History is written by the winners.
Those who control the past control the present. Those who control the present control the future.
This means that you have to know what you want to rewrite to fit today's needs. This requires study.
We do this. Others do it too. See Lawrence Wright's The Looming Tower, (Knopf, 2006), the story of Osama bin Laden, 9-11, and the Islamic fundamentalists who feel victimized by the West and wish to roll back all that is modern and western in order to return to the days of the Prophet Mohammed when Islam was pure, they believe. Purity, of course, has never existed, and in order to achieve purity, which you never will, you must shed the blood of everyone who isn't you, for no two people will ever agree on everything. Our problems with terrorists, today, are the result, in large part, not only on their displacement and shame, but on the reading they apply to history, their version of their story.
Our problem is not to make the same mistake by our own lights. Reason is a tool, like a carpenter's tools, which in the right hands builds skyscrapers, cathedrals, and rockets to the stars, but in the wrong hands become burglar-tools.
Constitutional law is more than the study of law. It is the study of history, and of human attitudes.
Law is a product of attitude resulting in action. To consolidate the gains of action, which may be political, or military, we write law. The winner does, that is.
Years ago, when I represented a man who said he was falsely accused of child sexual molestation, and there was no medical evidence to support the claim, despite the need for such to prove the specific claim made, it appeared that the prosecuting authorities were relying on false medical myths to support their claim. "Always believe children who make such claims." Read the brochure from the child protective service. "Children never lie about such things," it continued. Is this true, I wondered? What about Salem, where 19 innocent men and women were executed, despite due process, such as it was in 1692, and jury trials, on the testimony of children. How is it that we're always supposed to believe that children can tell only the truth about this while, in contrast, we know that children lie all the time about other things to shift blame? Do the cops, the probation officers, the social workers, and the judges in Juvenile Court automatically assume that children have a monopoly on telling the truth? I didn't think so.
What I thought was that Salem taught us some lessons, if only we would learn. One of them was that children can come up with some of the damnedest things, and that adults will believe them. In fact, the adults taught the kids who are only feeding back what the adults taught and are prepared to believe. In this way lies madness, of course, and Salem is the arch example of belief systems producing evil results, the judicial murder of innocents in what was supposed to be a rational process. Craziness took over.
What are we supposed to do with that experience?
Learn from it.
Write about it. Talk about it. Teach it. Don't let it happen again.
One of the odd things about Salem is that the tragedy was a product of failures not only of society in general, but of the two learned professions, law and medicine. The parents who saw their children, girls between the ages of eight and seventeen fall into fits did what you would do. The called the the village doctor, Griggs, who examined them. "Bewitched," he said. Why? Because they looked like they'd been bewitched. And what did that look like? You don't know, do you? Because nowadays we don't know how witches behave and what the after-effects of bewitchment look like. But the Puritan descendants of Salem did, in 1692. It was part of their everyday belief system, as surely as they knew that if the butter failed to churn or the cow died, the cause was that some evil spirit had been cast over them by a neighbor who was in league with the Devil himself. If I asked you to act like a ghost, you might say "Whoo...I'm a ghost." Why? Because you've seen the fairy stories and cartoons having ghosts as characters. Ghosts have been kept alive in the culture, particularly around Halloween, but not bewitching.
When Dr. Griggs pronounced the fallen girls of Salem "bewitched," he was saying, in our terms, that they were the victims of adult child molestation. The only question now was to find out which adult was doing this. The child, well aware of her parents enemies in the small town, said it was Neighbor So-and-so who had bewitched her. The child could come out of the fit to make the accusation, which is odd, don't you think? Later in court, the child would face the accuser and fall into another seeming fit. The onlookers supporting the child would beg that the accused stop tormenting the child. The innocent accused would say, "I'm not tormenting this child. I scorn it." The child's fit would increase in intensity. Her supporters would increase their protestations, insisting that the bewitching be turned off. If the accused agreed to stop bewitching the child, she would return to normal. But the accused would have proved her guilt.
The accusing children would testify that they saw things that no one else could see, such as a yellow bird on the minister's shoulder at church. This was call spectral evidence, and it was outlawed in New England following the bursting of the outbreak of accusations, of which at one point over 100 innocent women were being held in jail, apart from the 19 judicially executed by hanging, except in one case, Giles Corey, he was pressed to death with boulders in order to get him to plead guilty or not guilty. He refused, in order to leave his estate to his family, under a procedural point which we've now corrected such that if you refuse to enter a plea in a criminal case we no long press you to death. The court enters the plea of not guilty in the record for you and the clock now starts ticking on your speedy trial rights. You don't forfeit your bank account, except to the extent you wish to establish your innocence through private counsel.
Our law has largely lost the lessons of Salem. About the only thing to come down to us is the adage of Increase Mather, the father of Cotton Mather, arch prosecutor of "the witches," to the effect that "it were better that 100 accused witches go free than one innocent person condemned."
But the big lesson has been largely forgotten, that whole societies can get it wrong, that unquestioned beliefs, widely held, can be quite wrong and result in the condemnation of the innocent. Nations can invade other countries based on false premises, widely believed. If we want to believe something, no matter how foolish, we will. And we will act on it, and cause a lot of damage.
