California Western School of Law

Law Review, California Western

1989] INDEX iii
AUTHOR AND SUBJECT INDEX
PAGE
Bundy, Agnes G.
The Reunification of China with Hong Kong and Its Implications for Taiwan: An
Analysis of the "One Country, Two Systems" Model .......................... 271
Buranich, William P.
The Art Collecting Countries and Their Export Restrictions on Cultural Property:
W ho O wns M odern A rt? ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  153
Business Litigation
Central Issues of Business Litigation in West German Civil Courts ................ 47
Contract Law
Enforcement of Hardship Clauses in the French and American Legal Systems ...... 81
Coyne, Rita Ann
International Securities Trading: The United States and Great Britain Develop
Clearing and Settlement Procedures for a New Age ........................... 129
Criminal Law
Economic Offenses Under the Penal Code in Commonwealth Countries with Special
Reference to Corporate Directors: A Case Study of India, Singapore and Malaysia 235
Environmental Law
Solid, Hazardous, and Radioactive Wastes in Outer Space: Present Controls and
Suggested C hanges ....................................................... I
The Relationship Between the International Laws of Armed Conflict and
Environmental Protection: The Need to Reevaluate What Types of Conduct are
Permissible During Hostilities ........ ............... ............... 287
Export Restrictions
The Art Collecting Countries and Their Export Restrictions on Cultural Property:
W ho Owns M odern Art? ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3
Hauschka, Dr. Christoph E.
Central Issues of Business Litigation in West German Civil Courts ................ 47
Human Rights Law
The Proposed Constitutional Guarantee of Indigenous Governmental Power in Fiji:
An International Legal Appraisal ........................................... 107
International Securities
International Securities Trading: The United States and Great Britain Develop
Clearing and Settlement Procedures for a New Age ........................... 129
International Financial Markets and Regulation of Trading of International Equities. 327
1
Law Review: Author and Subject Index
Published by CWSL Scholarly Commons, 2015
iv CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 19
Islam, Dr. M. Rafiqul
The Proposed Constitutional Guarantee of Indigenous Governmental Power in Fiji:
An International Legal Appraisal ........................................... 107
Joint Venture Law
North Korean Joint Venture Laws ............................................ 175
Kim, Chin
North Korean Joint Venture Laws ........................... ................ 175
Reunification of China
The Reunification of China with Hong Kong and Its Implications for Taiwan: An
Analysis of the "One Country, Two Systems" Model .......................... 271
Samuel, Margaret Maureen
International Financial Markets and Regulation of Trading of International Equities . 327
Schafer, Major Bernard K., U.S.A.F.
Solid, Hazardous, and Radioactive Wastes in Outer Space: Present Controls and
S uggested C hanges .... ....... ........................................... I
The Relationship Between the International Laws of Armed Conflict and
Environmental Protection: The Need to Reevaluate What Types of Conduct are
Perm issible During H ostilities .............................................. 287
UlIman, Harold
Enforcement of Hardship Clauses in the French and American Legal Systems ...... 81
Vyas, Yash
Economic Offenses Under the Penal Code in Commonwealth Countries with Special
Reference to Corporate Directors: A Case Study of India, Singapore and Malaysia 235
2
California Western International Law Journal, Vol. 19, No. 1 [2015], Art. 2
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English

