Archives for category: History

I was invited to write for The Hill, a D.C.-based website, about why I oppose the Trump administration’s executive order creating a “1776 Commission” to promote “patriotic education.” Here is my article.

Trump signed an executive order on November 2, the day before the election, establishing the Commission. The reason, the order said, was that “…in recent years, a series of polemics grounded in poor scholarship has vilified our Founders and our founding.  Despite the virtues and accomplishments of this Nation, many students are now taught in school to hate their own country, and to believe that the men and women who built it were not heroes, but rather villains.”

The Commission is a direct response to the 1619 Project, which was published by the New York Times and edited by Nicole-Hannah Jones. It sought to see American history through the African-American experience. I suspect that Trump never read the 1619 Project, but perhaps his speechwriter Stephen Miller did.

The Commission is a bad idea, which I explain in the article. It is also illegal. But when has that ever stopped Trump or Miller?


Donald Trump, a man who is noted for his ignorance of history, signed an executive order the day before the election to create a “1776 Commission” to establish guidelines for “patriotic education.” The commission was established as a counterpoint to the New York Times’ 1619 Project, which told the story of African Americans in the colonies and the nation.

https://www.forbes.com/sites/elanagross/2020/11/02/trump-signs-executive-order-to-establish-a-1776-commission-to-instill-patriotic-education/

Although Trump surely did not read the 1619 Project, he somehow gleaned that it detracted from the all-white, all- male history that he imbibed at his military school. While he doesn’t remember it, he does know that it portrayed America as a nation that was blameless and pure. He wants to assure his base that he will fight to protect white paternalism and privilege. Whatever his commission comes up with, it’s unlikely to affect curriculum, which is decided by states and textbooks.


This short video provides perspective on where we are today. The long view….

The Silence of the Ellipses: 

Or Why History Can’t Be About Telling Our Children Lies

Sam Wineburg is the Margaret Jacks Professor of Education & (by courtesy) History at Stanford University. His most recent book is Why Learn History (When It is Already on Your Phone), University of Chicago Press, 2018. He tweets at @samwineburg.

Aware his days were numbered, a tuberculosis-stricken George Orwell raced to finish the book that would make his name an adjective. Holed away in a remote cottage on the Isle of Jura off the Scottish coast, he left the island for the last time in 1949, the same year his novel appeared. He died a year later.

I read 1984 in my 11th-grade English class in the weary rustbelt town of Utica, New York, at a time when Russia was still the USSR and the “focus of evil in the modern world.” With Cliff Notes at my side, I decodedthe book’s more obscure allusions (2 + 2 = 5, I learned, conjured up Stalin’s claim that his five-year plan had been completed in four). But you didn’t need a study aid to get the main point. We lived in a free society; they in a tyrannical one. We respected truth; they disfigured it. Russian-speaking Winston Smithscomposed their history books; ours were written by esteemed historians (mine, The American Pageant, was written by the past president of the Organization of American Historians, Thomas Bailey). 

Mind you, we knew our textbooks weren’t perfect (we weren’t naïve—or at least not as naïve as they were). Elaine Cantor, my history teacher, openly criticized our books (another testament to our superiority). We learned that Thomas Jefferson used his incandescent intellect to pen the Declaration of Independence, but our textbook conveniently omitted how he used hisintellect to devise tunnels at Monticello that hid the scourge of slavery from view. Yet, omission was one thing; outright fabrication of the Winston Smith-variety, another. We stooped, but not as low as they did. Or so it seemed, then.

Financed and approved by the state, history textbooks record our hopes and fears. They are less a reflection of the current state of historical knowledge than a collection of stories adults think will do children good, the educational equivalent of making the kids eat theirpeas. Veering too much from the common understanding of history—not among historians but among the chiropractors and other community memberswho sit on state boards of education—risks booting a title from an adoption list and costing publishers millions. The resulting documents are as scintillating as the terms of service you click on to download a new app. Before being presented to adoption boards,textbooks incorporate reams of feedback (sometimesword for word) of the most strident and well-connected special interests: deep-pocket groups with the resourcesto wade through mountains of books, formulate their recommendations in Roman numeral-ed memoranda, and, during periods of public comment, fly to state capitals to deliver statements at open hearings. This labyrinthine process puts publishers in a risk-averse corner in which they strive, oddly, to make their products as similar to each other’s as they can. What distinguishes one company’s books from another is not the stories they tell, but their “differentials”—the ancillary features that come bundled with a majoradoption: test banks, online primary sources, hefty teacher’s editions, downloadable flashcards, and just about every other shiny object that glistens. Accounting for some regional differences, the narration of major events—from the Constitutional Convention to the moon landing—is pretty much the same across publishers, so much so that, across books, the placement of a particular topic can be found within a few pages—quite a feat in tomes that exceed a thousand pages. (Full disclosure: As a former textbook author, Iknow this routine from the inside). 

