учебный год 2023 / history as precedent
.pdf150 |
The Yale Law Journal |
[Vol. 110: 121 |
While a complete survey of the subjectis impossible and unnecessaryhere, it does seem clear that the rabbisin the Talmud,as well as their medieval successors,133saw fit to revise their entrenchedhistorical narrativeswhen decisive new primaryevidence emerged.
C. TheModernPeriod
The hard question for historically minded judges is not how to deal
with the rare |
|
new |
|
but how to reacha |
historically |
||
|
groundbreaking |
|
document, |
|
|||
defensible result in |
the face |
of |
a large |
documentary record and a |
|||
contentioushistoricaldebate.Modernscientific historyhas challengedboth
the underlying assumptions of Jewish law regardingthe authorshipand historyof the Torahand specific conclusions of law offered by rabbiswith a less complete knowledge of the legal canon thantheir successors. Just as
have |
to |
with |
contraryimpulses, |
so too |
originalists |
responded |
historiography |
|
have rabbis.Althoughthe analogy has limitationsthat will be exposed, the catholic historical approach can be compared to the response of some traditionalistrabbis, and the protestantapproachto the response of some progressives.A coherentthirdapproach,however, can also be gleaned from the decisions of some modern rabbis, an approach that has no fully articulatedanaloguein the constitutionalcontext.
1. Jewish Traditionalists
Many traditional rabbis follow catholic originalist judges in not allowing historicalresearchto affect the linear narrativeof the law. Like their American counterparts, these traditionalists argue that historical conclusions arenecessarilyephemeral,andthe law cannotrest on transitory
Their |
objection goes further, |
however. For a traditionalist |
|
principles.134 |
|
|
|
rabbi, revelation is |
the starting point of legal |
analysis, and historical |
|
evidence must be assessed from that point of |
view.135Modern biblical |
||
132.BABYLONIAN TALMUD, TRACTATE MEGILLA 7b, quoted in ROTH,supra note 118, at
320.
133.Fordiscussionof medievalrabbis'treatmentof newhistoricalsources,see ROTH,supra
note 118,at338-41;andTa-Shma,supranote 109,at 125.
134.Louis Jacobs, A Synthesis of the Traditional and Critical Views, in CONSERVATIVE JUDAISMANDJEWISHLAW 112, 117 (Seymour Siegel ed., 1977) (" [C]riticism, even at its best, is
speculative and tentative." (quoting J. Abelson, Bible Problems and Modern Knowledge, JEWISH
REV.,Mar.1913,at483)).
135.DORFF& ROSETT,supra note 111, at 20-21 (distinguishing the "fundamentalist view" of the Bible, accordingto which"the whole Pentateuchwas given by God to Moses at Sinai,"
from the "historicalview," accordingto which "the Bible consists of a numberof texts, composedby a varietyof peoplein a numberof placesandtimes");EmanuelFeldman,Changing
Patterns in Biblical Criticism, in CHALLENGE:TORAHVIEWSON SCIENCEAND ITS PROBLEMS
432, 442 (Aryeh Carmell& Cyril Dumb eds., 1976) ("[O]ne [of] the majorweaknessesof
2000] Historyas Precedent 151
criticism, which starts from the premise that the Torah was written by people, thereforehas no legal status.136
Because it challenges the legal regime itself, modernbiblical criticism representsa categoryof historicalevidence without a good analogue in the American constitutionalcontext. The relevant question, therefore, is how
traditionalist rabbis deal |
with the array of historical evidence that |
||
challenges the "declared" legal |
narrative without |
undermining the |
|
foundational premises of |
Jewish law. In that area, many traditionalists |
||
maintainthatthe Shulhan |
a |
code of law written |
|
Arukh, sixteenth-century |
by |
||
Rabbi Joseph Caro, is the final arbiterof Jewish law.137Like the Seminole Tribe majority,to the extent that they engage in historical analysis, these interpretersrely primarilyon the traditionalunderstandingof the original meaning of the writtenand oral Torah. But ratherthan looking to a wide range of authoritativecases to find that understandingin each particular area,rabbislook to a dispositive code containingconclusive interpretations of manyprovisionsof the Torah.138
That is certainly not to say that dynamic legal development, even for
the most traditional |
of the |
law, |
ended in the sixteenth |
century. |
interpreters |
|
|||
Indeed,rabbishave presentednew answersto a varietyof criticalquestions
through |
the |
These |
questions, however, |
often |
deal with new |
|
present.139 |
|
|
technology and other unique characteristicsof the modem world, and are
therefore |
beyond |
the |
scope |
of |
any |
other |
pre-moder |
The |
|
|
|
|
authority.140 |
complex answersto these questionsdo not offer a workableanalogy to the Court's treatment of historical evidence that challenges an established versionof history.Rather,they offer an analogyto originalists'treatmentof specific issues that were not even conceived of by the Framers, and
Biblical criticism has been its tendency to judge the ancient world by modem frames of reference.").
