Understanding the current U.S. legal system requires understanding our country’s foundational documents. That’s why Duke Law professor Joseph Blocher is fascinated by the words – and even punctuation marks – of the Declaration of Independence and the Constitution.
Those words are under great scrutiny today in U.S. courts, Blocher says. In a new research article “Applying History as Law,” he and Duke Law colleague Brandon Garrett write that the Supreme Court is shaking the very foundations of constitutional law by refocusing courts on the original meaning of the words in historical documents — in effect, requiring judges to double as historians.
The majority of Supreme Court justice are self-described originalists, subscribers to a legal theory that holds that the words in historical documents should be understood by their meaning when the text was written. While historical statutes and other legal texts have always been used as background information in interpreting constitutional rights, in recent decisions the Supreme Court has established doctrinal tests that require lower courts to find and apply historical facts as evidence in deciding individual cases.
"Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application," Blocher and Garrett write.
The new tests mean case outcomes can turn on words that may have been understood in a very different context hundreds of years ago. In the 2022 ruling in Bruen, for example, a gun law is constitutional if the government can prove it is “consistent with this Nation’s historical tradition of firearm regulation.” But the Court didn’t say how to uncover that tradition: how far back to look, which old laws count, or how many it takes to constitute a “tradition.”
Blocher and Garrett argue that the lack of guidance has resulted in inconsistent historical fact-finding and less predictable outcomes: The same law can fare differently in different courtrooms.
To add to the complexity: The wording of the founding documents isn’t as consistent as you might think. During a recent visit to see rare copies of the Declaration of Independence on display in Durham, Blocher notes that different versions of the Constitution have commas in different parts of the Second Amendment – which gives them slightly different meanings.
Despite that, Blocher says, going back to the documents themselves continues to be a worthy exercise when discussing originalism specifically and the legal system at large. “Sometimes it’s important to ‘touch grass,’ as they say, and see where the history actually began,” Blocher says.