The Boston Massacre is one of those events that appears in every US history textbook. The basic storyhas changed little across centuries. On a chilly March evening in 1770 a crowd assembled outside the Customs House on King Street and started taunting the British soldiers garrisoned there. With 4,000 troops quartered among the town’s 15,000 inhabitants, tensions had simmered for months, especially between Boston’s dockworkers and off-duty soldiers, who undercut them for odd jobs. As night fell on March 5, agaggle of dockworkers marched from the waterfront toward King Street to join the crowd and startedheaving “snow balls, oyster shells, clubs, white birch sticks three inches and an half diameter” at the sentryand his compatriots.

Commanded by Captain Thomas Preston, the soldiers fired their muskets. Three men died on the spot; two others succumbed later to their wounds. Paul Revere’s depiction of the event, “The Bloody Massacre in King-Street,” etched the night’s carnage in Americans’collective memory: An organized line of British soldiers, their faces angular and sinister (including one who seemed to be grinning), firing in unison onhelpless townspeople out for some fresh air. A travestyof historical accuracy, but highly effective as propaganda. A 1953 textbook does a better job, explaining that whenever the troops appeared on Boston’s narrow streets, “crowds jeered and threw snowballs” that “even the best-trained soldiers will in time lose their tempers”—precisely what happened on March 5, when an unnamed man “knocked a soldier down with a club and then dared the soldiers to shoot.”Which, of course, they did.

More recent textbooks have knitted a similar accountwith one exception: the anonymous, club-wielding man has been named and awarded a major role in the drama. Crispus Attucks was a seaman of mixed African and Native origin. Much of what we know about him remains speculative. However, most historians assume that he’s likely the same “Crispas” who appeared in an advertisement in the Boston Gazette some 20 years earlier: “Ran-way from his Master William Brown of Framingham…a Molatto Fellow, about 27 Years of Age, named Crispas, 6 Feet twoInches high, short curl’d Hair.” 

Crispus Attucks opens the chapter called “The Coming of the Revolution” in The Americans (2014), published by Holt McDougal/Houghton Mifflin Harcourt, one of the three publishing behemoths that dominate the American market. Attired in formal jacket and ruffledwhite shirt, his portrait graces the side of the page (and appears as well on a 1998 United States Mint “Black Revolutionary War Patriots Commemorative Silver Dollar”—sheer fabrications, both. Few seaman had the leisure, not to mention the means, to sit for formalportraiture in 1770). Attucks, the text says, was “part of a large and angry crowd that had gathered at the Boston Custom House to harass the British soldiers stationed there. More soldiers soon arrived, and the mob began hurling stones and snowballs at them. Attucks then stepped forward.” A quotation from John Adams comes next, in which the Founding Father calls Attucks a “hero.”

“This Attucks . . . appears to have undertaken to be the hero of the night; and to lead this army with banners . . . up to King street with their clubs . . . . This man with his party cried, ‘Do not be afraid of them,’ . . . He had hardiness enough to fall in upon them, and with one hand took hold of a bayonet, and with the other knocked the man down.” The text resumes: “Attucks’s action ignited the troops. Ignoring orders not to shoot civilians, one soldier and then others fired on the crowd. Five people were killed; several were wounded. Crispus Attucks was, according to a newspaper account, the first to die.”

Attucks’ appearance in textbooks is a relatively recentphenomenon. Eclipsed from memory from the 1770swell into the 19th century, he was resurrected by William Cooper Nell, an African American journalistand historian, author of the “Services of Colored Americans in the Wars of 1776 and 1812.” By mid-century Attucks emerged as a symbol for abolitionists, Black and White. In 1888, Boston’s Black community unveiled a monument in his honor (over the objectionsof the Massachusetts Historical Society, who believed that the “famous mulatto was a rowdyish person” and“not a fit candidate for monumental honors”). 

