Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence

The use of history in law is a time honoured tradition. Over the years the practise has assumed many forms to include historicism, intentionalism, interpretivist history, law office history, historical narrative and originalism. History, Originalism, and the Constitution picks up where past commentators have left off in this time honoured debate. The book weighs and considers the different historically based approaches to adjudicating constitutional questions, particularly originalism and asserts that history in law is only legitimate if it leads to accurate results. History, Originalism, and the Constitution then proposes an approach to accomplish the objectives of historical accuracy, objectivity and therefore legitimacy. Known as the historical guidepost approach, it respects historical methodologies, places text and events in total historical context, is honest about what the evidentiary record does and does not provide, mitigates judicial mythmaking and applies history as more of a guide to legal reasoning than a strict outcome determinative tool.