Aphoristic History

Haig Bosmajian November/December 1997 When the United States Supreme Court decided in 1992 that invocations and benedictions by a clergyman at a public high school graduation violated the Establishment Clause, Justice Antonin Scalia dissented, asserting: "Justice Holmes' aphorism that 'a page of history is worth a volume of logic . . . ,' applies with particular force to our Establishment Clause jurisprudence."1 Scalia then provided his history to support his position that "the history and tradition of our nation are replete with public ceremonies featuring prayers of thanksgiving and petition."2

When four years earlier the United States Supreme Court declared a Texas flag desecration statute unconstitutional, Chief Justice William H. Rehnquist began his dissent with: "In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.'"3 Rehnquist then presented his history, a variety of historical illustrations to support his contention that "for more than 200 years, the American flag has occupied a unique position as the symbol of our nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here."4

The nonliteral, figurative, metonymic "a page of history is worth a volume of logic" has been especially attractive to the Nixon-Reagan-Bush appointees to the High Court. During the past three decades the aphorism has been used as an "argument" in four of Rehnquist's opinions,5 two of Warren Burger's,6 two of Sandra Day O'Connor's,7 one of Harry Blackmun's,8 one of John Paul Stevens',9 and one of Scalia's.10 During the same period, the aphorism appeared only three times in the opinions of William Brennan and Thurgood Marshall, two of those times in footnotes.11

Rehnquist, O'Connor, and Scalia have used the aphoristic argument in church-state cases, and Burger, while not invoking the aphorism in Marsh v. Chambers, relied heavily on American religious history to support the Court's decision that Nebraska's practice of beginning its legislature's sessions with a prayer by a chaplain paid for by the state was not a violation of the Establishment Clause.l2

Despite the frequency of its use, however, as one examines the utilization of Holmes's aphorism in church-state cases, it becomes evident that this metonymic phrase must be viewed with some skepticism, especially when a justice declares that the aphorism "applies with particular force to our Establishment Clause jurisprudence."13

The metonymic "a page of history is worth a volume of logic" was introduced by Justice Holmes into Supreme Court decision-making in a 1921 federal estate tax case.l4 It was not until the 1940s that the metonymy reappeared in three of Justice Felix Frankfurter's opinions.l5

It is, of course, not unusual for justices to incorporate figurative language into their judicial opinions: the marketplace of ideas, the wall of separation between church and state, standing in court, penumbral rights, the captive audience, the chilling effect on speech, casting a pall of orthodoxy over the classroom, the law knows no heresy, the law is color-blind, and so forth.16

What is noteworthy about the reappearance of the metonymic "a page of history is worth a volume of logic" is that it has been used in the 1970s-1990s as judicial argument by justices who have most closely been identified with the "conservative" block on the High Court, or with the "conservative judicial activists,"17 especially Justices Rehnquist, O'Connor, Burger, and Scalia. Of the 17 times the aphorism has appeared in Supreme Court opinions after it was introduced by Holmes, it has played an argumentative role in 14 opinions written by those identified with "judicial restraint." The recent popularity of the aphorism is reflected in the fact that more than half of the uses of the metonymy since 1921 have been in judicial opinions written in the 1980s and 1990s.

Because several justices have relied on this aphorism to strengthen their opinions, questions arise as to its meaning, accuracy, relevance, and influence.

For example, when Supreme Court justices rely so heavily on the aphorism "a page of history is worth a volume of logic," one of the first questions that needs to be asked is "Whose history?"

