Belknap, Michal R.

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Bicentennial Constitutional and Legal History Symposium

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California Western Law Review Volume 24 Number 2 Bicentennial Constitutional and Legal History Symposium Article 1 1988 Bicentennial Constitutional and Legal History Symposium Michal R. Belknap Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation Belknap, Michal R. (1988) "Bicentennial Constitutional and Legal History Symposium," California Western Law Review: Vol. 24 : No. 2 , Article 1. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/1 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact alm@cwsl.edu. CALIFORNIA WESTERN LAW REVIEWVOLUME 24 1987-1988 NUMBER 2BICENTENNIAL CONSTITUTIONAL ANDLEGAL HISTORY SYMPOSIUMIntroductionMICHAL R. BELKNAP*The noted constitutional historian Alfred Kelly once observed,"[t]here is a fairly close relationship between the day-to-daymethodology of the judicial process and that of historical scholar-ship."' When a court determines a rule of law to be applied in acase "through an examination of a stream of judicial precedent.. it plays the role of historian."'2 Noting that "[t]he Constitu-tion itself is a product of the nation's past," Charles A. Milleradds that "the Supreme Court, as the accepted interpreter of theConstitution, has become a public interpreter of American politi-cal history."3 Constitutional law scholar Mark Tushnet is wellaware of what the Court has done. Yet Tushnet, a man with his-torical training, 4 and who has written history himself,5 recentlydenounced "efforts to ground today's decisions in historians his-tory," criticizing these as "fundamentally misguided because theymisunderstand the historical enterprise."'* Professsor, California Western School of Law. B.A. 1965, U.C.L.A.; M.A. 1967,Ph.D. 1973, University of Wisconsin, J.D. 1981, University of Texas.1. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. CT. REV. 119, 121.2. Id. at 121.3. C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 6 (1969).4. He holds an M.A. in history from Yale.5. See, e.g., THE AMERICAN LAW OF SLAVERY 1810-1860 (1981); THE NAACP'sLEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987); DuBois andHouston, The Politics of Equality in Constitutional Law: The Equal Protection Clause,74 J. Am. HIsT. (1987).6. Tushnet, Should Historians Accept the Supreme Court's Invitation, 15 ORGANI-ZATION AM. HISTORIANS NEWSL. 12 (1987). Contra, Powell, Rules for Originalists, 73 VA.L. REV 659, 659-61 (1987).1Belknap: Bicentennial Constitutional and Legal History SymposiumPublished by CWSL Scholarly Commons, 2015CALIFORNIA WESTERN LAW REVIEWAs the comments of Tushnet, Miller, and Kelly reveal, there isa close relationship between law and history. As they also suggest,the nature of that relationship is debatable and the issue of whatit ought to be is a matter of considerable controversy. That is whythe California Western Law Review sponsored a symposium onthis subject7 and is publishing in this issue the papers and com-ments presented there.Two recent events make this examination of the relationship be-tween law and history particularly timely. The first of these is the1987 Bicentennial of the United States Constitution. The Bicen-tennial inspired "an abundance of new historical scholarship onlegal and constitutional themes, an academic complement to theless cerebral festivals, marches, and celebrations . . . throughoutthe nation."8 The Bicentennial prompted lawyers and legal aca-demics to join with professional historians in exploring the mean-ing of the Constitution and the impact it has had on life in theUnited States during the two hundred years since the PhiladelphiaConvention of 1787.9 During 1987, it often seemed as if everyonewas talking and writing about the Constitution.'0 One importantconsequence of the flood of scholarship and discussion unleashedby the Bicentennial is "greater public consciousness of constitu-tional issues and legal process, including the historical dimensionsof both.""Like the Constitution's two hundredth birthday, the provocativeremarks of the Attorney General of the United States, EdwinMeese III, have served to focus attention on the relationship be-tween law and history. In a controversial 1985 speech to theAmerican Bar Association, Meese called for what he character-ized as a "jurisprudence of original intent."' 