It’s not just a song by Sam Cooke…
This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires a clear-eyed encounter with history– accurate history.
Efforts to teach a non-whitewashed ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.
The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.
In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history to justify his result. Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.
Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.
Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.
Another scholar who has criticized the ahistorical tale told by Justice Alito is Geoffrey Stone, who authored “Sex and the Constitution” and teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,
Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.
The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…
In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.
This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.
It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember, were often twisted...)
As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.
21 thoughts on “Don’t Know Much About History…”
Thank you for this essay, Dr. Kennedy. As you say, it is NOT widely known history. And only a few of us have ever made the connection that Falwell did about the practicality of preaching about abortion and the audience knowing it was about racial hatred. Hence, the ignorance of even a majority of Justices in the United States.
Yes, and once Republican operatives saw a new way to exploit the ignorance of history for gaining more votes for their hand-picked “candidates”, the race to the bottom for women’s rights shifted gears. Alito, Thomas, Kavanaugh and Barrett have all lied through their teeth about the law, their appreciation of the Constitution and certainly the history of law throughout.
As has been stated multiple times on this blog, Republicans will do and say ANYTHING to win elections. Republicans serve only the rich and the rich want “their people” in elected office so they can continue to rape the American people, the nation and the Constitution. The rule of law, the history of law and the practice of law, as seen by Republicans is to manipulate it all in order to dupe enough people into voting for their candidates. And if that doesn’t work, they want to make it harder for “those people” to vote, restrict voter registrations and otherwise impede the election process so “their people” can win and do the bidding of the corporate/banking masters.
I apologize for the cynicism, but when I taught science in public schools I tried to put the history of science in perspective to show the elegance of what progressive thought could yield. If it weren’t for a man inventing air-conditioning in the early 20th century, we wouldn’t have built the liquid-fueled rockets that took our astronauts to the moon. You know… progress, the scientific method and rational thought, not fear-mongering, lying and cheating.
I have always been a curious student of history and at ‘77 sunset strip” in my final quarter of the good life, I remain curious. I recognize authentic historians when I hear or read one. I thank the best among my teachers for that despite outside pressure to bend the arc of interpretation to satisfy ahistorical prejudices.
I also trust that the science of history will vindicate truth and those who arrogantly rule on the wrong side of the evidence of truth shall be relegated to the Jury of the ‘Dark Triad’.
Ignorance and stupidity are an autocrats best friend.
I thought tenure allowed professors to take a stand for the truth when they saw history being bent in the wrong direction. It seems freedom of expression and the freedom of the press were principles easily bought for a dime. 😉
Yes, politicians, journalists, and educators’ bending of the moral compass has wreaked havoc on the USA.
It cracks me up that all the retiring professors at Ball State who took a buyout on early retirement did so with the condition of signing gag clauses so as to not discuss the inner workings at Ball State. How refreshing to know of their sellout status. 😉
They’ve been selling inflated diplomas for decades to kids who had no idea they were being lied to by spineless sycophants who sold out for a paycheck and a fluffy state-funded retirement.
Once you peel back the shiny veneer, it’s all a facade.
While the political parties and the courts are fighting over what past history was or the meaning of it all; the present is rushing past us at an increasing speed and November 8th is looming nearer and nearer. We have no Independence to celebrate on this July 4th, 2022; President Biden has conceded that the filibuster stands on the current version rather than the original basis for enacting it. Pardon the language but…we are fucked by all three branches of government and history is but a fart in a hurricane. We have no more control over our bodies, our personal lives and rights than prior to the Revolution to free us from the British monarchy. There is no federal Constitutional law regarding abortion; the referred to Amendments cover things, the rights to our bodies is no more in our control than that of the slaves owned by the founding fathers as they authored the “do as I say, not as I do” Constitution.
Much of our history is dead and stinking and better left there; only the White Nationalist cult of the pseudo-christian Republican party wants to return us to the past by removing human and civil rights, written and unwritten, which we fought so hard to attain. We would be much better off to return to monarchy rule under the UK than the coming Russian dictatorship planned for us by Trump’s Republicans. Leave the past in the past where it belongs and the sermons in the churches where they belong. The recent SCOTUS decisions handed down were religious in nature from their judicial benches rather than the pulpits which were their source.
“History is written by the winners.” That should say the textbook versions of history are, but history is everywhere you look, in what we’ve built, laws we’ve passed, wars we’ve fought, and lives we’ve lived. It is written into books, even the novels, we read. Want a glimpse of life on the Mississippi? Read “The Adventures of Huckleberry Finn.” The depression? Read “The Grapes of Wrath.” Napoleonic Wars? Read “War and Peace.” Any book that has stood the test of time can tell us about life at the time the author was writing.
VOTE, but also READ. (I know I’m preaching to the choir.)
We’ve learned a lot about the science of prenatal development over the past several decades. I am not sure why the policy decision on abortion should be locked into an understanding of fetal development that preceded that understanding and is incomplete at best and wrong at worst.
