In 2011, a federal appellate court rejected the United States's claim to own a parking lot on the Alexandria waterfront.Footnote 1 According to the court, the plot in question used to lie in the Potomac riverbed, which was granted by Charles I to Cecilius Calvert in 1632 and then ceded by Maryland to the United States in 1791. Because it lay past the old high-water line, the plot remained in the District of Columbia after the rest of Alexandria was retroceded in 1846. At some point, the reclaimed land was transferred to the Old Dominion Boat Club, which claimed title under Maryland's rules of riparian ownership—not as they stand today, but as they stood in 1801, when Congress fixed in place the law governing Maryland's portion of the District.Footnote 2 “Thus,” the court concluded, “despite the fact that the plaintiff is the United States, the defendant is a private club in Virginia, and the year is 2011, the district court correctly held that ‘[r]iparian rights within the District of Columbia are governed by Maryland law as it existed in 1801.’”Footnote 3
What is striking about this episode is precisely how ordinary it is, notwithstanding its unusual facts. Tracing a chain of title or a chain of legal authority decades into the past is normal lawyers’ work. The kind of research necessary to adjudicate claims to riparian land in Maryland is also necessary to identify the scope of modern intellectual property rights,Footnote 4 to interpret our civil rights statutes,Footnote 5 and more. Courts solve today's cases through the application of yesterday's laws, not out of admiration for their ancient wisdom or fealty to the dead hand of the past, but simply because those old laws remain good law today.
Episodes such as this one shed useful light on the debates over constitutional originalism. Much has been written about the special historical problems that originalism poses. Yet at its core, originalism demands no more of the past than ordinary lawyering does.
The recent “positive turn” in originalist scholarship takes the theory as a claim about positive law, something that varies from one society to another.Footnote 6 Today's law is equally free to rest a claim to property on an old conveyance or on this morning's bona fide purchase. Similarly, today's law is free to rest a claim to government authority on older legal instruments. An executive-branch agency might trace the authority of its regulation to a prior statute, which traces its own authority to a constitutional grant of legislative power to Congress. Determining the regulation's validity requires looking to what law that statute made in the past, which might in turn require looking to what power the Constitution vested in the past. Viewed in these terms, originalism is unexceptional, no different from our law of property: it simply reflects a decision by today's law to grant continuing force to the law of the past.
This brief article suggests that this form of originalism may help explain the proper domains of history and law. Whether and how past law matters today is a question of current law, not one of history. This may be easier to see in the case of property or statutes, but constitutional law is no different: giving current force to past rules is simply our way of allocating authority in the present.
To be sure, applying the law of the past requires knowledge of the past, and lawyers must often defer to historical expertise on the relevant questions. But we should also recognize that the legal inquiry is a refined subset of the historical inquiry. It looks to legal doctrines and instruments specifically, rather than to intellectual movements more generally. It interprets these instruments in artificial ways, properly ignoring certain facts about their historical authors and audience. And when there is uncertainty, it also applies various evidentiary principles and default rules that can give us confidence about today's law, even when yesterday's history remains obscure.
Applying this old law to new facts may seem daunting, even anachronistic. Yet here, too, originalism demands no more than ordinary lawyer's work. Deciding whether a “no vehicles in the park” ordinance forbids motorized wheelchairs differs only in degree from reviewing warrantless GPS searches under Founding-Era trespass doctrines.Footnote 7 Such reasoning is part and parcel of any system that treats prior rules, not as mere curiosities, but as current and operative law.
Why We Look to the Past
When lawyers invoke history, they may seem to commit a kind of category error. To Helen Irving, for example, “whether a law passed in 2015 is constitutionally valid or invalid” is “not a historical question.”Footnote 8 The judge's job “is to interpret the law, not history”; judges improperly “outsource their legal decisions to historians” when they “draw on secondary histories to reach constitutional conclusions in particular legal disputes.”Footnote 9
Irving is right in one sense: the legal validity of modern statutes is indeed a question of current law. But whether our law currently chooses to outsource that question—in whole or in part, to history or to anything else—is also a legal question, not a historical one. A familiar rule such as the ex post facto clause, for example, forbids courts to impose a greater sentence than applied at the time of the offense; asking what the maximum sentence then was, as our current law requires, involves some kind of historical inquiry, outsourced or no.Footnote 10
As it happens, American law makes ubiquitous use of the past, and it does so for entirely understandable (if not unimpeachable) reasons. Numerous fields of modern law are entirely defined by the accumulation of past rules. A county assessor's map is a graphical compilation of which parcels have been transferred to which persons; it reflects a complex set of historical claims, on questions of law as well as of fact (e.g., whether a given conveyance was valid when made). The text of the United States Code reflects a similar account of which past statutes have been enacted or repealed, which requires a careful analysis of past law.Footnote 11 Even the text of the Constitution, as a matter of current law, is defined by which amendments were validly adopted and when.Footnote 12
These examples arguably reflect a more general feature of American law. The positive turn, together with an associated claim of “original-law originalism,” maintains that the present law of the United States involves a similar chain of title: it comprises the rules that were law at the Founding, and everything that has been lawfully done under them since.Footnote 13 Today's law reflects the accumulation of past law, including statutes validly passed and doctrines validly applied, but only as long as each of them can be traced back to the law of the Founding. Such arguments might be right or wrong, as a matter of current positive law, but that is not for history to decide.
