A Legal Historian’s Dilemma
This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event. The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.
A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines. Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues. When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine. If you don’t do that, then lawyers will often ask, “What’s the point of this?” If you do take this on, though, then those with a history training will say that you are doing law office history. I’ve never come up with a great solution to this problem,
I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.