We cannot understand a political system … and its laws … without a knowledge of the people who have adopted it … for nothing is more evident, than what will conduct one people to ruin, may lead another, which has a different history and training … on the high road to national greatness and prosperity.
THOMAS M. COOLEY, “Some Considerations Regarding the Study of the Law” (1884)
The cartoonist and wit Jimmy Hatlo’s “There Oughta Be a Law” was a long-running newspaper feature. He solicited topics for the cartoon from his readers. Their responses captured an essential fact about law in America. Americans are a people of laws. We have always expected the law to express our values. We have certainly made a lot of law, and we are surrounded by constitutions, acts of Congress, state statutes, court rulings, executive decrees, and municipal ordinances. We have more lawyers and more litigation than any modern society, and our passion for going to law, following cases in the media, and debating over laws about to be and already passed amounts to a national pastime. Our past reveals law that “has crawled crabwise over the landscape of our history, pulled and driven by competing notions of rights and duties. The result is not a single path of the law, but a multiplicity of paths, some deeply trodden, others ending abruptly, going nowhere.”1
One cannot study law without seeing its close ties to history. Jurisprudence, the science of law, teaches that law is the command of the state that one disregards at one’s peril, but also that law is as well the reflection of a people’s values. Both of these turn the student of law’s attention to history. The documentary record of the command of the state is part of its political history. The values of the people are the living tissue of its social and cultural past.
In the Anglo-American “common law system,” law and history are technically bound. Unlike “code” systems based on Roman law, the common law’s highest authority was the decisions of its appeals courts. The opinions of the justices in these courts, explaining why they decided a case as they did, in effect provided a documentary, historical record of the law to which later courts could refer as they decided appeals. “Precedent,” as it was called, was inherently historical because of both its documentary nature and the way in which past decisions came alive again each time they were cited in new cases. This is called stare decisis, and it means that courts should be bound by precedent. Precedent—and with it history—has an authority inherent in common law. “The past is supposed to govern the present.”2
Thomas M. Cooley, perhaps the greatest legal scholar of the Reconstruction Era of American history, understood this close tie between law and history. In lectures he prepared for his classes at the University of Michigan Law School and published as Principles of the Constitution (1880), he proposed that law and history were inseparable. Though the lessons of history could be “painful,” they were not to be ignored by those who framed the laws. Were any jurisprudent to have a better claim to preeminence than Cooley, it would be Oliver Wendell Holmes Jr. While some of Holmes’s contemporaries saw in common law precedent a reflection of a natural universal reason, as Harvard Law School Dean Christopher Columbus Langdell put it, the “logical coherence of legal rules” showing through any correct array of precedents, Holmes saw law as a product of the historical conditions in which the courts, the lawyers, and the litigants lived. His famous aphorism that “the life of the law has not been logic, it has been experience,” framed in answer to Langdell, would become the credo of the realist school of jurisprudence in the early twentieth century and remains the most-quoted phrase in modern Anglo-American jurisprudence. Holmes believed that “[t]he felt necessities of the time, the prevalent political and moral theories, institutions of public policy, avowed or unconscious, even the prejudices that judges share with their fellow-men” are the pillars of the law. Holmes, wounded three times serving in the Union Army during the Civil War, knew whereof he spoke. For then, competing versions of human liberty and constitutional law played out on the battlefield. Holmes had seen and felt how history and law collaborated to send some men to an early grave and gave others their freedom from bondage.3
This collaboration of law and history was the centerpiece of the “law and society” approach to the study of law after World War II. Pioneered by law professors and historians at the University of Wisconsin, the movement insisted that legal history be regarded as a product of the larger social, political, economic, and cultural life. Law was not autonomous, and change within it was not sui generis. Law was a dependent variable, shaped by change outside of the legal academy, the courts, and the texts. “The central point remains, law is a product of social forces, working in society.” If law does not work for that society, it does not have “survival value.” The external view of law and society features “a commitment to empirical observation and scientific measurement … to objectivity and neutrality.” Law and society bids its followers to compile detailed observations about trends and shifts in the practice and impact of law—a study of law from the bottom up that includes legislators and legislation in its purview. As G. Edward White has written of his own journey from first to third edition of The American Judicial Tradition, “In the interval … the interest of scholars, students, and judges in the historical dimensions of law have grown dramatically, with the result that I have many more colleagues … working on projects in legal and constitutional history.” Their explorations of both doctrine and social context had broadened his own and reached out into the wider world of historical scholarship.4
Although law and history in Anglo-American systems of jurisprudence are ready collaborators in the enterprise of legal history, the results of that collaboration have been subject to criticism from both sides of the academic aisle. Often dismissed by other scholars under the somewhat snide rubric of “law office history,” criticisms of the conversation between law and history take a variety of forms. For example, law teachers in the “critical legal studies” movement, active from the 1970s to the 1990s, claimed that the tie between precedent and history was uncertain at best and deceitful at worst. Judges could select any of a multitude of lines of precedent and claim that history dictated their decisions. The “crits’” targets included liberals or “mainstream” thinkers whose views were “corrosive,” “often wholly unreflecting, unselfconscious,” because they did not question the very nature of “contingency” in the evolution of law. In other words, mainstream liberal legal history was either too uncritical of the phenomena it describes or an apologist for the existing legal system.5