136.Ze'ev W. Falk,JewishReligiousLawin theModem(andPostmodern)World,11J.L.&
RELIGION465, 472 (1994-1995) (arguingthat traditionalJudaism"closes its eyes vis-a-vis biblicalandotherhistoricalcriticismof Judaismandopposesanyreformof Jewishlaw").
137.ROTH,supra note 118, at 106 (arguingthat legal developmentfor traditionalists essentiallyendswiththe ShulhanArukh);cf. EdwardFram,JewishLawfrom the ShulhanArukh
to the Enlightenment, in AN INTRODUCTIONTO THEHISTORYAND SOURCESOF JEWISHLAW,
supranote 128,at 359, 364-65 theShulhanArukh'sriseto dominancein Jewish (tracing law).
138. Cf. DORFF& ROSETT,supra note 111, at 394 (arguing that the codes in general and the
ShulhanArukh in particular"engenderedopposition to the genre" of collaborativelegal interpretation, thus effectively "freezing" the traditional halakhic process in a wide variety of areas).
139. See generally JONATHANSACKS,ARGUMENTSFORTHESAKEOFHEAVEN:EMERGING TRENDSIN TRADITIONALJUDAISM(1991) (describing conflicts among traditional scholars and changes in Jewish law).
140. E.g., MOSES FEINSTEIN,RESPONSAOF RAV MOSHE FEINSTEIN:CARE OF THE
CRITICALLYILL 111-17 (Moshe Dovid Tendler ed. & trans., 1996) (answering the question of whether emergency medical personnel may violate the laws of the Sabbath by driving and using electronic medical equipment).
152 |
The Yale Law Journal |
[Vol. 110: 121 |
thereforemust be addressedby referringto the Framers'broaderpurposes andvalues. These issues arenot the primaryconcernof this Note.
2. Jewish Progressives |
|
In contrastto theirtraditionalist |
modern |
counterparts,many |
progressive |
rabbis embrace scientific history without distinguishing between legally cognizable and extralegalhistoricalevidence. In their mind, "all empirical aspects of the Jewish past should become the legitimate object of modern
rational |
and that |
inquirynecessarily |
leads to a |
from |
|
inquiry,"141 |
|
departure |
Jewish law. The analogy between progressive rabbis and independentmindedoriginalistsis only workableinsofaras classical Reformthinkersin
particular,by subverting the rabbinic tradition,privilege the Bible over other texts and oral traditionswhile also grantingpost-biblicalgenerations equal interpretative authority over that one text.142The progressive,
however, is not a textualist in any sense; rather, he is committed to |
|
the Bible as a |
of ancientcivilizations.143Since |
understanding |
hybridproduct |
doing so leads him essentially to abandon the Jewish legal regime and
preserve only |
the |
broad moral |
teachings |
of the Jewish |
the |
|
|
|
|
tradition,l44 |
|||
analogy |
to constitutional |
is not workable. |
|
|||
|
|
interpretation |
|
|
||
3. An AlternativeApproach
Some rabbismight be classified as full-scale traditionalistsor full-scale
progressives, but the purpose of this Note is not to take any normative stance regardingJewish law itself. Many characteristicsof Jewish law that are not addressedhere, including its revelatoryorigins and its noncoercive character,would need to be considered before making any prescriptive judgmentaboutwhat rabbinicapproachis preferable.For the discussion of
141.Emil Fackenheim,Two Types of Reform:ReflectionsOccasionedby Hasidism, in
REFORMJUDAISM:A HISTORICALPERSPECTIVE458, 462 (Joseph L. Blau ed., 1973).
