Why History Matters

History is neglected in our school system. History is not a prerequisite for college. History is not important enough to establish any government standards like reading, writing, math or science. Sure, those subjects may be more important than history, but that does not mean history is not important at all. Evidence in many Supreme Court or lower court cases is provided through a historical analysis to properly interpret our Constitution. History was instrumental to decide many important and landmark cases. For example, to elevate a Fundamental Right using Substantive Due Process (rights not found in the text of the Constitution) one of the key perquisites is determine whether the proposed right is “deep-rooted in American history and traditions” (Washington v. Glucksberg – 1997). This standard was most recently applied in Troxel v. Granville (2000) and McDonald v. Chicago (2010). In Troxel, the Court held that parents had a fundamental right to make decisions regarding their children and in McDonald the Court held individuals had the right to keep and bear arms for self-defense. Each decision provided a detailed historical analysis to prove its position.

Most decisions regarding Constitutional Clauses require Justices to make a historical analysis to interpret our Founding Fathers intent. In Kelo v. City of New London (2005), Justice Thomas provided a history of Takings Clause. In NLRB v. Canning Noel (2012) the Court provides a history of the Recess Appointment Clause. In United States v. Lopez (1995) Justice Thomas provides a historical analysis of the Commerce Clause and how the Court has deviated from the traditional intent of that clause. Justice Thomas also provides a historical analysis of African-American life after the Civil War in diversity cases such as Grutter v. Bollinger (1997). In McDonald Justice Thomas also provides a detailed historical analysis of the privileges and immunities Clause in both the Fifth and Fourteenth Amendments. The Necessary and Proper Clause, the Establishment Clause, and the entire Bill of Rights for that matter have all faced historical analysis by Justices in determining cases. Cases involving the structure of the Constitution such as the separation of powers between branches of government also requires a historical analysis. Cases involving the unique nature of federalism and the concept of dual sovereignty of the nation and states a historical analysis is necessary. Historical analysis is necessary to interpret the Founding Fathers intent as well as the intent of the drafters of the Fourteenth Amendment. To understand the intent of these people, Justices also need to understand the philosophies of John Locke, William Blackstone, and the Baron de Montesquieu, since it was their writings that influenced the drafting of the Declaration of Independence and the Constitution.

James Madison’s writings are probably the most influential to understanding the intent of the Founding Fathers. Madison, of course, authored several of the 85 Federalist Papers along with John Jay and Alexander Hamilton. Madison’s Federalist #10 about factions is highly influential and quoted immensely by Justices. The history of Colonial State Constitutions and its provisions and clauses are also important to understand the intent of the Founders when writing the Constitution. Justices routinely compare the meaning of words within the Constitution and between State Constitutions to understand intent. For instance State can have two meanings: Nation and the States of the Union. Justices routinely disagree about meanings of clauses and provisions in the Constitution and can provide two unique historical analyses to back up their claims. For instance, conservatives view the Establishment Clause as a federalism clause applying only to the federal government, however liberals see the clause also applying to the states. And then, of course, the Justices must understand the significance behind the history of hundreds of years of precedent and how to apply it.

Liberal Justices work tirelessly to take historical analysis from Court decisions. They can accomplish this by saying the Constitution is a “living document” first theorized by early progressive justices such as Oliver Wendell Holmes. History can also be eliminated from judicial decisions by using other liberal or progressive techniques such as “presumption” or “judicial restraint”. Justices use the technique of “restraint” to sustain State or Federal laws by “presuming” these laws are constitutional unless those challenging the laws can prove otherwise. Finally, liberal justices can eliminate history in the decision process by merely siding with the majority. Of course, this is dangerous. Majority rule led to precedent such as Jim Crow Laws, mandatory sterilization, unlawful internment, and a clear and present danger. In the first landmark case in Supreme Court history, Marbury v. Madison (1804), Chief Justice Marshall said it was the job of the Court “to say what the law is”. By omitting history through a “living document”, “presumption”, “judicial restraint”, and majority rule Justices are not deciding “what the law is”. It is judicial laziness. Justices merely “defer” to what is popular or what Congress wants and do not care if a law passes Constitutional muster.

Knowledge is paramount. I cannot see any reason to limit rulings based on lesser knowledge of history. In Meyer v. Nebraska (1923) the Court recognized the fundamental right to obtain knowledge. Why would Justices not practice what they preach to be a fundamental right? Of course, students may believe history is not essential to survive, but is it okay to be ignorant (unless they want to be a judge). Today, there is no reason to be ignorant about history with encyclopedias on our phones – yet we are getting dumber, not smarter. Without understanding history and our framers intent, we take our Liberty, fundamental rights, and personal freedoms for granted. That should never happen. That is mockery to every person that died fighting for our personal freedoms. Freedom comes at a cost and it is important to never forget that.