Historicism, Originalism and the Constitution

The Use and Abuse of the Past in American Jurisprudence

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About the Book

The use of history in law is a time honored tradition. Over the years the practice has assumed many forms, including historicism, intentionalism, interpretivist history, law office history, historical narrative, originalism, etc. This book picks up where past commentators have left off. The different historically based approaches to adjudicating constitutional questions are weighed and considered, particularly originalism, and asserts that history in law is legitimate only if it leads to accurate results. The book then purposes an approach to accomplish the objectives of historical accuracy and objectivity, and therefore legitimacy.

About the Author(s)

Patrick J. Charles is an historian for Air Force Special Operations Command and the author of many articles and books on the Constitution, legal history, and standards of review. His writings have been cited by numerous federal circuit courts, and by the Supreme Court in McDonald v. City of Chicago. He lives in Silver Spring, Maryland.

Bibliographic Details

Patrick J. Charles
Format: softcover (6 x 9)
Pages: 272
Bibliographic Info: notes, bibliography, index
Copyright Date: 2014
pISBN: 978-0-7864-7931-3
eISBN: 978-1-4766-1515-8
Imprint: McFarland

Table of Contents

Table of Contents

Acknowledgments  ix
Preface  1
1. History in Law’s Dilemma: A Dialogue on History’s Role in Constitutional Interpretation  5
2. Historical Consciousness and the Law Considered  29
3. The Complexities of Constitutional Interpretation in the Late Eighteenth Century Considered  50
4. Historical Guideposts and Constitutional Interpretation  83
5. Historical Guideposts, the Second Amendment and Firearms Outside the Home  122
6. Historical Guideposts, the Fourteenth Amendment and Citizenship by Birth  148
Epilogue  185
Notes  191
Bibliography  233
Index  255

Book Reviews & Awards

  • “The past too easily becomes a political football, a pawn in contemporary political debates about law and history. Charles is keenly aware of the abuse of history by lawyers, but also the abuse of law by historians. History’s ‘dead hand,’ Charles argues, should be invoked carefully and judiciously. To his credit, Charles’s goal in this book is to improve the fraught dialogue between history and law.”—Robert J. Spitzer, SUNY Cortland, author of Saving the Constitution from Lawyers and The Politics of Gun Control
  • “A rich and searching account of how the past should shape the present that sheds new light on many of our generation’s most challenging constitutional problems.”—Gerard Magliocca, Samuel R. Rosen Professor of Law, Indiana University Robert H. McKinney School of Law
  • “In this thoughtful and ambitious book, Patrick Charles addresses some of the central questions in all of constitutional interpretation. Charles ‘historical guideposts’ approach simultaneously supports and challenges the positions of self-identified originalists and living constitutionalists alike. It represents a useful intervention in the ongoing debate between those camps.”—Joseph Blocher, Associate Professor of Law, Duke University.