History in Law, Mythmaking, and Constitutional Legitimacy - Symposium: History and Meaning of the Constitution
What truly separates an historical inquiry, however, from an originalist inquiry is the degree by which myth consumes fact. Certainly, regardless of whether one is performing an historical or originalist inquiry, the methodological process takes part in generating myth. In terms of where the respective inquiries are to be placed on the spectrum of constitutional mythmaking, however, the standard historical inquiry is far less likely to engage in the process than its originalist counterpart. This is mainly because originalism is not so much about reasoning from known historical truths, but instead about recreating a hypothetical expected legal application of how a hypothetical reasonable interpreter understood legal text at a particular point in time. It does not help matters when originalists ignore how one legal text or doctrine connects intimately with others. One cannot take those portions of a legal past he or she agrees with, discard the others, and proclaim constitutional objectivity and, therefore, constitutional legitimacy. This is not to say that there are not instances where to legally reason from historical myth is constitutionally legitimate. As was outlined in Part II, there are a number of instances where a law or constitutional provision was enacted or ratified with a false historical narrative in mind. In such cases there is nothing wrong with relying on a mythical construct of the past when legally reasoning. Still, the interpreter should proceed cautiously because even in these instances the mythical construct has historical limitations.
Patrick J. Charles,
History in Law, Mythmaking, and Constitutional Legitimacy - Symposium: History and Meaning of the Constitution,
63 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol63/iss1/6