prior probability

How should history inform the study, practice, and interpretation of law, especially constitutional law? In a previous post I surveyed two radically different approaches to legal history: history as memory and history as evidence. (See here or below.) Today, I will point out some additional highlights from the four-hour marathon panel on the “use and misuse” of history in law, along with my replies:

Recovery versus creation. Jonathan Gienapp (Stanford), a historian who specializes in the Revolutionary and founding era, posed the following fundamental question during his talk: how much of history is “recovering the past” (i.e. describing what actually happened) and how much is “creating the past” (i.e. telling just-so stories to ourselves about what happened)? My reply: this is precisely why Randy Barnett’s lawyerly approach to history, which I described in a previous post, is superior to Gienapp’s (and Balkin’s) obfuscatory methods. (Even Professor Gienapp himself is unable to describe in words his own approach to history; see here, for example.)

“Constitutional flyover country“. For her part, historian Alison LaCroix (Chicago) made the following observation: when studying and writing about the Constitution, scholars more often than not like to focus on key historical moments like the Philadelphia Convention of 1787 or the ratification of the 14th Amendment in 1868, but what about all the historical events that occurred in-between 1787 and 1868 — or what Professor LaCroix memorably described as “constitutional flyover country”? My reply: LaCroix’s thesis is a red-herring. To see why, it suffices to mention the work of such constitutional law scholars as Jack Balkin, who was on the same panel as LaCroix(!), as well as Akhil Amar and Bruce Ackerman, whose courses I took when I was a student at Yale.

Rupture versus continuity. Lastly, law professor Charles Barzun (Virginia) posed one of the most insightful questions during the entire four-hour marathon panel: when we are studying and writing about history, should we focus on the short moments of rupture or on the long stretches of continuity? My reply: why not both?