The “crits,” as they called themselves, were joined by mainstream legal historians in the attack on those judges and their allies in the law schools who claimed that the original intent of the framers of the Constitution and other laws should dictate the outcome of cases. “Courts should accordingly determine how the provisions were understood at the time they were ratified, and that understanding should guide decisions.” The judge’s reading of that intent dictates his opinion in constitutional litigation. Originalism originated with a speech by then–U.S. Attorney General Edwin Meese to the American Bar Association in 1985. He called for a jurisprudence of original intent, an inherently conservative proposal because the originators of the Constitution’s language accepted slavery, opposed women’s rights, and viewed Indians as a demonic menace. The problem with this version of law and history was that no one could be sure what James Madison or any other of the framers was thinking at the time. A later version of originalism proposed by U.S. Supreme Court Justice Antonin Scalia, sometimes called plain meaning originalism, dropped the requirement that jurists peer inside James Madison’s head and bid them look instead at contemporary dictionary meanings of the Constitution’s words. The problem with this program was that the first American dictionary did not appear until 1828, when all but a few of the framers had gone to their reward. Obviously, this version of law and history was as unappetizing to the historians as it should have been to judges. Despite some jurists’ avowed fidelity to an interpretative strategy of “original meaning” or “original intent,” historians know that the meanings that framers see in words and their intent in choosing words do not determine how those words will be read by later generations. Originalism assumes not only an objectivity that would make most working historians uncomfortable; it assumes a level of confidence in the historical findings that historians themselves would not share. In short, as a mode of constitutional interpretation, originalism is not very historical. “New values are invented and old ones given new content.”6
A still more potent criticism of the collaboration of law and history regards legal history in the law school and on the bench as indifferent to time and place, a carryover from classical jurisprudence. According to what may be called the internalist or doctrinal approach long favored by most law professors, law evolved within itself as judges, jurists, and lawyers struggled to make the law fit a changing world. Accounts of law from the inside required specialized language and technical expertise. Alan Watson, a comparative law expert and law professor, explained: “[M]y often repeated argument [is] that legal development—in the broadest sense of law: the structure of the system, its major divisions, the approach to the sources of law, and the legal rules themselves—owes a great deal to the legal tradition and, to a marked degree, is independent of social, political, and economic factors.” Bernard Schwartz, like Watson a law professor, put it this way in his history of American law: “[T] he story of American law is the story of the great lawyers and judges in our past.” Some leading advocates of the internalist school conceptualized the story of law as a succession of periods or stages. Each stage or period will see the rise of a dominant style of judging and lawmaking. In 1960, law professor Karl Llewellyn proposed three major periods of legal thinking that he thought characterized the evolution of American law. Llewellyn’s periods were “a way of thought and work … an on-going of doctrine … slowish [in] movement but striking in style.”7
When historical evidence is “mined” to support one side in a lawsuit, or taken out of context to fit arbitrary legal categories, or cited without appropriate cautions in a lawyer’s brief or a judge’s opinion or a congressional debate on prospective legislation, both history and law are ill treated. “Many lawyers cannot see any difference at all between law and history, assuming that history is engaged in ‘court like’ activities of fact-finding and telling, and that historians and lawyers’ practices are identical.” Because of the limitations of space in legal briefs and judicial opinions, and the demands that the lawyer or judge come down on one side or another of the issue, law office history of this type often omits nuance and qualification, context and counter-examples.8
Historians concerned about the use of history in judicial opinions have on occasion tangled with judges. The most notorious controversy concerned Supreme Court Justice Hugo Black, a voracious reader of history, and the Pulitzer Prize–winning historian Leonard Levy. Black thought that the First Amendment barred Congress from punishing political opinions and said so in his opinions for the Court. Levy’s Legacy of Suppression: Freedom of Speech and Press in Early America (1960) argued that many of the congressmen who voted for the First Amendment assumed it barred only prior censorship. At the time, Black told friends that he feared Levy’s work would destroy the First Amendment. Levy later wrote that Black “was innocent of history when he did not distort it or invent it.” Nonetheless, when Levy revised his book, he changed the title to The Emergence of a Free Press.9
Such controversies bespeak an uneasy alliance of law and history. Legal history so formulated might fill a gap in a law school curriculum or lend spurious authority to a citation in a judicial opinion but does not impress most academic historians. The result was that legal history remained for many years a kind of backwater in history departments, its shoreline littered with clever law review articles that no practicing historian regarded highly, much less cited, and casebook squibs that had neither beginning nor end but presented bits and pieces of appellate cases floating in timeless ether.
