DATABASE REVIEW
Historians Challenge the Supreme Court’s Historical Errors
by Mick O'Leary
The Historians Council on the Constitution
SYNOPSIS
The Historians Council on the Constitution (brennancenter.org/historians-council-constitution) is a recently formed program of the progressive Brennan Center for Justice (brennancenter.org), with the intent to publicize and correct errors by the U.S. Supreme Court in its interpretations of American history. The council produces magazine articles, analytical reports, and amicus briefs, which are all available
on the Brennan Center for Justice site.
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If you’ve followed U.S. politics in recent years, you might well think that you are in a long and highly contentious seminar on U.S. constitutional history and the Supreme Court. The Supreme Court has always been at the center of legal attention and controversy, and rightly so: As the apex of the nation’s judiciary, its job is to take up the toughest and most consequential cases. However, in the past few years, the Supreme Court’s authority and judgment have come under intense scrutiny. The political culture of the country itself has become increasingly polarized, with both sides more reluctant to accept decisions that don’t go their way. The legitimacy of the court is under fire for its current makeup because with six justices who are avowed conservatives, the notion that there might be some sort of equitable judicial “balance” from the court is in serious doubt. Additionally, the legal battles that are swirling around ex-president Donald Trump rattle the basic tenets of American justice.
A NEW COUNCIL
While mulling over this disturbing turmoil, I came across a report on a new research organization, the Historians Council on the Constitution. The title alone was intriguing and, as I read further, I learned that it’s a project of the Brennan Center for Justice, giving it immediate legitimacy (more on that later). The Historians Council on the Constitution was founded to counter the Supreme Court’s faulty interpretations and applications of U.S. history arising from adherence to the legal doctrine of originalism. The council was announced on Jan. 17, 2024. Its members include 18 prominent historians of American history who have expertise from the colonial period to the present.
Originalism holds that the Constitution must be interpreted strictly as written and in accordance with the “original” intent of its late-18th-century framers. The theory is espoused in conservative legal circles and is an interpretive lens for the court’s conservative majority. (I don’t get it. If the framers wanted the Constitution to be forever inviolate, then why did they include Article V, which allows for it to be amended? And as soon as the document was finished, the first thing they did was add a bunch of amendments known as the Bill of Rights.)
THE CHEVRON DEFERENCE
The Historians Council on the Constitution went right to work, producing articles, analyses, and amicus briefs that present the truths of American legal history in response to the historical misinterpretations of the Supreme Court. An October 2023 article in Newsweek , “This Supreme Court’s ‘Originalism’ Doesn’t Have Much to Do With History,” points out that originalism is a partisan legal doctrine, rather than an accurate historical interpretation. Furthermore, the Constitution itself was controversial from the start, with no uniform agreement on its “original” intent.
The council cites an amicus brief in Relentless, Inc. v. Department of Commerce from January 2024 that undermines challenges to the Chevron deference. The Chevron deference supports the delegation of judicial powers from federal courts to the independent federal agencies on the notion that they are better equipped to handle the complex technical issues involved. The amicus brief explains that judicial deference to agency decision-making authority is long-standing and has been widely practiced. (Note: An amicus brief can be rife with legalese. Fortunately, the Historians Council on the Constitution and the Brennan Center for Justice accompany their briefs with a helpful summary in plain English.)
THE COUNCIL VS. THE IMMUNE PRESIDENT
In the wake of Trump’s legal entanglements, another once-marginal doctrine has reached center stage: the notion that the U.S. president is immune from prosecution for any criminal acts. This position devolves into a legal morass. Current or former president? Official or non-official actions? Before or after impeachment and conviction? Trump’s attorneys, not surprisingly, argued for the extreme immunity side of the argument.
The Historians Council on the Constitution has aggressively attacked the notion. Its members argue that the concept of a ruler above the law—a monarch (think George III)—is thoroughly antithetical to the emergent American system that gave primacy to the rule of law. In an amicus brief in Trump v. United States , the council points out—contrary to Trump’s defenders—that the expectation that a president could be prosecuted for criminal offenses was widely accepted by the founding fathers.
BRENNAN CENTER FOR JUSTICE
It’s no surprise that the Brennan Center for Justice should be responding so quickly and forcefully to these examples of constitutional malpractice. William J. Brennan Jr. was an associate Supreme Court justice from 1956 until 1990, spanning the Warren and Rehnquist courts. He was a leading figure in the expansion of individual rights during the Warren Court and wrote several of its landmark opinions. In 1995, former clerks for Brennan established the Brennan Center for Justice at New York University (NYU) School of Law, with a mission “to build an America that is democratic, just, and free—for all.”
The Brennan Center for Justice has grown to be a large and influential policy and advocacy organization, with a staff of 130 attorneys, scholars, and journalists. It is a 501(c)(3) nonprofit that is supported by donor contributions and has a budget of approximately $27 million. Its association with NYU School of Law enables NYU faculty and students to participate in Brennan Center for Justice projects.
AT ISSUE AT THE BRENNAN CENTER FOR JUSTICE
The Brennan Center for Justice has established nine major Issues, or program areas, dealing with different justice-related themes, including individual rights, voting and election integrity, and assuring fair government and judicial practices. Each Issue is divided into two to five sub-Issues. The work of the Historians Council on the Constitution falls under the Issue called Strengthen Our Courts, in the sub-Issue of History & the Constitution, focusing on how the Supreme Court’s flawed use of history is imperiling democracy.
Each of these Issues is supported by an energetic public information effort, fueled by a prolific supply of research papers, magazine articles, and amicus briefs. The Historians Council on the Constitution section already has seven documents. The Brennan Center for Justice maintains an archive with almost 10,000 sources. The collection includes the center’s earliest works and is updated several times weekly. It is full-text searchable and browsable by Resource Type, Issue, and Author.
RAPID RESPONSE FROM THE BRENNAN CENTER FOR JUSTICE
The Brennan Center for Justice’s rapid response to the Supreme Court’s dealings with originalism and presidential immunity is typical. The center has a keen eye for emergent threats and a nimble ability to quickly develop thoroughly researched and well-argued responses. In the first 4 months of 2024 alone, the center released more than 400 sources across the broad range of its Issues.
From explaining 18th-century debates to ringing alarms about AI’s corrosive effects on the electoral process, the Brennan Center for Justice wants to get the word out: “Truly effective legal and policy change requires winning, first and foremost, in the court of public opinion.”
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Mick O’Leary has been reviewing databases
and websites for Information Today since
1987.
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