It wasn’t until the civil rights movement of the 1960sthat Attucks became a regular feature in textbooks. Among the first was Henry Graff’s 1967 The Free and the Brave: “Attucks and his fellow victims had become the first martyrs in the American struggle against Britain.” A review of seven textbooks published between 2003-2009 found that all but one featured Attucks in their narration of the Boston Massacre.

The Americans not only features Attucks but goes theextra mile by including his portrait and the quotation from John Adams. Knowing little else, young readerswould assume that when John Adams called Attucksthe “hero of the night” the words were a panegyric to the fallen martyr. Nothing in the text hints otherwise.Nothing could be further from the truth.

Adams’ words were, in fact, part of his summation at the trial of the eight British soldiers accused of murder, a trial in which Adams served as counsel for the defense. In taking the case, he faced a formidable challenge: how to undermine the jury’s natural allegiance with the slain victims and make themidentify with the reviled British soldiers. 

He did so by driving a wedge between upstanding Bostonians and a “motley rabble of saucy boys, negroes, and molattoes, Irish teagues and out landish jack tarrs” (that is, ill-mannered non-Whites, lowly Catholics, and uncouth seamen) responsible for the bloodshed. These hooligans were a different stock from “the good people of the town.”: “Why we should scruple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them.”

Crispus Attucks was a hero all right: the kind of hero who presided “at the head of such a rabble of Negroes, &c. as they can collect together,” a hero commandinghis “myrmidons” who were “shouting and huzzaing, and threatening life . . . throwing every species of rubbish they could pick in the street.” Adams repeatedly plied the trope of the fearsome non-White body, how the looming figure of the “stout Attucks was enough to terrify any person,” including the besieged British soldiers. The Americans quotes Adams who quotes Attucks (“Do not be afraid of them”) but ripsthe phrase from its chilling continuation: “Do not be afraid of them, they dare not fire, kill them! kill them! knock them over! And he tried to knock their brains out.”

In Adams’ account, the soldiers tried in vain to restore order, imploring the crowd to “stand off.” However,under “the command of a stout Molatto,” the mob would have none of it, hurling chunks of ice so big that they “may kill a man, if they happen to hit some part of the head.” Were Attucks’ skin color not enough to distance him from the jury, Adams accented his foreignness. This “Attucks from Framingham” was an outside agitator “to whose mad behaviour, in all probability, the dreadful carnage of that night, is chiefly to be ascribed.”

Race-baiting proved a winning strategy. The jury found Captain Preston not guilty, along with six of his soldiers. As for two others, Hugh Montgomery and Matthew Kilroy, the jury reduced charges of murder to manslaughter, branding the two with the letter M (for “manslayer”) on the “brawn of the thumb” along with their oath to never again break the law. As the legal scholar Farah Peterson explained, Adams’ strategyworked in absolving the people of Boston of the night’s carnage by convincing the jury that the soldiers had “only killed a black man and his cronies and that they didn’t deserve to hang for it.”

Tracing where footnote-less textbooks get their information can be an exercise in futility. Not so with The Americans. Accompanying Adams’ quotation, the textbook’s authors cited its source: The Black Presence in the Era of the American Revolution (New York Graphic Society, 1973) by the late University of Massachusetts historian Sidney Kaplan and his wife Emma. Fairness demands that we consider the possibility that it was the Kaplans who butcheredAdams’ quote, and that the textbook authors, failing to check the original, merely reproduced it.

The Kaplans narrate the events of March 5, noting that the local press singled out Attucks for both praise andblame. However, they left no doubt about the counsel for the defense: “For John Adams,” they wrote, “it was all blame.” They quote the same excerpt from Adamsas The Americans but leave intact the charged racial language: Attucks’ menacing figure (“a stout Molatto fellow, whose very looks was enough to terrify any person”) and his role as instigator (the “head of such a rabble of Negroes, &c. as they can collect together”).

With the Kaplans’ text in hand, the authors of The Americans made a choice. Instead of helping young Americans see how a Black (or mixed race) body wasstamped from the beginning, to invoke Ibram X.Kendi’s phrase, and thereby prompt an examination ofthe hoary legacy of race-baiting, stretching fromCrispus Attucks to the Scottsboro boys to Michael Brown, they performed laser surgery on Adams’ words in an act that would do Winston Smith proud. As Farah Peterson notes, Black people are allowed onto the stage of American history only if they satisfy certain conditions: “when they intersect with the triumphal tale of the creation of a white American republic.”