During my representation of the man, in which the prosecution failed to convict and later dismissed all 61-felony counts (worth 8 years in state prison apiece; the man had turned down a plea to one count and straight probation, later a court-ordered psychiatrist who'd interviewed all of the dramatis personae reported to the court that the charge was factititious, meaning fictitious, made up, as the result of a process by the mother called parental alienation syndrome), I regretted that there was no case that I could cite the rule of which encapsulated the Salem experience, the way we lawyers do in other, more recent court matters that have reached the appellate courts. There were no appellate courts in Salem. The law which was later enacted, banning use of spectral evidence to convict in criminal cases, was not, so far as I know, incorporated into American law thereafter, perhaps because people stopped believing in witches and we do have rules requiring personal knowledge and that a foundation be shown of personal observation, which precludes claims based on supernatural belief, we hope.
In order to argue Salem, you have to be prepared to argue history, that is, your view of what the history was. So you had to read the material concerning Salem, of which there's a good bit, including the preliminary hearing transcripts, set into print during the 1930s Depression by the Works Progress Administration. If you want to read more about what I've written about Salem, go to the articles listed in the lower left column, or Google "salem" on this site.
The difficulty with arguing historical examples, like arguing constitutional cases, is that they are often complex and open to different interpretations. If I tell you that Stalin and Hitler and Saddam were very bad men, you might agree, yet there are those who continue to revere all three.
The study of constitutional law is the study of constitutional history. We left the mother country to start our own enterprise. First the battle, then the law. The law consolidated the fruits of battle. The rest is history, or law, or both. You need some understanding of both in order to understand either.
Arthur M. Schlesinger, Jr. is an American historian of long experience who has written an article, below, that appears in the New York Times today, New Year's Day, on the need to remember whence we came, in order to know where we're going.
Op-Ed Contributor
Folly’s Antidote
MANY signs point to a growing historical consciousness among the American people. I trust that this is so. It is useful to remember that history is to the nation as memory is to the individual. As persons deprived of memory become disoriented and lost, not knowing where they have been and where they are going, so a nation denied a conception of the past will be disabled in dealing with its present and its future. “The longer you look back,” said Winston Churchill, “the farther you can look forward.”
But all historians are prisoners of their own experience. We bring to history the preconceptions of our personalities and of our age. We cannot seize on ultimate and absolute truths. So the historian is committed to a doomed enterprise — the quest for an unattainable objectivity.
Conceptions of the past are far from stable. They are perennially revised by the urgencies of the present. When new urgencies arise in our own times and lives, the historian’s spotlight shifts, probing at last into the darkness, throwing into sharp relief things that were always there but that earlier historians had carelessly excised from the collective memory. New voices ring out of the historical dark and demand to be heard.
One has only to note how in the last half-century the movements for women’s rights and civil rights have reformulated and renewed American history. Thus the present incessantly reinvents the past. In this sense, all history, as Benedetto Croce said, is contemporary history. It is these permutations of consciousness that make history so endlessly fascinating an intellectual adventure. “The one duty we owe to history,” said Oscar Wilde, “is to rewrite it.”
We are the world’s dominant military power, and I believe a consciousness of history is a moral necessity for a nation possessed of overweening power. History verifies John F. Kennedy’s proposition, stated in the first year of his thousand days: “We must face the fact that the United States is neither omnipotent or omniscient — that we are only 6 percent of the world’s population; that we cannot impose our will upon the other 94 percent of mankind; that we cannot right every wrong or reverse each adversity; and therefore there cannot be an American solution to every world problem.”
History is the best antidote to delusions of omnipotence and omniscience. Self-knowledge is the indispensable prelude to self-control, for the nation as well as for the individual, and history should forever remind us of the limits of our passing perspectives. It should strengthen us to resist the pressure to convert momentary impulses into moral absolutes. It should lead us to acknowledge our profound and chastening frailty as human beings — to a recognition of the fact, so often and so sadly displayed, that the future outwits all our certitudes and that the possibilities of the future are more various than the human intellect is designed to conceive.
Sometimes, when I am particularly depressed, I ascribe our behavior to stupidity — the stupidity of our leadership, the stupidity of our culture. Three decades ago, we suffered defeat in an unwinnable war against tribalism, the most fanatic of political emotions, fighting against a country about which we knew nothing and in which we had no vital interests. Vietnam was hopeless enough, but to repeat the same arrogant folly 30 years later in Iraq is unforgivable. The Swedish statesman Axel Oxenstierna famously said, “Behold, my son, with how little wisdom the world is governed.”
A nation informed by a vivid understanding of the ironies of history is, I believe, best equipped to manage the tragic temptations of military power. Let us not bully our way through life, but let a growing sensitivity to history temper and civilize our use of power. In the meantime, let a thousand historical flowers bloom. History is never a closed book or a final verdict. It is forever in the making. Let historians never forsake the quest for knowledge in the interests of an ideology, a religion, a race, a nation.
The great strength of history in a free society is its capacity for self-correction. This is the endless excitement of historical writing — the search to reconstruct what went before, a quest illuminated by those ever-changing prisms that continually place old questions in a new light.
History is a doomed enterprise that we happily pursue because of the thrill of the hunt, because exploring the past is such fun, because of the intellectual challenges involved, because a nation needs to know its own history. Or so we historians insist. Because in the end, a nation’s history must be both the guide and the domain not so much of its historians as its citizens.
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