In a prior post,
I mentioned the benefits of having access to a good publicity team at one’s
home institution. Today, I want to talk
about the relationship between legal historians and other consumers of the
past.
Over the years, LHB has flagged many op-eds and amicus
briefs and featured a number of commentaries on the issue. Last May, Christopher Schmidt ruminated that The Art of the Op-Ed was “problematic” because it required “compromise and
simplification” and “anachronism and presentism.” Turning to amicus briefs,
Greg Ablavsky’s Thoughts on Historians and Advocacy included the concern that “briefs rarely capture the
complexity that good history depicts.” In “Say Something Historical!” Tomiko Brown-Nagin recounted how using the past in
public advocacy or legal reasoning involves “ways of reasoning about history
that often seem dubious to me in my capacity as a professional historian. ”
In a recently published entry in the Oxford Handbook of Legal History entitled “Historians' Amicus Briefs: Practice and Prospect,” Nathan Perl-Rosenthal and I relayed a
similar concern. Some historians who had
helped the NAACP’s lawyers craft historical arguments in Brown v. Board of Education had come to have second thoughts. They
worried that, “spurred on by their desire to reach a particular outcome, they
had drawn conclusions that were not warranted by strict historical methods.”
Notably, Chris, Greg, Tomiko, Nathan, and I agreed that the
benefits of engagement outweighed the risks. As Tomiko put it, “Historical
arguments are quite attractive and will be made.” Better not to exclude those
most qualified and committed “to tell the truest story possible, given the
available evidence.”
I agree. But I also wonder if we legal historians should
wring our hands a bit less before striding into the public square.
Relating the past to the present is inherent to the historical enterprise. While I value complexity and believe that the past is
different from the present, it is living readers for whom I write. Modern
concerns shape the topics I choose, the methods I deploy, and the arguments
that I make. I experience history as a translation between then and now. I worry that the alternative
would be sterile antiquarianism.
On this view, the question isn’t whether it’s appropriate to
write op-eds, amicus briefs, and the like, but how. Nathan and I took a stab at part of that
question in our essay. Where amicus briefs are concerned, the
historian must often “speak in a language legible to courts on matters of
concern to them, while respecting the court’s distinct areas of authority.”
We identified several strategies for striking that balance:
- Stop short of arguing that history can decide the final issue
- Limit participation in the amicus briefs to experts on the specific topic at issue
- Use intermediaries between law and history: lawyers familiar with history, legal historians, or historians willing to learn about law
- Provide multiple points of entry into the argument; describe ways that history could support certain arguments; explain why history runs counter to other arguments
- Show your work by making your methods explicit
If ever an audience knew more good strategies, it would be LHB
readers. I hope you’ll take to the comments to share.
--Sam Erman
