development of the attitudes of Nordic judges in that respect.29 The differences in the Nordic legal cultures have constitutional as well as historical explanations. Regarding theUSconstitution Ronald Reagan’s attorney general EdwardMeese III argued in 1986 that the courts had to interpret the Constitution according to its “spirit” rather than its actual text. Meese argued for what he called a Jurisprudence of Original Intention that would bind judges to the original meaning of the text–what the words meant when they were written.30 Antonin Scalia has been a prominent representative for this textual approach to constitutional interpretation.31 This originalism, in a way a turn to history, has been used in the USSupreme Court by its conservative members.Legal historians, however, have outdated this form of originalism as unhistorical. In the late 1990s, the preeminent legal historianRobert W. Gordon at Stanford Law School constructed a model of historical argumentation withinUSconstitutionalism. He argued for three types of historical arguments in theUSSupreme Court: The static, the dynamic and the critical.32 The static argument is close to natural law argumentation. The arguments are, like The Ten Commandments, iterated from generation to generation. This is the originalist position. The dynamic historical argument is adjusting the interpretation of the constitution to new contexts. It has been expressed as living constitutionalismwhen the constitution is interpreted as a dynamic and evolving document and its history is related to the current societal values and context. The critical historical argument does not use history at all. One example of the critical historical argumentation is the caseBrown v. Board of Education 347US384 (1954), where Chief justice Earl Warren realized the only way to get an unanimous decision in the court was not to rely on history. 132 renaissance for legal history Historical legal argumentation 29 Martin Sunnqvist, Konstitutionellt kritiskt dömande. Förändringen av nordiska domares attityder under två sekel, Stockholm 2014. 30 Steven G. Calabresi, Originalism: A Quarter-Century of Debate, WashingtonD.C. 2007. 31 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, St.Paul 2012. 32 Robert W. Gordon, “The Historical Argument in American Legal Culture” in Kjell Å Modéer (ed.), Legal History in Change: The Olin Foundation for Legal History 50 Years, Stockholm2002.
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