учебный год 2023 / history as precedent

These examples, however, do not fully account for how the Rehnquist Court deals with documentaryevidence that was not available to earlier Courts. The case law suggests that the division between protestantand catholic originalists might dissolve when such evidence is introduced.In Camps Newfound/Owatonna,Inc. v. Town of Harrison,99for example, Justice Thomas argued vehemently that the expansive reading of the dormant Commerce Clause in Woodruff v. Parham'??was essentially worthless, because Justice Nelson "seems not to have had in his arsenal many of the historical materials cited above."0'' In a footnote, Justice Thomas went on to prove that every single key piece of primaryevidence about the CommerceClause was not compiled until the twentieth century, concluding that "our ready access to, as well as our appreciationof, such documentshas increasedover time."102JusticeThomas's argument,as well as his eagerness to obliterate bad history from the Court's record, exemplifies the protestant historical approach. But it is significant that Justice Scalia and Chief Justice Rehnquist,both of whom have eschewed aggressiveindependenthistoricalanalysis,andone of whom-Chief Justice Rehnquist-might be classified as a catholic originalist on the basis of Seminole Tribe,joined Justice Thomas's dissent in Owatonna.'03Because

judges revisit so few early cases with historicalanalyses, the emergence of completely new andpertinentprimaryevidence is exceptionallyrare.When it happens,however, even staunchlycatholic originalistsprobablywill not ignore it.

D. TheMeritsof theApproaches

Because cases like Owatonnaare so rare, the two approacheslead to fundamentallydifferentposturestowardmost innovativehistoricalanalysis.

Yet both approacheshave strengths and weaknesses from an originalist point of view. The catholic originalist approachenjoys the advantagesof self-sufficiency and stability. It does not rely on extensive historical research by nonhistorians,nor does it requirejudges to depend on the research of nonlawyers. It also has a predictable effect on the Court's jurisprudence,while protestanthistoricalanalysis,because it can undermine the understandingof a clause on which Justices have relied in many

decisions, has at times a profoundlydestabilizingeffect. By dismissing the

99.520 U.S. 564 (1997).

100.75 U.S. (8 Wall.) 123(1868).

101.Owatonna,520 U.S. at632-33(Thomas,J., dissenting).

102.Id. at633 n.17.

103.Cf. Scalia,supranote 10, at 859 (suggestingthatChiefJusticeTaftin Myersv. United States,272 U.S. 52 (1926), did not benefitfrom full access to the historicalrecordas today's

judgeswould).

2000] Historyas Precedent 141

dissent for offering an innovativehistoricalargumentratherthanrelying on official history,the Seminole TribeCourtitself emphasizedthe relationship between catholic originalismanddoctrinalstability.

The destabilizing effect of protestanthistorical analysis, moreover, is not alwaysjustified by greaterhistorical accuracy.Indeed, in the case of a SupremeCourtthat seeks to recover the original meaning of language that is often around210 years old, the link between novelty and accuracycan be particularlytenuous,especially with regardto Justiceswho lived duringthe nineteenthcentury.Althoughthoroughhistoricalresearchsometimesyields

time to the Framerswere surelyin a betterposition to interpretthe Framers' language and grasp the Framers'worldview than their successors.10The propositionthatestablishedhistoricalconclusions deserve deferenceis thus consistent with the basic assumptionthat the meanings of historical texts become more difficult to discernover time, and thatan establishedpractice can be a better guide to discerning an original meaning than a historical inquiry. The catholic historical approach therefore corresponds with a fundamentalgoal of the originalist project-doctrinal stability once the original meaning has been established-without necessarily undermining historicalaccuracy,a second fundamentalgoal of the originalistproject.By privileging Powell's well-documentedhistorical conclusions over its own because of the Powell Court's especially thorough examination of the documentaryevidence, the ThorntonCourt linked catholic originalism to the creationof reliablehistory.ThorntonandSeminole Tribe,in additionto

showcasing both genres of originalism,thus highlight differentadvantages of catholicoriginalismin particular.

