Lofgren, Charles A.

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A Comment on William Wiecek,  Clio as Hostage …

California Western School of Law

California Western Law Review Volume 24 Number 2 Bicentennial Constitutional and Legal History Symposium Article 3 1988 A Comment on William Wiecek, "Clio as Hostage …" Charles A. Lofgren Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation Lofgren, Charles A. (1988) "A Comment on William Wiecek, "Clio as Hostage …"," California Western Law Review: Vol. 24 : No. 2 , Article 3. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/3 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact alm@cwsl.edu. A Comment on William Wiecek, "Clio asHostage ... ."CHARLES A. LOFGREN*I am both pleased and awed by the opportunity to comment onProfessor Wiecek's paper. My pleasure derives from the impor-tance of the topic and from the paper itself. The awe comes fromthe depth and comprehensiveness of Professor Wiecek's study. Asa commentator, I feel a bit in the position of someone who hadremained in St. Louis when Lewis and Clark went west and whothen tried to tell the two explorers what they really saw-orshould have seen-at the headwaters of the Missouri and beyond.First, the importance of the topic: We all know that judges usehistory. Moreover, as the willing or unwilling legatees of legal re-alism, we all probably suspect, even in the absence of systematicinquiry, that they sometimes misuse it from the perspective of theworkaday historian. But what seems obvious often needs carefulinvestigation. In the present instance, I say this with a degree ofself interest, because I, too, have probed several episodes involvingjudicial history and my own dabbling leads me to appreciate theambitious scope of Professor Wiecek's paper.I am even more impressed with the importance of his projectbecause of another paper I recently read. It is a preliminary re-port on a study of how frequently members of the Burger Courtturned to the era of the Constitution's framing and ratification.The authors are Gordon Lloyd and Arthur Svenson, politicalscientists at the University of Redlands, who presented the paperat this year's annual meeting of the American Political ScienceAssociation. With their permission, I quote parts of two of theirparagraphs. The first outlines the questions they sought to answer,and the second summarizes their findings.Their questions included these:How frequently do the justices cite the Framers? Are the cita-tions located in landmark decisions? What percentage of casesdisposed of by written opinion raise constitutional issues? Whatpercentage of cases raising constitutional issues refer to theFramers? What sort of citation distribution exists among thejustices?* Roy P. Crocker Professor of American Politics and History, Claremont McKennaCollege.1Lofgren: A Comment on William Wiecek, "Clio as Hostage …"Published by CWSL Scholarly Commons, 2015CALIFORNIA WESTERN LAW REVIEWAfter a detailed investigation which nonetheless probably un-dercounted references to the Framers, or, more accurately, to theviews of the Framing generation, Lloyd and Svenson reachedthese conclusions about the seventeen years of the Burger Court:First, roughly half of the Burger Court cases disposed of bywritten opinions raised constitutional issues. Second, of thosecases that .. raised constitutional issues, nearly 20% containedone or more opinions which cited the Framers. Third, of thosecases which cited the Framers, more than half have been viewedas significant or landmark decisions by legal scholars and politi-cal scientists. Fourth, in terms of both opinions written andopinions joined which cited the Framers, a fairly even distribu-tion among the justices is present. This distribution, therefore,cuts across the traditional conservative and liberal divisions onthe Court.Regarding the last point, and apropos the current debate over a"jurisprudence of original intention," mentioned by ProfessorWiecek in his concluding section, Lloyd and Svenson present in-triguing figures. Justice Rehnquist, for example, averaged 2.4opinions per term making some use of Framer history; Chief Jus-tice Burger, 2.6 opinions per term; and Justice Brennan, 3.0 opin-ions per term.To be sure, historians are justifiably suspicious of such numbers,for they leave so much unsaid, telling us little about the impor-tance within an opinion of a particular reference to the foundingera, or about the extensiveness, accuracy, and appositeness of theusage. Notwithstanding those limitations, I have related Lloydand Svenson's findings, albeit in skeleton form, because they un-derscore that Professor Wiecek has indeed embarked on an impor-tant enterprise.What of Professor Wiecek's paper itself?Like all good presentations, it has an introduction, a body, anda conclusion. The introductory pages take us back to AlfredKelly's classic article and add to his typology. As a minor point, Iread the second of Kelly's two less controversial modes of histori-cal usage not, as Professor Wiecek has it, as the investigation oflegislative history, but rather the investigation of "the circum-stances surrounding earlier judicial expositions of the law," toquote Kelly himself.1 Put differently, Professor Wiecek's legisla-tive-history mode constitutes yet another approach.In any event, his three major additions to Kelly's list are historyas a lode of values, history as refutational argument, and historyas a medium of education. When we take these in combinationI. A. Kelly, Clio and the Court: An Illicit Love Affair, Sup. CT. REV. 121 (1965).