2 Since then the At-torney General has taken the position that by failing to adherestrictly to the words of the Constitution and the intentions of thosewho drafted its various articles and amendments, the Supreme7. The symposium was held at the California Western School of Law on November21, 1987.8. Scheiber, Introduction: The Bicentennial and the Rediscovery of ConstitutionalHistory, 74 J. AM. HIST. 667 (1987).9. Of the seventeen contributors to the JOURNAL OF AMERICAN HISTORY'S specialBicentennial symposium issue, THE CONSTITUTION AND AMERICAN LIFE, one (StaughtonLynd of Northern Ohio Legal Services) is a practicing attorney and four (Mark Tushnet ofGeorgetown, Martha Minow of Harvard, Hendrik Haertog of Wisconsin, and Harry N.Scheiber of the University of California at Berkeley) are law school professors.10. See Introduction: The Judicial Power and the Constitution, 71 JIDICATURE 64(1987).I1. Scheiber, supra note 8, at 671.12. Address by Attorney General Edwin Meese III before the American Bar Associ-ation, Washington, D.C. (July 9, 1985).[Vol. 242California Western Law Review, Vol. 24 [2015], No. 2, Art. 1https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/1INTRODUCTIONCourt has exceeded its lawful authority. 13 Law professor H. Jef-ferson Powell insists that the Framers never intended for the his-tory of the writing and ratification of the Constitution to controlinterpretation of the document,' 4 and historian Harry Scheiberhas dismissed Meese's doctrine of original intent as nothing morethan "Reagan era neo-conservativism . .. formulated in termsdesigned to wrap policies of minimalism for the civilian sector ofgovernment in the mantle of constitutional imperatives."1 5The Attorney General's views are, however, in line with thoseexpressed earlier by another noted legal historian, Raoul Berger.' 6They also accord with the position taken by former United StatesCourt of Appeals Judge Robert Bork,17 whose unsuccessful nomi-nation to the Supreme Court during the bicentennial summer in-tensified interest in the controversy over original intent."Whatever the merits of that doctrine, the debate over the federalcourts proper role has given a sharp new edge to public sensitivityon matters relating to constitutional law and history."1 8Yet, as Professor Powell has observed, "[c]ontemporary discus-sion of the theory and methodology of constitutional interpretationexhibits no general agreement on the proper role of history .... 19Over the years, in interpreting the Constitution, the SupremeCourt has exploited the muse of history in various ways and for avariety of purposes. In the pages that follow, William Wieceksurveys these in "Clio as Hostage: The United States SupremeCourt and the Uses of History."2 Gordon Morris Bakken,Charles A. Lofgren, and Francis N. Stites offer additional per-spectives on that subject in a series of spirited critiques ofWiecek's lead article.2C.M.A. McCauliff explores the Supreme Court's use of historyin her "Consitutional Jurisprudence and Natural Law: Comple-13. Shaman, Interpreting the Constitution" The Supreme Court's Proper and His-toric Function, 71 JUDICATURE 80 (1987).14. Powell, The Original Understanding of Original Intent, 98 HARV. L. REv. 885(1985).15. Scheiber, supra note 8, at 671.16. See R. BERGER, GOVERNMENT BY JUDICIARY 363-64 (1977).17. For an expression of former Judge Bork's views, see Bork, Neutral Principlesand Some First Amendment Problems, 47 IND. L.J. 1, 1-20 (1971). For an expression ofsimilar views by another conservative Republican jurist, see Wallace, Interpreting the Con-stitution: The Case for Judicial Restraint, 71 JUDICATURE 81 (1987). For a perceptiveanalysis of the merits and demertits of the "interpretivist" approach to constitutional adju-dication, see Nelson, History and Neutrality in Constitutional Adjudication 72 VA. L.REV. 1237 (1986).18. Scheiber, supra note 8, at 670.19. Powell, supra note 14, at 885.20. See pages 227-268 infra.21. See pages 269-286 infra.198813Belknap: Bicentennial Constitutional and Legal History SymposiumPublished by CWSL Scholarly Commons, 2015CALIFORNIA WESTERN LAW REVIEWmentary or Rival Modes of Discourse?"22, a penetrating compara-tive analysis of the jurisprudence of two justices who based theiropinions on history and two who grounded theirs in natural law.McCauliff demonstrates that neither approach is inherently eitherliberal nor conservative. History, she concludes, can be employedto support legal conclusions that accord with any political point ofview.That conclusion is perhaps not surprising, for as historian PaulMurphy pointed out a number of years ago, "[h]istory to the legalprofession ... has a peculiarly functional quality as an aspect oflegal advocacy." 