Academic

History Month(s) and the Law

By Nareissa Smith

In February, there were a spate of suggestions that with the election of President Obama, there was no longer a need for Black History Month.   In the following month, some wondered whether Women's History Month was losing its luster.  I think both celebrations - as well Hispanic Heritage Month and Asian Pacific Heritage Month - which begins today - are necessary.

First, I'll admit one of my biases.  I am a history nerd.  Since childhood, I've loved learning about history.  I even minored in history in college.  That places me in a minority, as most Americans are not that interested in the subject.   As a result, most Americans know shockingly little about the history of this nation.   So, those that believe any history matters at all seem to be a perrenial minority in this nation.  But yet, it matters.  Not only in the "those who don't know are doomed to repeat" sense, but simply because it gives one context for current events.  Back in September, nearly every news outlet was shrieking that we were headed into a Great Depression.   Without knowlege of the history, how are consumers of news to judge the accuracy of such claims? 

So why should the history of racial minorities recieve special recognition?   There are a number of social and psychological reasons, of course.  But with respect to the law, and more specially law teaching, I believe that there is a real reason to consider whether our students get a full understanding of the cases they read without an understanding of the history of women and various racial groups. In Civ Pro, can they really understand Adickes v  S. H. Kress without a broader understanding of the civil rights movement?  In Crim Pro, can they really understand why the Court ruled invonluntary confessions unconstitutional in Brown. v. Mississppi   without understanding the racial history behind the treatment the defendants recieved in that case?  In Crim Law, can one really teach rape or voluntary manslaughter - especially the part about a man being able to kill his wife if found in flagrante - without knowing the history of how women were treated as property?

And then there's Con Law.  My other bias is that I teach Con Law.  Con Law is completely intertwined with American History, and all of these groups are part of that story.  Even if we put equal protection to the side, there is so much more to be considered.  How did racial history impact the Court's analysis in a seemingly race-neutral case like Allen v. Wright?  Does knowing who Adam Clayton Powell was impact the view of why he was so unpopular with his peers?   What about Commerce cases like Heart of Atlanta and Ollie's Barbeque?  Can students truly understand First Amendment cases like Cox and Adderley without knowing the Civil Rights Movement background?   Can they really comprehend what R.A.V. means in a larger context?  No doubt there are other examples as well. 

I'm not advocating that we turn every law school course - even Con Law - into a course on legal history.   However, I am suggesting that whether it's the history of a group, a particular era, or a concept, our students need to know it.  The history helps them put the cases in a context they can understand and appreciate.  Without the historical mooring, students feel adrift.  They are learning the rules, but the policy and the social progression or regression presented by these cases are absent.  If this is the case, we have not done our duty as professors.   Thus, I advocate for the teaching of all types of history so that our future students might have a braoder social understanding before entering our classes.

Nareissa

Full post as published by The Faculty Lounge on May 01, 2009 (boomark / email).