According to civil war scholar and Stanford professor James Fearon, a civil war “is a violent conflict within a country fought by organized groups that aim to take power at the center . . . or to change government policies.” Hold that thought. We’ll come back to it.
In the 1990s, the U.S. Supreme Court tightened up an important rule of evidence—the rule on expert testimony. The Court mandated that trial judges, as gatekeepers, assess the reliability of an expert’s opinion before deciding whether to allow the jury to hear it. And it articulated reliability guidelines for judges to use, now encoded in Evidence Rule 702.
Reasonable minds can disagree over whether, in practice, that mechanism is promoting the justice system’s truth-finding function or hindering it. When a judge allows an opinion that an appellate court says should have been excluded or excludes an opinion that an appellate court says should have been admitted, can we ever know, in a cosmic sense, which ruling of which court better served the search for truth?
The movement to tighten the rules on expert testimony began in the famous Daubert case involving an expert’s scientific opinion. There, the Supreme Court appears to have accepted a principle that served as the driving force for this movement—the desire to avoid deciding cases based on junk science. Juries, the argument went, should hear only good, reliable science.
Why, then, has the Court not been as scrupulous when deciding constitutional issues based on history? Shouldn’t courts avoid junk history as much as they do junk science? If reasonable historians can disagree over the history, shouldn’t we embrace guidelines and standards to ferret out bad history and separate it from good, reliable history?
In the 1990s, the U.S. Supreme Court tightened up an important rule of evidence—the rule on expert testimony. The Court mandated that trial judges, as gatekeepers, assess the reliability of an expert’s opinion before deciding whether to allow the jury to hear it. And it articulated reliability guidelines for judges to use, now encoded in Evidence Rule 702.
Reasonable minds can disagree over whether, in practice, that mechanism is promoting the justice system’s truth-finding function or hindering it. When a judge allows an opinion that an appellate court says should have been excluded or excludes an opinion that an appellate court says should have been admitted, can we ever know, in a cosmic sense, which ruling of which court better served the search for truth?
The movement to tighten the rules on expert testimony began in the famous Daubert case involving an expert’s scientific opinion. There, the Supreme Court appears to have accepted a principle that served as the driving force for this movement—the desire to avoid deciding cases based on junk science. Juries, the argument went, should hear only good, reliable science.
Why, then, has the Court not been as scrupulous when deciding constitutional issues based on history? Shouldn’t courts avoid junk history as much as they do junk science? If reasonable historians can disagree over the history, shouldn’t we embrace guidelines and standards to ferret out bad history and separate it from good, reliable history?
This, of course, presupposes the soundness of the Court’s attachment to history and tradition as the mandatory foundation for interpreting constitutional rights when the Court finds the text of the Constitution unclear. A majority of the Supreme Court embraced this approach as constitutional doctrine in Dobbs v. Jackson Women’s Health Organization, when it held that, for the Fourteenth Amendment to guarantee a right not expressly stated in the Constitution, it “must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
For that proposition, the Court cited Washington v. Glucksberg, a 1997 case rejecting a right to assisted suicide. In Glucksberg, the Court said that the Due Process Clause “specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ . . . and ‘implicit in the concept of ordered liberty.’” For the “deeply rooted” part of that sentence, the Glucksberg Court cited two cases. One was Snyder v. Massachusetts (1934), holding that a criminal defendant did not have a constitutional right to be present when the jury took a view. In Snyder, the Court said nothing about history, only about tradition: A state may not offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” It found no strong tradition that made a defendant’s presence during a view a fundamental principle.
The other case it cited was Moore v. Cleveland (1977), striking down a zoning law that prohibited extended family members from living in the same home. There, the Court said that the “Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”
Moore, in turn, cited two cases recognizing parental rights in child-rearing because that was a “strong tradition founded on the history and culture of Western civilization” and “basic in the structure of our society.” Moore also cited a case recognizing a right to contraception because the family is “a relation as old and as fundamental as our entire civilization.”
