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

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. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.There is little question that in the field of federal courts, historical study has a great deal to contribute to modern 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. 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. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. 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 “liquidat[ion]” of meaning over time.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. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree.” In other words, at least to some extent, we must treat the period as a work in progress.