The thesis of this Essay is that our use of history is as essential and unavoidable as conclusive answers are irretrievable. Irretrievability exists whether the historical reality sought results from a survey of traditional historical materials in an effort to recapture original understanding, or from a common-law effort to discover the Court's own history of an issue. In either case, however, the need to attempt to recover historical truths is perceived as essential. I subscribe, for the most part, to the contextualist premise that we cannot recover sufficient historical data on issues that matter to make history determinate in the solution of current legal problems. "Issues that matter" is a key limitation. It is no doubt true that on most issues, most of the time, a kind of public professional consensus exists. As a practical matter, we could not tolerate a situation in -which all issues are disputed. Those cases that arouse public and professional passion, that cause us to appraise and reappraise the Court's legitimacy, such as Roe v. Wade, Griswold v. Connecticut, and Brown v. Board of Education, the betes noires of the right, or Bowers v. Hardwick, and Webster v. Reproductive Health Services, on the left, are rarely susceptible to resolution along unambiguous, historically determinate, shared principles.
Although we may desire historically determinate answers, at least on some issues, that is out of the question: the past stubbornly eludes our best efforts at recapture. Our second choice may be to isolate historical trends that are sufficient to solve the present problem and allow us to feel confident about the future effect of today's disputable decision. That option, too, is highly controversial; difficulties include the tendency to confuse historical cause and effect, which undermines our confidence in the endeavor, and the impossibility of prediction. We use history, then, as a third best choice: to reduce the cognitive dissonance-post-decisional psychological tension--created by today's decision, to "prove" that that decision is rooted in the past and to provide a necessary link between a past without the current decision and the future as affected by it. The need for such proof and such links is an inescapable demand we place on ourselves.
This Essay is about cognitive dissonance theory and historical continuity. The question that inspired this Essay is a simple one: How can the justices, in the course of deciding two issues from the same jurisprudential genre, examine and reexamine the same historical setting-the framers' vision of the political theory that underlay the Constitution and, at least from the historians' viewpoint, come away with embarrassingly contradictory conclusions? What did they do with their old notecards, their old precedents? The search for an answer to this question led me to consider the work of cognitive dissonance theorists.
This Essay begins with an archetypal example of the Supreme Court's apparently careless use of history. The example is purposefully drawn, not from the emotionally wrenching jurisprudence of fundamental rights, but from the more sober jurisprudence of political theory, namely, separation of powers. Part II highlights the recent historiography of law and history to describe the ineradicable problems with our first and second best choices-the search for historical determinacy and the identification of historical trends. Part III discusses cognitive dissonance theory and analyzes Bowsher v. Synar under this view. The Essay concludes that the current debate about the instrumental use of history in law is both healthy and misguided: healthy because the debate draws our attention to a much used (and misused) methodology; misguided because its premises are oblivious to the psychological demand that the game go on. When the debate overlooks this point, it prevents us from pursuing two more fruitful endeavors: learning to use history more precisely and understanding the legitimate, if attenuated, role that it can play in resolving persistent legal disputes.
Theodore Y. Blumoff, The Third Best Choice: An Essay on Law and History, 41 Hastings L.J. 537 (1990).