At the very least, grounding today's judgments in prior law is a plausible means of structuring government power in the present. A court could allocate a disputed plot on the Alexandria waterfront to whichever party will make best use of it going forward. Instead, courts typically allocate property to the party with the best claim to own it already. By enforcing past transfers, current law preserves the current owner's ability to decide which uses are best. Presumptively relying on the law of the past similarly preserves each new generation's ability to govern. Adopting a new legal rule, today, makes a difference only if it will still be applied tomorrow, to people who will regard it as part of their legal past. As Judge Frank Easterbrook explained, “[w]e the living” enforce past laws to preserve the existing authority of lawmakers: “affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones,” or else to leave well enough alone.Footnote 14
This reliance is especially important in a government with many different officials, each with different views of what is best. If every judge, from night court to the Supreme Court, were equally in charge of pursuing the public good, it would be difficult for the system to treat like cases alike.Footnote 15 Or if the legal slate were wiped clean with every new Congress, every election would be a “Flight 93” election. Relying on past law lets us give particular government officials particular limited authorities to affect that law, thereby lowering the stakes of any one official's selection. (This is not to say that officials never strain at the bounds of their power; but law's backwards-looking aspect allows us to judge whether such actions are legally proper, and perhaps to limit their worst excesses.) Relying on the past makes it possible for law to proceed one step at a time, rather than by doing, and re-doing, everything at once.
What We Find There
If past law is required in theory, it still might be inaccessible in practice, requiring more certainty than responsible researchers can provide. (And responsible researchers may already be too much to ask, in a world full of ideological pressures and paying clients.) Again, however, the positive turn renders originalism much more tractable. By focusing specifically on the law of the past, and not on broader issues of linguistic meaning (to which audience?) or historical intent (whose?), originalism involves a highly limited version of the historical inquiry—one that uses limited evidence in limited ways, and one that can resolve controversies even in the face of occasional uncertainty. As a result, lawyers may be better able to reach defensible originalist conclusions than has generally been thought.
Limited Evidence
Research into past law properly consults a limited range of evidence. The past offers a wild cacophony of information about law and legal practice, but not all of it will feature in a modern legal inquiry. Present law typically gives force to past doctrine, not to that doctrine's role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by “the officials or the experts of the system.”Footnote 16 A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on “internal” accounts of legal doctrine (e.g., treatises and court cases), rather than on “external” accounts of law's wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.
This emphasis on internal legal sources runs against the grain of trends in legal and intellectual history more generally, which usually avoid such restrictive accounts in favor of broader reconstructions of the past.Footnote 17 Yet lawyers are not seeking internalist explanations of change over time, but rather internalist conclusions about the substance of past law, which is what current law happens to make relevant. So recommending that lawyers employ the tools of modern intellectual history—examining, for example, “the way ordinary Americans understood issues of law and constitutionalism” in order “to complement the traditional top-down perspective”Footnote 18—may not quite fit the bill. Whose perspectives matter is itself a question for legal philosophy and substantive law, which may depart from our democratic theories or our normative preferences.
Within this limited range, moreover, law often handles historical evidence in an artificially limited way. Which features of a legal text are relevant is itself a legal question. Sometimes the law demands a search for the author's intention (as with a holographic will), or for the modern public's understanding (as with a consumer warning label), or for the result of applying a complex set of canons of construction (as with statutes or treaties). What was required with respect to the Constitution is a contested question among both lawyers and historians,Footnote 19 but not one necessarily incapable of resolution; there may have been more disagreement over good government or good policy than over contemporary expert legal norms.Footnote 20
Some topics adjacent to originalist research, such as the Founders’ views on the nature of sovereignty or the proper role of the executive, do require broad immersion in the intellectual and political culture of the day. Yet the relevant legal doctrines, such as the scope of state sovereign immunity or the executive removal power, represent an extraordinarily narrow slice of any society's intellectual life. Often it is immersion into legal culture that is required. When faced with modern questions of French law, American judges consult French lawyers rather than sociologists; the same is true for the past. Knowing, for example, that unlawful searches or seizures would typically have been remedied only by private lawsuits—and knowing what sorts of defenses a government officer could advance—might be more useful to the doctrinalist, past or present, than understanding the Founders’ general attitudes toward privacy.Footnote 21
With the researcher's task thus confined, breadth of understanding is valuable, but only instrumentally. A linguist charting differences between Middle English and Old English would properly disregard an enormous wealth of data regarding the societies in which the two were spoken, in favor of a more specific account of internal linguistic rules and practices. So too the modern lawyer, charting differences between the Constitution and the Articles of Confederation, may properly ignore a substantial amount of information about the past.
