A reply to Han
In his post today, Han disagrees with some big guns–Sandra Day O'Connor and George Nethercutt, Jr.–arguing against the importance of historical knowledge for legal, policy, and political philosophy questions. Alas, I'm with Sandy and Chip on this one.
As to the law, Han writes: “It doesn't seem to me that in order to understand the purpose and function of the Constitution someone also has to study the Philadelphia Convention of 1787.” Constitutional interpretation is not pure philosophical argumentation, even on interpretative theories that incorporate as much moral philosophy as possible into the process. What does the 5th Amendment's “due process” language guarantee? Can we figure this out without historical knowledge, by merely analyzing the words de novo?
First off, the phrase itself is historically contingent, a term of art as it were, with roots in the 14th century Magna Carta, and we need to examine this history, as the Founders understood it, to even begin to discern what protections the words deliver to Americans charged with crimes. Secondly, that many judges before us have grappled with the phrase's meaning is especially relevant for the rule of law, which depends upon the power of precedent, even if to a lesser degree in a Constitutional context. We don't want judges to redefine the entire Constitution every year.
This is not to say judges should be beholden to all precedent always or that however the Founders understood a term cements its definition forever. On liberal interpretative methodologies, we can take this historical knowledge, conclude that the term “due process” aims at certain goals and values, and then sit back and theorize more abstractly about their meaning. But we are still constrained by legal precedent to some degree, and we cannot reach this analytical point wit
hout knowledge of the term's origin, and its definition, as provided by the Founders and judges in the intervening centuries.
Fine, Han might reply, but Congress, unlike the Supreme Court is not constrained by history as a matter of legal principle, and history has little to offer when we sit down to determine our values, make new laws, and maybe even change the Constitution. Han writes:
Suppose, for example, that someone believes a bicameral legislature is not the optimal legislative system. Before she makes this judgment, must she also know the history of the Connecticut Compromise? If she is ignorant of this history, is her judgment somehow less valid?
This question is not one of constitutional interpretation, but of constitutional creation; it's more pure political philosophy. And here, Han implies, we should be guided by our reason and good arguments alone. I cannot disagree with that, but the past is probably the best place to find good philosophical arguments and to test our reason pragmatically.
We are not the first to consider these questions, and history provides us with tested abstract reasoning, which can test again ourselves. James Madison is good company when considering the topic of bicameralism. He's not the only company one ought to have and one ought to criticize him accordingly, but the best discussions of bicameralism would have him at the table. To deny him a seat smacks of arrogance.
More importantly, beyond the search for good philosophical arguments, history provides us with a laboratory for policy and political science. If we are convinced moral philosophy demands a certain policy, it's still a good idea to see if someone tried that policy before and it led to an unmitigated disaster, or otherwise.
And that means come down a floor in your ivory tower, Han, and read your darned history books with O'Connor and Nethercutt, Jr.! And get a job, too, hippie!