Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.
In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years.
In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact.
In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work.
If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.