APA Newsletters

Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

Recent Law Review Articles of Interest
Abstracts

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"History as Precedent: The Post-Originalist Problem in Constitutional Law,"

Kleinhaus, Emil A.
110 Yale Law Journal 121-161 (2000).

Originalism depends on historical analysis: ascertaining the original understanding of Constitutional text is a historical quest. Before declaring what the text means, Justices using this approach must 'declare history.' What happens, though, when, after history is declared and text interpreted, new historical documents come to light, or compelling secondary interpretations of historical documents are offered? This, Kleinhaus says, is "the post-originalist problem, or the problem of how Justices committed to an originalist approach deal with historical analysis that changes the historical narrative created in earlier decisions."

The question is not hypothetical. Justices have had to deal with it-and have adopted approaches, the 'protestant' and the 'catholic,' that are in tension. Both have been used in practice. The protestant approach emphasizes the text: new historical understanding warrants overturning earlier decisions based on what is now seen as mistaken historical understanding. But the threat posed by this approach is that constitutional understanding becomes hostage to historical understanding. The catholic approach, by contrast, downplays independent historical research in favor of looking for original understanding in earlier decisions written by judges who were closer in time to the creation of the Constitution and presumably better acquainted with its meaning. The threat posed by this approach, however, is it establishes the idea of a received and official constitutional history.

Drawing on practices of interpretation in Jewish law, Kleinhaus proposes (without endorsing originalism) a blend of these approaches: the law should be re-examined on the basis of new historical understanding only when "the best contemporary reading of a text is complemented by a vigorous pre-modern reading that was not ultimately accepted…"-that is, only when the contemporary reading has "been previously articulated, though not necessarily by a majority." This approach "sets external boundaries outside of which judges risk undermining originalist goals." The relevant history for an originalist, according to Kleinhaus, is not pure history; rather, it is precedential history, even when found in minority understandings of the Constitution.

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APA Newsletters

Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2