Originalism has become the predominant form of constitutional interpretation in the Supreme Court, a rebuttal to the notion that the Constitution is a living document whose meaning evolves with the times.  “We are all originalists,” Justice Elena Kagan famously said at her confirmation hearing. There are various forms of originalism—some little different from the living Constitution theory—but all depend to some extent on understanding the historical milieu in which the Constitution was drafted and ratified. Yet jurists are not historians and do not have the time or resources to do original research. As one frustrated district judge recently complained, “[t]his Court is not a trained historian. … [y]et we are now expected to play historian in the name of constitutional adjudication.”  Not surprisingly, when playing historian, judges sometimes get it wrong.

A case now before the Supreme Court vividly demonstrates the problem.  It is Moore v. Harper, considered by the distinguished conservative former judge J. Michael Luttig to be “the most important case for American democracy” since the founding.  The case turns on the meaning of the Constitution’s requirement that “The Times, Places and Manner of holding Elections”—importantly including redistricting after the decennial census—“shall be prescribed in each State by the Legislature thereof.” The petitioners in Moore, members of the North Carolina General Assembly, argue that “Legislature” means the Legislature only, thereby excluding a role for the state courts in determining whether the Legislature’s redistricting laws comply with the state constitution. Their argument would effectively give state legislatures free rein over congressional elections without state court review.  But their argument turns on a major historical mistake.