History as Advocacy
Historians commonly complain about the use of “law office” history in briefs or opinions. They point out, for example, that lawyers typically use historical materials selectively, fail to provide the necessary context for quotations about a given issue, or try to extract a conclusion from events or discussions that are messy and ambiguous.
Given this criticism, I am struck by the relatively new phenomenon of the “Brief by Historians” on behalf of a party in constitutional litigation (e.g., in the McDonald case). For those of you who have joined these briefs, I’m wondering if you’d like to use the comment thread to explain how you square joining such a brief with your role as a historian. My position is that I would never join such a brief — even if I agreed with the underlying legal position — because of the concerns noted in the prior paragraph.