In Constitutional Law, ideas that we take for granted today as right, just, and proper were yesterday's abominations.
It took years of hard fought battles for the hearts and minds of the natives, us, that is, for yesterday's radical abomination to turn into today's boring, taken-for-granted set of conventional, middle-of-the-road values that we hardly think twice before invoking.
Take slavery for example. No sane person today would advocate for repressing, enslaving, whipping, falsely imprisoning, working, renting out, stealing the labor, of another human being on any theory, much less color or race. Even color and race appear under modern analysis to be more illusion than scientific fact.
Yesterday's fighting faith, as Holmes noted, is today's nonsense.
What happened?
Yesterday all that was quite fine.
Slavery was written into our Constitution despite Thomas Jefferson's ringing words in the Declaration of Independence, the great promise of our nation, that it was "self-evident that all people are created equal."
Were those people insane?
Are we?
Maybe the definition of insanity has changed, because the abolitionists, those who opposed slavery in the early days of this nation were thought quite mad by the huge majority in the mainstream.
Today it's just the reverse and it seems quite rational to regard the South and the advocates of the Southern Way of Life (code for white supremacy, slavery, and later Jim Crow) as insane by today's standards.
If you had studied American Constitutional Law before the Civil War (1860-1865), you would have studied what I call the Slave Constitution, for it legalized slavery by failing to condemn it.
The controversial Dred Scott opinion of the U.S. Supreme Court, written by Chief Justice Roger B. Taney, a Maryland slaveholder, would have taught you that slavery was legal, people were property, blacks were not citizens, and blacks had no rights that a white man needed to respect. Sub-humans, in other words.
And if you had been raised to be a law-abiding person who had faith in the institutions of one's country, the one whose anthems you sang, whose birthday you celebrated with picnics and fireworks on the Fourth of July, and for which your grand-pappy fought in the Revolution, you would have believed your parents, preachers, and teachers who taught you that slavery was all right, the Supreme Court good, and that you should think the same.
You were stuck, a prisoner of your time, a slave sympathizer.
It's easy for us to say, "Not me," I never would have done that."
S-u-u-r-e you wouldn't have, because you think you could go back to then knowing what you know today, perhaps, and wouldn't make that mistake.
That would be a historical mistake, an anachronism, to think that if you lived then, you'd somehow be different.
If it's so easy to be different, tell me how different your thinking is today from that of your fellow man.
Do you think gay marriage is okay, or is it immoral?
How about the death penalty? Is is justified by modern rationality and penology, or is it a vestige of our Stone-Age, Dark-Age past?
But remember, the past isn't dead; it isn't even past, as W. Faulkner reminds us. It's at the top of this page, I'm sure you've noticed.
It's not easy being out of step with everybody around you, is it?
I'll bet that your views on most things are probably within 95% agreement with those of the folks around you.
If not, you probably wouldn't be in law school or holding down a job or pursuing a career.
You'd be leading a parade, probably with a red banner.
This is why I say that Constitutional Law is crystalized history.
Yesterday's attitudes about a whole "race" of people, our fellow human beings, were written into the text of the Constitution, statute law, and case law by the highest institutions in our land.
After the Civil War, it TOOK a civil war, all that began to change. It didn't suddenly change overnight on the ground.
Suddenly the slaves were legally free, but they were also suddenly without work, jobs, and their own land to grow food on. They'd been deprived of the opportunity to go to school, read, write, count, and do math.
They no longer had plantation owners to provide them with (minimal) food, clothing, and shelter. The former owner's now charged them rent for their slave quarters.
They share-cropped, farmed at a price, a contribution of half of all they grew, to the landlord, in return for the privilege of using the land.
Today's issue of affirmative action is an outgrowth of this. Yesterday is today. Law is politics. Politics is attitudes. Attitudes as to what strikes us as right or wrong.
Today, slavery is wrong.
Excellent! We've made progress.
Jim Crow is wrong. That's legalized segregation. Separate is supposedly equal. Plessy v. Ferguson, (1896), except for the ringing Harlan dissent that the Constitution is supposed to be color-blind.
Brown v. Board (1954). Overrules Plessy (1896).
Excellent! More progress.
Jesse Owens beats Adolph Hitler in the 1936 Munich Olympics.
Joe Louis beats Max Schmeling, TKOing the Master Race.
Marian Anderson is denied the right to sing in Constitution Hall, Washington, D.C., by the Daughters of the American Revolution; Eleanor Roosevelt, FDR's wife, arranges for the Lincoln Memorial, instead.
Black soldiers win WWII along with whites.
The black labor union, the Sleeping Car Porters, agitates for civil rights, jobs during WWII.
Truman orders integration of the U.S. Army. The Navy drags a sea-anchor.
Jackie Robinson integrates baseball, the American nationial pastime. Whites root for blacks.
Amos 'n' Andy becomes the most popular show on radio.
Whites can't get enough of blacks, subject to certain restrictions. Jazz, entertainment, sports erode the mental walls, and eventually the moral, legal, and social.
The Civil Rights Movement takes hold.
Laws prohibiting racial intermarriage fall.
Civil rights laws slowly pass, over filibuster opposition in 1957 (U.S. Civil Rights Commission established within Justice Dep't), 1964 (Public Accommodations, hotels, restaurants, parks), 1965.(Voting Rights Act).
Another half-century of racial strife, progress, steps forward, steps back, transpires.
Attitudes change.
Laws change.
Laws reflect attitudes.
Attitudes having voter support become politics.
Political issues with voter support become legislation. Voter support elects presidents and senators. Presidents nominate Supreme Court justices. Senators reject or confirm nominees.
Politics is crystalized attitude.
Attitudes become Constitutional Law.
Constitutional Law is crystalized politics.
And students wonder why the stress on history.
Let me put it this way: Subtract the history from Constitutional Law and what do you have left to study?
A legalized algebra book?
All formula, no soul?
Too much history?
Okay, tell me which history you'd prefer to ignore.
Reminds me of that wonderful line in the Milos Foreman movie "Amadeus," where Mozart plays a colorful piece on the piano for the Emperor, who remarks, disdainfully, "Too many notes."
"Which ones would Your Highness have me leave out?" asks Mozart.
With that introduction, I'd like to invite your attention to a lovely web site, a whole network of web sites, actually, by Houghton Mifflin, the Boston history text publisher here.
You can have fun poking around American history, Women's history, Western Civilization, World history, Military history, Naval history, American Indian history and I suppose lots more, but life is short, isn't it.
I suppose it doesn't hurt to repeat the same old lines over and over on the chance that a new viewer might not have come across it yet, or would like to be reminded, or, in my case, to make sure it sinks in: "The only new thing under the sun is the history you don't know." Harry S Truman.
See? There's a reason he was elected president.
He was smarter than he seemed to those who said "To err is Truman." They were just being nasty.
We're being smart.
We're poking around in history to see what we've been missing, aren't we.
Then we can understand all those cases we're reading in law school.
You know, the crystalized politics that we're supposed to do something with in new contexts that are coming up as soon as you pass the Bar.