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The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo
The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo
College of Law Faculty Publications
Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of all cases referencing the Constitutional Convention provides evidence that history can constrain judicial interpretation of the Constitution.
As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes …