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84 Pol. Sci. Q. 1 (1969)

handle is hein.journals/pclscceqry84 and id is 1 raw text is: The Right Against Self-Incrimination: History and Judicial History LEONARD W. LEVY Brandeis University By now we all know the notorious fact: the Supreme Court has flunked history. The justices stand censured for abusing historical evidence in a way that reflects adversely on their in- tellectual rectitude as well as on their historical competence. Pro- fessors of constitutional history charge that the justices frequently use law office history, which is merely a function of ex parte advocacy. The Court artfully selects historical facts from one side only, ignoring contrary data, in order to support, rationalize, or give the appearance of respectability to judgments resting on other grounds. Alfred H. Kelly, who aimed his sharpest barbs at the liberal activists, claimed that the Court's historical scholarship is simplistic, manipulative, and devoid of balance or impartiality. He referred to the Court's historical felony, amateurish his- torical solecism, mangled constitutional history, and its prac- tice of confusing the writing of briefs with the writing of history -all of which runs wild in the Court's opinions. Kelly also questioned whether history as written by the Court is reconcilable with historians' history.' Since Charles Fairman demolished Justice Black's opinion in the Adamson case2 on the question whether the Fourteenth Amend- 'Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, in Philip B. Kurland (ed.), Supreme Court Review: 1965 (Chicago, 1965), 119-58. 'Adamson v. California, 332 U.S. 46 (1947). Volume LXXXIV Number 1 March 199 1

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