Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution’s application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered. Part II offers a preliminary exploration of why so many kinds of historical inquiry bear on constitutional and sometimes on statutory cases. Part III advances a jurisprudential argument in favor of a multi-factored approach to constitutional decisionmaking. Arguing that the foundations of law, including American constitutional practice, necessarily reside in social facts involving what is accepted as binding law, Part III establishes the radical, revisionary character of calls for exclusive originalism. Part IV defends what—adapting vocabulary from Professor David Strauss—I call a common law approach to determining the relative importance of varied kinds of historical phenomena in reaching conclusions of constitutional law. It analyzes a mixture of “easy” and “hard” federal courts cases to illustrate that almost no one, outside the context of a methodological debate about how to resolve understandably disputable cases, actually is an exclusive originalist, but that widespread convergence of judgment about the proper decision of constitutional cases typically occurs anyway. Part IV explains calls for exclusive originalism as the product of a largely misplaced anxiety about untrammeled judicial subjectivity. Part V provides a brief conclusion.
Richard H. Fallon Jr.,
The Many and Varied Roles of History in Constitutional Adjudication,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss5/2