[Vol. 242California Western Law Review, Vol. 24 [2015], No. 2, Art. 3https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/3COMMENT ON "CLIO AS HOSTAGE"with Kelly's two major focuses-history by judicial fiat and law-office history (often used for breaking a line of precedent)-we seethat history figures into constitutional adjudication both as an ar-gumentative device and as a contextual element.This suggests that rather than having a single focus-theCourt's use of history-the paper in addition encompasses a sec-ond focus: history's impact on the Court. The first focus suggests aconscious technique. History's role in the second focus may occurat a conscious level in terms of individual judges' awareness of it,but it may also take place over their heads, as it were. Or, to playon the theme of "usage" (and, admittedly, to fall into the fallacyof reification), besides being itself used, history also uses theCourt.The body of the paper is fascinating and so meets one sine quanon of good history. At the level of explanation, however, I wishProfessor Wiecek had been more overt in telling us why, with ref-erence to the categories he initially delineates, he selected the ar-eas and cases that he has examined.He first discusses, in his words, "an unrelated assortment ofcases, almost all of them decided in the twentieth century, thatdeal with three constitutional issues: the freedom of political ex-pression, federal common law, and the right of intimate associa-tion." The cases do reveal a lot about the interrelation of historyand the Court; but so do other areas and cases. Because a singlepaper cannot tell all, the criticism I am making may be somethingof a cheap shot. Yet I miss an explanation of what guided hisselection process. It may be that the three areas he covers revealmore, say, than do the Court's once-important commerce cases,but, to repeat, I would like to be told why.The body of the paper also illustrates that history may use thejudges, in addition to being used by them. Professor Wiecekmakes the point explicit in discussing the road to Erie RailroadCo. v. Tompkins, and most of all, I think, in asserting the influ-ence of Louis Dembitz on his nephew, Justice Louis Brandeis.This episode leads me to wish for comparable attention regardingsome of the other justices he mentions. Or perhaps identifiablehistorical influences are clearer with respect to some judges thanothers. I would like fuller attention to whom and why.When Professor Wiecek turns to the line of cases dealing withrights of privacy and intimate association, he finds that "history-by-judicial-fiat dominated the development of doctrine." The rec-ord, he explains, also reveals the impact of history as a lode ofvalues. But additionally, history-for-purposes-of-refutation entersthe picture. In fact, the same historical discussion by a judge mayfit into more than one of the Kelly-Wiecek categories.1988]3Lofgren: A Comment on William Wiecek, "Clio as Hostage …"Published by CWSL Scholarly Commons, 2015CALIFORNIA WESTERN LAW REVIEWThis leads me to speculate-or rather to state the obvious-thatthe categories themselves imply a neatness contradicted by carefulinvestigation.As for the second portion of the paper's body, I can only say"amen!" The Court's uses of history in race-related issues duringthe nineteenth century offered scant sustenance to blacks. Muchof this was history by fiat or law-office history at its worst. Butthat dominant feature should not blind us to the fact that in cer-tain instances even well done history would have offered little ad-ditional sustenance.Let me illustrate the point in this fashion: Professor Wiecekmakes no pretense of carrying the race-related story into thetwentieth century. In his introduction, however, he mentionsBrown v. Board of Education and praises the Court for findinghistory indeterminate. With some trepidation at taking up a sub-ject Professor Wiecek knows far better than I do, I suggest that inBrown the relevant "original intent" was perhaps not so indeter-minate. If "original intent" includes the immediate understand-ings and concrete expectations of the constitutionally crucial ra-tifiers, this intent may have been all too clear as regards theacceptability of segregation under the fourteenth amendment'sfirst section.What I am reminded of is akin to a point that I consciouslywove into my book on the Plessy case. "Good" social science inthe 1890s provided a slim foundation for true equality of constitu-tional right. By extension, when I think about the use of history, Iam left a bit uneasy. Historians understandably applaud accuratehistorical reconstruction-although the most insightful of them,which includes Professor Wiecek in his paper and especially in hisconclusion, caution that history's application to legal-constitu-tional issues is often problematic. But in those instances where itis applicable, we may not always be happy with the results of ac-curately done history.Finally, one last thought about Professor Wiecek's conclusion:After aptly describing some of the differences between the pur-poses and techniques of the historian and of the lawyer-judge, hesuggests that Jacobus ten Broek erred in viewing history as anextrinsic aid. Instead, as Professor Wiecek puts it, history "isoften intrinsic to consitutional adjudication, providing the initialassumptions, the thought structure, the terms of discourse, thebackdrop of human experience, or all of these, for many instancesof constitutional adjudication." That well indicates his ownnuanced concerns-and does so better, I think, than the discussionof categories with which the paper begins.[Vol. 244California Western Law Review, Vol. 24 [2015], No. 2, Art. 3https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/3

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