Karen Tani (University of Pennsylvania) and Christen Hammock Jones (Columbia University Law School; University of Pennsylvania School of Arts & Sciences) have posted Unwanted Histories on SSRN. Here is the abstract:
The Supreme Court’s turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article, written for a symposium on “Historical Facts and Constitutional Law,” takes as a given that history is now part of judges’ work. It then invites judges to think more expansively about the type of history they could—and perhaps should—be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.
This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of past perceptions and experiences, drawn from diaries, letters, oral histories, and other types of testimonials. Professional historians highly value such sources, even though they require caution, because they often provide glimpses of the past that are missing from more formal sources. The Article uses examples from the realms of disability and reproductive rights, both of which currently receive weak constitutional protection, to illustrate courts’ resistance to such material, even when it might be relevant to the historical inquiry at hand.
The Article closes by underscoring that, when judges engage in historical interpretation, they are not simply making law; they are also making history, upon which other courts and the broader public may rely. This reality implies responsibility. Judges could lean into that responsibility by bringing a critical eye to the traditional “high law” historical sources that are most readily available and by shepherding into the record voices and perspectives that enrich our collective understanding of the American past.
Highly recommended!
To receive a daily summary of posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.