History Lite in Modern American Constitutionalism
![handle is hein.journals/clr95 and id is 533 raw text is: COLUMBIA LAW REVIEW
VOL. 95 APRIL 1995 NO. 3
HISTORY LITE IN MODERN AMERICAN
CONSTITUTIONALISM
Martin S. Flaherty*
Let experience, the least fallible guide of human opinions, be
appealed to for an answer to these inquiries.
- The Federalist No. 61
INTRODUCTION
Americans love to invoke history, but not necessarily to learn it. Typ-
ical, perhaps transcendental, in this regard was Ronald Reagan, who glo-
ried in blithely rendered historical misstatements.2 What applies to
* Associate Professor of Law, Fordham Law School. BA 1981, Princeton University;,
MA 1982, M. Phil. 1987, Yale University;, J.D. 1988, Columbia Law School.
Earlier versions of this article were presented to the Fordham Faculty Works-in-
Progress Colloquium and the New York University Legal History Colloquium. I would like
to thank Bruce Ackerman, Richard Bernstein,Jon Butler, Chris EisgruberJill Fisch,James
Fleming, Robert Kaczorowski, James Kainen, Larry Kramer, William La Piana, Frank
Michelman, Edmund S. Morgan, William Nelson, Liam O'Melinn, Russell Pearce, John
Phillip Reid, Dan Richman, William Michael Treanor, Mark Tushnet, and Lloyd Weinreb
for reading and commenting on earlier drafts. My thanks as well to Richard Epstein and
Cass Sunstein for useful and constructive exchanges as they prepared their published
responses. Finally, I would like to record my debt to Zain E. Hussain and Hwan-Hui Helen
Lee for invaluable research assistance.
1. The Federalist No. 6, at 57 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2. President Reagan, for example, once spoke of how the desegregation of America's
military came about 'in World War II... largely under the leadership of generals like
MacArthur and Eisenhower'. James D. Barber, The Presidential Character: Predicting
Performance in the White House 495 (3d ed. 1985). Recounting one memorable scene,
the President stated:
When the Japanese dropped the bomb on Pearl Harbor there was a Negro sailor
whose total duties involved kitchen-type duties .... He cradled a machine gun in
his arms, which is not an easy thing to do, and stood at the end of a pier blazing
away at Japanese airplanes that were coming down and strafing him and that
[segregation] was all changed.
Id. When an observant reporter pointed out that Truman had ordered the prohibition of
the practice of segregation at least three years after the war had culminated, the President
wistfully responded, I remember the scene .... It was very powerful. Id.
This phenomenon is hardly confined either to President Reagan or to those who
supported him. As one historian notes, [W]e have had a series of prominent public
figures, from Harry S Truman to Ronald Reagan, who have misread, distorted, or
trivialized the national past for self-serving purposes or for the vindication of misguided
policies, foreign and domestic. Michael Kammen, Selvages and Biases: The Fabric of
History in American Culture 19 (1987); see also Ernest R. May, Lessons of the Past: The
Use and Misuse of History in American Foreign Policy (1973).](ViewImageLocal?handle=hein.journals/clr95&div=23&collection=&method=preview&ext=.png&size=3)
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