Law Office History- Setting a higher bar to pass the bar

Saul Cornell cornell.14 at OSU.EDU
Sat Jan 13 09:41:05 PST 2001

There is a good reason that historians have lost patience with folks like
Randy and Eugene who are great lawyers but not trained historians.  Even
Robert Shalhope the historian most supportive of the individual rights view
of  the Second Amendment has excoriated the Standard Model for its tortured
view of history.  Eugene refers to the Test Act as if it were  simply an
emergency measure passed during time of  war. In fact the act was not
repealed till after the Constitution was ratified!   Eugene treats 19th
century commentators and state constitutions as though they inhabited the
same world as their 18th century forbears and then claims  that when they
changed the language in their constitutions regarding the right to bear
arms that the changes were actually superfluous because no change was
really needed. Such an argument is absurd and the burden of proof would
seem to be on Eugene to show that change meant no change.  I have great
respect for Randy and Eugene as constitutional lawyers but their arguments
are clearly ideological and not historical. Both men quote Tucker's
Blackstone but don't seem to realize that Tucker's ideas evolved in
response to the crises of the 1790s. They ask for proof of  such a claim--
yet I doubt either have read Tucker' unpublished writings, examined
Tucker's correspondence, or even published on Tucker's thought!  Yet, they
make pronouncements about Tucker as though each were a Tucker scholar
immersed in his corpus of writings.  Neither Eugene or Randy has taken the
time to get up to speed on the history of the period which requires reading
far more widely in both published sources and unpublished sources.  What we
have had in this debate is a perfect example of what legal scholar Martin
Flaherty's  has described as history "lite."  Rather than act with some
humility (I would not presume to offer an expert opinion on matters of law)
we have authoritative pronouncements about issues on which individuals are
not experts!  Historians would tone down their attacks if lawyers would
ratchet down their claims of expertise. This raises the issue of
malpractice that Mark brought to the table.  Claims have been made which
serve a clear political purpose but which could never stand scrutiny had
these claims  been subjected to blind peer review in a reputable history
journal.  While blind peer review is not perfect, it is better than
nothing.   The legal profession enjoys tremendous power in our society, yet
it alone among professions avoids blind peer review.  Its modes of
publishing and policing itself border on criminal: no blind peer review,
student edited publications.  With history becoming even more important to
constitutional discourse the bar is simply being set higher and legal
scholars will have to adapt or the charges of law office history will
continue-- Such charges seem to be the only means available to call the
legal profession to task and force it to confront a problem that historians
and political scientists have been complaining about for years.
Saul Cornell
Associate Professor Of History
The Ohio State University
230 West 17th Ave
Columbus, OH 43210

Office Phone: (614) 292-7858
Fax: (614) 292-2282
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