Why Justices of the Supreme Court Make Bad Historians


Mr. Shear is the author of Unoriginal Misunderstanding - Press Freedom in Early America and Interpretation of the First Amendment (Libertary Co., 2009).

Led by Antonin Scalia, several justices of the U.S. Supreme Court have declared that the Constitution must be interpreted according to its original meaning -- or more precisely, what the Court majority might declare to be the official, legal version of history by virtue of their judicial authority. It is an Orwellian exercise, historical truth by government edict. Scalia has urged the First Amendment, in particular, should be limited to its “original meaning” which he deems much narrower than our current law of free expression. In Unoriginal Understanding, a monograph discussing the development of press freedom in eighteenth-century America, I review historical evidence showing this “originalist” view to be very questionable, and on a deeper level, how dangerous it is for judges to set themselves up as official arbiters of  historical truth with regard to fundamental rights such as press freedom. (Unoriginal Misunderstanding is available to read for free online at www.libertary.com/books.)

Justice Scalia has recently focused on New York Times v. Sullivan, a landmark 1960s case that  ruled a public figure needed to prove actual malice to prevail in a libel action -- i.e., that the publisher actually knew the material was false and published it with bad intentions. It set a high bar for proving libel against a public figure and opened the way to an era of open journalism that continues today. Justice Scalia has reportedly stated out of court that NY Times v. Sullivan is not consistent with the original meaning of the free press guarantee and that he would vote to overrule it. Scalia’s view depends, however,  upon a selective view of history, for there were many Americans in the late eighteenth century who believed in even broader protection for criticism of public figures than NY Times v. Sullivan provides. Unoriginal Misunderstanding reviews the growth of American libertarian traditions of press freedom in the eighteenth century and shows how these traditions led up to the adoption of the First Amendment.

Historians have differed over what was meant by press freedom at the time the First Amendment was adopted. In the early twentieth century, Justices Oliver Wendell Holmes and Louis Brandeis (following historians such as Zechariah Chaffee and Theodore Schroeder) claimed that the founders of the Constitution had a very broad understanding of press freedom, although they did not go into eighteenth century history in much depth and did not espouse an originalist view of the Constitution in any event. But more recently, in two influential books, Legacy of Suppression (1960) and Emergence of a Free Press (1985), the legal historian Leonard Levy mounted a vigorous challenge to the Holmes-Brandeis view of history. Levy focused on the British common law doctrine of seditious libel, which made it a crime to publish any writing with a tendency to stir-up disaffection against the government. He claimed that the “framers” of the First Amendment had a narrow view of press freedom that would not prohibit seditious libel prosecutions, perhaps allowing truth as a defense. Yet as I show in Unoriginal Misunderstanding, Levy and other recent historians have overlooked much of the most significant evidence of American libertarian traditions that developed in the eighteenth century. Indeed some eighteenth-century Americans seemed to go even further than NY Times v. Sullivan to assert that freedom of the press absolutely protected criticism of public officials.

Unoriginal Misunderstanding hopefully contributes to our understanding of the roots of the press freedom clause, but it certainly does not claim to settle the issue of what press freedom meant in the eighteenth century; one of the few certainties in this area is that more evidence will be turned up and further examination of historical evidence will allow us to understand it better. Yet originalists say we must base our legal interpretation of the press freedom guarantee on what judges think its meaning may have been two centuries ago. What qualifies judges to declare, as a matter of law, what historical evidence is worthy of consideration and which interpretation is correct? Has any judge ever been appointed to the U.S. Supreme Court because of his or her abilities as a historian? As historical scholarship evolves and shifts, would Constitutional interpretation change with it? What standards apply to judicial determination of history? Without addressing these questions, originalism merely allows judges to cloak their own views as historical truths. Thus, when history is addressed in court opinions, you don’t find discussion of the uncertainties of what we know about the past or all the complexities and contradictions that the study of history reveals, but vehement argument about how historical evidence supports the outcome the judge believes to be correct.

The alternative to originalism is not to ignore history but to treat it as the background for legal interpretation. Modern law and politics are only the most recent scenes in a longer historical drama. We did not invent such rights as press freedom or our constitutional form of government -- we inherited them.  The origins of our Constitution obviously are important to consider in determining the meaning, today, of the press freedom guarantee. It is also important to consider subsequent developments, including rulings that have followed the letter and spirit of the First Amendment and also rulings that have betrayed, compromised, or misinterpreted. But history cannot, as the originalists wish, dictate the permanent meaning of our laws. It can only provide a setting and some lessons that we can use to help guide us.

Under the guise of originalism, Justice Scalia has recently dredged-up a long discredited state law case (Commonwealth v. Blanding) that announced severe restrictions on press freedom in 1825, a generation after the adoption of the Bill of Rights and during an era when American courts were particularly unreceptive to civil liberties. In Blanding, a newspaper publisher was convicted of a crime for publishing a true account of a coroner’s inquest that found a public house had let one of its customers drink himself to death; the case held it was generally unlawful to publish any true account of criminal conduct, at least by businesses. Justice Scalia has looked to the Blanding decision as a source for what the First Amendment originally meant, while he has not paid attention to much more libertarian American traditions from the eighteenth century. What Blanding actually demonstrates is that you can find some historical antecedent for pretty much any position, no matter how wrongheaded. If judges in the twenty-first century want to cut back on press freedom in this way, they should provide reasons why this would be sound legal doctrine, not tell us we’re legally compelled to follow some selected historical relics that a judge designates as the official version of what the Constitution originally meant.

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James Wilson - 10/28/2009

"Historians have differed over what was meant by press freedom at the time the First Amendment was adopted."

It is actually very simple what freedom of speech and of the press meant since 1733. See Paul Madison's easy to read historical account of the meaning that is the best ever written on the subject:


Stephen J Cipolla - 10/12/2009

Ken Shear is right on the money when it comes to the uses and abuses of history by judges, especially by the ones who sit on the Supreme Court. But, I think the underlying point that needs explicit articulation is that the notion that the discipline practiced by professional historians plays anything but the smallest role in the development of common law. Common law is based upon cases written by other judges, almost always appellate cases, which contain a version of the "facts" of a given dispute. Those "facts" are the snippets of stories told by "witnesses" that were the right size and shape to sift through our legal rules of evidence. Nobody who practices law for a living actually believes that admissible evidence = truth, let alone history. The lawyers in these disputes argue against admissibility of unfavorable evidence and in favor of favorable evidence. From the advocate's point of view, truth is incidental to that determination.

Whatever happened in Blanding, one thing that both Scalia, who is more clever than brilliant, and I would probably agree upon, is that actual history isn't in the Blanding decision and is not to be found in the case reports. That's where the tiniest pieces of reality resides, but it's never a reliable source of political or social or economic history, unless your mission is to write a history of the development of law cases and their interpretation. And, I guess there's a place for that, it's called the Supreme Court.

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