Forums

[Tyrone Slothrop]

Originally Posted by Greedy,Greedy,Greedy

There is no end to discussion of historical context in statutory interpretation, whether because of some "originalist" approach to understanding the constitution or a desire to understand what was meant when a statute was adopted and language of the statute was written. Half the court and many of their clerks were history majors, but they all really suck at this part of the job. I think it's because of how we train lawyers. Lawyers think of the historical record as a tool for making the arguments that benefit their clients, which is exactly the way you don't want to approach a real understanding of history.

These discussions regularly have an impact on how a court reads a statute.

Is there an example of a Supreme Court decision where the majority and minority differed on a straight historical question? I don't recall ever having seen one. They would take the history more seriously if it actually mattered.