142.See AbrahamGeiger, Der Kampf christlicher Theologen gegen die burgerliche
Gleichstellung der Juden, namentlich mit Bezug auf Anton Theodor Hartmann, in
1 WISSENSCHAFTLICHEZEITSCHRIFTDER JUDISCHE THEOLOGIE349 (1835), quoted and
translatedin HARRIS,supra note 125, at 158 ("The principleof tradition,to which the entire talmudicandrabbinicliteratureowe theiremergence,... is the principlenot to be subservientto the lettersof theBible,butratherto continuouslygenerateanewin accordancewithits spiritand genuinereligiousconsciousnessthathaspenetratedthesynagogue.").
143. See generallyEmil G. Hirsch,ThePhilosophyof the ReformMovementin American Judaism,in REFORMJUDAISM:A HISTORICALPERSPECTIVE,supra note 141, at 24, 36-37 (arguingthat modem biblical criticismreveals the universalisticorigins and message of the Bible).
144. David Philipson, THEREFORMMOVEMENTIN JUDAISM356 (1931) (quoting Authentic
Reportof the Proceedingsof the RabbinicalConferenceHeld at Pittsburgh,Nov. 16, 17, 18, 1885, JEWISHREFORMER,Jan.15, 1886,at 4) ("We recognizein the Mosaiclegislationa system of trainingthe Jewishpeople for its missionduringits nationallife in Palestine,andto-daywe
acceptas bindingonlyits morallaws.").
2000] Historyas Precedent 153
the post-originalistproblem in American constitutionallaw, however, the most fruitful Jewish model lies with those rabbis who have gradually adopted a third approach, or a multitextual approach, to innovative historicalanalysis.
The multitextualapproachis inspiredby the work of individuals who acknowledgenew researchwithoutabandoninga fundamentalcommitment
to the Jewish legal regime. Following their traditionalist counterparts, rabbiswho use this approachareunconcernedwith biblical criticismandits
extralegal implications. Because they accept the authority of the legal regime for reasons beyond the historical accuracy of biblical history, the overarching scientific objections to Jewish law are outside the scope of
their |
RabbiJoel Roth |
explains |
the |
position succinctly: |
"Since in |
|
project.145 |
|
|
the halakhic system, as in all others, presupposing the existence of a grundnormrequiresa 'leap of faith,' the truthor falsity of the historical claims of the grundnormis legally irrelevant."46After dismissing the legal significance of historicalcriticism, however, a jurist like Roth does not go on to dismiss historicalanalysis altogether.Rather,he considers historical evidence that has ramifications within the legal system.'47For example, according to Roth, if a medieval rabbi rendereda decision based on the demonstrablyfalse presumptionthata Babylonianrabbiknew a Palestinian source, a modem rabbi could alter the decision.'48Like the protestant
originalist, |
he can revise the law based on an |
|
of a |
||
|
|
|
improvedunderstanding |
||
foundationaltext.'49 |
|
|
|
|
|
Yet rabbis like Roth do not simply embrace the independentimpulse |
|||||
displayed by Justice |
Souter's Seminole Tribe dissent. Like |
catholic |
|||
originalists, they will |
not bypass |
the tradition between the |
founding |
||
moment and the present, even if |
they believe that their independent |
||||
conclusions might sanction such boldness. Instead, their analysis is three- pronged. In additionto looking at the text itself and the currentscholarly accountof thattext, these rabbisalso rely on intermediatetexts, or previous legal decisions in which the original meaning of the foundationaltext is fully explicated. For some rabbis, the sixteenth-centuryShulhanArukhis the focal point of legal decisionmaking. For the rabbis that concern us,
