Confusing Myth with History: Columbus Day, Thucydides, a Garden of American Heroes, and Amy Coney Barrett’s Constitutional Originalism
On October 9, 2020 President Donald J. Trump issued a Columbus Day Proclamation which condemned as “radical” anyone who might emphasize the “failings … atrocities … and … transgressions” over the “contributions … discoveries … and achievements” of the fifteenth-century Genoese captain Christopher Columbus. But President Trump should have used a more accurate term for his opponents than “radicals.” He should have called them what they are: “historians.”
The correct term for someone who revises our understanding of the past is not radical or even revisionist, but simply historian. That is not a progressive claim, but a deeply conservative one. So conservative that it goes all the way back to an author often described as the “father of scientific history,” the fifth-century BC Athenian Thucydides.
Thucydides’ famous History of the Peloponnesian War between Athens, Sparta, and their allies begins with two revisionist arguments. First, Thucydides took on the idea, widely accepted in his day, that the greatest war of all time was the Trojan war described in Homer’s Iliad. Second, lest you think that this revisionism was incidental to his history, Thucydides argued that the very task of the historian was to constantly revise incorrect widely-held ideas. Thucydides described such ideas as poetic improvisation or historical license employed to embellish a tale. People want to hold on to such stories because they are more pleasant than the truth, but historians won’t let them.
Thus historians will tell you that it is true that the Legend of Christopher Columbus gained popularity in the United States of America between the 1860s and 1930s in order to — by many accounts — counter xenophobia against Italian immigrants. And so it is also true that Columbus Day has its own history in the story of American civics. But Columbus Day and the legend that comes with it — encapsulated by President Trump as Columbus’ “contributions … discoveries … and achievements” — is just that: legend and myth. Columbus’ legend and myth served a purpose, but that does not make it history. And as any legend or myth, you can count on historians not to “preserve” and “safeguard our history” but to actually do history: to revise and correct and get us closer to the truth of the matter.
Thucydides, our model ancient historian, thus engaged in the very “type of revisionist history” denounced by the Presidential Proclamation. Instead of claiming that we must see as “radical activists” with a “radical ideology” those who, “rather than learn from our history … seek to revise it,” the president should have clarified that he is opposing anyone who would criticize his version of our national mythology. Historians know that Thucydides warned of those who, like the President, who would resist history’s revisions of untruthful myths. For Thucydides saw the entire point of history as corrective: historia literally means an “inquiry” or an “investigation” in pursuit of truth.
The President is not trying to protect history but mythology. The proof is the fact that, in the same document, he declared that the solution to criticisms of the legend of Christopher Columbus was not to employ a team of historians to pursue further research, but to invest in mythological heroism via statues: a National Garden of American Heroes.
This week we have asked whether the same devotion to myth and legend is at work in Judge Amy Coney Barrett’s defense of constitutional “originalism” and “textualism”. Is Judge Barrett’s originalism more like historians’ critical work to dismantle myth and uncover truths, or more like President Trump’s defense of historical myth? In truth, it is hard to know.
The original idea of Consitutional “originalism” was historical: that it is possible to find a revelation of the intent of the author or authors in the words of a text. But historians critiqued this mythologizing of certain ideas of certain founders, and originalists backed off. Now, originalists have a new approach: to interpret the consitution according to its “original public meaning.” Instead of trying to understand what James Madison, Alexander Hamilton, Benjamin Franklin, and other founders might have originally intended in writing the Constitution, originalist judges try to deduce how the populace the founders wrote for would have understood the words of the document. This is what originalists mean by “public meaning.” In other words, after trying unsuccessfully to read the Constitution historically better than the historians, originalists have turned to a literary approach and are working on reading the Constitution like literary scholars. Originalists like Judge Barrett, invested in “public meaning,” are now engaged in what literary scholars would call “reader response criticism” — interpreting a text by how the “reader” (in the case of the Constitution the eighteenth-century American public) would “respond” to or understand the words of a text.
Thus, a caricature of current originalist legal theory might claim it has progressed from turning the framers of the consitution into holy legends to whom we owe fealty, to doing the same with the eighteenth-century male, free public who read, ratified, and consented to the document. Does Judge Barrett fit this caricature?
On the one hand, the judge has declared a certain reverence for the historical accumulation of legal precedence known as “soft stare decisis.” However, it is also true that Judge Barrett has written:
I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. … even though overruling is exceptional, it is worth observing that the Court’s longstanding acceptance of [overruling] lends legitimacy to the practice. Our legal culture does not, and never has, treated the reversal of precedent as out-of-bounds. (“Precedent and Jurisprudential Disagreement,” 2015, p. 1728)
Judge Barrett wrote that she believes Supreme Court justices should only overrule precedent for good and measured reason, but at the same time has been explicitly clear that despite her views on the importance of legal precedence, the Supreme Court should overrule it when a judge sees something “clearly in conflict” with her understanding of the Constitution. In fact, Judge Barrett actually thinks about overruling precedent as a way of following precedent:
… there is a great deal of precedent for overruling precedent. (p. 1729)
In other words, we should expect Judge Barrett to revisit previous rulings on the basis of the Constitution. And, Judge Barrett has indicated that when she does so, she will turn to “her best understanding of the Constitution.” What work has informed that understanding? Will Judge Barrett draw directly on the work and methods of historians, or will she turn to the still-developing nascent literary theory of public-meaning originalism? This week’s senate hearings have not, unfortunately, revealed an answer.
What we can say is that neither President Trump’s adherence to the legend of Columbus, nor originalists’ idea of “public meaning” is good history. Historians do not hold it their duty to make either framers and readers of the Constitution or long-dead sea captains into heroes of legend. Instead historians explain their subjects as past humans with accomplishments and virtues, errors and vices within the context of a world long gone.
In doing so, historians have helped us to see that many signers (and also many readers) of the Constitution very much intended that the Constitution would and did preserve their right to possess other humans as chattel slaves. I am confident Judge Barret and President Trump would both join us in condemning such original intentions because they believe, as we all do, that we must uncover and root out such evil and its idols wherever they persist. Such ideas were an original intention and an original received public meaning that must be critiqued, overturned, forever abolished, and never preserved. But this work has been done on present terms, and not on the terms of originalists.
Our democracy is a living polity that relies on an active, robust civic discourse. Our democracy thrives on the ongoing, spirited work of historia, of investigation and inquiry and critique from opponents and allies alike. It does not thrive on the dead decorations of enshrined holy texts and untouchable holy idols. It is historians’ unending work to use truths about the past to free the public from legends and to treat past persons as the conflicted humans they were. Let’s not grow overfond of enshrining legends. Instead, let’s make history.
