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Sunday, July 13, 2008

Courts - "Supreme Court finds history is a matter of opinions"

David G. Savage of the LA Times writes today in a lengthy story that begins:

In 1985, President Reagan's attorney general, Edwin Meese III, criticized the Supreme Court's decisions and called on the justices to decide cases based on the "original intent" of the Constitution. The justices were wrong to rely on contemporary views of liberty and equality, Meese said; instead, they should rely on the understanding of those concepts in the late 18th century, when the Constitution and the Bill of Rights were written.

This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.

In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.

From later in the article:
The court's new focus on history drew the attention -- and some snide blog postings -- of legal historians who faulted the justices for selectively citing cases and writings to bolster their favored view.

"Neither of the two main opinions in Heller would pass muster as serious historical writing," Stanford University historian Jack Rakove wrote on a blog called Balkinization.

Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."

Harvard law professor Mark Tushnet, like Levinson, has studied the 2nd Amendment. Tushnet wrote that both opinions "demonstrate why judges shouldn't play historian."

History is complicated, Tushnet suggested, but the law requires clear answers, and the justices "share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor."

Posted by Marcia Oddi on July 13, 2008 01:28 PM
Posted to Courts in general