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Choosing History—A Rejoinder to William Baude on The Use of History at SCOTUS

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How.

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

Read entire article at Michael Smith's Law Blog