Schooling: History as Handmaiden

Abstract

An attempt to “make sense of the past” leaves many paths to explore. In this article the author looks back at his work on a constitutional law case challenging the state of Alabama's ban on the sale of “sexual devices.” His role in the case was to research and draft a brief that laid out the history of government “interference or non-interference” in private sexual activities. Frustrated by how courts had misused and abused history in the past, the author set out to “school” the court in the “proper” use of history. While the trial court embraced his interpretation of the past, the appeals court mockingly tossed it aside. The article grapples not only with how courts have made sense of the past, but how the author has come to understand the role of history in law, both for good and for bad. At the same time, the author reassesses his own “graduate student hubris” in seeking to defend the purity of history from legal “history-lite” from new perspectives as professional historian and advocate.