I understand though why though Alito attempted to limit the reach of his opinion on privacy rights by looking at history and tradition. I also understand how that approach is open to criticism.
Here’s the thing though…people on the left like to criticize the originalist approach to jurisprudence, but I have never once heard them articulate a theory of jurisprudence that they would use in its place. If you ask them what judicial approach would they take that would limit a judge’s ability to find new rights in the Constitution, or, more particularly, apply the unenumerated “right to privacy” to new areas, you get crickets. Bottom line, if it’s a policy they prefer, they are perfectly fine with judges finding that policy enshrined in the Constitution. Their approach to jurisprudence is not based on process, but the policy that ultimately results. If they like the policy, the judge has acted correctly in finding it buried in the Constitutional text.
Liberals’ hanging their hats on judicial activism is dangerous. There is such a thing as conservative judicial activism and that day is coming soon. When that happens, liberals might have wished they had embraced originalism.
The “…angry parents accusing school boards of blaming today’s children for the sins of the past…” hypocritically want those same children to believe they are responsible for the ‘original sin’ of two mythological beings.
“Originalism” in both Constitutional Law and religion is simply an impossible dream. Nobody is endowed in any way with such skills. The closest that is humanly possible is in the field of history which almost none of us choose to make our educational specialty.
We suffer from remembering the times before now when much less human knowledge was known and what was known was carefully written down by those who did possess parts of it in permanent records called books. It was passed on only to people who read all of the books in each specialty.
Now we have pretend experts writing down opinions in a temporary form called the Internet which offers only easy access to opinions by others without the background to vet what they read.
For the first time in human history, we have a huge knowledge distribution problem leading us to massive and costly dysfunction.
Those who possess the least now call those who possess the most because they specialized in obtaining it the old-fashioned way, from books, “elitists” as an epithet.
We have the few in possession of unprecedented human knowledge in narrow fields and the many possessing the bits of what they wish was the truth, the whole truth, and nothing but the truth when, in fact, what they know are dreams of what they wish was true.
“History” is simply a summary of interpretation of event of the past and ever evolving.
What is important this day is what principles/values are shared across America. A “history” test for all Americans should be something like:
– Is no person above the law?
– Should every person have an equal opportunity to obtain life, liberty and happiness?
– Is money “speech”?
– Should one person, one vote be how our elections work?
Not sure we have any more “us”/US anymore.
I taught US Constitutional History to college students for over 25 years and at the first class stated that they might forget much of what we discussed but please remember this: the Constitution is what the Supreme Court says it is.
Joe – WADR – is that what you call teaching critical thinking? At the university level?
Theodore Parker, the 19th century abolitionist and one who had faith in morality, enshrined okay that you’re welcome part of his speech when he said,”the ark of the moral universe is long, but it bends towards justice.”
So considering today’s state of affairs, and considering this was one of Martin Luther King’s and Barack Obama’s favorite historical quotations, how is the universe Moral?
Some of the first examples of moral guidelines, and the basis of current moral parameters are scriptural!
Over 2,000 years ago, It was written in Galatians 5:22, 23! Faith, goodness, joy, kindness, love, mildness, patience, peace, self-control, you can also add compassion, and empathy! All part of what’s considered fruitage of the spirit! Obviously universal.
The opposite of that universal Arc bending towards Justice would be listed in Galatians 5: 19 – 21 which includes, works of the flesh, immorality, uncleanness, brazen conduct, idolatry, spiritism, hostility, strife, jealousy, fits of anger, dissensions, divisions, envy, lying and thievery, not only in the New Testament, but in the Mosaic Law and before that in the Abrahamic Law covenant, more than 5,000 years in the past.
We get angry when men of ill will misinterpret this country’s Constitution which is a guideline for its morality. Is the criticism against the Constitution itself or those individuals who misrepresent it? But, concerning scripture, we all absolutely demonize scripture, but, not those who misinterpret it! Is that part of the moral Arc of Justice?
Theodore Parker and his compatriots didn’t think it was fair, they based their opinions on scripture! They knew how those men of ill will, those men of lawlessness, twisted scripture to meet their own goals and not that of mankind as a whole!
For those who wish to control their fellow man, those who wish to be authoritarian, those who wish to enslave their fellow man, those who wish everyone to live not by each individual’s own conscience, but some authoritarian blowhards conscience with a Christ complex!
After overcoming slavery, or so they thought, was the battle Won? Well, maybe the skirmish, but the war was just getting started! Hence, Jim Crow, the attack against voting rights, the attack against equal rights, the attack against reproductive rights, the attack against morality. The universal Arc of morality very rarely meets justice! The Gun crisis, the chipping away of civil rights fought for and paid for in blood, we can also include healthcare, and any sort of general Freedom that a good conscience would allow! This includes the rollback of anti segregational practices and laws, also, allowing large companies to avoid sharing the burden on infrastructure and allowing companies to avoid building facilities in areas that are predominantly minority locations. Constantly extending the division of inequity to Future generations increasing frustration and hopelessness.