Author and Subject Index

1989] INDEX v
TABLE OF CASES
INDEX FOR VOLUME 19
A bhayanand M ishra v. State ................................................. 260
Aluminum Co. of America v. Essex Group, Inc .................................. 99
Canadian Industrial Alcohol Corp. v. Dunbar Molasses Co ....................... 91
Chang Lee Swee v. Public Prosecutor ......................................... 244
Cleveland-Cliffs Iron Co. v. Interstate Commerce Commission ..................... 91
Corfu Channel Case (United Kingdon v. Albania) ........................... 24, 297
Cosmos 954 Case (Canada v. USSR) ...................................... 24, 297
Customs & Excise Commissioners v. Hedon Alpha Ltd ........................... 267
Datuk Haji Harun Haji Idris, Public Prosecutor, v .............................. 261
D aulat R ai v. E m peror ...................................................... 255
Delhi Cloth & General Mills Co. v. Harnam Singh ............................. 257
Eastern A irlines v. G ulf O il Co ................................................ 90
Electricit6 de France v. Soci6t6 Shell Francaise ..................... 96, 97, 99, 105-06
Georgia Power v. Cimarron Coal Corp .................................. 102-03, 105
G iles Seddon v. S.J. Loane .................................................. 253
Hoffman v. Red Owl Stores, Inc ............ .................................. 96
Hyer Products Co. v. United States ............................................ 95
In re Beejay Engineering Pvt ................................................. 267
Indra N arayan v. State ..................................................... 257
Iowa Power and Light Co. v. Burlington Northern, Inc ............................ 98
Itek Corp. v. Chicago Aerial Industries ......................................... 92
Jaswantrai A khaney v. State ................................................. 246
Jeanneret v. V ichey ....................................................... 166-67
Jones v. S E C .............................................................. 345
Lake Lanoux Case (France v. Spain) ...................................... 24, 297
Mulki Suryanarayana Rao v. G.G. Gamble .................................... 264
N am bia v. South A frica ..................................................... 118
National Patrimony v. International Interests ................................... 163
P.G . Ralph v. Public Prosecutor .............................................. 248
Public Prosecutor v. Yeoh Teck Chye ..................................... 249, 265
Public Prosecutor v. Tan Koon Swan ...................................... 236, 262
Public Prosecutor v. Datuk Haji Harun Haji Idris .............................. 261
Q ueen Em press v. M oss ................................................. 247, 254
R. v. Tay Thye Joo .................................................. ...... 266
R.K. Dalmia v. Delhi Administrations ..................................... 244, 257
Radha Balbav Pal v. Emperor ................................... ............ 252
Ramchand G urwala v. Emperor .............................................. 255
SEC v. C rude O il C orp ...................................................... 345
Shailendra Nath M itter v. Em peror ........................................... 247
Shivnarayan v. State .................................................... 258, 265
Soci6t6 A ir N autique v. ISSTA ............................................... 88
Southwestern Electric Power Co. v. Burlington Northern, Inc. ........... 92-93, 95, 98
Srinivasan v. Em peror ...................................................... 252
Straub v. V aism an & C o. ........ .......................................... 342
Tan Koon Swan, Public Prosecutor, v ...................................... 236, 262
Tan Sri Tan Hian Tsin v. Public Prosecutor ................................... 245
Tay Choo W ah v. Public Prosecutor ........................................ 243-44
1
Law Review: Table of Cases
Published by CWSL Scholarly Commons, 2015
vi CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 19
Tournier v. National Provincial & Union Bank of England ....................... 359
Trail Smelter Case (Canada v. U.S.) ....................................... 23, 296
Travis v. A nthes Im perial, Ltd ................................................ 342
W right v. S E C ............................................ 
............... 346
Yeoh Teck Chye, Public Prosecutor, v ..................................... 249, 265
2
California Western International Law Journal, Vol. 19, No. 1 [2015], Art. 3
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Table of Cases

Brown, Sampson A.

Romaker, John L.

Cumis, Conflicts and the Civil Code: Section 2860 Changes Little

Ehlke, Therese A.

Disc, DAT and Fair Use: Time To Reconsider?

Phelps, William G.

Protecting the Opportunity Interest of the Unwed Fathers of Newborn Infants Placed for Adoption: Does California\u27s Statute Go Far Enough?

Savely, Carl D.

National Mineral Policy: A Critical Need for Public Awareness (California Coastal Commission v. Granite Rock Co.)