145. E.g., ROTH,supranote 118, at 6-7 ("Fromthe fact thathistoricalsourcesare legally
insignificant,it follows thatthe demonstration scholarsthatthe truehistoricalsourcesof a by
given normaredifferentfromwhathadgenerallybeen assumedis an interestingrevelation,but
legallyinsignificant."). |
|
|
|
|
||
146. |
Id. at9. |
|
|
|
|
|
147. |
Id. at 10-12 |
|
thedistinctionbetweenhistorical |
to the |
legal system |
|
andhistorical |
(elucidating |
objections |
||||
withinthe |
law). |
|
|
|
||
|
argument |
|
|
|
||
148.Id. at370.
149.Id. at 374 ("Thenewlyrediscoveredpeshat[originalmeaning]of a legal sourcederived
from such evidencecan be called a historical-legalsource...."); see also HARRIS,supranote
125, at 262-63 (discussingthe workof DavidWeiss Halivni,who, like Roth,"offersa theoryof therestorationof theoriginalmeaningof thetextto resolvethereligiousproblem").
154 The Yale Law Journal [Vol. 110: 121
however, intermediate texts consist of the Shulhan Arukh and other privileged codes along with codes or opinions that dissent from the privileged codes and challenge the official exegesis of the Torah.150For these authorities, the Shulhan Arukh in particular, while deserving of
deference, should not |
necessarily spell |
the end of |
In |
|
|
legal development.151 |
short, a direct,unmediatedreturnto the writtenand oral law is too drastic, and for the reasons outlined above, potentially destabilizing. But a blind reliance on a canonical document with an official historical narrativeis
equally undesirable. |
|
|
|
||
In |
reaching |
a decision that |
from the traditional |
of |
|
|
|
departs |
understanding |
||
a foundational text, the authority employing the multitextual approach assesses that text itself from her own vantage point while also consulting
the |
authoritieswho have |
thattext.152When the best |
|
pre-modern |
interpreted |
contemporaryreadingof a text is complementedby a vigorous pre-modern readingthat was not ultimatelyaccepted by rabbinicauthorities,the law in question can be reexamined.On the other hand, when a new interpretation of a text that contradictsthe entrenchedhistorical narrativehas no firm
historical foundations, the interpretationcannot be incorporatedinto the law. Insofar as he engages in independentanalysis while also consulting and deferringto the establishedtraditionalunderstandingsof a legal text, the rabbi thus draws from both the protestant and catholic historical
approaches.
A numberof legal decisions from the modernrabbinictraditioncould serve as good examples of what has been called the multitextual
Rabbi Aaron H. Blumenthal's decision to discard the law as approach.'53
stated in the Shulhan Arukh and allow women to receive the honor of
blessing the Torah in front |
of the congregation |
is |
a relatively |
||||
150. Indeed,the ShulhanArukh,even |
to some traditionalist |
|
|
from |
|||
traditional |
in not |
|
according |
scholars,departs |
|||
|
note |
114, |
at 117. |
||||
practice |
recordingminorityopinions.Rosenweig,supra |
|
|
||||
151. Boaz Cohen, The Shulhan Arukh as a Guide for Religious Practice Today, in CONSERVATIVEJUDAISMANDJEWISHLAW, supra note 134, at 80, 86 (" [T]he Shulhan Arukh has no moreclaim to our unquestionedobediencethanthe MishnehTorahor the Semagor the Tur [otherearlymodemcodes] ....").
