Justice William Brennan has slapped historians across the face not once but twice in recent months. Will historians accept the challenge? In October 1984, Brennan, in an address at Georgetown University, asserted that the view that the Constitution could be definitively interpreted by reference to the “intention of the Framers” of that document was nothing more than “arrogance cloaked as humility.” More recently, in his Oliver Wendell Holmes Lecture during Harvard’s 350th anniversary celebration, Brennan asserted that, “. . . if it were possible to find answers to all constitutional questions by reference to historical practices we would not need judges. Courts could be staffed by professional historians who would be instructed to compile a comprehensive master list of life in 1791. Cases could be decided based on whether a challenged practice or rule or procedure could be located on that great list. If the historians worked hard enough, they could “solve” constitutional law for now and all time. But of course this is not possible, and the relative ease of the task is no measure of the correctness of the approach.”
Brennan’s Harvard talk was a lawyerly brief designed to demonstrate that the Eighth Amendment to the Constitution, prohibiting “cruel and unusual punishments,” should be read today to prohibit the death penalty, even though that penalty was mentioned elsewhere in the Constitution and was a common penalty at the time the Constitution was formulated. I do not seek to answer that brief in terms of the argument over capital punishment but rather to consider the challenge presented to historians by Brennan’s curt dismissal of their pretensions.
Brennan’s belittling of the relevance of historical evidence to constitutional interpretation must be read both in terms of a non-historian’s understanding—or rather misunderstanding—of the historian’s function as a simple compiler of chronicles of past events, and in terms of a Supreme Court justice’s failure to distinguish between a justice’s authority to decide constitutional questions and his ability to interpret the law better than any other individual.
The Constitution nowhere assumes that judges form a profession uniquely capable of interpreting the Constitution or that historians are incapable of doing so. Our greatest chief justice, John Marshall, was a historian as well as a judge. Marshall’s five-volume Life of Washington (the first volume of which was a history of the English colonies), sought to interpret the history of his country by the standards of the historian’s craft, not by “compiling” a “master list of life” in a particular era. Marshall’s judicial decisions, e.g. in the Cherokee cases, are not only informed by historical understanding but actually constitute a historical, as well as legal, interpretation of the past. One wonders whether Justice Brennan would have considered Mar shall a historian unqualified to interpret our past had he not also been a judge.
Brennan’s Harvard speech reflects the habits of a judicial system in which the importance of the meaning of the Constitution as it was understood by the men who framed it has given way to the increasing self-assurance of those officially charged with interpreting its meaning. The historian’s caution and self-doubt—often expressed in Marshall’s historically informed opinions—rarely find a place in contemporary judicial opinions. Brennan’s speech even reveals that the Supreme Court’s decision to test the constitutionality of the death penalty arose not from any challenge to a law by an affected party (normally the sine qua non for cases heard by the court) but from judicial discussion and manipulation within the court. In considering one aspect of the issue in McGautha v. California, Justice Douglas, in the minority, concluded that the majority of the court had “history on its side—but history alone.” History, as used by those justices as an attempt to uphold a conservative reading of the words of the Framers, was, in the eyes of the activist justices, a weak defense.
Will historians accept Justice Brennan’s conclusion that no one is capable of determining the intention of the Framers and that justices must there foreread the Constitution according to “evolving standards” of their own and not of historians’ understanding? History in such judicial robes may be better than what Professor Alfred H. Kelly called “law office history” but is it history? And should it be law?
Wilcomb E. Washburn is director of the Office of American Studies, Smithsonian Institution.
