Debate about the relevance of history to current interpretation of the law has a long and colorful history of its own. Now, the resignation from the Supreme Court of Justice William Brennan, an outspoken proponent of constitutional flexibility, is bound to stimulate renewed interest in the subject. With his replacement by Justice David Souter, there is a strong possibility that the Court will shift toward a relatively "stricter," more "historical" interpretation of the United States Constitution and away from "judicial legislation."' In this short review of the subject, I shall attempt to explore some of the pragmatic policy considerations that are too often glossed over in the debate. My interest is occasioned in part by Professor Raoul Berger's preceding description of the circumstances surrounding the passage of the fourteenth amendment to the Constitution.2 In many ways his analysis is compelling. It is clear that he has discovered a portion of the historical truth about the events that shaped the amendment and has illuminated the sometimes narrow intentions of its drafters. In this respect, his comments are a welcome addition to our understanding of the Constitution, though this is perhaps not surprising, given the high standard set in his previous efforts.'Professor Berger's description of the historical setting of the fourteenth amendment might have profound implications for the present, however, if that setting controlled current interpretation of the amendment. For example, judicial attitudes toward a constitutional requirement of affirmative action as a remedy for the consequences of past racial discrimination would be substantially affected if the courts considered themselves bound to construe the amendment exactly as its drafters would have more than a century ago.4 Many other constitutional issues of contemporary significance might similarly turn on the stated relevance of the historical record, especially of the 1780s and 1860s, when most of the Constitution and its amendments were written.5 In his article, Berger does not pursue such questions. He confines himself largely to a review of the historical evidence itself and does not presume to suggest what should follow from his account for such matters as judicially-imposed affirmative action. Nor does he discuss more generally what the role of the courts should be in our system of government and whether that role should properly be limited to what was envisioned by the founders.6 It is this last point that I wish to address. My focus will be on the degree to which history should constrain the federal courts in their interpretation of the Constitution. 7 This will necessarily entail discussion of the proper role of the courts as a part of government, which will lead to review of the basic constitutional doctrines of federalism and separation of powers and, in turn, the question whether these doctrines should themselves be understood primarily in terms of their original meanings or more with reference to the perceived requirements of modern governmental structure. I shall not undertake to assess the accuracy of Professor Berger's portrayal of history, a matter that I am not qualified to review, nor to deal with affirmative action or any other substantive issue. Instead, the only questions considered will be the role of the courts and the degree to which they should be bound by what they find to have been the "original intent" of the founders or the drafters of the Constitution. 8 Of course, these are topics of lively debate. In reviewing that debate, it must be noted at the outset that the arguments made on both sides of the issue may sometimes be result-oriented rather than entirely principled. For example, those who discover a happy coincidence of views with the founders on particular substantive issues will be tempted to agree that the courts should be bound by history, just to take advantage of this fortuitous circumstance. The same may be said for the position of some that the courts should adhere exactly to original understandings about the doctrines of federalism and separation of powers: this may reflect nothing more than the opinion that contemporary courts have been contributors to an unfortunate centralization of government or that courts are simply becoming too powerful in general, that they are making too many policy decisions best left to others in government. There is ample historical evidence that the present position of the courts is not what the founders anticipated, and, accordingly, those who believe that there should now be a roll back of judicial authority find it hard to resist calling for a return to the original design. Likewise, the attitudes of those who favor the position that the courts should not be particularly bound by the founders' intent may be driven, disingenuously, by positions on other issues.9 Those who have serious reservations about the founders' views on constitutional issues are predictably reluctant to champion the virtues of following original intent. Notwithstanding the skepticism sometimes engendered by the debate about original intent and the proper role of the courts, there are many perfectly legitimate arguments favoring both sides of the question. The discussion below initially considers and criticizes two of these arguments that courts should defer to the views of the founders out of respect for their wisdom and in the interest of preserving desirable certainty and stability in the law. It then broadens into more general consideration of the proper status of the courts under the principles of federalism and separation of powers. I argue that these issues are greatly complicated by changes occuring in the way the other branches of government carry out their constitutional duties, so that to return the courts to their status as originally conceived might radically alter government as we have come to know it. Moreover, because of the pace of some of the changes in the actual operation of all the branches, a general reassessment of the whole structure of government may be in order. All of this makes it more imperative than ever that there be a completely open, unrestrained dialogue about what the role of the courts should be. My conclusion is not startling. It is simply that the appropriate role of the courts is only a question of degree and that the times call for thoughtful moderation and rejection of all extreme positions. Thus, to some extent, constitutional law should be informed by history. Judges should not follow only their own policy predilections in deciding constitutional cases; they should not emulate critics who approach a work of literature purely on its own terms, without regard to its context or the designs of its creator. At the same time, however, it would be a serious mistake to condition the meaning of the Constitution exclusively on historical analysis. There are too many open and critical questions about the allocation of authority within the federal government to allow us to look only backwards for solutions. In short, courts should steer a course between casual disregard of the founders' views and rigid subservience to them. In making decisions on constitutional matters, they should neither disdain the lessons of history nor lose sight of current policy requirements. Just as important, the rest of us must not ignore the pressing needs and realities of government as we debate the role of the courts under the doctrines of federalism and separation of powers.