Picking up on this theme of tradition and history, Dobbs used it in a specific and more rigid way, focusing on the history of abortion statutes around 1868 when the Fourteenth Amendment was adopted. The Dobbs majority acknowledged that the common law permitted abortion until quickening—when the fetus would start to move. In fact, abortion had been around for centuries, generally performed by administering herbal abortifacients, massage techniques, or a substance applied to a tampon-like device. It was common in colonial America and was legal when the Constitution was adopted.
But the Dobbs majority gave little weight to that common-law history and tradition, and instead gave great weight to the history of abortion statutes that came onto the books in the 19th century. By 1868, 28 of the 37 states had some form of abortion statute, but those statutes were slow to catch on. The first two arose in the mid-1820s and outlawed only the willful and malicious administration of a poison or destructive substance or liquid with the intent to murder the woman or induce a miscarriage. From their language, those statutes seemingly sought only to protect women from men who would—themselves or with help from others—use extreme measures to avoid becoming a father or grandfather. Neither of those early statutes seems intended to stop women from voluntarily terminating a pregnancy.
By 1850, 12 more abortion statutes had been enacted, all criminalizing the person performing it, none criminalizing the pregnant woman. Five provided a two-tier punishment—one if the fetus had quickened and a much lighter one if not. Three provided a different two-tier punishment depending on whether the woman died or survived.
Between 1851 and 1868, largely because of lobbying by the American Medical Association, another 14 abortion statutes were adopted. Many had exceptions if the abortion was to save the life of the mother.
What does that tell us about how deeply rooted abortion was in our nation’s history and traditions when the Fourteenth Amendment was adopted? Do we know whether the laws were selectively enforced or instead honored more in the breach than in the observance? Did women who wanted abortions go to other states that had no such laws? Were there any data or anecdotal evidence about how many abortions were performed in the colonies, territories, and states per year and per capita in the 200 years before 1868? Might the mid-19th-century laws have been motivated by the imperfect state of the medical arts at the time, a consideration no longer relevant in the 21st century?
If the historical record in what became America were rich with data, imagine what a line graph would show if the years from 1650 to 1868 were plotted on the x axis and the number of abortions per capita were plotted on the y axis. Such a graph would likely show a stable horizontal line until 1828, at which point the line would likely have begun to taper downward as it approached 1868, with many abortions still occurring in the parts of the country with no abortion laws. Wouldn’t that graph show that, as of 1868, abortion had long been a tradition with deep historical roots and that the 28 abortion statutes in 1868 diverged from the nation’s history and tradition? And what would that graph tell us if, rather than plotting the number of abortions in the territory that became the United States, it plotted the number of abortions in Western civilization? Or all of civilization?
Keep in mind why the cases that Dobbs cited, and the cases that those cases cited, looked at history and tradition. It was not to interpret constitutional text via the framers’ intent when the Constitution or Fourteenth Amendment was adopted. Nor was it to look at comparatively contemporaneous statutes to see how they compared with constitutional language. After all, a constitutional provision could just as easily have been meant to change the status quo as to preserve it. It was to identify what was so ingrained in the ways people lived as to define what the government could or could not infringe.
And one other characteristic made those cases different from how Dobbs treated history and tradition: The historical record was essentially unambiguous. In Glucksberg, the Court recounted an extensive, undisputed history of how law and tradition condemned assisting another to die. In Moore, no one disputed that, throughout history, extended family members shared living quarters. In Snyder, although the dissent argued, with some force, that defendants had a right to be present throughout the trial and that a view was part of a trial, there was no tradition to speak of that defendants were present at a view.
Now let’s look at guns. In New York State Rifle & Pistol Ass’n v. Bruen, the Court invalidated a gun law that was on the books for over a century. The law restricted licenses to carry guns for self-defense only to those who had shown proper cause. To assess the statute’s constitutionality, the Court devoted 32 pages looking at history.
