Joshua Stein (J.D. candidate, Yale Law School) has posted "Historians Before the Bench: Friends of the Court, Foes of Originalism." It is forthcoming in Volume 25 of the Yale Journal of Law & the Humanities (2013). Here's the abstract:
Historians, I contend, can more effectively influence the Court and reclaim their authority to interpret the past without surrendering their professional principles. They must first understand that their attempts to get involved in originalist debates fall short in three ways: (1) they traffic in certitudes, which are anathema to the historical vocation; (2) they accept and legitimize the normative, originalist premise that the past ought to inform the present; and (3) they search for historical analogies to satisfy the Court’s originalists when they are better served locating or contextualizing persuasive case law. This Note will examine these three matters in turn in Parts One, Two and Three. In Part Four, I argue that historians can and should pursue alternative approaches in their briefs. Responding to each of the three issues named above, respectively, they should (1) attack originalist arguments by destabilizing their historical conclusions, (2) adopt alternatives to originalist advocacy in their amicus briefs, or (3) craft briefs narrowly in the fashion of a historical “special master.” All three approaches would bring an urgent relevancy to historical advocacy without sacrificing historical principles.And a brief excerpt from the conclusion:
The historical past should not always play an important role in legal decisions, especially not when text or precedent suggest a clearer path. But when the past does figure into a decision, the Court should welcome input from professional historians. And likewise, historians should feel they can contribute something of value beyond speaking to original intentions. Within the guidelines suggested in this Note, historians can pursue a strategy that suits their professional philosophies and puts their versions of the past on the public record. Whether the Court wants to listen or not is, and always has been, its prerogative. Be that as it may, members not only of the bench but also of the bar lose something of value if historians bow out of amicus advocacy altogether. If jurists are willing to listen to and engage with historians, even without always agreeing with them, then the legal community will benefit from a deeper, richer understanding of the past.You may download the full Note here, on SSRN.