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.
Paul Moreno
Hillsdale College
Bruce Craig responds:
Paul Moreno contends that the use of history in the Brown v. Board of Education decision bears no similarity to the Court’s use of history in the Lawrence case. I beg to disagree. Read the court decision.
Certainly neither the Brown nor Lawrence cases were “decided” on the evidence presented by historians, but both cases resembled each other insofar as they made use of contextual background information provided by historians that helped frame the court’s decision.
Moreno may hold the opinion that the Lawrence case is an example of “law office history” constituting “prostitution of scholarship for political ends” by “hack” historians, but I see nothing in the historians’ brief that violates the canons of ethics as found in the AHA Statement on Standards of Professional Conduct. And I gather neither does he.