Stites, Francis

California Western Law Review 
Volume 24 
Number 2 Bicentennial Constitutional and Legal 
History Symposium 
Article 4 
1988 
Comment on "Clio as Hostage" 
Francis Stites 
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Recommended Citation 
Stites, Francis (1988) "Comment on "Clio as Hostage"," California Western Law Review: Vol. 24 : No. 2 , 
Article 4. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/4 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
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information, please contact alm@cwsl.edu. 
Comment on "Clio as Hostage"
FRANCIS STITES*
"History is among the most essential departments of knowl-
edge," John Marshall wrote in 1834, and "to an American, the
histories of England and of the United States are most instructive.
Every man ought to be intimately acquainted with the history of
his own country."1 There is no hostage Clio here. Marshall was
not speaking as an historian or a judge-although he was both of
these-but as a grandfather exhorting his grandson to a proper
and fruitful study. He is renowned for his "judicial-fiat" history
and famous, although less so, for his Life of Washington;2 but I
want to examine the context of this warm epistolary embrace of
history and, like Professor Wiecek, address the nature of the
history.
Wiecek raises important points: that there is no fixed body of
material called history; that context is essential in evaluating judi-
cial uses of history; that judicial decisions often need some history
supporting them; and that history sometimes is "simply beside the
point."3 Yet, an ambiguity about the term "history" percolates
through his discussion. Consider poor Clio, for example. She ap-
pears as "hostage," as "handmaiden," as "no one's unthinking
servant," and as "a lady of whimsical turn of mind."4 These con-
tradictory images raise my points: that history and the past are
not synonymous; and that "history" has a history. Because the
meaning of the word or discipline has changed over time, it also
has a context. So, part of evaluating the judicial use of history is
asking what history meant at the time the justices used it. Histori-
ans must evaluate judicial history by the standards of the time.
We forget this as we identify types of judicial history and then
examine a string of historical examples of the type. Two examples,
widely separated in time, may have only the label in common.
Let me return to John Marshall. Alfred Kelly noted in 1965
that Marshall's many judicial fiats showed "little if any inquiry
* Professor of History, San Diego State University.
1. THE POLITICAL AND ECONOMIC DOCTRINES OF JOHN MARSHALL 55-57 (J.E.
Oster. ed. 1914 (John Marshall to his Grandson, November 7, 1834).
2. J. MARSHALL, THE LIFE OF GEORGE WASHINGTON (2 vols., Philadelphia 1836).
3. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of
History, 24 CAL. W.L. REV. 227 (1988).
4. Id.
1
Stites: Comment on "Clio as Hostage"
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN LAW REVIEW
into actual history. ' 5 Wiecek makes essentially the same point.
But what is "actual history?" More important, what was Mar-
shall's view of history, what were the standards of his time? What
was the context? How different was it from our own? These are
the crucial questions.
An answer emerges later in the letter when Marshall said that
David Hume was "generally thought the best Historian of Eng-
land," and noted that others had continued his narrative to a later
period.6 Now for Hume in the seventeenth century and those
others in the eighteenth century there was no substantial differ-
ence between the past and the present.7 The past, for him and for
Marshall, was an undifferentiated mass of information about the
human experience from which one deduced general principles. A
bewildering variety of specific differences could all point to the
same general principles. So, the attribute of history we count so
important, fidelity to the record, counted for little to those men.
The important thing was to transcend the details, to deduce and
declare the guiding principle, and to teach every man the history
of his country, as it ought to have been. One of the principles that
Hume had declared, as had Sir Edward Coke before him, was
that Anglo-Saxons had always been freedom loving and had strug-
gled to achieve it in their legal and political institutions, especially
the common law.8 Over time we have seen new definitions of his-
tory, but that principle surely still guides our examination of the
details.
Marshall, like other early nineteenth-century historians, did not
see the alteration of small details in the record as a betrayal of the
historian's canons. Quite the contrary! Such alterations in his
Washington, in his view, merely demonstrated his skill in teaching
the principles that the details of Washington's life revealed about
the American descendants of the ancient Anglo-Saxons. In that
biography, as in his opinion in McCulloch v. Maryland, for exam-
ple, Marshall was saying that we must never forget that it is prin-
ciples we are expounding. Kelly's note that this line read "like a
5. A. Kelly, Clio and the Court: An Illicit Love Affair, Sup. CT. REV. 119, 123
(1965).
6. THE POLITICAL AND ECONOMIC DOCTRINES OF JOHN MARSHALL, supra note 1, at
54-55.
7. "Mankind are all so much the same, in all times and places, that history informs
