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History isn’t what it used to be. Once the domain of bespectacled academics in dusty archives, it is now the tool of appellate judges who rely on the “intentions of the framers” of state and federal constitutions to justify cutting-edge legal doctrines that apply to distinctly modern problems. Decisions on issues ranging from the constitutionality of sodomy, gay marriage and anti-obscenity laws to the validity of caps in tort claim damages and limits on workers’ compensation benefits now are being decided by reference to what people 150 to 200 years ago thought their constitutions meant. Putting aside whether history should be the “pole star” of constitutional analysis, judges’ use of history is problematic: When judges act as historians, we tend to make a mess of things. Our research techniques are sloppy and our analytical methods would make professional historians cringe. In fact, historians have coined a term for it: “law office history.” It is not a compliment. Why do we judges do this? Because we are amateurs. Few of us are trained in the discipline of history. We tend not to understand the uncertain and contingent nature of historical analysis; we labor under a naive assumption that we may simply examine a few sources and pronounce it to be-as Leopold von Ranke, the father of modern “scientific” history, once said-”how it actually was.” We often do not fully appreciate the sensitive judgments that must be made in selecting and evaluating source materials and in establishing a reasonable basis for drawing inferences from those sources. We also lack time. Under the pressure of crushing caseloads, appellate courts may see the scrupulous approach to history, which we expect of academics, as a luxury that courts cannot afford. As a result, too many judicial opinions rely on methodological errors, sometimes leading to conclusions that professional historians would call foolish. Most commonly, we fail to do the necessary homework-i.e., examine original source materials. When we bother to, we often are unduly selective, failing to report sources at odds with conclusions expressed in our opinions. Or we are not selective enough, failing to evaluate the relative weight of our sources, and often failing to place them in historical context. We often rely on secondary sources, some of dubious reliability, including “coffee table” history books, popular literature and other judicial opinions. We draw generalizations from historical evidence-a process we justify as “distilling the essence” of the sources-without realizing that there really are no such essences; they are artificial creations expressed at a level of generality that are among many that may be consistent with the same sources. And, when we confront an inconvenient absence of sources, we rely on outright fictions to fill the gaps. As an example of the sort of “law office history” that historians decry, consider State v. Henry, a decision of the Oregon Supreme Court on the constitutionality of a law prohibiting distribution of “obscene” publications. The U.S. Supreme Court had already decided in United States v. Roth that obscene publications are not entitled to protection under the First Amendment, reasoning that the framers would not have understood obscene publications as constituting protected speech. At issue in Henry was whether obscene publications are protected under the Oregon Constitution. The court concluded that, as a matter of history, “most members of the [Oregon] Constitutional Convention of 1857 were rugged and robust individuals dedicated to founding a free society unfettered by the governmental imposition of some people’s view of morality on the free expression of others.” Indeed, “restrictions on sexually explicit and obscene expression between adults were not well established” by 1857, the court reckoned. But what about the history on which the high court had relied? The Oregon Supreme Court concluded that it simply was wrong. In support, the Oregon jurists relied primarily on secondary sources, three in particular: a constitutional law hornbook, a treatise on the law of obscenity (containing a four-page historical introduction) and a dissenting opinion of Justice William O. Douglas from another case. The Oregon court didn’t mention that by the outbreak of the Civil War, two-thirds of the states had enacted legislation prohibiting the distribution of obscene materials, particularly to minors. It also ignored the widespread regulation of sexual conduct and indecent exposure in the mid-19th century, reflected in statutes prohibiting public nudity and “obscene exhibitions.” Also missing was the rather substantial body of 19th century common law authorities regarding the offense of obscene libel. And the court’s conclusion did not square with an 1855 Oregon statute that prohibited the distribution of “obscene prints, pictures, figures or other descriptions, manifestly tending to the corruption of the morals of youth.” The court did not ignore the existence of the 1855 law, but declined to give it “much weight,” finding that its definition of “obscene” was insufficient and that it was directed primarily at protecting the youth. Whatever one may think about the regulation of obscenity, as a policy matter or its constitutionality, certainly there is more to its history than Henry reported. Herodotus would weep Take another example, this time of filling in historical gaps with fiction. In Golden Gateway Center v. Golden Gateway Tenants Ass’n, the California Supreme Court addressed whether that state’s constitution guaranteed the right of citizens to collect initiative petition signatures at private shopping centers. Did the state constitution’s free speech guarantees apply to private infringements on speech? The court examined the records of the 1849 California Constitutional Convention and came up empty-handed, the California framers having adopted the free speech provision with no debate. Undeterred, the court simply declared that the debates gave “no indication that the framers wished to guard against private infringements on speech.” Of course, the debates gave no indication to the contrary, either. But the court didn’t stop there. It pointed out that many of the framers of the 1849 constitution were transplanted New Yorkers, who no doubt had borrowed the phrasing from the New York Constitution of 1821. The court then relied on a 1985 New York case that discussed the New York framers’ intent (concluding that there was no intent to protect against private infringement on free speech). The California court concluded: “Because the framers of the California Constitution adopted New York’s free speech clause almost verbatim, we reasonably conclude that they had the same intent as their New York counterparts.” Did the California framers even know about the alleged intentions of their New York predecessors, or intend to duplicate them? There the court did not tread. To the contrary, it filled this historical gap by citing a convenient canon of statutory construction. To say the least, this is not history in the usual sense at all. If we judges presume to ascertain what the framers intended, we must be committed to doing it right. To do otherwise, we risk the charge that our constitutional analyses lacks legitimacy-and that’s no way to go down in history. Jack L. Landau is a judge on the Oregon Court of Appeals. This is adapted from his article in the Spring 2004 issue of the Valparaiso University Law Review.

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