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?

How should history inform the study, practice, and interpretation of law? As I mentioned in my previous post (see below), professors Jack Balkin (Yale) and Randy Barnett (Georgetown) — two influential contemporary constitutional law scholars — presented competing theories of legal history during an engaging, back-and-forth four-hour panel discussion in D.C. this weekend.

For starters, Professor Balkin began his talk by drawing a fundamental distinction between memory and history. According to my notes of Balkin’s talk, history qua history is what actually happened in the past, while memory is what we remember about the past. For Balkin, memory is not only contingent, since the events and people that we choose to remember about the past can change over time; it can also be selective and thus distorting due to what Balkin eloquently calls the problem of “erasure” — i.e., which accounts of history do we choose to remember, and which get erased, or more simply put, what gets left out and why?

By contrast, Professor Barnett started off by drawing a direct analogy to the rules of evidence used by trial judges when they are trying cases. What happens when, say, the lawyer for one side wants to introduce a new piece of evidence but the lawyer for the other side objects on relevance grounds — that the evidence is not relevant to the outcome of the case and should thus be excluded? Generally speaking, the judge will apply a three-part test to decide whether to admit — or exclude — the evidence:

1. First, what specific allegation of fact is this new piece of evidence being introduced for?
2. Secondly, is that allegation of fact material or somehow related to the case at hand?
3. And lastly, does this new piece of evidence make that allegation more or less likely to be true?

For my part, I much prefer Barnett’s lawyerly approach to legal history to Balkin’s quasi-nihilistic approach. Balkin talks a good game (as most law professors do) but at the end of the day his theory of history is no theory at all. For Balkin, what lawyers and law professors and judges call “history” is really just “memory”, since we can never really know what happened in the past; all we can do tell stories about the past, and those stories will always be inherently unreliable and value-laden, depending on who is telling the story and the reasons he may have for doing so.

Barnett’s approach to history, in contrast, is much more practical and rational: when we are doing legal history, we should be posing the same types of critical questions judges ask when deciding whether evidence is relevant. That is, when a lawyer or law professor uses a piece of history as evidence in support of a particular claim, we should be probing whether that history is material to the claim and whether it makes that claim more or less likely to be true. This method, at least, is something I can work with!

One last note (for now): in addition to professors Balkin and Barnett, a number of other scholars, including Charles Barzun (Virginia), Jonathan Gienapp (Stanford), and Allison LaCroix (Chicago), made some original points during this weekend’s discussion. I have to finish updating my syllabi for the new semester (which, for me, begins this Monday), so I will survey their contributions in the next day or two …