23 In "Clio on the Stand: The Promise and Perilsof Historical Review, ' 24 Peter Irons acknowledges this fact. Hegoes on to argue, however, that historical scholarship is itself aform of advocacy. Irons disagrees with those, such as Tushnet,25who contend that historians should confine themselves to educat-ing judges and the public and should not attempt to contributedirectly to contemporary litigation. While "troubled about thefuzzy line between scholarship and advocacy, ' 26 he knows thathistorical research can be used to right old legal wrongs; he hasemployed it for that purpose himself. In his article, Irons discusseshis successful efforts to get federal courts to set aside convictionsarising out of the forced relocation of Americans of Japanese an-cestry from the West Coast during World War Two. For him,history is a source of evidence that a skillful advocate can exploitto win a case. For interpretivist justices it is a lode of argumentsthey can mine to support a particular interpretation of theConstitution.Michael Griffith and Chet Orloff view the relationship betweenlaw and history quite differently than Irons. Their concern is withcollecting and preserving the historical materials (printed works,manuscripts, artifacts, oral histories, paintings and photographs)that reveal the development of our judicial institutions. Griffith,who is the archivist for the United States District Court for theNorthern District of California, and Orloff, who serves as the ex-ecutive director of the new Ninth Judicial Circuit Historical Soci-ety, are part of a rapidly expanding effort to safeguard and makeaccessible to attorneys, scholars, and the general public the mater-ials that document the history of American law. As they point out22. See pages 287-335 infra.23. Murphy, Time to Reclaim: The Current Challenge of American ConstitutionalHistory, 69 AM. HIsT. REV. 64, 77 (1963).24. See pages 337-354 infra.25. Tushnet, supra note 6, at 12-13.26. Irons, Clio on the Stand: The Promise and Perils of Historical Review, 24 CALW.L. REV. 337 (1988).[Vol. 244California Western Law Review, Vol. 24 [2015], No. 2, Art. 1https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/1INTRODUCTIONin "Historical Societies and Legal History,"27 in recent years nu-merous state and federal courts have set up organizations that areworking in diverse ways to ensure the survival of our judicial heri-tage and to increase awareness of the contributions to the develop-ment of the United States made by lawyers and judges.Orloff and Griffith view the relationship between law and his-tory as a relatively simple one; for them the function of history issimply to record what law and legal institutions have done in thepast. The other contributors to this symposium see the relationshipas more complex. They picture two disciplines that are alike inmany respects yet significantly different in others, interacting inan extremely complex way with one another. Their articles andcomments may lead some readers to conclude that this interactionhas had coercive effects on both law and history. Yet the contribu-tions to this symposium issue also indicate that, like an affair theparamours cannot bear to end despite the pain it causes them, therelationship is an amazingly durable one. The following pages of-fer convincing evidence of both the persistence and the importanceof the controversial and often stormy association between law andhistory.27. See pages 335-361 infra.1988]5Belknap: Bicentennial Constitutional and Legal History SymposiumPublished by CWSL Scholarly Commons, 20156California Western Law Review, Vol. 24 [2015], No. 2, Art. 1https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/1

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