Document Type


Publication Title

Harvard Journal of Law & Public Policy


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 and the ideo-logical outcome of the case more broadly. On average, we find evidence to suggest that the Justices are more likely to vote against their political priors when using secondary sources—predominantly, historical characterizations of the Convention in previous cases—and more likely to vote along ideological lines when relying only on primary sources. Further, our results suggest a Justice’s ideology alone provides an incomplete picture of judicial behavior.

This Article vindicates and challenges the major previous study, nuancing its findings by demonstrating that the constraint of history likely turns on the type of historical source that a Justice relies upon and challenges the assumption that only political preference matters in explaining case outcomes. Further, our evidence indicates that history matters and may even be called our law, though it requires a reckoning of how primary sources have been used and manipulated, calling for more transparent, humble, and deeper engagement with the historical record through expanded tools and training.

First Page


Last Page


Publication Date

Spring 2023


College of Law



Suggested Citation

Lorianne Updike Toler, The Constraint of History, 46 Harv. J. L. & Pub. Pol'y 457 (2023).

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