152. See, e.g., Aaron H. Blumenthal, An Aliyah for Women, in CONSERVATIVEJUDAISM AND
JEWISH supranote 134,at 266, 277-79 thatrabbismust"reversethe direction"of LAW, (arguing
the Halakhahin areas in which the Talmudand various pre-modernauthoritieshave been subjugatedto otherpre-modernauthorities).
153. For one excellent and straightforwardexample of this approach,see Philip Siegel,
Women in a Prayer Quorum, in CONSERVATIVEJUDAISM AND JEWISH LAW,supra note 134, at
282, in whichSiegel arguesthatthe decisionthatwomencouldnot be countedin a pre-modern
|
for |
was at odds with both the classicaland an alternative |
tradition. |
||||||||
quorum |
|
prayer |
|
|
|
|
pre-modem |
|
|||
A far more |
|
|
is Roth'sdecisionthatwomenshouldbe |
|
to become |
||||||
|
|
complicatedexample |
|
|
|
|
permitted |
|
|||
rabbis.Rotharguesthatif womencan |
observethosecommandmentsfromwhich |
they |
|||||||||
are |
|
|
|
|
voluntarily |
one of the |
|
|
|
|
|
|
|
andeven undertake |
|
|
|
to theirordination |
|||||
|
legallyexempt, |
|
legal obligations, |
objections |
|
||||||
dissolves.To makehis |
Rothdraws |
frombothmoder |
|
|
resourcesand |
||||||
|
|
|
|
argument, |
heavily |
|
|
scholarly |
|
||
medieval and early moder authorities. Joel Roth, On the Ordination of Women as Rabbis, in THE ORDINATIONOFWOMENAS RABBIS:STUDIESANDRESPONSA127 (Simon Greenberg ed.,
1988).
2000] |
Historyas Precedent |
|
155 |
|
|
To reach his |
decision, |
Blumenthal |
reinterprets |
straightforwardexample.154 |
|
|||
the two early rabbinicpassages on the subject with the aid of historical research,and then shows that intermediatetexts from the medieval period
point |
towarda traditional |
of the foundationaldocumentsthat |
understanding |
||
buttresshis result.155Blumenthalstartsby citing a rabbinictext quoted in
the Talmud that reads as follows: "Anyone may ascend for an aliyah... even a woman, but the sages have said that a woman shall not read in public because of the dignity of the congregation."156 An earlier version of the same authoritativetext, meanwhile, says: "Anyone may ascend for the seven honors[,] ... even a woman. One may not bring a woman to read in public." 157
Emphasizingthe qualificationin both texts, many pre-moder codifiers of the law read the texts to exclude women from making the blessing.158 Blumenthal, however, noting that "the positive, the granting of the
159 |
|
permission,must have had some relevance," |
engages in an independent |
inquiry. After canvassing the early rabbinictexts to uncover the original
meaning of the terms "dignity of the congregation"and "read in public," Blumenthalconcludes that the qualificationsin the texts were ultimately
secondaryto the positive grantsof permission.The term "read in public," Blumenthalshows, referredspecifically to reading the Torah itself rather than blessing the Torah-in which case the word "read" would have been used alone.160Moreover,the "dignity of the congregation,"which appears in the later text, demanded only that a woman from outside the
congregationnot be broughtin to read the Torah,thus humiliatingthe men
in the congregation.161
Blumenthal does not rely only on his own independentexegesis and research to reach his judgment; rather,he demonstratesthat pre-moder
authorities were themselves deeply split on |
the question at hand and, |
||
crucially, |
an alternativetraditional |
of the text |
complemented |
understanding |
|||
his own reinterpretation.The Ran, for example, a fourteenth-century
authority,also emphasizedthe grantof authorityin the text and interpreted the term "dignity of the congregation"to mean only that all seven of the
154.Blumenthal,supranote 152,at266.