Addressing Uncertainty
None of this should be read to understate the difficulty of forming reliable views about past law. But neither should one overstate it. Even skeptics of originalism may conclude, with Jack Rakove, that “reasonably definitive conclusions can be reached on at least some questions of original meaning”; “[a]fter all, historians ask what documents originally meant all the time.”Footnote 22 Irving adds that historians “commonly identify collective or dominant ideas, including intentions, in their subject era.”Footnote 23 They do this not by constructing detailed lives of imaginary figures—a “Joe the Ploughman,” in Rakove's terms—but by weighing and discounting a wide variety of sources, each with its own biases or idiosyncrasies.Footnote 24 The inquiry into past law leads to a particular set of sources and a particular method of analysis; these produce reasonably definitive conclusions, much of the time.
Our own work has examined issues that generated little discussion among the Framers and Ratifiers, but that were addressed by myriad statutes, proposed bills, court cases, treatises, and arguments of counsel or of congressmen.Footnote 25 Many of these sources might have disagreed on particulars, but they established a relatively narrow range of plausible answers, all of which were rather different from the doctrines as practiced in some courts today. That is enough certainty to offer substantial support for some legal arguments over others.
Viewed as a claim of past law, moreover, originalism also offers resources for when the historical inquiry runs dry. Where evidence of some past rule is available, the law may counsel that we use it. Where such evidence is unavailable, the law often directs us to different sources. Madison, for example, suggested that all new laws are “more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”; doctrines of precedent, among others, can help settle legal questions when there is no “demonstrable” answer offered by history.Footnote 26
Judges may lack the resources to conduct these inquiries themselves.Footnote 27 Yet they also hear antitrust cases without producing cutting-edge microeconomic research, and they decide issues of toxic-tort causation without ever donning lab coats. Their job is to decide cases in light of other people's discoveries—usually in light of the received view of a profession, formed long before any amicus briefs are due.Footnote 28 Law treats history in the same casually omnivorous way it treats everything else.
And legal uncertainty is hardly restricted to matters of history. Judges and juries frequently face questions that might stump expert economists or toxicologists. As to both law and fact, our legal system contains a wealth of shortcuts, default rules, and burdens of proof to resolve disputed questions when we lack certainty about the actual answers.Footnote 29 So if there are no sources on Maryland's riparian rights dating precisely from 1801, when Congress froze the law, that is no great catastrophe for a lawyer. A fleeting reference two decades before or after might be poor evidence for a careful historical study, but it would amply discharge a party's burden in a legal proceeding—unless the other party could marshal evidence that something had changed in between.
Again, we do not mean to undersell the difficulty of many questions of past law. But any remaining difficulties, though unfortunate, are consequences of what the law commands in the present. The Old Dominion Boat Club did not force anyone to learn early nineteenth-century property law; Congress did. If originalism is legally required—again, a question solely of modern law—then the complaint that originalism asks too much of history is like a complaint that tax rates are too high. It is a complaint that our law is not any better than it is.
How We Use It
Whatever researchers might gain from the past, many have doubted its usefulness to the present. If we ask, as Irving puts it, “whether people in the 1780s would have wanted a state to be free to establish a bottle-recycling scheme”Footnote 30—or, as Justice Alito joked, “what James Madison thought about video games”Footnote 31—the enterprise seems absurd. As Mary Sarah Bilder notes, the actual Constitution was a rushed compromise, not an “airtight document” that settled all questions in advance.Footnote 32 Originalists have described the Constitution as a recipe for governance;Footnote 33 yet if “a brand-specific item on the list is unavailable,”Footnote 34 we cannot ask the recipe's long-dead authors what to do.
This problem is vastly overstated. The difficulty of applying old law to new facts is in no way unique to originalism. It is the stuff of first-year law classes the world over. A town forbids “vehicles in the park” with an eye to cars, buses, and motorcycles. The case of motorized wheelchairs had not occurred to anyone, but the judges who face it “do not just push away their law books and start to legislate without further guidance”; rather, they “proceed[] by analogy” to principles with “a footing in the existing law,” after carefully investigating what that existing law might be.Footnote 35 Language has an important role to play (wheelchairs are “vehicles” in a way that flowerbeds are not),Footnote 36 but the inquiry is not merely linguistic; emergency vehicles are “vehicles,” but other legal rules may intervene to exempt them.Footnote 37
These issues equally afflict the statutes of recent weeks and of prior centuries. An imaginary Roman ordinance that mandated “no chariots in the park” would have posed the same problems for its interpreters, who would have needed further principles of Roman law (whatever their content) to guide its application to a variety of ancient conveyances or circumstances. And if, by strange historical accident, a patch of land today were still governed by the “no chariots” ordinance, the process of applying this ordinance to modern ambulances would not look much different. We would need to know the legal content of the ordinance when it was made, the sorts of considerations that validly guided its application at the time, and so on. These questions are the bread-and-butter of ordinary legal reasoning. We do not know what James Madison thought about video games, but we do know how to apply general legal concepts to facts, even when the concepts are very old and the facts are very new.
