Hughes and Sutherland had history and the constitution on their side, a conclusion that raises far more questions than it answers. Whose history counts? What would the framers have wanted the Depression-era Court to do in the face of a threat of massive foreclosures? Did they even intend future Courts to be bound by their vision? What normative theory would require subsequent Courts to be so bound, even if we assume the framers wanted the Blaisdell Court to be bound? All those questions separate the Court’s use of history from the historian’s.

Textual Authority and Judicial Imagination.

Despite the problematic nature of its endeavor, at one level the Court must use a historical approach. Whether construing a statute or interpreting the Constitution, the Court must always profess devotion to textual authority. Justice Owen *Roberts, writing in United States v. *Butler (1936), elevated the authority of text beyond the limits of logic. Taking an approach totally at odds with Hughes’s reasoning, Roberts explained that when a statute is challenged as beyond legislative authority, the Court’s only task is “to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former” (p. 62). Roberts’s opinion reflects a radically austere, ahistorical, and ultimately indefensible description of the judicial role. The bare constitutional language authorizing Congress to tax and spend (see taxing and spending clause) could not possibly determine the issue in Butler. (And, in fact, Roberts himself used historical sources in the course of the opinion.) Nonetheless, the Court must perceive and project itself as a faithful interpreter of received text, perhaps especially when it breaks from text and embraces historical sources to support its interpretation. Any description of itself divorced from textual command subjects the Court to the charge of becoming a “super legislature” threatening majoritarian will. Public confidence in the Court and continuity in constitutional doctrinal development require the Court to root its decisions in the text and statements of those who created it.

The Court cannot escape critical denunciation, at least in part, because of the epiphenomenon generated by two interactive processes: the (p. 432) interface between the need for textual authority and the notion of autonomous text, on the one hand, and, on the other, the Court’s ongoing role within the development of constitutional doctrine. Together the processes practically ensure the continuation of critical scrutiny.

The idea of autonomous historical texts that contain original authority to which scholars pledge allegiance is incompatible with good history. The historian R. G. Collingwood pointed out in his essay “The Historical Imagination” that truth is not what text says. Rather, the historian constantly cross-examines text for credibility in a process that is dependent in large part on idiosyncratic experience, inference, and interpolation. Being idiosyncratic, the historian’s creation necessarily demands personal responsibility for an inherently discretionary exercise.

Consider by comparison the constraints that operate on the judiciary at the intersection of textual authority and autonomy. Beyond the need to acknowledge efforts at fidelity to higher authority, justices are politically foreclosed from taking personal responsibility for the decision reached in the same way that the historian must acknowledge his or her discretionary efforts. The justice simply cannot admit that the judicial decision depends upon constructive imagination. Folded within this distinction is irony. Whereas the historian is relatively free to discard authority for defensible reasons, the Court rarely even asks the antecedent question of what authority the framers’ conception of text is entitled to. When it risks the question and eschew traditional historical authority, as in Blaisdell, the result is inevitably controversial. But if we decide as a purely descriptive matter that justices, although politically and institutionally prohibited from acknowledging discretionary constitutional interpretation, in fact must personally choose the outcome of a case worth litigating to the Supreme Court, the justices lay open to the charge of usurpers or hypocrites.

Judges as History-Makers.

The justice, to a much greater extent than the historian, is a player in history. Historians do interact with their materials; that is the point of Collingwood’s description of the cross-examination process, of “constructive history.” The Court goes beyond merely reconstructing the past; it canonizes the past and immediately affects the future of the litigants before it and the Constitution it interprets. Through its decisions and resulting precedents, the Court makes history as it decides it. Its expression of fidelity to textual autonomy reveals the Court as duplicitous: it usually purports merely to transmit received wisdom, but it cannot escape an active, generative role in creating the wisdom it transmits.

Other distinctions between the historian and justice help account for frequently shoddy judicial history. Where the historian selects problems that pique intellectual curiosity, the justice’s problems come without (very much) luxury of choice. This fact alone means that justices cannot escape decision making, despite scarce time or resources. And the justice, unlike the historian who narrates a story with nuance and doubt, must find a single truth, at least for the immediate problem. Although justices enjoy discretion in selecting and defining the issues for which *certiorari is granted, and in describing the controlling facts that constitute the issue, they cannot equivocate as to the very issue they resolve.

Moreover, the justice lacks the comfort of the temporal existence afforded the historian’s conclusions. Historians’ errors are quickly corrected by the audience to which like-minded scholars appeal. And even without colleagues motivated by his or her error, the historian’s creation is temporary: “settled facts” remain static only until reinvestigated at the whim of another. The Court, though theoretically free at any time to revisit settled issues, is constrained by the doctrine of *precedent, as well as by sociopolitical forces such as the need to plan and defend institutional stability. The Court acts as a final decider. “We are not final because we are infallible,” Justice Robert *Jackson wrote in Brown v. Allen (1953), “but we are infallible only because we are final” (p. 540).

The climate that envelopes the Court ensures that criticism will occur. Regardless of how it uses history, the Court is always a participant in the interpretive process that it purports to shepherd as a neutral. But all the Court’s uses of history occur within a larger system that imposes inconsistent demands. If this description is correct, the best we can hope for is integrity—judicial candor in explicating the values the justices bring to the task before them.

See also constitutional interpretation; interpretivism and noninterpretivism.

Theodore Y. Blumoff, “The Third Best Choice: An Essay of Law and History,” Hastings Law Journal 41 (1990): 537–576. Robert F. Nagel, “The Formulaic Constitution,” Michigan Law Review 84 (1985): 165–212. Michael J. Perry, “The Authority of Text, Tradition, and Reason: A Theory of Constitutional Interpretation,” Southern California Law Review 58 (1985): 551–602.

Theodore Y. Blumoff