155.Id. at 266-67 ("We shalltry... in a momentto discusswhatthistextmighthavemeant to the Tannaim[rabbisfromthe mishnaicperiod]in theirday,andto bringto it the commentsof
laterauthorities.").
156.BABYLONIANTALMUD, TRACTATE MEGILLA23a (Maurice Simon trans., The Soncino
Press1984).
157.TOSEFTAMEGILLA3, quoted in Blumenthal, supra note 152, at 269.
158.See Blumenthal,supranote 152, at 270-71 (citing a varietyof sources,includingthe ShulhanArukh,thatuse theclassicaltextas a basisfortheexclusionof women).
159.Id. at270.
160.Id. at270-71.
161.Id. at267-68,271.
156 |
The Yale Law Journal |
[Vol. 110: 121 |
blessings could not be said by women.162RabbiIsserles, meanwhile, whose codification of the law duringthe same period was enormouslyinfluential, reachedthe same conclusion.163In Blumenthal'sjudgment, the prohibitive posture of the stringent pre-modernauthorities constituted a misguided detour from the original and authentic legal narrative.64Because that narrativewas kept alive by authoritieswho were awareof andcommittedto
an alternativetradition,even if they were unable to provide Blumenthal's own decisive historical argument for that tradition, it could now be resuscitated.
VI. THE POST-ORIGINALISTPROBLEM: A PRELIMINARYRESPONSE
Part V outlined an interpretativeapproachused by individual rabbis that presents a coherent alternative to the approaches articulated in Seminole Tribe.That approachinvitesjudges to engage in a directexegesis of constitutionalprovisions while also drawingfrom the conclusions of the historianswho arebest situatedto uncoverthe originalmeaningof the text.
At the same time, however, except in the rare case of groundbreaking primaryevidence, it compels judges to consider pertinent and thorough
intermediate |
thus |
effectively limiting |
the |
of a |
texts, |
|
|
possible interpretations |
clause to those thathave been previouslyarticulated,thoughnot necessarily
by a majority.
This Part attempts to measure the substantive implications of the multitextual approach for originalism in constitutional law. Because historical analysis is only one element of most judicial decisions, even in cases thatultimatelyturnon the originalmeaningof a clause, it is difficult to discuss the implicationsof any historicalapproachprimarilyin terms of how cases ultimatelycome out. For example, even if every Justice on the Court believed that Marburyv. Madison was wrongly decided based on persuasive historical evidence, the Court would most likely uphold the decision based on stare decisis. Also, because originalism, despite its prominence,is not a dominantinterpretativemethod, and because even socalled originalists sometimes choose to privilege nonhistoricalmodes of interpretation,approaches to historical analysis can be irrelevant. For example, despite Justice Thomas's introductionof devastating historical evidence in Owatonna,the Courtavoided the historicalquestionaltogether. Nevertheless, since results in some cases rest to some extent on historical conclusions, a limited discussion of the analogy's implications for originalistsis possible.
162.Id. at271-72.
163.Id. at272.
164.Id. at279.
2000] Historyas Precedent 157
Fromthe point of view of a committedoriginalist,a judge who accepts the premises of originalismbut is faced with a recordof dense, historically oriented decisions has the potential to exert a dangerousinfluence on the common law of history in two ways. First, she can codify independent historical conclusions, thus ignoring the court's official history. Alternatively,she can blindlyrely on thathistory,thusexposing the courtto overbearing extralegal critique. The multitextual approach prevents the formerby limitingjudges' capacity to cast aside the historicalconclusions of theirpredecessorsin favor of their own independentlyderived historical conclusions. At the same time, the approachalso preventsthe latterbecause it allows judges to go beyond a single intermediatetext and reassess relevant documentary evidence when intermediate texts justify such reassessment.The approach,therefore,sets externalboundariesoutside of whichjudges riskunderminingessentialoriginalistgoals.
