Writing the history of contemporary events – events that you yourself not only witnessed, but witnessed with the expectation that you would write about them in a scholarly context – can be peculiar and yet oddly rewarding. To be sure, it has its risks.In 1614, while imprisoned in the Tower of London, the English courtier, sailor, soldier, and literary figure Sir Walter Raleigh amused himself with writing a history of the world. In his preface, he noted that some might object to his going back to the beginning and instead would have preferred that he write the history of his own time: “To this I answer, that whosoever, in writing a modern history, shall follow truth too near the heels, it may haply strikeout his teeth.”
I still have all my teeth, even though I have tried writing about twenty-first-century episodes in the history of voting rights and election law. This adventure’s beginnings took me by surprise – but the events that gave rise to them took us all by surprise. As a constitutional historian who knew something about voting rights and the workings of the judicial system, I spent much of November and December 2000 as an expert commentator for local TV news in South Florida. My role persisted for five weeks, as the events of what we came to call Bush v. Gore unreeled before us. Like many historians, political scientists,and legal scholars, I struggled to explain events and constitutional arguments to a general audience, seeking to make sense of a chaotic situation that was becoming the focus of heated passions on left and right. I kept answering media questions, based on my sense of how the judicial process was supposed to operate, that sometimes turned out to be wrong; at other times, I had to admit that I had no answers. I found myself writing down questions and issues that I knew demanded further study. Before long, I realized that someday I would write about the history left behind by these messy and impassioned events.
This is the first promise of doing twenty-first century history: that looking at contemporary events with a historian’s eye offers the chance to evaluate events critically, as they are happening, as a preliminary step to a considered investigation of these events. The second promise of doing twenty-first century history is the recovery, preservation, and distillation of what will constitute the raw material of the historical record. This second promise is much easier because time has not yet had a chance to erode that historical raw material. Although some archival materials (such as papers of judges or Justices) may be beyond the historian’s reach for now,public documents (such as court filings, newspaper accounts, and government reports)are easily found, accessed, and assembled. What makes possible this wide-ranging recovery of that historical raw material? The Internet. With regard to Bush v Gore, for example, I was able to read every court filing in every one of over forty cases comprising the storm of litigation surrounding the 2000 Florida presidential vote; I could read almost every newspaper account of the events of November and December 2000; and I could get copies of these sources and of nearly every report, government or private, studying the historical events and their ramifications. The book that I finally published in 2008 -- Bush v. Gore: Exposing the Hidden Crisis of American Democracy (University Press of Kansas) – was solidly based on archival research – but it was archival work that I could do in the comfort of my own home and office, within a rich and deep archive that I had assembled and organized myself. As a result, I could research, write, and publish my book much sooner and in more detail than would have been the case had I been investigating an older topic requiring extended visits to regional and national archives and research libraries.
To be sure, the account I’ve just given seems too optimistic. The greatest peril is your readers’ memory of the history you’re writing about, which may be a mix of what historian Bernard Lewis called “remembered” and “invented” history, as opposed to the “recovered” history that you’re hoping to present.
Put simply, historians doing twenty-first century history faces the daunting task of convincing people to read their work, and thereby to expose themselves to a new and perhaps counter-intuitive argument, when they already may have made their minds up on the subject so strongly that they will resist any contrary perspective.
In fact, I ran into that very problem almost from the moment that I began writing, and I found that the problem afflicts the audience most likely to be reading this blog entry: legal and constitutional historians. For us, as for most Americans,the electoral deadlock of 2000 was a historical event as traumatic and memorable as the assassination of John F. Kennedy in 1963 or the destruction of the space shuttle Challenger in 1986 Suddenly, the subjects on which so many of us work – the U. S. Constitution, the judicial process, the right to vote – mattered to an extraordinary range of people beyond our narrow professional circle; what already was important to us, had become important to everyone. Further, many of us tracked the events of 2000 closely and with care; we read briefs and watched or listened to the oral arguments; and we read and re-read the opinions generated by the cases in the various levels of courts that heard them. Many of us wrote on the subject, explaining and offering critiques of these events. And even those of us who did not write ourselves read the writings of colleagues.
One more thing needs to be said: I could not have written my book while Bush v. Gore was happening or, indeed, for at least a few years after the events of 2000 were finally over. Doing twenty-first-century history requires not only consideration of those events, but reconsideration – finding some sort of temporal and intellectual distance from events that,metaphorically, were radioactive while they were happening. It was only after that metaphorical radioactivity had diminished sufficiently that a historian could take up the subject and maintain that historical perspective needed to see it with sufficient clarity to write about it as history. The point that I hope to make is that that historical perspective is feasible closer to the events in question than we might think. It no longer takes one or two generations to write contemporary history; with the right mindset, and the right intellectual distance, it can be done within a few years of the events we want to write about.
Paying attention to this wider context of the crisis, and doing so from a sufficient historical perspective, makes it clear that what happened in November and December 2000 was about something much bigger than a fight to choose a president, however big a presidential election in the United States already is. It was about something more consequential than a court allegedly overstepping the bounds of its authority (with partisan Republicans identifying that court as the Florida Supreme Court and partisan Democrats identifying that court as the U.S. Supreme Court). With historical perspective, it became clear that attacking or defending what a given high court did was a distraction from the major demands that the subject imposed: first, to understand what the courts did and why; and, second, to set what those courts did in the larger context of how the electoral system did and did not work in 2000. The electoral crisis of 2000 was about something in hiding in plain sight --that our electoral system is broken, or at least dilapidated and in serious need of overhaul and professionalization.
Thus, I want to make a different point about a different subject having to do with Bush v. Gore– about understanding it as a historical event that grew out of a wider context, as we understand Dred Scott v.Sandford or Brown v. Board of Education or Lochner v. New York. My point is that the attractive nuisance of arguing about whether the justices of a specific high court got a specific case right draws our attention from what we should be thinking about as historians considering this case as a historical event, a product of trends and processes going back years or decades, and having ominous consequences for our future as an electoral democracy. And yet far too many scholars in the fields of history, political science, and constitutional law cannot tear themselves away from the bright-line arguments about how Bush v. Gore should have come out.
Luckily, things are beginning to change. In the last few years, what election law expert Rick Hasen calls The Voting Wars – the roiling partisan debates over how we run elections – may be widening historical and scholarly perspectives on the events of 2000. Similarly, with the passing of time comes cooling of the passions of that painful historical moment.
That said, the experience of one historian in writing about Bush v. Gore should raise larger questions about writing about such recent historical events as the Clinton impeachment of 1998-1999, the tragedy of 9/11 and the American response to it,the launch of the Iraq War in 2003, the financial collapse of 2007-2008, and even more recent issues. The point is that it is now possible to research and write twenty-first century history,specifically twenty-first century legal and constitutional history. It is possible, and desirable, to do so. But if we are to realize the promise of writing twenty-first century legal and constitutional history, we also must confront the factors that imperil such historical enterprises. We must return to the inquiry with which I started – what are the promise and perils of writing twenty-first-century legal history?
