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>> 135 [ 7 ] History and the Law We cannot understand a political system . . . and its laws . . . without a knowledge of the people who have adopted it . . . for nothing is more evident, than what will conduct one people to ruin, may lead another, which has a different history and training . . . on the high road to national greatness and prosperity. Thomas M. Cooley, “Some Considerations Regarding the Study of the Law” (1884) The cartoonist and wit Jimmy Hatlo’s “There Oughta Be a Law” was a long-running newspaper feature. He solicited topics for the cartoon from his readers. Their responses captured an essential fact about law in America. Americans are a people of laws. We have always expected the law to express our values. We have certainly made a lot of law, and we are surrounded by constitutions, acts of Congress, state statutes, court rulings, executive decrees, and municipal ordinances. We have more lawyers and more litigation than any modern society, and our passion for going to law, following cases in the media, and debating over laws about to be and already passed amounts to a national pastime. Our past reveals law that “has crawled crabwise over the landscape of our history, pulled and driven by competing notions of rights and duties. The result is not a single path of the law, but a multiplicity of paths, some deeply trodden, others ending abruptly, going nowhere.”1 One cannot study law without seeing its close ties to history. Jurisprudence ,thescienceoflaw,teachesthatlawisthecommandofthestatethatone 136 > 137 moral theories, institutions of public policy, avowed or unconscious, even the prejudices that judges share with their fellow-men” are the pillars of the law. Holmes, wounded three times serving in the Union Army during the Civil War, knew whereof he spoke. For then, competing versions of human liberty and constitutional law played out on the battlefield. Holmes had seen and felt how history and law collaborated to send some men to an early grave and gave others their freedom from bondage.3 This collaboration of law and history was the centerpiece of the “law and society” approach to the study of law after World War II. Pioneered by law professors and historians at the University of Wisconsin, the movement insisted that legal history be regarded as a product of the larger social, political, economic, and cultural life. Law was not autonomous, and change within it was not sui generis. Law was a dependent variable, shaped by change outside of the legal academy, the courts, and the texts. “The central point remains, law is a product of social forces, working in society.” If law does not work for that society, it does not have “survival value.” The external view of law and society features “a commitment to empirical observation and scientific measurement . . . to objectivity and neutrality.” Law and society bids its followers to compile detailed observations about trends and shifts in the practice and impact of law—a study of law from the bottom up that includes legislators and legislation in its purview. As G. Edward White has written of his own journey from first to third edition of The American Judicial Tradition, “In the interval . . . the interest of scholars, students, and judges in the historical dimensions of law have grown dramatically, with the result that I have many more colleagues . . . working on projects in legal and constitutional history.” Their explorations of both doctrine and social context had broadened his own and reached out into the wider world of historical scholarship.4 “Law Office History” Although law and history in Anglo-American systems of jurisprudence are ready collaborators in the enterprise of legal history, the results of 138 > 139 the framers had gone to their reward. Obviously, this version of law and history was as unappetizing to the historians as it should have been to judges. Despite some jurists’ avowed fidelity to an interpretative strategy of “original meaning” or “original intent,” historians know that the meanings that framers see in words and their intent in choosing words do not determine how those words will be read by later generations. Originalism assumes not only an objectivity that would make most working historians uncomfortable; it assumes a level of confidence in the historical findings that historians themselves would not share. In short, as a mode of constitutional interpretation, originalism is not very historical. “New values are invented and old ones given new content.”6 A still more potent criticism of the collaboration of law and history regards legal history in the law...

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