How “History” Became Central at the Supreme Court

History has never been more important to constitutional law — or more controversial. Open almost any major Supreme Court opinion today and you are likely to find dozens of pages devoted to competing interpretations of the Founding, Reconstruction, and longstanding historical practice.

Much of this renewed attention to history from the legal profession has accompanied the rise of originalism as the Court majority’s dominant interpretive framework. As judges have increasingly turned to historical evidence, however, public debate has also come to treat originalism and the broader judicial use of historical context as though they were synonymous. 

They are not. Originalism is a modern methodology of constitutional interpretation that looks to the past to determine the Constitution’s original public meaning. History is an academic discipline that seeks to explain the past in all of its complexity, contingency, and change over time. Although both draw on many of the same sources, academic historians often examine a broader range of materials and situate those sources within wider social, political, and institutional frames. As a result, the same sources can produce different conclusions because the two professions ask historical evidence to accomplish different tasks.

Historians approach the past in context, reconstructing events and weighing ambiguity, conflicting narratives, and the possibility that new evidence may revise existing conclusions. Lawyers and judges begin with a legal question and turn to historical materials in search of an answer relevant to that question. Their objective is not simply to reconstruct the past but to determine what the historical record can establish within a particular legal framework. Because both rely heavily on historical sources and speak in the language of “history,” the distinction can easily disappear in media coverage and public commentary. Judicial opinions filled with historical citations are frequently portrayed as exercises in history, even when they approach the past in fundamentally different ways.

A historian sometimes needs to keep the past complicated; their arguments may conclude that the evidence is inconclusive or that competing interpretations remain plausible. Uncertainty may be an important finding in its own right. A court, however, cannot end there: uncertainty is the beginning of a decision that must be made. Judges must resolve the dispute before them, choose among competing interpretations, and announce a rule that will govern future cases. 

This distinction has a long history within American constitutional law. In preparing the arguments that culminated in Brown v. Board of Education, lawyers on both sides of the school segregation debate organized historical evidence to answer one of the constitutional questions of the case: whether segregation was consistent with the historical meaning and intent of the Fourteenth Amendment. The NAACP, in particular, enlisted professional historians to conduct historical research for its briefs.

Alfred H. Kelly, whose historical work had been used in the case, dismissively called this approach “law office history” that emphasized the evidence most relevant to the constitutional argument while necessarily narrowing a historical record that historians might approach with greater attention to complexity and uncertainty.

Historians often pan judicial opinions for compressing complex historical developments into simplified legal rules, while judges and lawyers can find historical scholarship frustratingly reluctant to provide the definitive conclusions that adjudication requires. While these methodological differences are longstanding, what is comparatively new is the centrality with which courts, litigants, and historians now engage the same historical record as a core part of constitutional argument — a development tied to the growing prominence of originalism and the expanded role of historical analysis in constitutional litigation.

That isn’t to say that history was absent from jurisprudence until the late 20th century: American judges have long invoked history, and opinions have often contained historical narratives and appeals to the founding-era. As far back as McCulloch v. Maryland (1819), Chief Justice John Marshall drew on the Constitution’s history alongside its text, structure, and practical considerations to define the scope of federal power, famously saying: “We must never forget that it is a Constitution we are expounding.” 

For much of American constitutional history, courts relied primarily on constitutional text, precedent, doctrinal development, structural and prudential reasoning, with historical analysis often functioning as one interpretive consideration among others (although some courts, such as the Marshall Court, emphasized history more). Professional historians, however, were rarely central to constitutional litigation. Even when historians such as Charles A. Beard — a pioneering Progressive historian who famously argued that the Constitution was designed to protect the financial interests of the wealthy elite — shaped broader public debates about constitutional development, judges generally treated historical scholarship as informative rather than determinative.

That began to change during the 1970s and 1980s, as originalism emerged. Early originalists, most prominently associated with Robert Bork and the Reagan administration, argued that adjudication should be anchored in the “original intent” of the framers, a movement as much a reaction against the perceived excesses of the Warren and Burger Courts as it was a methodology of interpretation. In the 1990s, originalism evolved. Led by Justice Antonin Scalia and a new generation of academics, jurists shifted their attention away from perceived intent toward the Constitution’s “original public meaning” — the text as a reader would have understood it at the time of adoption. That shift expanded the kinds of historical evidence courts considered relevant, directing attention away from the framers’ subjective intentions and toward the broader historical record of public language, legal practice, and political culture at the time of ratification.

The distinction between originalist reasoning and historical inquiry was apparent from the movement’s earliest years. In an influential 1988 lecture at the University of Cincinnati, later published as “Originalism: The Lesser Evil,” Scalia defended originalism as a practical judicial philosophy rather than a perfect historical method. He argued that grounding constitutional interpretation in the Constitution’s original meaning would constrain judicial discretion, even while acknowledging that historical evidence could be incomplete or contested. 

As these methodological changes continued to unfold in the 1990s and 2000s, historians became active participants in constitutional litigation, filing amicus briefs and serving as expert witnesses, as lawyers increasingly turned to archives in anticipation of the historical questions that constitutional litigation would increasingly demand. The Second Amendment showdown in 2008’s District of Columbia v. Heller marked a turning point in the public visibility of historical arguments in constitutional litigation. Both the majority and dissent engaged extensively with historical sources, including founding-era texts, legal treatises, and historical practices, making competing claims about what the Second Amendment meant at the time of adoption.

Battles over historical legitimacy now anchor disputes across the legal spectrum, from executive power and administrative law to religious liberty and federalism. The last Supreme Court term once again featured disputes in which historical arguments were central. In the birthright citizenship case, Trump v. Barbara, the Court devoted substantial attention to the original understanding of the Fourteenth Amendment’s Citizenship Clause and the historical meaning of being “subject to the jurisdiction” of the United States. In Trump v. Slaughter, the debate over presidential removal power turned to competing accounts of the Founding generation’s understanding of executive authority.

The court’s foregrounding of history has also been apparent during oral argument. In United States v. Hemani, concerning whether the federal government may prohibit unlawful drug users from possessing firearms, Justice Neil Gorsuch pressed the government’s lawyer on the historical analogues underlying its position. Questioning the government’s reliance on Founding-era laws, he asked whether figures such as John Adams, James Madison, and Thomas Jefferson would have qualified as “habitual drunkards” under the government’s historical account.

The cases already accepted for the coming term — including Viramontes v. Cook County, a major Second Amendment challenge to semiautomatic rifle bans — will further test the boundaries of the Court’s controversial “history and tradition” standard. Established in the 2022 Bruen decision, the hotly debated standard requires modern gun regulations to have a precise historical analog from the founding era to be deemed constitutional. This requirement is expected to further expose a deep rift between the judiciary and academia: while the Court demands precise “historical” precedents to justify its rulings, the historical profession itself relies on a much broader, contextual approach that judges the past by holistic standards.

History is now firmly embedded at the center of the Court’s work. The interesting question is about how future historians will judge this era: as a triumph of historical recovery or as the farce of an institution desperately wielding the past to settle old debates, only to ignite volatile new ones.