1. Incorporate Actual and Accepted Historical Works Into Your Scholarship. Citing only one or two works does nothing to help expand the scholarship on your topic. Include the landmark historical works in the general area. You can’t do a thorough examination of a topic without standing on the shoulders of those who have gone before.
2. When Incorporating Historical Works Into Your Scholarship, Diversify the Scholarship. In addition to citing the main scholarship on your topic, don’t neglect opposing points. Relying solely on one source limits the impact of your work and reveals bias. Legal scholarship is supposed to inform the legal community (and the world at large, by extension). Failure to diversify your research limits your success at doing so.
Instead of seeking to educate through responsible scholarship, legal scholars have continued to use law reviews as a jumping point for litigation. The assumption being that if their argument is published in a law review than it must be true! […] Perhaps the first lesson one learns in historical academia is that just because it is published it does not mean it is right.
3. Textualism is Not History. Charles points out that looking too closely at the meaning of language in the 18th century to glean what was intended by Founders misses that the language used (such as “freedom of the press“) were terms of art for a whole body of law, in statute and common law, that was created in the period and in the decades that followed. Further,
The founding generation did not walk around with Samuel Johnson’s dictionary. Indeed, dictionaries can help clarify meaning, but historical context is far more convincing.
Don’t forget the historical context in your search for meaning.
4. Think Outside 1787-1791. Legal scholarship shouldn’t consider the founding years in a vacuum. It didn’t happen in a vacuum, and it shouldn’t be interpreted in a vacuum.
[Legal scholars often] fail to consider that most of the protections in the Constitution were derived from earlier sources and doctrines. Not to mention, these doctrines evolved, sometimes over hundreds of years.
But, why limit ourselves with details and a review of English common law?
(h/t to Josh Blackman)