Interpreting the constitution: The use and abuse of history

Abstract

Abstract The interpretation of written constitutions is a legal rather than an historical enterprise, and history is but one of the judge’s many interpretive tools. This article looks at the question of when and how historical facts are used in constitutional interpretation, rather than whether they should be used. I argue that two fundamental canons of interpretation—the need to treat constitutions as sui generis and not as ordinary legislation, and the dictum that rights provisions should be given a generous interpretation in favor of the individual—require judges to use whatever tools they have at their disposal to interpret constitutions accordingly. As a tool, history is neutral and nondialectical. It may thus be used both in favor of and against a given interpretive stance. Sometimes, a recourse to history may also yield contradictory positions. Through five case studies I try to show: (a) that there is no inevitability in outcomes even when history is used in interpretation, and that it may in fact be relied on by both sides without yielding an obvious result; (b) that history may be used to restrict rather than promote liberties; (c) that history may also be abused to introduce “unwritten customary constitutional law” contrary to the words of the constitution; (d) where history was cited but proved unuseful; and (e) where history could helpfully have been used but was not.