Ryan Moore '25
Law Weekly Historian
When I first came to law school, I did not truly understand what judges did.[1] Sure, judges settle disputes, but how exactly does a judge decide what is right and who should lose? Magic?[2] Reading pig entrails?[3] Their own personal views?[4] All were equally plausible to a 29-year-old me listening to Dean Dugas’s orientation PSA about the Bar Exam’s Character and Fitness requirements.
During law school, my professors focused extensively on discussing “why” a case came out the way it did. We spent hours each week going through a court’s “output”: what was the black letter law from the case, and how did the court justify its reasoning. But comparatively less time was spent discussing the court’s “input”: what arguments the advocates made to shape the court’s thinking on the matter, and what arguments the judge(s) found most persuasive. When I began my 1L summer job, I was surprised to learn how much time the Fairfax County Public Defender’s Office spent researching the ins and outs of each judge their clients appeared before. “What arguments will this judge buy?” “What aspects of my client’s history should I emphasize?” “Is it smart to seek bond on Thursday if [judge redacted] is the one considering my motion, and they tend to deny bond for drug crimes?” By knowing the judge, the lawyer knew which arguments to present.
This is an extremely long-winded (and word-padding) lead-in to my coverage of the Federalist Society’s 5th annual symposium, History At Work: Text, History, and Tradition Applied, held on April 5. The event began at 8:00 a.m. on a Friday. You read that right: 8:00 a.m. on a Friday. Can you believe I got up that early just to cover an event for Law Weekly? Because I did not; I blew through all four of my alarms. I missed the free coffee and pastries from 8:00-8:30 a.m. I missed the first panel discussion on Text, History, and Tradition on Bruen’s Second Birthday, featuring my free food table buddy,[5] Professor Frederick Schauer. I missed Post-Ratification History and Liquidation. I missed the free lunch catered from Mezeh, although I did eventually collect some scraps.[6]
I even missed the event I was most excited for: Judging History: A Look into Chambers, with Professor Rachel Bayefsky and Judge Joan L. Larsen of the Sixth Circuit. I had so many questions. What does text, history, and tradition mean in practice? How do judges most effectively use history? What do judges do when history is unclear, or contradictory? Whose history counts? Also, “text” and “history” both make sense, but what does “tradition” cover separate from “history”? These are all really great questions, and extremely relevant given the current makeup of the Court and its love affair with private jets text, history, and tradition. And I would have known the answer to them if I had made it on time.
By the time I slinked into Caplin Auditorium at 1:10 p.m. for the 1:00 p.m. Which History: Originalist Debates in Incorporation panel, I was kicking myself for missing the good stuff. After all, everything but two parts of the Bill of Rights have already been incorporated against the states, what else was there to discuss?
I shortly realized how wrong I was, as the talk lead by Professor Julia Mahoney[7] and Professor Kurt Lash of the University of Richmond School of Law, expanded from a discussion of incorporation into a wide-ranging summary of the day’s events that addressed a number of my earlier questions. The panelists began their remarks by noting that while history is enlightening, it can easily be misused. So-called “law office history” is open to abuse, as advocates selectively parse the historical record only for facts supportive of their side. Professor Mahoney cited the Court’s reasoning in Dred Scott[8] as a good example of this misuse of history.
Professor Mahoney then laid out her argument for a three-part approach to applying history to legal analysis. First, history can act as legal authority. The idea is that through a careful examination of the historical record and reasoning by analogy, judges can arrive at “right” or “wrong” answers, and “better” or “worse” outcomes. This is, in Mahoney’s words, currently “where the action is.” Second, history can serve as guidance to judges. Third, history is inspiration.
Mahoney cites Tyler v. Hennepin County[9] as highlighting this three-part approach. Applying history as authority, the Court arguably could have found for Minnesota. Statutes authorizing the state to sell a home subject to a tax-lien and keep the post-lien equity (“home equity theft” as its detractors refer to it) are well-rooted in history. While certainly a minority rule applicable in just about eight states, the statutes date back to the New Deal era, if not before. If home equity theft was a longstanding, legitimate practice, how could the practice become illegitimate and unconstitutional over time absent a constitutional amendment?
In response, Mahoney argues that the Court then applied history as guidance, and to some extent, as inspiration. The Court looked back to the Magna Carta and its notions of the protection of private property. After establishing these principles, guided and inspired from this country’s English legal tradition, the Court ruled unanimously for the homeowner. But Professors Mahoney and Lash ended their talk by warning that the use of history as authority is often wrongly defended as a constraint on judges. For example, American history has tolerated significant restrictions on the freedom of speech that are draconian to our modern conception of the First Amendment. The Founding generation, with its lofty rhetoric about freedom of speech and the press, also brought us the Alien and Sedition Acts, after all.
tq77zz@virginia.edu
[1] Honestly, I probably still don’t.
[2] Cold.
[3] Warmer.
[4] Hot! See Dobbs v. Jackson Women's Health Organization, 597 U.S. ___, (2022).
[5] First, can I call a law professor “buddy,” or should I wait until after graduation? Second, do you think he remembers the three times we have randomly met at the free food table?
[6] No Professor Schauer in sight.
[7] Who I swear I am still doing RA work for. I’ll have a draft to send you soon!
[8] Dred Scott v. Sandford, 60 U.S. 393 (1857).
[9] Tyler v. Hennepin Cnty., 598 U.S. 631 (2023).
