In my opinion, historical appeals are a lot like any other theoretical lens - a useful but imperfect tool that ought to be handled with care and not used exclusively. I think this point is well-demonstrated by this weeks readings, which all used history in order to explain and support significantly different arguments involving race and marriage. The value of historical perspective is that it offers consistency in regard to law - thus the use of precedent in both the Loving case and the Samuel case. However the danger is that just because something is precedent does not mean it is right. Historical perspective, while useful in explaining the evolution of social realities, does not include the necessary moral claim for an argument of law.
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Well there is an obvious flaw in arguing from history, which is that it is an appeal to authority. Precedents are nice, because they reflect (supposedly) a commonly held belief of the time. Instead of having to state something over and over again, it can be easier to refer back to a similar case. Arguing due to the ruling being right, rather referring out of convenience is where the problem arises. By assuming that once a ruling has been made that it is not only right, but also right for everyone, the progress of justice has become stagnant.
Furthermore, I think that it is important to always be critical of an argument that defers a unique judgment to another case. While another case may be relevant, it inherently denies the context and the idiosyncratic nature of a perpetrator's motivations and needs (in terms of rehabilitation, or punishment). Even by an objectivist's own standards, being meted out justice on some else's terms is just illogical, as well as not just.
That is not to say that making an argument from history is always wrong. As previously stated, if one case is similar to another case, it would make sense to save time by utilizing the previous case as an example. One must be wary, though, of how dated the case is. The more time that passes, the less (I believe) that the previous case is relevant. It is important to try to maintain similar context.
While I don't believe we can rely on any specific person's account to create an all-encompassing picture of historical events, I think historical documents and interpretations are useful when considering possible modern day practices. Apprising a person of the past helps them judge the present and the future. As a tool within other disciplines, history provides insights about the workings of the world and humankind. That may be a bit broad, but I don't believe any academic discipline can exist without a historical reference point.
Postmodernism would disagree, I believe, with placing this amount of importance on history. According to the postmodernist, real objectivity is unobtainable, and thus a true reality cannot exist. I agree that every fact presented as irrefutably 'historical' can be approached from a different perspective, subject to the biases of the individual and the context in which it is being relayed. One cannot regard any historical account as complete and objective.
The reality of the subjective nature of history and historiography questions what role past events should play in shaping our actions. As evidenced by State v Samuel, continuing a course of action just because it has been the norm in past years can perpetuate racism and other forms of social inequalities.
History should not act as a literal guide to what should be done, but rather, inform as to what has been done, could be done, and how we should judge the future.
History can be a useful tool for persuasion or as a way to gain contextual insight. It can grant some form of empiricism for subjects that might be too vast or complicated for a normal research methodology. As such, while it has its uses, it can also be used irresponsibly.
Precedence, that is, using the history of past case judgments, can be abused as a source of authority in law. Before Loving v Virginia, miscegenation has been justified through precedence from the Pace v. Alabama case where it was deemed reasonable to discriminate because the punishments applied equally to whites and blacks (or other minorities). While it is within the realm of practicality to treat one situation the same as another if they are justifiably similar, consistency can also have pitfalls if there is already a hierarchy in place as highlighted by Feminist Dominance Theory. The idea of consistency should be encouraged. Evidenced by Pace v. Alabama, the propagation of fallacious logic using consistency can be dangerous.
Postmodernism can be useful in utilizing a responsible use of history through encouraging conscientiousness of the subjectivity of society and its dynamic course through time. A postmodern view might have made arguments against miscegenation more receptive. Most importantly, it can make one be more wary of relying on the authority of historical consistency by taking into account biases of the authors of history. Because some ideas in history, like racism, is anachronistic, it's easy to demonize such things and toss away the importance of recognizing such institutions because it has been such an integral part of society. 50 years from now, there are things that we're subjected to everyday that our children's children will demonize us for: we can only hope for the best and not give up.
I think that relying seldomly on historical content is not a good way of getting a valid information on issues. Especially for black women and black people in general because history has portrayed blacks as something other than what they actually are. So if you were to rely on what history has written about blacks you would get a distorted view of what black people are.
Because of history many people have a prejudged notion of what black people are capable of and how they act. Many stereotypes about blacks have came from histroy. So again I would never only rely on history, because it is not always the solid truth, its like the bible; it comes out with a new testiment every year based upon what has changed or evolved over that period of time.
I think that history is a method of understanding and analyzing, most importantly. And learning from history, as cheesy as that sounds, is probably the greatest use of it. Though that can be misconstrued and definitely has complications. With that, I think the most dangerous aspects of history are found in whose history is being represented, and the over-reliance on this history.
