Joel Jacobsen

"Historians have long winced at the crude ways that literary scholars and others have wrenched writings out of their historical contexts for aesthetic and other present-minded purposes." 

That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound.  It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.

In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists.  Lawyers and jurists do it all the time.  But we should never confuse these manipulations of the past for present purposes with doing history."

The use of that pretentious word "jurist" is one of Wood's few false steps.  Lawyers and judges do indeed ransack the past for present purposes all the time.   That's what "legal research" is.  You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle.  An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do.   (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)

 But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history.  I think we can now officially say that Justice Scalia is, historically speaking, delusional.

His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism.  Better yet, this ensures a steady stream of future injustices, which will help sales of my next book.  (See this unnumbered post.)  So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.

But viewed as history, Giles and its predecessor Crawford are ...  pathetic.  Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.

Though, of course, the kids are cute.  And, more important, they're trying. 

It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly  fatuous remark: "I am convinced that the Court's historical analysis is sound". 

 Here are some of the key elements of that sound historical analysis:

• The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established.  They aren't people but a vague abstraction.
  
• "The Framers" all thought exactly alike and had no disagreements about anything.
• "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
  
• Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion).  Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
  
• To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available.  For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web.   That would only complicate things and might not lead to the result you prefer.
  
• Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers.  Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later).  The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
  
• To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible. 
  
• Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence.  (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)  
• Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
• When it helps your argument, don't be afraid to make up evidence.  That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh.  (Here it is again.) 
  

I could go on, and I probably will in later posts, but it makes me feel like an impatient high school teacher.  But then, because I'm a softy, I'd probably give my 10th graders a do-over rather than flunking them all.  I'd say: "But this time, people" - I don't know exactly why high school teachers have to call their students "people," but apparently it's in the standard contract -- "I want to see some evidence of effort."