The Use of History in Court Cases

The Supreme Court has recently adopted a jurisprudence giving “history and tradition” a central role in its constitutional decision-making. Cases involving the Second Amendment, affirmative action, redistricting, and Religion Clause now turn on inquiries about British and American history that run as far back as the 14^th century. Historians have their own methods for formulating and resolving problems that often diverge from the types of questions that lawyers and judges seek to answer during this new mode of constitutional litigation. As a result, the question of exactly how historians should engage legal issues, and how judges and lawyers should assess and apply historians’ contributions, has become a matter of significant interest and controversy. In this panel, we will discuss the variety of problems these interactions have raised.