us of nothing new or strong in this particular, [and] ... Its chief use is only to discover the
constant and universal principles of human nature." ENQUIRY CONCERNING HUMAN UN-
DERSTANDING § 8, pt. 1, 4:68 (1748); cited in D. LOWENTHAL, THE PAST IS A FOREIGN
COUNTRY, 47 (1985).
8. On Coke, see R. HORSMAN. RACE AND MANIFEST DESTINY: THE ORIGINS OF
AMERICAN RACIAL ANGLO-SAXONISM 13-15 (1981); on Marshall, see Foran, John Mar-
shall as a Plagiarist, AMERICAN HISTORICAL REVIEW 51-64 XLIII (Oct. 1937).
[Vol. 24
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COMMENT ON "CLIO AS HOSTAGE"
plea for an awareness of historical dynamics" is accurate if we
remember that the context for dynamics in 1819 was not the same
as in 1965.1 If we adjust Marshall's McCulloch comment about
ends and means to reflect accurately that period's different, didac-
tic approach to the past, it would read: If the principle be legiti-
mate, then all details "which are plainly adapted to that end," are
appropriate.10 It is not entirely historical to refer to such judicial
fiats simply as concoctions. In Marshall's time they were also good
history.
Approach to the past, not history, is the proper term, and this is
no small point. If we keep the history and the past separate and if
we remember that justices, especially when acting as such, are not
historians, then we might begin to see that it is the past and not
Clio that is hostage. Justices might use history in their constitu-
tional adjudication, but more often they use the past, and in the
ways Wiecek has so ably shown us with Holmes, Brandeis, Car-
dozo, Frankfurter, Jackson and Warren. Historians can also mis-
use the past by writing law-clerk history, and when they do, they
prostitute Clio. The two professions have different goals that they
bring to the use of the past and different standards to govern that
use. Justices focus on the present and its policy questions; histori-
ans focus on the past and probe things having no necessary con-
nection to the present-the original intent of the Framers, for ex-
ample. We need more comments like those of Justice Jackson and
Professor Wiecek that Court opinions may be "much stronger" for
their "forthright admission" that history is not pertinent. That
luxury is forbidden to the historian in a modern context.1"
From this vantage Clio appears less a hostage than a coquette
(or whimsical lady) that each generation eagerly pursues for the
instruction she can provide in the proper rituals of courtship and
the rewards she offers. Kelly saw her as a lover, although even he
felt constrained to add "illicit." Like the coquette, she changes her
appearance to entice different suitors. What she offers the justices
is not the recreation of a portion of a lost time but what Wiecek
calls the "lode of values," what Marshall in Marbury v. Madison
or Cardozo in Palko v. Connecticut called "fundamental princi-
ples."'-2 These have a life of their own which has taken them into
expressions widely at variance with their Framers' intentions.
Justices ought to have what Leonard Levy has called an "his-
torical spirit" that keeps the principles in mind but allows creative
9. See A. Kelly, supra note 5, at 124.
10. 4 (Wheat.) 421 (1819).
11. Wieek, supra note 3.
12. Id.
1988]
3
Stites: Comment on "Clio as Hostage"
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN LAW REVIEW
new application subject always to the merciless criticism of their
peers, the public, and, among others, historians. 13 Context deter-
mines the criticism, and policy, not simply historical accuracy, is
the guide. We condemn Dred Scott v. Sanford, more as bad pol-
icy than as bad history. Wiecek admits that in the context of the
legal system in which slave state jurists operated it "made
sense."' 14 Taney's was a failure of accuracy and a failure of the
historical spirit that would have recognized that the society had
moved beyond the original intent but not the principles of the
Framers. Wiecek's examination of the Court's work offers refresh-
ing illustrations that, despite such lapses as Dred Scott, practice
in the United States has often enlarged the meaning of principles.
Decisions like Brown v. Board of Education, Griswold v. Connect-
icut, Miranda v. Arizona, New York Times v. Sullivan, Roe v.
Wade, and others are devoid of "actual history" but filled with
historical spirit. Historians should note that.
. As we think about the relation between the historian and the
justice we ought to stay alert to the dangers of getting caught
between simple-minded arguments beginning either with "History
teaches us" or with "History is bunk." We need warnings like
Wiecek's especially during bicentennial orgies, lest we forever con-
tinue to read the past backwards from the present to find, in Har-
old Bloom's delightful phrase, our ancestors imitating us.'5 I am
one of those anti-instrumentalists Wiecek discussed, so my conclu-
sion that Clio can never be a teacher will come as no surprise.
13. L. Levy, History and Judicial History: The Case of the Fifth Amendment, in
L.W. LEvY, CONSTITUTIONAL OPINIONS: ASPECTS OF THE BILL OF RIGHTS 208 (1986).
14. Wiecek, supra note 3.
15. H. BLOOM, THE ANXIETY OF INFLUENCE 141-44 (1975), cited in D. LOWENTHAL-
supra note 7, at 71.
[Vol. 24
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Comment on  Clio as Hostage

