Assessing the Role of History in the Federal Courts Canon: A Word of Caution

INTRODUCTION One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena--more so than in the broader domain of constitutional law--originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. (1) It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate. The panel giving rise to the following papers tackled this topic from different angles, and enriched the larger debate. First, on the panel (and elsewhere in their writing), Professors Bellia and Clark made the case for the importance of unearthing the historical backdrop against which the Constitution and early statutes were written as necessary to place the Founding period in its proper legal context. (2) Second, on the panel and in his paper here, Professor Fallon calls attention to the fact that the historical record that nearly everyone implicitly recognizes as pertinent (when not in the throes of a methodological debate) is exceptionally complex and multifaceted. (3) Professor Fallon's paper further proposes an interpretive framework for thinking about these issues that takes us beyond simply fixating on questions of original public meaning--which, he contends, is often indeterminate--and invites attention to a wealth of other historical and functional considerations. (4) Finally, Professor Grove's presentation and paper that follows highlight that many of the hardest questions of federal courts jurisprudence have been debated repeatedly in the legislative branch, and she poses important questions about what to do, if anything, with this political history of the federal courts. (5) There is little question that in the field of federal courts, historical study has a great deal to contribute to modem debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. Indeed, much of my own scholarship has been work of this kind, aimed at uncovering the purpose, context, and background understandings that informed the adoption of the Suspension Clause. (6) But sometimes--if not often--the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution--including Article III and the structural framework within which it is situated--represented major innovations in their time. At the Founding, the concept of federalism--and with it the idea of two sets of courts, state and federal--was entirely new. Further, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. (7) Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a "liquidation]" of meaning over time, (8) or, as he phrased the matter some forty years after ratification: "That in a Constitution, so new, and so complicated, there should be occasional difficulties & differences in the practical expositions of it, can surprize no one." (9) Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. …