Historians and Judges

I agree with the following article from Slate I have some relevant experience. As an early medieval historian I have done some text criticism. In preparation for a year-long seminar on Government By Consent, I've studied the important constitutional documents of Britain, France, Canada and the USA. I bet that is more than the US Supreme Court Justices have read. This observation is based on more than partisanism. Back when the SCOTUS was actively dealing with gun rights cases, a friend who is an expert on gunrights theory lent me some of the documents submitted to the court. I am not kidding that I was shocked by the shallowness of the pro-gunrights proponents and their ignorance of the relevant sources.

A Federal Judge Calls Clarence Thomas’ Bluff on Gun Rights and Originalism BY MARK JOSEPH STERN Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.

In each case, both sides presented a few scraps of historical evidence to support their positions. Judges based their decisions on those scraps without further research, following Thomas’ suggestion that they rely on “the historical record compiled by the parties.” Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of jurisprudence that is going completely off the rails.

Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.

In each case, both sides presented a few scraps of historical evidence to support their positions. Judges based their decisions on those scraps without further research, following Thomas’ suggestion that they rely on “the historical record compiled by the parties.” Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of ff the rails.

Reeves’ order is bracingly honest about the sorry state of Second Amendment jurisprudence today. “The justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote. Federal judges “lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.” Putting oneself in the mindset of rich, white men in the 18th century requiring training and practice. “Yet we are now expected to play historian in the name of constitutional adjudication.”

To illustrate his point, Reeves wrote that while historians still fiercely contest the theory of an individual right to bear arms, that right remains the law. He quoted the academic Patrick J. Charles, who wrote that advocates of this theory “broke, and continue to break, virtually every norm of historical objectivity and methodology accepted within academia.” Charles’ complaint could be applied to a huge amount of pseudo-originalist legal theory. As he explained: “Minority viewpoints are cast as majority viewpoints. Historical speakers’ and writers’ words are cast in terms outside the bounds of their intended context or audience. The intellectual and political thoughts of different historical eras are explained from modern vantage point. Historical presumptions or inferences are sold as historical facts.”

Bruen exemplifies these problems. Thomas adopted a tendentious and selective reading of the record, endorsing a false narrative shaped by Republican-allied academics funded by gun rights groups like the NRA. He started with the false premise that the Second Amendment created an individual right to bear arms—a right that the court established for the first time in 2008’s District of Columbia v. Heller—which scholars have comprehensively debunked using originalist tools. He then manipulated or ignored long-established limits on concealed carry to conclude that such restrictions are not rooted in American history.

By appointing a trained historian, Reeves could avoid these pitfalls. He would, indeed, stand a better chance of lighting upon the truth. Even as it may be mandated by Thomas’ Bruen opinion, any such undertaking remains fundamentally misguided: Renowned historian Eric Foner recently dismissed the “foolish” belief that the Constitution has “one original meaning,” since it always meant “different things to a lot of different people” who were involved in its ratification. But a historian will at least get closer to a plausible interpretation than Thomas. And if the whole undertaking fails to produce a good answer, it will have demonstrated the absurdity of defining rights on the basis of history alone.

Linda Greenhouse on Robert Bork

If you have access to the New York Times, you may want to read about Robert Bork, one of the most controversial failed nominees to the Supreme Court of the United States; he recently died. I have included an excerpt, but you should read the whole thing and the very interesting comments that follow. It will teach you a lot about the ideological development of American politics.

No one who actually lived through the Senate Judiciary Committee hearing in September 1987 is without views on the subject, and I have previously offered mine. I think that the televised hearing, which held the country spellbound, provided a rare and valuable public seminar on the meaning of the Constitution, the methods of constitutional interpretation, and the different answers that competing methods offer to the most profound questions of individual autonomy and equality.... [What] “borking” really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted.... I [later] asked [Bork] whether, at any time during the hearing, he had felt that a member of the Judiciary Committee had met him on his own level in serious constitutional conversation.
“No,” he answered. “Not even Arlen Specter?” I asked. “Specter had his mind made up from the beginning,” he snapped. I knew that wasn’t true.... Specter, a Pennsylvania Republican, had in fact agonized over his vote, as I knew from having talked with him almost daily. A Yale Law School graduate and former prosecutor, the senator went head to head with the nominee through several rounds of questioning, hours of mesmerizing constitutional debate in which he probed for any sign of flexibility in Judge Bork’s view that the entire course of modern constitutional law was profoundly mistaken. Finding none, Senator Specter, who had assumed at the start of the hearing that he would vote for confirmation, decided to vote No.... Five other Republicans followed....