I have to imagine that in editing Adams words, The Americans’ authors thought they were doing something noble: giving American children of all hues a hero who is a person of color. But the sly three dots of an ellipsis cannot perform magic. They erase the stain of racism no better than a bathroom spray masks the stench of askunk. Editorial subterfuge only forestalls a reckoning. 

Last month, the president of the United States stood in the great hall of the National Archives to denounce what he called a leftist assault on American history. “We must clear away the twisted web of lies in our schools and classrooms” and teach our children a kind of history that will make them “love America with all of their heart and all of their soul.” 

But love built on a lie is a false love. It achieves itsmirage by making truth its victim. In any event, the goal of historical study is neither to cultivate love nor hate, anyway. Its goal must be to acquaint us with the dizzying spectrum of our humanity: lofty moments of nobility mixed in with ignominious descents into knavery. When history’s mirror intones a single phrase—that we’re the fairest of them all—it freezes us inchildhood and stunts our growth. History that impels us to look at the past, unflinchingly and cleareyed, doesnot diminish us or make us less patriotic. The oppositeis true: It makes us grow up. Understanding who we were allows us to understand who we are now. Only then can we commit to doing something about it. That should be the goal of history education. 

Our children deserve nothing less.

Nükhet Varlik, a historian at the University of South Carolina, studies the history of diseases and public health. In this article, she reveals that epidemics and pandemics seldom completely disappear. Only one epidemic–smallpox–has been eradicated. Many others survive.

She writes:

A combination of public health efforts to contain and mitigate the pandemic – from rigorous testing and contact tracing to social distancing and wearing masks – have been proven to help. Given that the virus has spread almost everywhere in the world, though, such measures alone can’t bring the pandemic to an end. All eyes are now turned to vaccine development, which is being pursued at unprecedented speed.

Yet experts tell us that even with a successful vaccine and effective treatment, COVID-19 may never go away. Even if the pandemic is curbed in one part of the world, it will likely continue in other places, causing infections elsewhere. And even if it is no longer an immediate pandemic-level threat, the coronavirus will likely become endemic – meaning slow, sustained transmission will persist. The coronavirus will continue to cause smaller outbreaks, much like seasonal flu.

The history of pandemics is full of such frustrating examples.

Whether bacterial, viral or parasitic, virtually every disease pathogen that has affected people over the last several thousand years is still with us, because it is nearly impossible to fully eradicate them.

The only disease that has been eradicated through vaccination is smallpox. Mass vaccination campaigns led by the World Health Organization in the 1960s and 1970s were successful, and in 1980, smallpox was declared the first – and still, the only – human disease to be fully eradicated.

We can all do our part to reduce the danger of COVID-19 by wearing masks and social distancing. When there is a vaccine available, we should take it. It may never be completely eradicated, but we can protect ourselves and our communities by following the practices that scientists have agreed are effective.

Derek Black, Jack Schneider, and Jennifer Berkshire wrote in the Philadelphia Inquirer that the future of public education is on the ballot on November 3 (for the record, I got a credit for doing some minor editing).

Should Trump be re-elected, you can count on him and Betsy DeVos to continue their brazen assault on public schools and to continue their demand to transfer public funds to private and religious schools as well as to pour hundreds of millions of federal dollars into charter school expansion. Draining public dollars away from public school has been Betsy DeVos’s life work and she would have four more years to staff the U.S. Department of Education with likeminded ideologues who hate public schools.

The authors write:

When Trump selected Betsy DeVos as secretary of education, many took it as a sign that he wasn’t serious. After all, DeVos seemed to know little about public schools. But that was a product of her extremism. Over the last four years, she has been crystal clear that her primary interest in the public education system lies in dismantling it. For evidence, look no further than her proposed Education Freedom Scholarships plan, which would redirect $5 billion in taxpayer dollars to private schools.

Unmaking public education is a long-standing goal of libertarians and the religious right. Conservative economist Milton Friedman conceived of private school vouchers in 1955, and four decades later was still making the case for “a transition from a government to a market system.” As they see it, public education is a tax burden on the wealthy, an obstacle to religious instruction, and a hotbed for unionism. Rather than a public system controlled by democratic values, they’d prefer a private one governed by the free market. If they had their way, schools would operate like a welfare program for the poor while the rich would get the best education money could buy. The result would be entrenched inequality and even more concentrated segregation than now exists.

