The Role of History in Searching for the Meaning of Law

I appreciate Tom Berg’s thoughtful commentary on the role of history in Constitutional interpretation. Historical understanding is vital to legal interpretation, and this is certainly true in understanding the meaning of the First Amendment and the place and role of religion in public life. But it is no less important to all searches for the “true,” the “best,” the “authentic” meaning of the law—as made by legislators or judges—to rely on sound historical scholarship.

To illustrate the importance of history to legal construction, I have in the past used the following example for discussion with students: the city council has enacted an ordinance which “prohibits all gay demonstrations and assemblies.” This usually provokes strong responses from some members of the class. I then ask the question “is it important to consider when this law was written in order to determine its meaning?” When posing this question I sometimes meet the challenge, “what does that matter?” I respond by stating that the ordinance to which I have referred was written and promulgated not in the 1990s but the 1890s. If some still persist in arguing that this fact has no relevance, I think they prove my point about the importance of history to the interpretative process.

I come back to Tom’s posting. Understanding well the concerns about and proper role of religion in public life as viewed by the Founders is crucial. Relying on some history but not all that is relevant generates additional problems as Tom suggests. I think this is the predicament with Justice Black’s interpretation. He was a strong textualist when it came to understanding the Constitution’s role in many contexts; but, when it came time to understand the proper role of religion, I think he used the history that supported his views and discarded the rest. I often wonder why Jefferson’s letter to the Danbury Baptist Association was so important to the meaning of the First Amendment’s Establishment clause for Justice Black but Jefferson’s role in the University of Virginia’s foundation and its eventual plan for “a building… in which may be rooms for religious worship, under such impartial regulations as the Visitors shall prescribe” was ignored. While Jefferson was no great advocate of religion in public life—even though he attended religious services in the Capitol—neither was he its opponent. History also informs us that Jefferson was busy representing the nascent republic abroad when the Founders were in Philadelphia debating the role of religion. This is a vital part of history that escapes much of the discussion that concentrates on Jefferson’s wall-of-separation image found in his 1802 letter to the Danbury Baptists. While some lawyers will use history when they have something to work with, as Tom properly mentions, I think there is reason to think that others will use only that history which serves their objectives. And this is not a proper way to utilize this instructive tool for sound legal interpretation.    RJA sj