Bork couldn’t accept the legitimacy of his defeat.... Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened....
Senator Hatch served up what sounded like a concluding, softball question: “In your lengthy constitutional studies, is there any Supreme Court decision that has stirred more controversy or criticism amongst scholars and citizens than that particular case [Roe v. Wade]?” Then came the unexpected answer: “I suppose the only candidate for that, Senator, would be Brown v. Board of Education.”... As Senator Hatch immediately grasped, the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate. The 1954 school desegregation ruling was in fact the subject of substantial criticism within the legal academy in the 1950s and well into the 1960s; some eminent professors, while endorsing the outcome, took strong issue with the court’s analytical method. Awareness of the rich critical literature from that period had faded away by 1987, effaced by the decision’s celebrated unanimity and moral weight. So while Judge Bork’s answer to Senator Hatch was historically accurate, it was an obtuse accuracy. More to the point was how the moral dimension seemed to elude him as he tossed Brown into the same box with the abortion decision of which he had been so scathingly dismissive....

I see him as a tragic figure: not because he was dealt an unjust hand – he wasn’t – but because of his inability to understand what happened. He spent his final decades surrounded by acolytes who stoked his sense of victimhood, and there seemed to be no one around him to provide a reality check as his rants about the Supreme Court’s depredations and the collapse of Western civilization (he portrayed the two as inextricably linked) became ever more extravagant.... By 1996, in “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” he was taking aim at Darwinian evolution and embracing “intelligent design,” evidence for which he later called “overwhelming.” “A Country I Do Not Recognize,” a book he edited in 2005, found him plunging ever deeper into the culture wars

Attack Ads, ca. 1800

Craig Nakashian posted a Facebook link to this amusing YouTube snark.   Thanks to all involved!

Nipissing University historian goes to the US Supreme Court

...again! (At least his arguments did.)

Back in 2008, Nathan Kozuskanich, Nipissing University's Early American historian, was cited in supporting material submitted to the United States Supreme Court in regards to a case called "Heller" involving the Second Amendment to the Constitution, the one about bearing arms. Nathan's contribution was specifically to analyze 18th century American sources to see what "bearing arms" meant at the time the amendment was written and passed. His arguments did not win the day for the people who used them, but being noticed at all in that crowded forum is nothing to be sneezed at. Mountains of learned tracts have been written about the Second Amendment; his stood out anyway.

In the past week a second case concerning the interpretation of the Second Amendment, "McDonald," came up to the Supreme Court, and this time, Nathan's name and his crucial article on "bearing arms" were mentioned in the dissent of Justice Breyer ! I am linking to the Google docs version. I found it impossible to search for Nathan's last name or anything else when I followed the link to Google docs, so I will say that when I read the judgment, the citation was on page 3 of Breyer's dissent, page 182 of the file. Justice Breyer's dissent indeed incorporates recognizable logic from Nathan's original article.

We are all proud here to have a colleague playing in the big leagues on important issues.

Image: The Right to Bare Arms, the album.

Diversity on the US Supreme Court

An interesting New Yorker piece points out that what constitutes "diversity" in US Supreme Court appointments has a long and winding history. It also makes a few other good points:

As with earlier breakthrough nominations, Obama’s selection of Sotomayor has stirred some old-fashioned ugliness, and in that alone it serves as a reminder of the value of a diverse bench and society. Some anonymous portrayals of the Judge offered the kind of patronizing critiques (“not that smart”) that often greet outsiders at white-male preserves. Women who have integrated such bastions will be familiar, too, with the descriptions of her temperament (“domineering”), which are of a variety that tend to reveal more about the insecurity of male holdovers than about the comportment of female pioneers. The pernicious implication of such views is that white males, who constitute a hundred and six of the hundred and ten individuals who have served on the Court [emphasis SM], made it on merit, and that Sotomayor is somehow less deserving.

At the Court, as in American life, the rules of diversity have changed. Regional differences faded long ago. The fact that two Arizonans, O’Connor and William H. Rehnquist, served together for almost a quarter century mattered little to anyone. Religious tensions have also cooled. By the time Bill Clinton named Ruth Bader Ginsburg and Stephen G. Breyer to the Court, the fact that both are Jewish (and replaced non-Jewish predecessors) was little more than a curiosity. If Sotomayor is confirmed, there will be six Catholics on the Court, which is also of minor significance. George W. Bush appointed John G. Roberts, Jr., and Samuel A. Alito, Jr., because they are conservative, not because they are Catholic. (The Catholic Brennan was the Court’s greatest liberal.)

Thanks to Talking Points Memo for the link.

Image: The US Supreme Court in October.