This extreme view has never caught on, largely because public education is a bedrock American institution. Many states created public education systems before the nation even existed. Massachusetts, for instance, was educating children in public schools long before tea was dumped in Boston Harbor. In 1787, the federal government explicitly mandated that the center plot of land in every new town in the territories — land that would become states like Ohio, Michigan, and Illinois — be reserved for schools, and that other plots be used to support those schools. After the Civil War, Congress doubled down on that commitment, requiring readmitted Confederate states, and all new states, to guarantee access to public education in their constitutions. In each of these foundational periods, leaders positioned public education at the very center of our democratic project.

The founders and their successors recognized that public education is essential to citizens’ ability to govern themselves, not to mention protect themselves from charlatans and demagogues. Public education is the surest guarantee of individual liberty, the founders understood — no less essential than a well-trained army to the survival of the nation. That’s why they recognized that the education of American citizens couldn’t be left to chance...

We are here to sound an alarm to Republicans and Democrats. The future of our nation’s public schools is at stake. And insofar as that is the case, the democracy envisioned by our founders — one with universal, tax-supported schooling at its core — hangs in the balance.

Anyone who was old enough to read and understand the news remembers the Cuban Missile Crisis of 1962. At the time, it seemed the world was on the precipice of a nuclear was between the U.S. and the U.S.S.R. American intelligence determined that the Soviets were building nuclear missile sites in Cuba. The missiles had not yet been delivered. President Kennedy warned Soviet leader Nikita Khrushchev that the U.S. would not allow the Soviets to install nuclear weapons 90 miles from Florida. The two leaders publicly exchanged threats. The world watched and waited, with a sense of dread.

The following is from Garrison Keillor’s “The Writers’ Almanac”:

It’s the anniversary of the Cuban Missile Crisis. In 1962, President Kennedy had received photographs from U-2 spy planes over Cuba that showed the Soviet Union installing nuclear missiles and launch sites. He went on the television on October 22 and told the nation that Cuba would be placed under what he called a naval “quarantine” until the Soviets removed them. He also said that he would regard a Soviet nuclear attack on any Western nation as an attack on the United States, and would retaliate. Two hours earlier, Secretary of State Dean Rusk gave the text of Kennedy’s speech to Soviet Ambassador Anatoly Dobrynin, and he said Dobrynin, who had never been told of the missile deployment, “aged 10 years right in front of my eyes.” One-eighth of the nation’s B-52s went in the air that night, ready to strike. Two days later, Soviet Premier Nikita Khrushchev responded, calling the so-called quarantine a “blockade,” a term that reframed it as an act of war. Khrushchev also said it was “an act of aggression” and insisted that Soviet ships would proceed to Cuba as planned. For a few days, the world was on the brink of nuclear war.

Khrushchev sent Kennedy a message on October 26, in the middle of the night. “If there is no intention,” he wrote, “to doom the world to the catastrophe of thermonuclear war, then let us not only relax the forces pulling on the ends of the rope, let us take measures to untie that knot. We are ready for this.” The next day he seemed to backtrack, sending another message that the U.S. must remove its missiles from Turkey. Kennedy took a risk and ignored the second message, responding instead to the first one by saying the United States would not attack Cuba if the Soviets removed their missiles from the island. On October 28, the premier publicly agreed to withdraw the missiles, and the crisis was over.

Joe Scarborough, the host of “Morning Joe” and a former Republican Congressman, wrote this provocative article for The Washington Post, where he is a columnist.

Deep suspicion surrounded the new president and his plans for the Supreme Court. He had been attacking the high court’s rulings for years and even groused publicly nine months after being sworn in that “the country generally has outgrown our present judicial system.” His future secretary of war, Edwin Stanton, bitterly complained to his predecessor that the new president was certain to “affect the future doctrines of the Court.” 

Abraham Lincoln confirmed his opponents’ worst suspicions when he moved against the Supreme Court by signing the Judiciary Act of 1862, adding a 10th justice to the court. Following his assassination, Republicans in Congress reduced that number to seven in an effort to thwart Lincoln’s Democratic successor. Republicans then added two justices after winning back the White House in 1869.