The collaboration of history and law in the courtroom appears indifferent to such academic caviling, for in the past few years, more and more historians have found employment as consultants and expert witnesses in civil law cases. These historians do contract work for law firms to prepare materials supporting their side in a lawsuit. The rewards are considerable—the hourly rate is mid–three figures and the hours can pile up. At first, historians provided these services without pay. The southern historians John Hope Franklin and C. Vann Woodward and the constitutional historian Alfred Kelly helped the NAACP deal with historical questions in Brown v. Board of Education (1954). In the 1960s and 1970s, historians worked for lawyers representing Indian tribes in their efforts to regain ancestral lands and for states quarreling with one another over boundary lines and water rights. More recently, they have provided research and testified in voting rights (reapportionment) cases, and suits involving the dangers of tobacco products, lead paint, and asbestos. There is a corporation that recruits and trains historians for this occupation and supplies their names to law firms. More informal networks within the historical profession helped to recruit the more than fifty historians who assist defendants in tobacco litigation.10
Like the expert witnesses in the civil rights cases, some historians called into service as expert witnesses truly believed in their cause. J. Morgan Kousser, who spent more than two decades testifying for racial minorities in voting rights cases, regarded the experience as “affording opportunities to tell the truth and do good at the same time.” Other historians were not so pleased with their experience. Alfred Kelly, whose expert witnessing helped the Legal Defense Fund of the NAACP win Brown v. Board of Education, later recalled, “[H]ere I was, caught between my own ideals as a historian and what these people [the LDF] in New York wanted and needed.” Jonathan D. Martin, who holds a Ph.D. in history, is a lawyer, and most recently served as law clerk to a federal district court judge, agreed: “The adversary process requires lawyers to spin the law and facts to serve their clients; lawyers are not expected, or even permitted, to be balanced and impartial. Historians, by contrast, should be open to all evidence they might encounter, and they accentuate the very ambiguities, contradictions, and inconsistencies that lawyers work doggedly within ethical bounds to hide or to smooth over.” The historian David Rothman explained his own dilemma: “To enter the courtroom is to do many things, but it is not to do history. The essential attributes that we treasure most about historical inquiry must be left outside the courtroom door.” But Rothman thought that historians should enter the fray when they thought they could make a genuine contribution to the briefs, or because they had a vital interest in the outcome of the case.11
The historian hired by a law firm as a research consultant or an expert witness must accept certain constraints. As Douglas R. Littlefield, the head of an agency putting historians and law firms together, explained to one gathering of historians, historians acting as consultants or expert witnesses for a law firm on a particular case seek answers to only the precise questions that the lawyers ask. The historian is thus narrowly bound to the role of detective. All findings must lead back to the questions rather than out into a wider context of events and people. As a rule, historians are trained to follow their research, wherever it leads, developing and answering new questions as they arise. Thus historical scholarship advances. Historians acting in the role of consultants or expert witnesses may chafe at the constraint of serving a law firm’s client, but because the opposing counsel and their experts will be reading the deposition, affidavit, or other form of report of the consultant, he or she must be certain that the findings leave no loose ends that the other side can exploit. In effect, this often limits the historian to source mining—looking for those facts that support the version of the case for which the consultant has been hired. The consultant may not fabricate facts or lie, in part because of this adversarial nature of litigation. Nothing is worse for the consultant or the law firm than its historical evidence’s being proved false. Incompleteness is another matter. Historians are trained to contextualize. Historians acting as consultants or expert witnesses are coached how to decontextualize.12
More constraining is the second requirement that Littlefield noted: no reference to secondary sources. Only primary sources are to be cited in the historian’s account for the law firm. Secondary sources—other historians’ views of the same body of evidence—undermine the authority of the consultant. His or her reading of the evidence becomes one perspective among many instead of the only conclusion that a reasonable person could reach. By contrast, historians are trained to read their colleagues’ and predecessors’ accounts, fitting new findings into established categories. The exception to this rule is that the consultant must be aware of the other party’s presentation of the evidence and be prepared to counter it. Thus the only two secondary sources in play are those of the opposing counsels’ experts.
