Hermeneutics in History

Lawyers sometimes ask about the place of history in legal or constitutional interpretation. Historians typically ask a different question. The historians’ inquiry is more often about the place of a phenomenon, like interpretation in history, not vice versa. Constitutional interpretation is itself a historical practice, with particular, changing, and contingent political structures.

It is driven by relatively autonomous forces such as war, natural disaster, social mobilizations, migrations and exclusions, economic transformations, and more, all of which shape and condition lawyers’ interpretive projects. If we put interpretation in history, rather than the other way around, then interpretation and (by extension) constitutional meaning-making turn out to be many things. And here’s one virtue that observers from many different perspectives may be able to appreciate: putting interpretation in history offers us the chance to make sense of the fierce battles over immigration and citizenship that our present historical juncture seems to entail.