As pointed out in the Omolade reading, faults and loopholes in history are largely due to a lack of acknowledged perspective. It is this way that I think history becomes unreliable; in neglecting the viewpoint of the population being studied. In the understanding of single black mothers, their own experiences are rarely taken into account -- only the implications of their sexuality and parenting.
I'm weary of any method of depending on history, because that makes me think of using history as a crutch, of hindering progress. The State v Samuel case demonstrated this, i think. It simply recited the way things were as justification for the why they had to be that way. There is a difference between hinging an entire argument on the fact that it has existed for a while, and in using the history of something as a means of analyzing it's implications. And, with that case, it is just as important to look at whose history it is... obviously those that have interest in defending past methodology. That being said, I love history, and would never disregard it's importance; it just needs to be utilized appropriately, and needs to be a similarly appropriate lens of history.
History can be very useful in the study of many different things. In this case, it may be useful to look at history when studying interracial marriage. History can be valuable at times, but it can be dangerous as well. As evidenced by the Omolade article, history can be used to better our understanding of a group of people and how they came to be where they are today. It can also help to demonstrate change over time. On the other hand, history can be dangerous. One of the things people need to consider when they are reading a piece of history is the author. The writer of a history can affect the way in which a person reads that history. Also, the writer of a history can alter what the history relates. For example, the writer of the court case summary for State v. Samuel was a wealthy, white man. He is writing about the legitimacy of a marriage between two black slaves, a marriage he knows nothing about. He probably does not know about or understand slave culture, so his account is not reliable. If a former slave had written this opinion, then it would probably read very differently. Another danger of history is that it often leaves out the stories of oppressed people. For example, history books often leave out or include very little about women, children, slaves, and other oppressed groups of people. Furthermore, readers should determine whether the history they are reading includes any opinion or if it just includes a description. The opinion of the writer in an article might offer a bias and may change the way the reader studies it. Readers of history should be careful to rely on what they read. They need to remember to take into consideration the identity of the writer and his or her perspective on the piece of history they are engaging. Readers also need to remember to look for any bias on the author's part.
When reading these three cases, each one addresses the historical perspective of each case/argument in a different way. Although they are different, all three have elements of historical importance are both valuable to the case and a danger as well. You cannot merely determine whose history is reliable. It is important however to point out the history behind the history, meaning who writes history and what effects law at that time in American history. For example, in the Loving v. Virginia, this case does a good job of tracing American history to prove that race is not something that is one, constitutional under the 14th Amendment to classify marriage relations and two, is viable to regulate if one looks at history. It states, "The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages" (8). Here, Cohen and Hirschkop are trying to argue that in previous years, the government has attempted to regulate race relations through slavery and other laws, but overtime this has proven to be unconstitutional and therefore, cannot be practiced in law or life. If this is true, then interracial marriage should not be kept illegal and the Loving party should not be charged. Both lawyers here, see that one should be suspicious of all reliance on history because of who is writing it, creating it, and ruling over it (legally speaking.)
In the State v. Samuel, we see race relations again, except during the practice of slavery. Once again, it is important to take into account who is writing it (white, slave owners) who do not believe in acknowledging marriage in the slave community because that would one, give them the right to certain liberties and two, prove that they are at a human level. This history was written by those who did not want to give up their power, therefore, once again, it is important to be suspicious of who is writing history because of their personal, political, and financial ties to the influence it has (in this case, slavery relations.)
The same could be said in the Omolade reading. This reading gives a critical background to the history of African American women experiences and ties their experiences into the cultural assumption that all African American mothers are single. This is a problematic generalization, most certainly, but the article gives critical incite into this massive generalization and delivers evidence that demonstrates the greater societal influences that causes these assumptions. From this reading, the author takes into account history as being written by the patriarchal power order, therefore, by looking at it with a critical cultural feminist lens, one can see where these assumptions were made and how the stereotypes behind African American women are played up by this power.
All of these readings prove three different ways history can be read and demonstrate this well.
All of the readings for Tuesday- State v Samuel, Loving v. Virginia, and the Omolade article, discuss the history of race and racism and legal regulations regarding race and marriage. One court uses a historical approach to justify racism; another addresses history in order to distinguish the present from the past; and Omolade provides a historical overview in order to argue for a particular way of understanding Black women's familial roles.
Given these three distinct uses of history, and keeping in mind the theoretical approaches that we have studied that call for awareness of historical specificity, I would like you to consider the value and the dangers of relying on history to support an argument. How can we determine whose history is reliable? Should we be suspicious of all reliance on history? What can we learn from an author's attitude toward history?