A final injunction Littlefield offered was a ban on publication. In criminal cases, the arguments of counsel, including the presentation of incriminating and exculpating evidence, are matters of public record. In civil cases, the findings of the historical consultants belong to the law firms (so-called work product) and may be seen by the other party and by the court, or by a jury if one is impaneled to hear the case at trial, but are not matters of public record. Ordinarily, historians strive to publish their findings, for that is the purpose of scholarship, while consultants work “for hire” and have no control over their reports, save to respond to questioning by their own and opposing counsel.
To this expert’s account of the constraints on the collaboration of history and law, I can add an anecdote of my own. I have participated in the drafting of a number of amicus curiae (“friends of the court”) briefs in gun control cases. My contributions to the argument consisted of adding bits of historical evidence. Sometimes the lawyer in charge of the brief found these useful and included them, but on other occasions, relevant evidence was excluded because it might be interpreted by the other side to aid its cause. In conversations with other historians, I find they experienced similar frustration with the limitations that legal advocacy imposes on historical exposition. But the rules of the game are not set by the historians.
However, in one area of law practice calling upon historians as consultants and expert witnesses, historians have gone beyond the role of hireling. Reparations for the victims of historical injustices call on historians for their expertise and lawyers for the practical experience, a collaboration that has yielded remarkable results outside of the courtroom.
The concept of reparations is a legal one, derived from a branch of jurisprudence called equity. Long ago, the equity courts were rivals to the common law courts in England, the former held by the king’s secretary, or chancellor, and the latter presided over by the king’s judges. Deriving their basic precepts from older ideas of doing justice in individual cases where going to law offered no relief, the equity courts helped both the rich and the poor gain the ear of the king. Procedure in the courts of equity was far simpler and more accessible than procedure in the law courts. In law, the writ that started the case was a Latin formula, and no case could be brought that did not fit one of the preexisting categories of writs. In equity, the petitioner made a complaint in ordinary language and named a remedy. Unlike the law courts, where evidence was presented at trial, in equity the parties took depositions and presented them in court. This was the forerunner of modern “discovery” rules. The equity courts had jurisdiction over the persons in the dispute while the law courts had jurisdiction over disputed property. The chancellors might order a wide array of remedies, including injunctions. These were commands to the parties to do or not do some act. The injunctive relief of the court of equity is the grandparent of the civil rights injunction, as today all federal courts are courts of both equity and law.13
Restitution, a form of equitable relief, was designed to give back to aggrieved parties what had unjustly been taken from them. Thus if a contract worker had largely but not wholly completed a task and was denied any payment because he or she failed to fulfill the terms of the contract, an equitable suit for restitution would gain the worker payment for the services he or she had performed. The essence of restitution is “to prevent the defendant from being unjustly enriched.” What if the defendant stripped the innocent of his or her possessions down to the gold in his or her teeth, or grew rich on the forced labor of others? Would the petitioner in equity-seeking restitution not be entitled to it? History offers many cases of this very injustice, and the collaboration of law and history affords the descendants and survivors of those so deprived a remedy. This kind of remedy would and could not be the making whole of the victims in every case of historical injustice, for in most of the cases the victims have gone to their final reward. History retells the story of their plight, however, and historians and lawyers can collaborate in gaining the victims some measure of justice by telling their stories.14
Reparations can reach back into the distant past. The trigger for reparations for this kind of harm is proof of past injustice with continuing consequences in the present. Reparations may be financial. In 1971, congressional acts provided $1 billion in reparations, along with 44 million acres of land, to Alaskan native peoples. Courts returned tribal lands to other native peoples throughout the 1970s and 1980s. After a lawsuit seeking an equitable remedy, Japanese Americans interned during World War II were given reparations by Congress in 1988 to the tune of $1.6 billion (or $20,000 for every survivor of the camps). Historical records and historical research were crucial in determining the amount and the recipients of these reparations, and historians played a pivotal role.15
An even more extensive reparations relief program responded to the Holocaust and its victimization of the Jews. In 1952, the Israeli government began a long debate over the proposed Holocaust reparations offer that West Germany had broached. Some then, as now, thought that reparations were either inadequate or unnecessary. In September 1952, however, Israel and West Germany signed a reparations pact that “would provide $715 million in goods and services to the State of Israel as compensation for taking in survivors; $110 million to the Claims Conference for programs to finance the relief, rehabilitation, and resettlement of Jewish Holocaust survivors; and direct reparations to selected individuals over a 12-year period. Germany was once compensating 275,000 survivors.”16