Thanks in part to these maneuvers, the party of Lincoln would control the highest court in the land for the remainder of the 19th century and for the first 40 years of the next century. By 1937, Franklin D. Roosevelt had had enough, but his effort to expand the court was rebuffed by members of his own party. Still, a president working with Congress to change the Supreme Court’s size has a rich historical tradition that is both constitutionally protected and backed by 231 years of precedent. If Joe Biden were to propose such a change, constitutional originalists would surely be his most aggressive supporters.

As Amy Coney Barrett said in Senate testimony this week, the Constitution has “the meaning that it had at the time people ratified it.” Even before every state ratified America’s founding charter, George Washington signed a bill that placed just six justices on the Supreme Court. The second president, John Adams, reduced that number to five. Thomas Jefferson increased that number to seven. And the man who inspired the term “Jacksonian Democracy” added two more justices in 1837.

Given such a powerful legacy, originalists, Republican politicians and right-wing bloggers would never dare suggest that adjusting the Supreme Court’s size was anything other than constitutional and consistent with the republic’s oldest traditions. To do so would condemn as un-American the Father of our Country, the author of the Declaration of Independence and the first president to live in the White House.

How would Barrett respond to such slander? These men were, after all, present at the creation of our constitutional republic. The founding document “doesn’t change over time,” Barrett exclaimed, “and it isn’t up to me to update or infuse my own policy views into it.” By that standard and the actions of the Founding Fathers, there is no good-faith constitutional argument against the future addition of Supreme Court justices.

Those in the party of Trump will thus be forced to present themselves as the protectors of America’s political norms in opposing such an act. This approach would be laughable. After all, Republicans continue supporting a president who has said Article II gives him “the right to do whatever I want as president”; questioned the legitimacy of federal judges; used the Stalinist smear “enemy of the people” against the free press; refused to condemn white supremacists; told “Second Amendment people” they could stop Hillary Clinton from appointing judges; sided with an ex-KGB agent over America’s intelligence community; attacked military leaders as “losers”; undermined America’s democratic process by proclaiming it to be “rigged”; and refused to guarantee the peaceful transfer of power. Beyond Trump’s multitude of sins against democracy, Majority Leader Mitch McConnell would then have to account for his own trashing of Senate traditions before positing himself as the protector of political norms.

The American people will never buy it. By their own actions, these radical Republicans have no standing to protest future changes to the court’s makeup. They have made their own bed. Now it is time for them to sleep in it.

Jan Resseger writes here about the misfit between an “originalist” interpretation of the Constitution and the field of education, which has evolved very far from its condition in the 1770s. It is likely that an originalist, as Judge Amy Coney Barrett claims to be, would have nothing to say about contemporary issues in education, since there were no public schools, no Catholic schools, no organized system of education at all in the time that the Constitution was written.

Resseger writes:

For a couple of weeks now, since the publication of Derek Black’s history of the constitutional basis for American public education, this blog has been reflecting on the meaning of constitutional principles in our nation’s founding documents and the 50 state constitutions for defining the role and meaning of our nation’s system of public schools.  (See here, here, and here.)

But this week, Judge Amy Coney Barrett, who defines herself as a constitutional originalist, went through hours of Senate confirmation hearings leading to a Senate vote on her confirmation in the next week or two as President Trump’s latest appointment to the U.S. Supreme Court. All week we have been considering what it means for our society today when members of the U.S. Supreme Court define themselves as originalists who are bound to interpret the constitutionality of today’s laws according to the precise wording of the U.S. Constitution of 1787.

The other day when Chicago Mayor Lori Lightfoot, trained in the law and formerly a federal prosecutor, was asked whether she is an originalist, Mayor Lightfood replied: “You ask a gay, black woman if she is an originalist? No, ma’am, I am not. The Constitution didn’t consider me a person… because I’m a woman, because I’m black, because I’m gay.  I am not an originalist. I believe in the Constitution. I believe that it is a document that the founders intended to evolve and what they did was set the framework for how our country was going to be different from any other. But originalists say that, ‘Let’s go back to 1776 and whatever was there in the original language, that’s it.’ That language excluded, now, over 50 percent of the country. So, no I’m not an originalist.”

