The Supreme Court and the uses of history

Sept. 17 is designated by federal law as Constitution Day to commemorate the signing of the U.S. Constitution on Sept. 17, 1787. The U.S. Supreme Court is responsible in the American system of separation of powers for deciding what the Constitution means in specific cases. The first Monday in October marks the beginning of a new Supreme Court term.

The court’s previous term was the most conservative in nearly a century. The nation’s highest court overruled its two landmark pro-abortion rights precedents, expanded Second Amendment gun rights, reinvigorated the First Amendment’s free-exercise-of-religion guarantee against establishment-of-religion clause challenges and reined in the rulemaking authority of executive branch administrative agencies on the ground that only Congress is permitted to make law.

The court’s six-member conservative majority arrived at most of these results by turning to history to understand the meaning of the Constitution’s text. Specifically, in what may be fairly called “conservative originalism,” the court endeavored to enforce the Constitution’s “original meaning” by opining about historical sources that illuminate what the men (and it was only men in 1787) who wrote and ratified the Constitution intended for the textual provision at issue in a particular case to mean.

Of course, it is impossible for Supreme Court justices who are trained as lawyers rather than as historians and who decide scores of cases on the merits every year to do the historical research for themselves, notwithstanding that they each are assisted by four bright recent law school graduates.

Indeed, Justice Clarence Thomas (the court’s longest serving justice and its most unabashed proponent of conservative originalism) admitted as much in what court watchers should consider the most significant footnote since footnote 4 in the court’s 1938 decision United States v. Carolene Products Company.

In Carolene Products, the court upheld a federal law regulating “filled” milk, an imitation or adulterated milk product. Justice Harlan Fiske Stone, writing for the court, declared that the justices would no longer subject economic legislation to heightened scrutiny, but would instead now apply minimal scrutiny that was deferential to the legislature.

Justice Stone then inserted a footnote (footnote 4) that declared that the court would continue to apply heightened scrutiny in situations in which a law conflicts with Bill of Rights protections, where the political process is malfunctioning and when regulations adversely affect “discrete and insular minorities.” Concisely put, footnote 4 ushered in a new role for the federal courts in the American constitutional order.

Jumping ahead nearly a century to the court’s most recent transformational footnote, Justice Thomas wrote the following in footnote 6 in the court’s 2022 decision expanding Second Amendment gun rights: “The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies.” He continued: “That ‘legal inquiry is a refined subset’ of a broader ‘historical inquiry,’ and it relies on ‘various evidentiary principles and default rules’ to resolve uncertainties.” Finally, and most importantly: “Courts are thus entitled to decide a case based on the historical record compiled by the parties.”

Thomas should be commended for acknowledging in footnote 6 that the justices don’t do their own historical research. But unfortunately for conservative originalists, what he says in that footnote calls into question the entirety of conservative originalism.

After all, lawyers are notorious for cherry-picking history to try to get the result their clients are paying them to get. As Pulitzer-Prize winning historian Gordon Wood put it in a public debate about the Supreme Court and the uses of history: “Judges have to invent another kind of history: we call it ‘law office history,’ or ‘history lite.’ … 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.”

I agree with Dr. Wood. Consequently, my answer to the question whether Supreme Court justices should use history to decide cases is a qualified yes. This is what I mean by that: They should use history to identify the political philosophy of the American founding and then decide cases in light of that political philosophy.

In other words, judges should employ “liberal originalism,” which is “liberal” in the classical Lockean libertarian sense that the principal purpose of government is to protect individual rights, and it is “originalism” in the sense that the Framers wrote the Constitution with that principal purpose of government in mind. “To secure these rights,” the Declaration of Independence proclaims, “Governments are instituted among Men.”

Liberal originalism and conservative originalism sometimes (though not often because conservative originalism tends to be majoritarian rather than libertarian) lead to the same result in specific cases. To mention one example from the court’s most recent term, liberal originalism, like conservative originalism, reveals that the establishment clause doesn’t make the free-exercise clause meaningless. The political philosophy that the Constitution was adopted to effectuate reveals that America has been devoted since before the First Amendment was ratified to the free exercise of religion, which is a quintessential individual right.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.”