The terms of the reparations were negotiable. According to the Associated Press, in 2007 “Israeli Holocaust survivors asked Germany’s finance minister Thursday [November 21] to improve a reparations arrangement set up a half-century ago, but he said no additional money would be paid. Survivors reasoned the original 1952 accord with Israel did not account for their unexpected longevity or apply to tens of thousands of Holocaust victims who came to Israel following the Soviet Union’s collapse.” Crucial was the concept of payment to survivors for what they had lost, a restitution remedy familiar in equity suits. “Germany has paid an estimated $25 billion in reparations to Israeli Holocaust survivors” over the years, and “more than $700 million in goods and services to the Israeli government.”17
What keeps the Holocaust reparations question alive is not just the political clamor of the survivors or the legal expertise of their counsel but the historical memory of the Holocaust. Historical teaching can restore what reparations cannot repay. At Yad Vashem, the Holocaust museum in Jerusalem, and at Holocaust museums in Washington, Dallas, Los Angeles, St. Petersburg/Tampa Bay, Richmond, and Chicago, physical, visual, and text displays remind visitors of the horrors of the camps. The Holocaust is taught in more than 1,000 colleges in the United States and around the world, and in high school curricula nationally. The words of the victims are indelibly printed on the minds and in the hearts of students. Without the historical memory of the Holocaust, the reparations would be just a redistribution of wealth. With the historical memory, they are an example of the power of history and law, working in partnership, to repair injustice. Thus the lesson of the Holocaust is that past injustice is a present obligation, a lesson that the collaboration of law and history promoted.
The restitution that lessons of the Holocaust memorialized, taught in schools, and shared widely with various publics would not be possible without the scholarship of the historians. In turn, historical scholarship would be worth little as restitution without its dissemination beyond the halls of academe into the legal realm. It is in the confluence of the professional historian’s findings and a willingness to trust history in the courts and congresses that the part restitution plays in the Holocaust story gains its deepest meaning.
Reparations for American slavery and the slave trade are an even larger challenge to the collaboration of law and history, for slavery in America was impossible without the active assistance of the law. In other words, not only was the law complicit in the creation of slavery, it was only with the active assistance of legislatures and courts that slaveholders could keep millions of men and women in bondage. Slavery was the most divisive political question at the federal constitutional convention of 1787. There the founders, with the exceptions of anti-slavery spokesmen Elbridge Gerry, Rufus King, and Gouverneur Morris, sought a compromise between freedom and free labor, on the one hand, and slavery and slave labor on the other. The federal Constitution never mentioned slavery, but provided for a three-fifths portion of total slaves to count in states’ apportionment, allowed the despised international slave trade to continue until 1808, and, most controversially, provided for the rendition of those “owing labor” in one state who fled to be forcibly returned to the state from which they had escaped. Slavery was to be legal where state law established it and illegal when state law barred it.18
In slavery cases like Prigg v. Pennsylvania (1842), the federal courts not only acceded to the peculiar institution, they protected it. Justice Joseph Story, who wrote the decision of the High Court in Prigg, was a professional from head to toe, a law professor at Harvard as well as a respected member of the High Court, and the author of treatises on the Constitution and other legal subjects. He abhorred the institution of slavery and said so in his private correspondence. He nevertheless recognized slavery’s constitutional posture—the Rendition Clause dictated “No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labour; but shall be delivered up, on claim of the party to whom such service or labour may be due.” Story felt obliged by his professional duty as a judge to opine that the state of Pennsylvania could not try a slave catcher for kidnaping an alleged runaway. “Few questions which have ever come before this Court involve more delicate and important considerations; and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination; and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported.” As he wrote to a friend shortly after the decision was announced and Massachusetts anti-slavery voices rose to condemn him: “You know full well that I have ever been opposed to slavery. But I take my standard of duty as a judge from the Constitution.”19
Slavery was ended by the Thirteenth Amendment to the federal Constitution, but its lasting impact, flowing through the Jim Crow system of state-sponsored legal segregation that replaced slavery in much of the post–Civil War nation, can still be felt in the twenty-first century. Again it was a case of unjust enrichment. By 2008, many major corporations whose founders benefited from the slave trade or from funds gained in the slave trade offered formal apologies. One of these was Brown University, whose eponymous founder, the Brown family, was a major player in the American slave trade.