How do today’s governments stack up to the Magna Carta (1215)? The English Bill of Rights (1689)? The declaration on the Rights of Man (1789)? The Bill of Rights and Constitution (1791)?
FDR heralded in his 1941 State of the Union, the world is founded on freedom of speech and religion, freedom of want and fear! The trouble is, freedom for who? Certainly not here, because we have folks gunned down in the streets and the free reign of drug trafficking in minority communities. School kids murdered at a never before seen clip even than in war-torn countries!
It seems obvious that mankind really embraces, ” man’s inhumanity to man” on a massive scale. Individuals let their conscience guide them, but so many trample on their conscience and unite with the flow. Why? False patriotism with the lack of compassion and empathy which allows them to follow someone else’s direction contrary to the ingrained law in their conscience which would lead them to a more righteous conduct. Or maybe we should just say, “lead them to the moral Arc of Justice!” Without morality how can there be Justice for the born and or The unborn? But, everyone will continue on denigrating what they don’t understand, believing innuendo and hearsay rather than their own research. Because research is difficult! The Me’ist culture works against the Effort Of Truth or the Moral Arc of Justice!
“Originalism is faulted, in my view, on the simple concept that the founders could not predict what issues would develop within the next “Forescore and ten” years, no less the next 250 years. Rather, originalism is either a blatant excuse, or a fearful avoidance of, refusal to accept, change. But, change, whether, in the context of physics, or social life, happens. Ask the Luddites, they learned that truth!
Just as the Luddites, now that I’m on that thread, literally tried to defy change by breaking machinery, the
originalists, have taken sledgehammers to the machinery of government .
Norris, your cynicism is shared.
Peggy, your “fucked” is understood. I do not understand, however, Biden’s resistance. to expanding the court,
ridding us of the fillibuster. Does he think that the GOP will play “fair” as of some as yet to be determined day?
If he, Pelosi, and Schumer want to show leadership (big IF) they can start by pounding the streets, as it were,
with loud, and dire warnings of what awaits the country if the GOP retakes official control of the Senate.
I say “official” because with Manchin and Sinema in the senate, the GOP has it’s control, now.
I can see the GOP’s rallying cry, in 2024, “Keep them dumb, and pregnant!”
Vernon, Todd, Lester,
Excellent viewpoints one and all, I appreciate the diversity that you all represent from your different backgrounds! Everyone commenting has a certain amount of value, but others see deeper into the abyss than anyone else. And I truly admire that skill! I try to emulate it in my own way. By the way, I don’t think there’s any cynicism involved here, at least not those who have actually been involved in the wars of society, trying to explain that moral Arc of the universe bending towards Justice! There’s always more than one way to explain procrastination concerning advancement of equality and moral Justice for all! Just taking time from your daily lives to engage in this Insanity speaks volumes about your internal passion concerning, a Justice seeking Moral Arc of character.
Well said. Thank you.
Many elements of our culture – including capitalism, ECON 101, the origins of the Bible and Christianity, “America is not a democracy,” authority of church or pope or God’s word, etc – are based in a well-intentioned false story.
First, we need to write as accurate a history as possible; and then, we need to teach it in schools … absent political agendas, but with coaching on how to take part in the Great American Discourse.
Mitch D., I try not to use expletives in public discourse, so I’m not sure where you’re coming from. Let me say however, that Biden has no control over the Senate (Separation of Powers). He might desperately want the filibuster to be gone, and he can campaign for it from the bully pulpit, but he has no power to make it so. The other day, I recommended that the Dems ask Collins and Murkowski to help them carve out an exception to the filibuster and someone asked why that and not voting rights. My advice to anyone thinking of going to DC as a legislator: Take whatever you can get, then make a big deal out of what you couldn’t get. Understand pragmatism or get left in the ash heap of history. Why NOT voting rights? You won’t find two Republicans who want to protect the rights of every citizen to vote. Get it now?
The first paragraph of my first common, take out that one sentence, “okay you’re welcome” that was part of another conversation that somehow got copied. Sorry!
Paul O is the only person on this site with ANY balanced perspective. Then he is attacked on here and that speaks volumes about WHO you really are, not who you “claim” to be.
Here’s another perspective.
WSJ opinion : “ The fury of the left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the Court as the vehicle for achieving policy goals they can’t get through legislatures. The cultural victories they achieved by judicial fiat will now have to be won by persuading voters. We understand their frustration, but they ought to try democracy for a change. ”
What laws were written for or against is the real study of the legal argument as well as the advancement of science on the issue. The babies DNA being different than that of the mothers relates to a babies identity and the need for and safety of late term abortions. Opinions on the health of the mother were based on loosely given to allow for almost any late term abortion. The safety of late term sbortions and the use of the fetus became very controversial slso. Some women did lose their lives by an abortion procedure in late term bringing to question in historical terms more recently the efficacy of late term abortions vs delivery the fetus.
Science more than ever should be used to discuss abortion.
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