Last post I talked about the final paper I was doing for Classics Senior Seminar. The other 20-pager I have to write is for my History of Common Law. The paper-writing for this class has been less structured than Senior Seminar, and I’ve spent less time exploring the research, so I’m a little bit more worried about how it will turn out. Here’s what I’ve been thinking about. The perennial question of the class has been, “what is the role of history in law?” We’ve reviewed some Supreme Court cases that basically said, “it doesn’t matter if we’ve been doing this practice for a while. There’s no good reason which outweighs the harm done by it.” This is said clearly in Lawrence v. Texas, which struck down a state law banning same-sex sodomy, and less clearly in Loving v. Virginia, which struck down a state anti-miscegenation (mixed race) statute. The historical practice of either anti-sodomy laws or anti-miscegenation laws wasn’t enough to offset the liberty interests of the individual at stake.
Though the Supreme Court has always had the ability to break from precedent, it seems to give less weight to history than it used to. Whether using history to define “fundamental rights,” an approach apparently rebuked in Lawrence v. Texas, or refraining from using past practice as a reason to do something, after the right has been defined, we look for “better” reasons. The latter is evident in the current same-sex marriage battle, in which legal argument in favor of laws prohibiting same-sex marriage often border on saying, “we’ve been doing it this way for a long time and shouldn’t change it.” It’s no surprise that such arguments are dismissed. However, my opinion is that such a dismissal of history isn’t necessarily bad. If something has historical weight, then chances are, there is some reason for its presence.