What Originalism Can Teach Historians: History as Analogy, Means-Ends Tests, and the Problem of History in Bruen

Kunal M. Parker*

There is a long tradition of professional historians’ critiques of lawyers’ truncated understandings and clumsy deployments of the past.  The intellectual historian J.G.A. Pocock’s The Ancient Constitution and the Feudal Law, with its depiction of a “common-law mind” obdurately committed to the continuity of law and unable to grasp the significance of situating law in historical context, might be taken as the origin point of a post–World War II tradition.  Historians’ critiques have enjoyed a fresh lease of life since constitutional originalism began to assume prominence in the closing decades of the twentieth century.  As legal scholars and judges have turned self-consciously to “history” to answer constitutional questions, professional historians’ jibes have intensified.  It has all become somewhat predictable.  There is now something of an expectation that historians will tell legal scholars and judges the many ways in which they get things wrong: they do “law office” history; their use of historical evidence is selective and clunky; their interpretive techniques do violence to past understandings of language and law; they fail to appreciate the fullness of historical context. In this Essay, I seek to reorient the conversation.  Instead of assuming the familiar chastising stance of the professional historian, I argue that contemporary legal thinkers are far from insensitive to the pressures and challenges of situating law in history.  Indeed, their strategies, rather than being blind to history, are often considered responses to it.  This is true of both the competing constitutional strategies on display in New York State Rifle & Pistol Ass’n v. Bruen: originalism (in the majority opinion of Justice Thomas) and means-ends tests (in the dissenting opinion of Justice Breyer).  Although they emerged in different historical moments and typically serve different politics, both originalism and means-ends tests are tools fashioned as a consequence of law’s brush with a particular kind of history: an antifoundational conception of history that rose to prominence in the late nineteenth century and that impressed upon legal thinkers a sense of the historicity, uncertainty, and limits of legal knowledge.

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© 2024 Kunal M. Parker.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law and Dean’s Distinguished Scholar, University of Miami School of Law.  I would like to thank Patrick Gudridge, Anne Kornhauser, and Christopher Tomlins for comments.