Here's my abstract for a new paper:
Law as Public History: How Supreme Court Opinions, Like Historical Monuments, Enable Visions of the Past to Shape the Future
"Public history" is variously defined, but it is the field of museum curators and designers of historic sites. It has been called "A process for making the public aware of the value, uses, and pleasures of history and to engage the public in historical activities." Interpretations of history are necessarily embodied in public history works, as is clear from the steps of the triumphalist World War II Memorial on the Washington Mall. Battles over historical interpretation affect public history, as in the controversy that erupted when a planned display at the National Air and Space Museum of the Enola Gay, the airplane that dropped an atomic bomb on Hiroshima, was to include information about the impact of the bomb on Hiroshima’s residents. The reason that public history is so often fraught with controversy is that all know that our understandings of the past (the goodness of wars, the greatness of our leaders) affects the way we think about present policies and politics.
When judges draw upon the past, law becomes a form of public history. Judges, like public historians, create monuments that embody an interpretation of the nation’s past. Some judicial opinions reinterpret the past as a way of justifying a new direction in law, or to present what appears as a doctrinal innovation as, instead, a continuity. Judges face interpretive challenges, needing to see the past in a way that fits current needs. While many public historians strive to present a range of interpretations, this is often lost in the magisterial public memorial, like the World War II Memorial, lacking the pathos of the Vietnam Memorial, or even the haunting quality of the memorial for the Korean War. History is often flattened this way when invoked to serve legal needs, as is illustrated most starkly in the 2007 Supreme Court case Parents Involved in Community Education v. Seattle School District. It would be conventional to reinterpret past precedent to make it appear consistent with a new doctrinal direction, but Chief Justice John Roberts took the extraordinary move of reinterpreting the civil rights struggle itself, giving new meaning to the words of its participants, meanings that they themselves rejected. That the Chief Justice would choose to do this helps us to see the importance of historical memory to law. It was not only past law, but the past itself, that must be recast to achieve the Court’s purposes. The politics of law becomes a politics of memory.
This is not yet written up, but I will discuss this paper at a symposium on "Law's History: How Law Understands the Past," organized by Austin Sarat, to be held at the University of Alabama Law School in October. I've not committed to publishing this anywhere, so anyone planning a relevant symposium issue is welcome to contact me.