We should not expect such reasoning to yield a single obvious answer. But neither do we need it to. Ordinary business contracts are hardly “airtight,” in Bilder's terms, but we write them anyway: the parties’ choice to adopt an integrated agreement is a choice to rest their legal relations on contested inferences drawn from a single piece of text. Modern lawyers routinely defend or criticize the reasoning of District of Columbia v. Heller or Citizens United v. FEC, notwithstanding the existence of both majority and dissenting opinions;Footnote 38 as Jefferson Powell writes, “[t]here are better and worse answers in law, even in constitutional law.”Footnote 39 Future lawyers, writing two centuries hence, will have the same ability to assess Heller or Citizens United as we do: in David Ibbetson's phrase, “try[ing] to determine the issue by attempting to apply the criteria that the court might possibly have applied.”Footnote 40 Just the same, today's lawyers are fully capable of rendering an opinion on which side of a Founding-Era dispute had the better claim.
Some of the modern Supreme Court's most criticized uses of history involve debates over precisely such questions of law. Consider the debate in Citizens United between Justices John Paul Stevens and Antonin Scalia, on whether the Founders’ well-known suspicion of corporate power entailed specific limits on individuals’ speech rights when exercised through a corporate entity (e.g., the incorporated Pennsylvania Abolition Society).Footnote 41 Or consider the same justices’ debate in Heller, in which the majority concluded, over vigorous dissent, that the Second Amendment itself made use of the law of the past (by incorporating a “pre-existing right” to bear arms rather than creating a “novel” one); that the scope of this pre-existing right was not limited by the immediate purposes of those who chose to codify it in the text; and that the amendment's prefatory clause was legally relevant only to settle ambiguities in its operative clause.Footnote 42 These claims have generated a forest of historical criticism,Footnote 43 and we express no view on their correctness here. But it is hard to deny that they are quintessentially claims of legal interpretation, as are their negations; just as much the bread-and-butter of modern judges as “no vehicles in the park.”
The instinct to see such questions as unanswerable may reflect a difference in disciplinary outlook. Historical research often adopts the external perspective of the social scientist, recording and describing observable behavior, as opposed to the internal perspective of one who wishes to identify social rules and to use them as guides.Footnote 44 A mere observer might be content with ambiguity, concluding that the “dots” of past practice were plausibly joined by many different doctrinal lines. But someone actually advancing a legal claim, whether of past or present law, must put forward (in Ibbetson's words) a view of “the picture that is obtained when the dots are joined together ‘properly.’”Footnote 45
Those sorts of judgments involve legal reasoning, and not purely historical analysis. Saul Cornell has invoked as “representative” this observation by Gordon Wood: “It may be a necessary fiction for lawyers and jurists to believe in a ‘correct’ or ‘true’ interpretation of the Constitution in order to carry on their business, but we historians have different obligations and aims.”Footnote 46 The reverse is true as well. Certain schools of historical research may disclaim the ability to say whether one reading of a contract is more compelling than another, or whether a motorized wheelchair is best understood as a “vehicle” for statutory purposes. But lawyers do not, and judges cannot. To cast aside originalism simply because it asks unanticipated questions of the past is to cast aside the use of pre-existing law, something the discipline of history has no authority to do.
Conclusion
The positive turn treats originalism as a claim about the current force of past law. This is a claim about substance, not procedure. Unlike some past iterations of the theory, it does not promise a step-by-step guide to correct legal answers, any more than the scientific method promises a step-by-step guide to curing malaria. Rather, it offers an account, under current law, of what makes those answers correct. So if, as Rakove argues, originalism in practice fails to “produce dispositive answers on every question”—or if it cannot fully discipline judges, who may prefer to “pick and choose the evidence that satisfies their predispositions”Footnote 47—that does not displace current law's reliance on the past, any more than the replication crisis in the social sciences discredits the scientific method as a whole.
The positive turn makes use of history only for limited purposes and in limited ways. It treats old law as current law only because—and to the extent that—current law so commands. What was thought and said in the past is a question of history; determining which of the answers supply legal rules today is a matter for jurisprudence and substantive law. Maybe the originalists are wrong about current law, or maybe current law is ill-advised. But either way, these latter questions are not ones that history can answer.
