Lawrence v. Texas
Paul Moreno, December 2003
To the Editor:
I take exception to Bruce Craig's article in the October Perspectives, which argues that the historians' brief in the case of Lawrence v. Texas represents "historical revisionism at its best."
In the first place, Craig's contention that Lawrence resembles the Court's use of history in Brown v. Board of Education is off base. Chief Justice Earl Warren wrote in Brown that arguments about the history of the 14th Amendment "cast some light" but were "not enough to resolve the problem with which we are faced. At best, they are inconclusive." As Alfred H. Kelly, the constitutional historian who worked with the National Association for the Advancement of Colored People on the case noted, the Court drew back "as if in embarrassment" from a historical basis in its judgment.
Moreover, Kelly later noted that at a certain point "I ceased to function as an historian and instead took up the practice of law without a license." He also admitted (in an article entitled, ironically enough, "Clio and the Court: An Illicit Love Affair") that the NAACP brief had "manipulated history in the best tradition of American advocacy, carefully marshaling every scrap of evidence in favor of the desired interpretation and carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible."
It is far more likely that the historians involved in Lawrence v. Texas were engaged not in "revisionism at its best," but in "law office history"—that is to say, the prostitution of scholarship for political ends. But, as recent partisan diatribes by the AHA president indicate, hack historians are simply following the standards set by the Association.
Editor's Note: See Bruce Craig's response.