The majority’s analysis began with an arms control statute from 14th-century England, continued with a look at regal gun control proclamations, then interpreted a 17th-century jury verdict acquitting a knight who carried a gun in public in apparent violation of a statute. It then jumped to the 1689 English Bill of Rights, before marching through—and dismissing the significance of—strong, colonial-era gun prohibitions (they “do little to support restrictions on the public carry of handguns today,” emphasized the Court). It considered and distinguished away early American gun control statutes and observed how former slaves defended themselves with guns after the passage of the Fourteenth Amendment. It rejected as “outliers” late 19th-century cases from Texas that the majority “acknowledge[d] . . . support New York’s proper cause requirement.” It treated a similar case from West Virginia similarly. And it trivialized the significance of an “uptick in gun regulation during the late-19th century” as too recent and tailored to their locales. Having thus undertaken to clear away historical support for the New York statute, the Court held it unconstitutional.
Justice Breyer’s dissent captured the perils in relying exclusively on history in constitutional interpretation. Judges are not historians, he noted. History is not their lane. History is also cloudy, confusing, and ambiguous. It changes when new historical evidence is found, and it often fails to address modern problems. Most significantly, it allows judges to identify their preferred outcome and then select historical references to justify it, while discarding “seemingly relevant historical evidence” that goes the other way.
Justice Breyer’s dissent evidenced an intellectual civil war within the Court: the war between the originalists and the living constitutionalists. The weaponry of the originalists is, first, their insistence that constitutional provisions must be interpreted based on history and tradition when the provision was adopted and, second, their claim that their own interpretation of history is correct.
The living constitutionalists battle back on both fronts. They argue that the founders meant for the Constitution to apply and adapt to changing circumstances over time. And they argue the folly of anchoring constitutional decisions on something as debatable as one side’s view of history.
Justice Breyer’s observations reflect not just how he and his co-dissenters regard history. They also reflect how historians regard history. Historians, more than anyone, appreciate that their work involves interpretation of events, often based on fragmentary evidence. If lucky, they can rely on primary sources, such as documents created at the time, but even those documents could be impaired by the authors’ biases, limited opportunities for observation, or flawed memories. When primary sources are incomplete or nowhere to be found, historians must rely on secondary evidence and look for patterns, inconsistencies, or other clues about how people lived, what they believed, how they ordered their societies, or what they would have done or avoided doing. Historians see themselves as detectives, analysts, researchers, explainers, and even advocates.
Some historians are better, more logical, or more thorough than others. Some can set aside their biases and preformed ideas more readily and draw more reliable conclusions. Some can offer more defensible conclusions with more compelling evidence. But some self-described historians are just, well, pretenders or rank amateurs.
Concurring and dissenting in part in Daubert, Justice Rehnquist cautioned that rules of evidence do not impose on judges the obligation or authority to become amateur scientists. He was concerned about whether judges, as evidentiary gatekeepers, had the expertise to assess the reliability of a proffered scientific opinion. He wanted to be sure that parties and other stakeholders could have confidence that judges would get it right.
No less important that judges get it right is when they decide constitutional rights and the limits of governmental power. Those decisions can put life itself at stake. A woman can die in a state where doctors fear going to jail if they perform what they believe is a medically necessary abortion when a court might second-guess them. And a convenience store clerk can die when someone with an easily obtainable handgun needs money from the cash drawer to feed a drug habit.
If the desire for a just outcome cautions against judges acting as amateur scientists when money is at stake in a civil suit, doesn’t it equally caution against judges acting as amateur historians when a constitutional right or life itself is at stake? Shouldn’t we at least be as passionate in weeding out junk history as we are about weeding out junk science?
If history is to be the measure of where government power ends and individual rights begin, then we need to be as scrupulous about the historical evidence a court may consider as we are about scientific evidence or any other evidence about which experts know more than judges. Otherwise, we may be left wondering how many people will have to live in a more dangerous or regressive country, or how many people will possibly have to die, because a court got its history wrong or because the civil war in the Court was lost.