Yet the protestantoriginalist approach also has distinct advantages. First, once the premise that text and history should be the main guides to interpreting the Constitution is accepted, reflexively privileging the historical conclusions of previous courts invites visibly uninformed decisions, particularlywhen the declaredhistory in question has been only recently established.Second, by simply relying on the conclusions of past courts-even though those courts might have relied on the historians of their time ratherthan the understandingof the Constitutionthat had been transmittedsince the Founding-catholic originalistssometimesjust adopt the independentjudgments of past judges and scholars over present ones. On the other hand, protestantoriginalists, along with the historians on whom they rely, can benefit from the research and judgment of their predecessors as well as from their own judgment. While they may reach

104. See BORK,supra note 9, at 158 ("[T]hereare not only the claims of stabilityand

continuityin the law, but respectfor the knowledgeand intelligenceof those who have gone before.").

Jewish law, this Partconcludes that, in cases in which unambiguousnew primary evidence presents itself, the classical Jewish practice of incorporating that evidence into the law even if it means discarding establishedprecedentis compatiblewith the originalistpractice.However,

challenges official history,a methodologyinspiredby the decisions of some modern rabbis-a methodology that I call the multitextual approach- combines some of the advantages of the historical approaches outlined above.

The multitextualapproachis unique because, while it invites judges to look beyond the entrenched historical narrative and engage in an independenthistoricalinquiry,it also limits the judge's frame of reference to "intermediate texts," or previous judicial inquiries into the original meaning of the foundational text. Ultimately, as Part VI shows, the approachsets boundariesfor originalist historical analysis by preempting both the selective incorporationof purely independenthistorical analysis into the common law of history and the elevation of official history to the status of legal precedent.Moreover, even without any applicationto real cases, it opens the door to criticism of judicially generated history that accountsfor the complex goals of the originalistproject.

A. Parallels and Discrepancies

Despite the many academic comparisons between the Jewish and American legal traditions,their comparabilityis not self-evident. Indeed, Cover's own turnto Jewish law has been criticizedon the groundsthat he glossed over the uniquelyreligious aspects of Jewish law in a rushedeffort "to understandsecular legal institutionsthrough religious categories."'07

This Section, therefore, begins by noting some of the deep underlying similaritiesbetween the two legal traditions,andconcludes thatthe analogy

between Jewish law and originalism in constitutionallaw is far stronger than the analogy between Jewish law and constitutionallaw generally. It then isolates severalcrucialdistinctionsbetween the two traditions,even as

far as originalism is concerned, and assesses the relevance of those distinctions for the discussion of historical evidence and post-originalist constitutionaldevelopment.

107. Suzanne Last Stone, In Pursuit of the Counter-Text: The Turnto the Jewish Legal Model in ContemporaryAmerican Legal Theory, 106 HARV.L. REV.813, 821 (1993).

systems, no matterhow radicalor misguided a particularjudicial decision, the most recentjudge-or majorityof judges-has final authorityto decide cases.109At the same time, however,just as Americanjudges usually follow precedentas they decide questionsof law, so too do rabbis.Althoughrabbis have neverformallyembracedthe doctrineof staredecisis, "Jewishjudicial

Jewish tradition,respect for precedentflows naturallyfrom the axiom that earlier rabbis, and especially the earliest rabbis, were superior to their successors in knowledge of the Torah-the foundationallegal text.11 As one early authoritysaid, "If the earlier [scholars]were sons of angels, we are sons of men; and if the earlier[scholars]were sons of men, we are like asses."12 It is fair to conclude thatprecedentin Jewish law exerts an even greater force than it does in American law.13 Perhaps the most striking parallel between the two traditions, however, is that Jewish law, like American constitutional law, records the position of dissenters, thus opening the door for laterjudges to revisit those dissents.14After surveying the traditionof relentlessdissentduringthe classical period,Elliott N. Dorff

108.See generally Samuel J. Levine, Jewish Legal Theory and American Constitutional

Theory: Some Comparisons and Contrasts, 24 HASTINGSCONST.L.Q. 441 (1997) (comparing

Jewishlaw andAmericanconstitutionallawin a varietyof areas).