Damiani, Lisa J.

The Power of United States Courts to Deny Former Heads of State Immunity From Jurisdiction

Islam, M. Rafiqul

Proposed Constitutional Guarantee of Indigenous Governmental Power in Fiji: An International Legal Appraisal

Lofgren, Charles A.

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 
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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 as
Hostage ... ."
CHARLES A. LOFGREN*
I am both pleased and awed by the opportunity to comment on
Professor Wiecek's paper. My pleasure derives from the impor-
tance of the topic and from the paper itself. The awe comes from
the depth and comprehensiveness of Professor Wiecek's study. As
a commentator, I feel a bit in the position of someone who had
remained in St. Louis when Lewis and Clark went west and who
then tried to tell the two explorers what they really saw-or
should have seen-at the headwaters of the Missouri and beyond.
First, the importance of the topic: We all know that judges use
history. Moreover, as the willing or unwilling legatees of legal re-
alism, we all probably suspect, even in the absence of systematic
inquiry, that they sometimes misuse it from the perspective of the
workaday historian. But what seems obvious often needs careful
investigation. In the present instance, I say this with a degree of
self interest, because I, too, have probed several episodes involving
judicial history and my own dabbling leads me to appreciate the
ambitious scope of Professor Wiecek's paper.
I am even more impressed with the importance of his project
because of another paper I recently read. It is a preliminary re-
port on a study of how frequently members of the Burger Court
turned to the era of the Constitution's framing and ratification.
The authors are Gordon Lloyd and Arthur Svenson, political
scientists at the University of Redlands, who presented the paper
at this year's annual meeting of the American Political Science
Association. With their permission, I quote parts of two of their
paragraphs. 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 cases
disposed of by written opinion raise constitutional issues? What
percentage of cases raising constitutional issues refer to the
Framers? What sort of citation distribution exists among thejustices?
* Roy P. Crocker Professor of American Politics and History, Claremont McKenna
College.
1
Lofgren: A Comment on William Wiecek, "Clio as Hostage …"
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN LAW REVIEW
After a detailed investigation which nonetheless probably un-
dercounted references to the Framers, or, more accurately, to the
views of the Framing generation, Lloyd and Svenson reached
these conclusions about the seventeen years of the Burger Court:
First, roughly half of the Burger Court cases disposed of by
written opinions raised constitutional issues. Second, of those
cases that .. raised constitutional issues, nearly 20% contained
one or more opinions which cited the Framers. Third, of those
cases which cited the Framers, more than half have been viewed
as significant or landmark decisions by legal scholars and politi-
cal scientists. Fourth, in terms of both opinions written and
opinions 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 on
the Court.
Regarding the last point, and apropos the current debate over a
"jurisprudence of original intention," mentioned by Professor
Wiecek in his concluding section, Lloyd and Svenson present in-
triguing figures. Justice Rehnquist, for example, averaged 2.4
opinions 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 founding
era, or about the extensiveness, accuracy, and appositeness of the
usage. Notwithstanding those limitations, I have related Lloyd
and 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, and
a conclusion. The introductory pages take us back to Alfred
Kelly's classic article and add to his typology. As a minor point, I
read the second of Kelly's two less controversial modes of histori-
cal usage not, as Professor Wiecek has it, as the investigation of
legislative history, but rather the investigation of "the circum-
stances surrounding earlier judicial expositions of the law," to
quote 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 history
as a lode of values, history as refutational argument, and history
as a medium of education. When we take these in combination
I. A. Kelly, Clio and the Court: An Illicit Love Affair, Sup. CT. REV. 121 (1965).