Two cases from the sovereign immunity context, both of which preceded Seminole Tribe, illustrate how the multitextual approach sets boundaries for originalists, and why those boundaries are useful. The potential pitfalls of a purely catholic historical approach are evident in Pennsylvania v. Union Gas Co.,165in which the Court sustained a statute passed under Congress's Commerce Clause authoritythat abrogatedstate sovereign immunity from particularenvironmentaldamage suits. Justice Brennan'smajorityopinion in Union Gas did not take a primarilyhistorical
approach. Indeed, Justice Brennan disposed of |
the extremely complex |
||
historicaldebate |
the EleventhAmendment |
simply by referring |
|
|
surrounding |
|
|
to Monaco v. Mississippi's166reliance on The Federalist No. 81, in which Hamiltonconceded that state sovereign immunitymight be limited when a limitationwas "in the plan of the convention."167The bulk of the historical
analysis in Union Gas was left to Justice Stevens's concurrence.Rather than revisiting any original sources, however, Justice Stevens assertedthat Justice Brennan's dissenting opinion in Atascadero State Hospital v. Scanlon,168 which contained an extended historical essay on the original
of |
sovereign immunity,"conclusively" |
settled the matter.169 |
understanding |
|
Yet Justice Brennan's dissenting opinion, after quoting a number of speeches from the ratificationperiod as well as The Federalist No. 81, could conclude only that "there was no firm consensus concerning the
165.491 U.S. 1 (1989).
166.292 U.S. 313 (1934).
167.Union Gas, 491 U.S. at 19 (quotingMonaco, 292 U.S. at 322-23 (quoting THE FEDERALISTNO. 81 (Alexander Hamilton))).
168.473 U.S. 234, 247 (1985)(Brennan,J.,dissenting).
169. UnionGas,491 U.S. at24 (Stevens,J., JusticeStevensalso notedthat"the concurring).
works of numerousscholars" |
JusticeBrennan'sconclusion.Id. at 24. |
Yet Stevens |
|
supported |
|
merelylisted a numberof articleswithoutmentioningthe manyarticlesthatreachthe opposite conclusionorexplicatinganyof theanalysisin even one article.
158 The Yale Law Journal [Vol. 110: 121
extent to which the judicial power of the United States extended to suits against States." 70 Although Justice Brennan went on to argue in the Atascaderodissentthatthe most plausiblereadingof the historicalevidence
permits the abrogationof state sovereign immunity, the opinion certainly did not "conclusively refute[]the contentionthatthe EleventhAmendment embodies a general grant of sovereign immunity,"17 as Justice Stevens claimed.
The weakness of the Union Gas concurrenceas a historical opinion, from the point of view of the multitextualapproach,is not that it relied on Justice Brennan's conclusions in Atascadero. Rather, as Justice Scalia
pointed out in his dissent,'72 it is that the opinion privileged one intermediatetext while also shunningthe wide arrayof primaryevidence
thatAtascadero and the |
many |
intermediatetexts |
preceding |
it |
to |
|
|
|
interpreted |
different ends. Beginning with Hans, which the Seminole Tribe Court would later resuscitate, the Court presented extensive documentary evidence to establish that "[a]ny such power as that of authorizingthe federal judiciary to entertain suits by individuals against the States, had been expressly disclaimed,and even resented,by the greatdefendersof the Constitution."73 Yet Justice Stevens declined to revisit Hans and its
progeny, choosing instead to rely on Justice Brennan's dissent in Atascadero and on a sweeping interpretationof the post-Hans case law,
accordingto which thatcase law was "premisedon a prudentialbalancing of state and federal interests" ratherthan on a particularreading of the EleventhAmendment.74In light of JusticeBrennan'sstructuraland textual
argumentsin favor of sustainingthe statutein question in Union Gas, it is unlikely that the case would have been decided differently had Justice Stevens employed a more complete historical approach.Nevertheless, the
Court would have been forced at the very least to give a richer historical |
|||
for its |
" |
fromestablishedlaw." |
75 |
|
|||
argument |
|
solitarydeparture |
|
Union Gas therefore exposes the potential risks of purely catholic historical analysis. Justice Brennan's dissent in Atascadero, meanwhile,
exposes the potentialrisks posed by the opposite extreme. In Atascadero,
170.Atascadero,473 U.S. at278 (Brennan,J.,dissenting).
