Those who do not understand civil procedure are condemned to repeat it.
So far as I know, I have never had a student who wanted to repeat civil procedure, or any other course that I taught. The person who warned us about history was suggesting, in a broader sense, that if you really understood the past, you would not want to do it over again. Rather, you would appreciate that in every field of human endeavor we try to stand on the shoulders of those who have gone before, so that we can see farther and maybe do better.
But now there are people telling us that we should seek out and follow the "original understanding" of two hundred years ago. They advance different reasons for doing this. Some say that this is the way the framers wanted us to behave. Others tell us that this is the way that lawyers solve problems, by tracing back to the most authentic precedent they can find and applying it. Still others tell us that only by revisiting the constitutional text, debates, and history can we truly understand the frame of government that was erected for us to dwell in. In this essay I will explain why I reject the first two of these contentions, and embrace the third tentatively and reluctantly, like a porcupine on a hot date.
Tigar, Michael E.
"Original Understanding and the Constitution,"
Akron Law Review: Vol. 22
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol22/iss1/1