учебный год 2023 / history as precedent

at that history from an originalist's point of view ratherthan a historian's point of view. Using the rabbinic interpretativeframeworkas a starting point, studentsof the Court'sturnto historycan move away from the claim that Justices have mistaken the Framers' intent in a particulararea. That claim, made on its own, does not take into accountthe arrayof factorsthat influence originalistjudges, including the need for doctrinalstability after the turn to history and the fragility of particularhistorical conclusions. Meanwhile, the frameworkalso leads observers away from the claim that the common law of history becomes dangerouslysubjective and unstable wheneverjudges codify a revised historical conclusion. That claim, made on its own, rests on the unfoundedassumptionthat earlierjudges, even if they lived well afterthe Founding,had superiorknowledge of the Framers' intentions and a clearer understandingof their language. The multitextual approach,therefore, despite its limitations as a practical guide, promotes discussion of judicially generated history that acknowledges the tension

withinoriginalismbetween the protestantimpulse to the original reinterpret

text andthe catholic desireto yield to tradition.

VII. CONCLUSION

Michael Oakeshottdistinguishedbetween a "historicalattitude"toward the past, according to which "the past is not viewed in relation to the present,"and a "practicalattitude"towardthe past, which leads people "to read[] the past backwards."78 The originalistproject demandsthatjudges adopta practicalattitudetowardthe past, as it requiresthem to justify their

Yet judges compensatefor the limits of theirpracticalattitudeby deferring to historians, whose presumably historical attitude grants much-needed legitimacy to the declared historical narrative.Moreover, even as judges essentially codify historicalconclusions, they too try to adopt a "historical attitude,"for they frame theirresults as the productof detachedhistorical inquiriesratherthanas the startingpointfor those inquiries.

This Note arguedthat the attemptto combine the practicalapplication of historicalknowledge with a historical attitudetoward the past yields a particular problem. Simply put, the historical conclusions in judicial opinions sometimes become outdated, or at the very least questionable. Without taking any position on the merits of originalism as a theory of

the problemthatcan be extractedfrom recentSupremeCourtdecisions, but concluded that neither response is fully compatible with originalists' fundamentalgoals or actualjudicial practice.The Note then suggested that

178. OAKESHOTT,supra note 1, at 168-69.

2000] Historyas Precedent 161

Jewish law, which has long struggled with the post-originalistproblem,

rabbis,irrespectiveof its value within the Jewish traditionitself, might be used to define boundaries within which judges can reinterprethistory

withoutunderminingthe goals of the originalistproject.

Ultimately, the argumentof this Note relies to some extent on the

possibly naive assumptionthatoriginalistjudges, andrabbisfor thatmatter, modify theirhistoricalconclusions for historicalreasonsinsteadof working backwardsfrom desired results. Yet even if this assumption is in some

history, to criticism on originalists' own terms. Following Oakeshott,this Note does not deny that judges' use of history, even when it does not appearresults-oriented,will remainan "incursionof a practicalattitudeinto

the common law of history should be treated either as history or as precedent,andsuggests thatit can be treatedas somethingin between.

179. Id. at 176.