171.UnionGas,491 U.S. at24 (Stevens,J., concurring).
172.In a display of catholic historical reasoning,Justice Scalia subjugatedhis own
independentanalysisto Hans'seven thoughtheyreachedthesameresult:
Evenif I werewrong,however,aboutthe originalmeaningof the Constitution,or the assumptionadoptedby the EleventhAmendment... it cannotpossiblybe deniedthat the questionis at least close. In that situation,the mere venerabilityof an answer consistently adhered to for almost a century, and the difficulty of changing... the
lawthathasbeenbasedon that |
|
|
|||
intervening |
in |
|
answer,stronglyargueagainsta change. |
||
Id. at34 (Scalia,J., |
and |
in |
|||
|
concurring |
part |
dissenting |
part)(emphasisadded). |
|
173.Hansv. Louisiana,134U.S. 1, 12(1890).
174.UnionGas,491 U.S. at28 n.3 (Stevens,J., concurring).
175.SeminoleTribev. Florida,517 U.S. 44, 66 (1996).
2000] Historyas Precedent 159
Justice Brennan contended that "[r]ecent research has discovered and collated substantialevidence thatthe Court'sconstitutionaldoctrineof state
sovereign immunityhas rested on a mistaken historicalpremise.... New evidence concerning the drafting and ratification of the original Constitutionindicates that the Framersnever intendedto constitutionalize
the doctrine of state sovereign immunity."76 Justice Brennan's "new evidence" was not made up of previously unknown primary sources, however, but of an array of academic articles that challenge Hans's history.177Using these articlesas a guide, JusticeBrennancited a varietyof primarysourcesto supporthis historicalconclusion, some of which already appearedin Hans and othercases. In doing so, he went directlyback to the Founding period, grounding his historical position primarilyin scholarly accountsof the Foundingthatwould soon be contested, and not in relevant intermediatetexts. Nevertheless,Justice Brennan'sthoroughlyindependent approachlaid the groundworkfor JusticeStevens's Union Gas concurrence, which used Atascadero to depart from Hans. The Seminole Tribe Court, therefore,was faced with the historicalreasoningof a protestantdissentthat was incorporatedinto the common law of history by a catholic majorityin Union Gas. Had Justice Brennan's original dissent begun its inquiry with the traditional understandings of the original meaning of sovereign immunity, the unwieldy historical dispute in Seminole Tribe might have been avoided.
In Union Gas and Atascadero, the multitextualapproachwould have constrainedJustices' historical analyses. But the approachguaranteesno particularresults. Even if judges employed historical argument to the exclusion of other forms of legal analysis and then constrained their historical analyses based on intermediatetexts, there is often room for substantial disagreement within intermediate traditions themselves. For example, in additionto all the independenthistorical argumentspresented in the Thorntonopinions, both sides still maintainedthat their historical conclusions were groundedin Powell. Ultimately,even within the confines of the multitextual approach, judges can reach different historical conclusions and must exert their own judgment about the available evidence. The multitextualapproach,therefore,just sets boundarieswithin which to reassess declared history. It does not offer a comprehensive historical method for originalists or a complete response to the post-
originalistproblem.
Whetheror notjudges employ the multitextualapproach,the analogyto Jewish law remainsuseful, for it invites critics of the Court'shistoryto look
176.AtascaderoState Hosp. v. Scanlon, 473 U.S. 234, 258-59 (1985) (Brennan,J., dissenting).
177.Id. at258 n. 1.