Choosing History

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How.

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

The Court provides virtually no guidance or rules for this process. The Court doesn't say how many historical laws and regulations are necessary to establish a tradition, how old examples can get before they are too old, or where to draw the line between founding- or reconstruction-era laws that clarify or liquify meaning versus those that are unacceptably modern. This failure to provide guidance isn't an accident. It gives the Court the flexibility to treat the evidence in a manner that supports its desired conclusion. For example, in Dobbs, the Court cited commentaries from as far back as the 13th century as evidence of historic abortion restrictions. But the day before, in Bruen, it dismissed the Statute of Northampton (enacted in 1328 and in place for hundreds of years thereafter) as inapplicable, in part because they were unacceptably ancient. 

Another example: in Bruen, the Court dismissed colonial-era examples of restrictions on carrying firearms, stating that the respondents had only identified three such regulations and that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." (Bruen at 2143). Earlier in its opinion, though, the Court asserted that restricting firearms in "sensitive places" was consistent with historical tradition--despite citing sources that were only able to identify two examples of colonial and founding-era restrictions on carrying firearms in sensitive places. (Dobbs at 2133, citing an article by Kopel & Greenlee and an amicus brief that only identify Maryland laws forbidding carrying guns in the houses of the legislature and a Delaware constitutional provision prohibiting guns in polling places). When it comes to restricting firearms, three examples are not enough to establish a historical tradition. But when it comes to reaffirming the sensitive places analysis that Justice Thomas had previously signed onto when he joined the Court's opinion in District of Columbia v. Heller, two examples were sufficient.

Baude argues that if critics of the Court want to make a difference, they're going to "have to make the best use of history, not try to escape it." They can't be like the dissenting Justices who "engaged superficially on historical grounds." This strategy is misguided. Confronting the Court with historical evidence likely make a difference in politically salient cases--as Bruen and Dobbs demonstrate. Critics may do history, they may use history. They may set forth a slew of examples in support of their claims. But this won't make any difference to a Court that chooses history to support desired results.

Choosing history as a basis for constitutional interpretation also skews the playing field against progress and protection of disadvantaged groups. The dissenting Justices make this point in Dobbs: 

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women's rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. (Dobbs at 2324-25, Breyer J. dissenting).

What does Baude have to say to the fact that history itself is skewed due to the historic mistreatment and disenfranchisement of women and African-Americans?

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

Baude's point about Dobbs is unresponsive. As the Dissent points out, the absence of women's voices and participation in the political process is a glaring example of how history is skewed in a particular direction--here against the interests of women. For hundreds of years, women weren't guaranteed the right to vote. They were restricted from many professions, including the law and and the teaching of law. Is it really all that surprising that the notion that the right to abortion had anything to do with the right to privacy was a relatively recent part of legal discussions over abortion law? What's more, Dobbs wasn't about the meaning of the Constitution's text. The Court's conclusion regarding the scope of Due Process was based entirely on historical laws and restrictions, filtered through the selective reliance on certain examples and characterizing other examples in a manner that rendered them irrelevant or transformed them into further support. 

Additionally, Baude's mention of historical arguments about the relevance of the right to bear arms for newly freed African Americans in Bruen rings hollow in light of the fact that substantial majorities of modern communities of color support stricter gun laws (a point that Adam Winkler raises here). Baude's argument demonstrates the point he's trying to refute. In citing the reconstruction-era need for African Americans to be armed, the Court applies the oppression that African Americans faced during reconstruction to modern circumstances. This historic violence, which was perpetuated by white communities and government officials, ends up shaping and defining the modern right to keep and bear arms for all communities, despite the opposition of modern communities of color.

Perhaps there will be occasional exceptions where historical tradition aligns with the rights of criminal defendants an unpopular groups. But historical discrimination and oppression of women, racial minorities, Native Americans, and other disadvantaged communities suggests that we are off to a rough start if we choose to look to the past to guide present decisions. Cloaking the analysis in with phrases like "original public meaning" or "historical tradition," and characterizing the analysis as "ultimately deciding . . . law, not history for its own sake" as Baude urges may obscure this reality and make the process seem more neutral. But "doing" or "using" history leaves those seeking meaningful reforms and protections for disadvantaged groups and communities at a disadvantage from the outset. 

A clarification: Parties and those arguing before the Court should, of course, do what they can to make historical arguments. Doing so will ensure that no stone is left unturned and will shine a brighter spotlight on the Court's motivated reasoning.

Criticizing the Court's methodology is preferable to attempting to meet the Court on a skewed playing field. Perhaps the Court won't listen. But making this point abundantly clear to voters and lawmakers may prompt reforms or--at the very least--urge the election of Presidents and Senators who will appoint and approve Justices who engage in alternate methodology. Critics are better off making these arguments than legitimizing flawed, skewed, malleable historical and originalist methodologies by participating in those methods themselves.

UPDATE

Those who want to read even more about this should check out my draft article on the Court's historical tradition approach in Bruen, which I just posted to SSRN. Comments are welcome!