40 Pages

Clio and the Court: An Illicit Love Affair

WithAlfred H. Kelly

In a review article, Mark DeWolfe Howe delivered himself of a few trenchant comments upon the increasing tendency which certain Justices of the United States Supreme Court have exhibited to resort to the "historical method of adjudication." In short, in Professor Howe's opinion, the Court's recent historical "scholarship" is both simplistic and naive. Critical commentary upon the adequacy of the Justices' historical endeavors, from both within and without the Court, is nothing new. In 1923, constitutional historian Robert Livingston Schuyler observed sardonically, after quoting Madison's earlier doubts about the adequacy of the Court's reading of the past, that "unfortunately a knowledge of American history has not yet been made a prerequisite for admission to the Supreme Court." In one sense, as the foregoing criticisms all suggest, the Supreme Court has always used history. The nineteenth-century Court occasionally resorted to a second major historical technique, one far more significant for the time.