Historiography and constitutional adjudication
Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography - the critical study of how history is written, developed by professional historians - is relevant to constitutional...
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| Published in: | Modern law review Vol. 86; no. 3; pp. 629 - 658 |
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| Main Author: | |
| Format: | Journal Article |
| Language: | English |
| Published: |
Oxford
Blackwell Publishing Ltd
01-05-2023
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| Subjects: | |
| Online Access: | Get full text |
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| Summary: | Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography - the critical study of how history is written, developed by professional historians - is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation.But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources - particularly originalist ones - can and should be critiqued on historiographical grounds. These methods show that general historical sources are unlikely to generate precise and objective constitutional meaning but can be used to develop and constrain many constitutional arguments, including those concerning constitutional practice, purpose, or values. Historiographic methods are important for lawyers and judges seeking to critique or make constitutional arguments grounded on general history. |
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| Bibliography: | MODERN LAW REVIEW, Vol. 86, No. 3, Jun 2023, 629-658 Informit, Melbourne (Vic) Correction added on 23/11/2022, after first online publication: Projekt DEAL funding statement has been added. Associate Professor, University of Melbourne Law School. I would like to thank Lael Weis, Jeffrey Goldsworthy, Amalia Kessler, the anonymous reviewers for the Modern Law Review, and the members of the Comparative Constitutional Studies workshop for their valuable comments. All URLs were last accessed 3 October 2022. Open access publishing facilitated by The University of Melbourne, as part of the Wiley ‐ The University of Melbourne agreement via the Council of Australian University Librarians. |
| ISSN: | 0026-7961 1468-2230 |
| DOI: | 10.1111/1468-2230.12771 |