Reparations to the victims of the slave trade would involve an astronomical amount of money, but a restitution remedy was available. Payouts were not an option, but historical reparations could include an attempt to retrieve the history and apply it to the remedy. As such, the Brown version of restitution was a full-fledged partnership of legal concept and historical pedagogy by restoring the historical understanding of the contributions of slaves to history of the nation.
Brown University’s coverage of the reparations debate at Brown was exhaustive and, though in some ways self-serving, gave evidence of the seriousness with which the university took its legal and historical obligations. In 2003, Brown University President Ruth J. Simmons appointed a Steering Committee on Slavery and Justice to investigate the University’s historical relationship to slavery and the transatlantic slave trade. On October 18, 2006, the committee reported its findings. These were released to the public. Using history itself as a kind of restitution brought together the skills of the historian, preparing and displaying the materials, and the conceptual virtuosity of the law. For “the committee was also asked to reflect on the meaning of this history in the present, on the complex historical, political, legal, and moral questions posed by any present-day confrontation with past injustice.”20
The last three pages of the eighty-eight-page report specified the recommendations of the Committee on Slavery and Justice. Every one of the recommendations rested upon the assumption that public awareness and expert judgment were both essential components of legal idea of restitution:
Acknowledgment … to acknowledge formally and publicly the participation of many of Brown’s founders and benefactors in the institution of slavery and the transatlantic slave trade, as well as the benefits that the University derived from them.
Tell the truth in all its complexity. … The appointment of the steering committee and the various public programs it sponsored have already done a great deal to create awareness of a history that had been largely erased from the collective memory of our University and state. … [S] ponsor public forums, on campus and off, to allow anyone with an interest in the steering committee’s work to respond to, reflect upon, and criticize the report.
Memorialization … The challenge, easier to articulate than to accomplish, is to create a living site of memory, inviting reflection and fresh discovery without provoking paralysis or shame. We believe that Brown can and should answer this challenge. We recommend that the University undertake to create a slave trade memorial to recognize its relationship to the transatlantic trade and the importance of this traffic in the history of Rhode Island.
Public programming aimed at both the University and the wider community; a significant educational outreach component, including workshops and curriculum development, to help teachers integrate topics related to slavery and justice into their classrooms.21
There were other commission proposals, part of a comprehensive attempt to keep the memory of the horrors of slavery and the slave trade alive in the minds of the coming generations. Again, the essence of the collaboration of law and history was more history, better history, taught more broadly. While this list of reparations did not arrange to repay unpaid wages or restore lost goods, it did seek to do equity in a broader way. If equity reunites what past injustice has torn asunder, the institutional support of historical studies of slavery and the slave trade restores something of great value to the descendants of slavery’s victims. It gives them back a history. It reminds everyone, white and black, of the contributions of the slaves to the American economy, of the ways in which slaves created their own culture and family life in the midst of their travails, and of the courage of those who risked all to flee slavery or to rebel against it. The legacy of the past can be reformed by knowing more about the past. By revisiting the injustice and reminding people today of the continuing impact of the past on the present, restitution enables history and law to alter that impact. Restitution reunites what had been unjustly severed, the story of one part of the people from the rest. It makes history whole again.
Law is the most potent of all of history’s modern-day collaborators because good law’s roots lie in thoughtful historical assay. True, that relationship has a “complex and contingent” application in law cases, as different players in the legal arena read precedent, precept, obligation, and legal standards in varying ways. But this much cannot be disputed: All of Clio’s other companions can depart from history (to be sure, at their peril), but a law uprooted from history would be arbitrary at best and tyranny at worst. By contrast, working in harmony, law and history can recover hitherto lost individual rights and recognize the past contributions of even the most marginal of groups.22