109.See BABYLONIANTALMUD,TRACTATENIDDAH20b; id., TRACTATESANHEDRIN6b; id., TRACTATEBAVABATRA130b (Maurice Simon & Israel W. Slotki trans., The Soncino Press

1976) ("Thejudge mustbe guidedonly by whathis eyes see."). See generallyIsraelTa-Shma,

A LIVINGTREE:THEROOTSANDGROWTHOFJEWISHLAW223 (1988) (describing an encounter betweenRabbiJoshuaandtheotherrabbisof the Sanhedrinin whichRabbiJoshua'spositionon a

positionof RabbanGamliel,whohadrecentlypassedaway).

112. BABYLONIANTALMUD, TRACTATESHABBAT112b (H. Freedman trans., The Soncino

Press 1972); see also id., TRACTATEERUVIN53a (Israel W. Slotki trans., The Soncino Press,

1983) ("The hearts[i.e., intellectualpowers]of the ancientswere like the door of the Ulam [a

doorof the Hekhal[of the Templewhichwas ten cubitswide], butoursis like the eye of a fine needle.").

114. See MichaelRosenweig,Eilu ve-EiluDivrei ElohimHayyim:HalachicPluralismand

Theories of Controversy, in RABBINICAUTHORITYAND PERSONALAUTONOMY93, 110-23

(MosheSokoled., 1992)(discussingthesignificanceof dissentsin Jewishlaw).

disagreement was not common among the Church Fathers or, for that matter,the leadersof any society, ancientor modem, until the adventof the United States."115

The underlying origins of the Jewish tradition and the American constitutional tradition are also comparable in some respects. Just as Americanconstitutionallaw rests on a foundationaltext that was adopted

by consent into law, namely the Constitution,so too does Jewish law rest on the Torah. The comparison is not exact, however, because the term "Torah" includes a large body of oral law thatwas, accordingto tradition, revealed to Moses but not articulateduntil centurieslater.16Therefore,the early texts of the Halakhah,or the body of Jewish law, despitetheirinternal inconsistencies, are not understoodto be mere commentarieson the Torah but insteadpartof the Torahitself.17

The broad analogy between American constitutionaland Jewish law begins to breakdown, however, when one considersthe precise role of the Torah as a divinely inspired document. Unlike provisions of the Constitution,which have been interpretedout of existence and decisively expandedby judges, the words of the Torah,because they are believed to be of divine origin, are dispositive, at least by all pre-modem rabbinical accounts. Although rabbis in the classical traditionhad great latitude to interpret the Torah in reference to its original meaning, the "living constitution" has no analogue in traditionalJewish law. Therefore,when rabbis have seen fit to change the law, they have done so by referring directly to the Torah itself, offering a new interpretationof a textual provision, or denying that the question being debatedis answereddirectly by the Torah at all.18 In other words, because "the Jewish tradition... rules out... any divine interventionsubsequentto the initial revelation,"'9 "constitutional"change in Jewish law, at least formally, is

115.DORFF& ROSETT,supranote 111,at227.

116.Id. at 213-14 (showing that in classical Jewish law the "Oral Torah... is virtually identical with the Bible itself'); cf. MAIMONIDES,MISHNEHTORAH,LAWSOFREPENTANCE3:6,

8 (classifyingpeople who deny the sanctityof the OralLaw as hereticswho deny the Torah

those opinionsin the oraltraditionthatbecamelaw andthose thatdid not. See generallyDAVID WEISSHALIVNI,PESHATANDDERASH:PLAINANDAPPLIEDMEANINGIN RABBINICEXEGESIS

is called de-oraita [from the Torah]. Any legal sources so categorizedare, by definition,

RESPONDINGTOIMPERFECTION307, 308 (Sanford Levinson ed., 1995).