[Vol. 24
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COMMENT 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 see
that 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-the
Court's use of history-the paper in addition encompasses a sec-
ond focus: history's impact on the Court. The first focus suggests a
conscious technique. History's role in the second focus may occur
at 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 play
on the theme of "usage" (and, admittedly, to fall into the fallacy
of reification), besides being itself used, history also uses the
Court.
The body of the paper is fascinating and so meets one sine qua
non of good history. At the level of explanation, however, I wish
Professor 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 of
cases, almost all of them decided in the twentieth century, that
deal 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 history
and the Court; but so do other areas and cases. Because a single
paper cannot tell all, the criticism I am making may be something
of a cheap shot. Yet I miss an explanation of what guided his
selection process. It may be that the three areas he covers reveal
more, 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 the
judges, in addition to being used by them. Professor Wiecek
makes the point explicit in discussing the road to Erie Railroad
Co. 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 regarding
some of the other justices he mentions. Or perhaps identifiable
historical influences are clearer with respect to some judges than
others. I would like fuller attention to whom and why.
When Professor Wiecek turns to the line of cases dealing with
rights 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 of
values. But additionally, history-for-purposes-of-refutation enters
the picture. In fact, the same historical discussion by a judge may
fit into more than one of the Kelly-Wiecek categories.
1988]
3
Lofgren: A Comment on William Wiecek, "Clio as Hostage …"
Published by CWSL Scholarly Commons, 2015
CALIFORNIA WESTERN LAW REVIEW
This leads me to speculate-or rather to state the obvious-that
the categories themselves imply a neatness contradicted by careful
investigation.
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 during
the nineteenth century offered scant sustenance to blacks. Much
of this was history by fiat or law-office history at its worst. But
that 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 Wiecek
makes no pretense of carrying the race-related story into the
twentieth century. In his introduction, however, he mentions
Brown v. Board of Education and praises the Court for finding
history indeterminate. With some trepidation at taking up a sub-
ject Professor Wiecek knows far better than I do, I suggest that in
Brown 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 the
acceptability of segregation under the fourteenth amendment's
first section.
What I am reminded of is akin to a point that I consciously
wove into my book on the Plessy case. "Good" social science in
the 1890s provided a slim foundation for true equality of constitu-
tional right. By extension, when I think about the use of history, I
am left a bit uneasy. Historians understandably applaud accurate
historical reconstruction-although the most insightful of them,
which includes Professor Wiecek in his paper and especially in his
conclusion, caution that history's application to legal-constitu-
tional issues is often problematic. But in those instances where it
is 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, he
suggests that Jacobus ten Broek erred in viewing history as an
extrinsic aid. Instead, as Professor Wiecek puts it, history "is
often intrinsic to consitutional adjudication, providing the initial
assumptions, the thought structure, the terms of discourse, the
backdrop of human experience, or all of these, for many instances
of constitutional adjudication." That well indicates his own
nuanced concerns-and does so better, I think, than the discussion
of categories with which the paper begins.
[Vol. 24
4
California Western Law Review, Vol. 24 [2015], No. 2, Art. 3
https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/3


A Comment on William Wiecek,  Clio as Hostage …

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A Comment on William Wiecek, Clio as Hostage …

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