This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.
In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.
The court's new focus on history drew the attention -- and some snide blog postings -- of legal historians who faulted the justices for selectively citing cases and writings to bolster their favored view.
"Neither of the two main opinions in Heller would pass muster as serious historical writing," Stanford University historian Jack Rakove wrote on a blog called Balkinization.
Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."
Here's more from the Levinson post, which I read when it was published:
If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.
Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.
Ouch. Of course, the nature of the legal profession encourages bold pronouncements of the historical record even where such confidence is completely unwarranted. It is natural for all people to pick the strongest arguments for their position while minimizing or ignoring the rest, but the legal profession raises this to a high art. Lawyers are trained to pick the strongest precedent and make a case for why it should be followed, while dismissing or minimizing (but not ignoring) adverse precedent, even when that adverse precedent is obviously more compelling. This makes for clever legal arguments, but it also makes for terrible historical analysis. Historians are of course no more neutral than you and I, but at least the historical profession values highly the goal of neutrality; historians are taught to seek the one correct answer, and where there can be no such assurances, to acknowledge that the historical record permits no easy answers. A historian who cherry-picks from the historical record to arrive at a pre-determined conclusion is a poor historian indeed, but such a trait is highly valued in the lawyer.
Unfortunately, Supreme Court Justices seem to be unaware of the differences in the two professions. Assured of their own rightness, and encouraged by the nature of legal argument and writing, they draft opinions and dissents which, as Levinson states, adopt a "tone of sublime confidence" that is frequently completely unwarranted, at least when it comes to questions of legal history. One must be given to wonder the value of an opinion that is founded on such shaky historical ground, but to the Supreme Court, I suppose it is the tone of complete confidence that matters the most.