The Sweet Affair has proven that the historical profession is inhabited by ideological bullies and their craven victims. James Sweet, ingenuous president of the American Historical Association (AHA), stated the obvious truth that the 1619 Project and other such exercises in woke history are “presentist”—cherry-picked fabrications designed to promote a radical agenda. The woke Twitter mob in short order bullyragged him into a ritual apology. The Sweet Affair nicely illustrates the AHA’s professional incapacity to opine on matters of history.
The tempest about the 1619 Project, however, has distracted attention from the other thrust of Sweet’s original essay. Sweet, making particular reference to Supreme Court decisions on gun rights and abortion, criticized the current Supreme Court majority’s approach to history as dilettantism and cherry-picking, and cited approvingly Justice Stephen Breyer’s reference to “law office history.” Sweet made a peculiar argument here, and it’s worth examining in detail.
Sweet first argued that the Supreme Court majority cherry-picked the historical evidence regarding the jurisprudential tradition concerning gun rights and abortion. So far as the history of abortion jurisprudence is concerned, the reader may read the AHA and the Organization of American Historians’ amici curiae brief and Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization (2022) for himself, and determine which argument is more persuasive. I believe Justice Alito has the better of the debate.
So far as the history of gun rights is concerned, Sweet had a partial point. My own research suggests that the historical background to the Second Amendment probably implied a universal, albeit unenforceable, duty to participate in a militia rather than a universal individual right to bear arms. I think the majority decision in District of Columbia v. Heller (2008) distorted the eighteenth-century intent less than the minority would have—the duty to participate in the militia becomes nugatory absent an individual right to bear arms—but Justice Antonin Scalia’s majority opinion did not do full justice to the historical scholarship on the issue.
[Related: “Peer-Reviewed History is Dying of Wokeness”]
Yet Sweet then took a curious turn in his argument:
[Justice Breyer] recognizes that historians engage in research methods and interpretive approaches incompatible with solving modern-day legal, political, or economic questions. As such, he argues that history should not be the primary measure for adjudicating contemporary legal issues. [Paragraph] Professional historians would do well to pay attention to Breyer’s admonition.
Breyer’s original argument ultimately served as a critique of the originalist school of jurisprudence, which emphasizes a historical understanding of original intent and understanding—and, indeed, of any school of jurisprudence that relies on historical understanding.
Lower courts—especially district courts—typically have fewer research resources, less assistance from amici historians, and higher caseloads than we do. They are therefore ill equipped to conduct the type of searching historical surveys that the Court’s approach requires. … In contrast, lawyers and courts are well equipped to administer means-end scrutiny, which is regularly applied in a variety of constitutional contexts … even under ideal conditions, historical evidence will often fail to provide clear answers to difficult questions. … history will be an especially inadequate tool when it comes to modern cases presenting modern problems. … a standard that relies solely on history is unjustifiable and unworkable.
Originalist judges (and other historically minded judges) seek to use history to constrain arbitrary decisions by (generally progressive) judges. Breyer makes the interesting stick-to-your-lathe riposte that history facilitates a different sort of arbitrary judgment by amateur historians—although his reference to modern cases presenting modern problems is precisely the attitude that originalist judges seek to restrain by their recourse to history.
Sweet’s intervention in this discussion, if taken as more than just a partisan effusion on behalf of gun regulators and abortion ideologues, actually argues for historians to refrain from intervening in current legal disputes. Justice Breyer argued that judges could not be professional historians. Sweet implicitly and complementarily urges professional historians not to intervene in any public arena.
Doing history with integrity requires us to interpret elements of the past not through the optics of the present but within the worlds of our historical actors. Historical questions often emanate out of present concerns, but the past interrupts, challenges, and contradicts the present in unpredictable ways. History is not a heuristic tool for the articulation of an ideal imagined future. Rather, it is a way to study the messy, uneven process of change over time. When we foreshorten or shape history to justify rather than inform contemporary political positions, we not only undermine the discipline but threaten its very integrity.
Sweet argues, in effect, that professional historians should not participate in polemical enterprises such as the 1619 Project or submit amicus curiae briefs to influence Supreme Court decisions. History, to be pure, cannot seek to change the present or the future.
[Related: “Arms and a (Free) Man”]
Sweet’s argument tacitly critiques the woke ideologues who would subordinate history to their ideological agenda. But it also separates history from its Renaissance humanist roots. One branch of humanism tightly linked understanding of the past to the vita activa; so Niccolò Machiavelli wrote in the Discourses that, “He who diligently examines past events easily foresees future ones in every country and can apply to them the remedies used by the ancients, or not finding any that have been used, can devise new ones because of the similarity of the events.” The 1776 Commission and the 1619 Project are both heirs to Machiavelli’s desire to apply history to the present and the future.
Legal humanists such as Étienne Pasquier, meanwhile, helped invent the modern discipline of history, not least as a way to understand properly the laws under which they lived. All modern justices and amici curiae who cite history, for whatever end, are Pasquier’s legatees. Sweet’s argument will eliminate the humanist tie between history, law, and the struggle for liberty, as much it will eliminate the woke tie between history, law, and the struggle to impose the woke agenda.
The status quo, imperfect as it, beats the alternatives. We need judges and politicians who are bad historians and historians who are bad lawyers and politicians. The problem is when the woke seek to silence their critics because they are political opponents and the professional historians seek to silence their critics because they are amateurs. The problem is not the vita activa that seeks to unite history and the public life, but the decay of the vita activa into pedantic tyranny and tyrannic pedantry.
Historians and justices need to stick not to their lathe, but to liberty. That is their true sweet spot.
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