Like Mayor Lightfoot, many people today worry about originalist legal interpretation.  In Linguistics 101, students learn that language changes and evolves over time as particular words become archaic, fall out of common usage, or evolve to mean something different. Dictionaries are descriptive, not prescriptive. We cannot know precisely what the founders intended, but we can be sure that the words they used in 1787 may connote something much broader or narrower today.

Schoolhouse Burning, Derek Black’s new book is, in essence, the history of how the meaning of the guarantee of public education as a right for every child has changed and become more inclusive in the over two hundred years since our nation’s founding. Some people say that because the Constitution itself does not mention public education, public education is not a fundamental right, but Black disagrees because public education is so carefully planned in the Northwest Ordinance, passed as a sort of companion document in the same year as the Constitution.  As Black traces the history of our understanding of the right to public education, it’s clear that Derek Black is certainly not an originalist.  His book is the story of how our history—the civil war, the development of the constitutional principles of the 50 states, Jim Crow, the Civil Rights Movement—has informed and further defined the meaning of the founding principles: “The foregoing principles—the right to an adequate and equal education, making education the state’s absolute and foremost duty, requiring states to exert the necessary effort (financial or otherwise) to provide quality educational access, placing education above normal politics, and expecting courts to serve as a check—are all in the service of something larger: the original idea that education is the foundation of our constitutional democracy.  Education is the means by which citizens preserve their other rights. Education gives citizens the tools they need to hold their political leaders accountable…  Democracy simply does not work well without educated citizens.” (Schoolhouse Burning, p. 224)  Black reminds us, however: “The founders articulated educational goals not with any certainty that they would spring into reality simply by writing them down, but in the hope that we might one day live into them.” (Schoolhouse Burning, p 71)

“Originalist” legal interpretation doesn’t pay much heed to how we have lived into the goals and principles declared all those generations ago. How has the meaning of the constitutional protection of equal education evolved over the history of our country?

Steven Singer tries to understand today’s public schools through the eyes of an “original story,” someone who judges court cases based on the original intent of those who wrote the Constitution.

He writes:

Let’s say you went to a restaurant and ordered a big ol’ meat sandwich only to find nothing but straw between two pieces of bread.

“Waiter!” You say, calling over a server.

“What’s wrong, Sir?”

“There’s no meat in my sandwich.”

“Oh, Sir?” He says smiling, examining your plate. “Here at Scalia’s Bar and Grill we adhere to a strict originalist interpretation of language.”

“What does that have to do with my sandwich?”

“Well, Sir, in Old English ‘meat’ meant any solid food, anything other than drink. As in ‘A Journey to the Western Islands of Scotland’ (1775), Samuel Johnson noted, ‘Our guides told us, that the horses could not travel all day without rest or meat.’”

“But that’s not what I ordered!”

“Oh yes it is, Sir. You ordered the meat sandwich. Enjoy your fresh hay and oats.”

In everyday life, you wouldn’t put up with that kind of nonsense.

But for some reason, far right ideologues think it’s exactly the right way to interpret the U.S. Constitution.

The meanings of words change over time.

But ignoring that fact allows disingenuous crackpots to sweep over centuries of judicial precedent in favor of what they pretend to THINK the words meant at the time the law was written.

It’s not even about what the writers of the law SAID it meant. It’s about what today’s justices decide some hypothetical average Joe of the distant past would take certain words to mean.

The most obvious example, according to Pulitzer Prize winning historian Joseph Ellis,is District of Columbia v. Heller, 554 U.S. 570 (2008), which reversed 200 years of precedent on gun regulations.

Before this ruling, the Second Amendment was interpreted to be referring only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (“a good musket or firelock”) so he can participate in the “well regulated militia” the Amendment describes.

It was about the obligation to serve your country, not the right to own a gun. However, Supreme Court Justice Antonin Scalia – the most infamous proponent of judicial originalism – orchestrated the majority opinion in this case changing all that. By doing a thought experiment about what words might have meant in the 1700s, he papered over two centuries of established law. He was so proud of it that he even described it as “my masterpiece.”

THAT’S judicial originalism.

And now that Scalia fanboy and federal judge for not even three whole years, Amy Coney Barrett, is being rammed through Senate Confirmation Hearings, that preposterous ideology is about to have another proponent on the highest court in the land.

Just imagine if we interpreted everything like people living in the 18th Century!

Please continue reading this excellent post.