To begin, many have expressed extreme skepticism about the accuracy and value of history. In his Wolpoliana, Horace Walpole wrote in 1804: "Smollet's History of England was written in two years, and is very defective."18 Oscar Wilde has one of his characters in Lady Windemere's Fan declare: "History is merely gossip."19 Or as Henry Ford bluntly put it: "History is bunk."20

To the serious historian, of course, history is much more than gossip, falsity, and bunk. But even the serious historian advises caution. Carl Becker wrote an article titled "What Are Historical Facts?" in which he said that "the historian cannot eliminate the personal equation."21

"What is it," asked Becker, "that leads one historian to make, out of all the possible true affirmations about the given event, certain affirmations and not others?" He answered: "Why, the purpose he has in his mind will determine that. And so the purpose he has in mind will determine the precise meaning which he derives from the event."22

G. M. Trevelyan addressed the problem of bias in history: "Since history is our interpretation of human affairs in the past, it could not exist without bias. But with a wrong bias, it can be gravely distorted. God give us each a true bias."23 Trevelyan warned: "The harm that one-sided history has done in the modern world is immense."24 Histories are written by humans who have biases, prejudices, misinformation, and ideological axes to grind.

When justices argue that "a page of history is worth a volume of logic," one must ask also whether that page of history is "American" history, Marxist history, revisionist history, Native American history, New York Times history, or a history written from a myriad of other points of view, a history "necessarily subjective and individual, conditioned by the interest and vision of the historian."25

Not only must one ask "Whose history?" but also "Which page of history?"

In his devastating analysis of the justices' uses of history, Leonard Levy wrote: "Judges . . . do not look at the past as historians are supposed to. Judges always use history. They turn to it only because they think it might help decide some issue posed in a case. . . . In short, judges exploit history by making it serve the present and by making it yield results that are not historically founded."26 Among those whom Levy criticizes for their "felonious use of historical evidence" are Chief Justices Burger and Rehnquist.

In Marsh v. Chambers, Burger, after presenting several pages of American religious history, concluded: "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of a fabric of our society."27 In his examination of Burger's careless uses of history, Levy, referring to Marsh, writes: "In a case involving the establishment clause of the First Amendment, decided in 1983, Chief Justice Warren Burger for the Court jettisoned establishment clause jurisprudence in favor of a decision wholly based on history."28 Burger's history, as Levy demonstrates, has turned out to be inaccurate.

As for Rehnquist's abuses of history, Levy examines the chief justice's dissenting opinion in Wallace v. Jaffree, in which the Court declared unconstitutional an Alabama statute that authorized a period of silence at the beginning of each school day "for meditation or voluntary prayer."29 Rehnquist, Levy points out, "passed fiction off as history when he converted Madison's argument in the First Congress against a 'national religion' into meaning merely that Congress cannot promote a national church or prefer one sect over another. The establishment clause, Rehnquist urged, did not prohibit Congress 'from providing nondiscriminatory aid to religion.'"30

"Rehnquist was flat wrong," writes Levy, "as wrong as his proposition that among the establishments of religion that existed in the late eighteenth and early nineteenth centuries was the one created by the Rhode Island charter of 1633 and lasting until 1842. Rhode Island's charter of 1663, not 1633, guaranteed religious liberty, and neither as a colony nor as a state did Rhode Island ever have an establishment of religion."31

What is noteworthy is that this careless use of history is presented in the judicial decision-making of a Supreme Court justice who, more than any other justice, has said in his opinions that "a page of history is worth a volume of logic." While Rehnquist included in his Wallace v. Jaffree dissenting opinion his version of history, Justice O'Connor wrote a concurring opinion in which she saw a history different from Rehnquist's: "I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today."32 Giving a nod of recognition to "an element of truth" in Rehnquist's "reviews of the text and history of the First Amendment Religion Clause," O'Connor incorporated into her opinion Holmes's aphorism. She wrote: "Particularly when we are interpreting the Constitution, 'a page of history is worth a volume of logic.'"33

While O'Connor argued that in this case the Court had not ignored history, she pointed out what Rehnquist had omitted from his history: "Justice Rehnquist does not assert, however, that the drafters of the First Amendment expressed a preference for prayer in public schools, or that the practice of prayer in public schools enjoyed uninterrupted government endorsement from the time of enactment of the Bill of Rights to the present era. The simple truth is that free public education was virtually nonexistent in the late eighteenth century. Since there then existed few government-run schools, it is unlikely that the persons who drafted the First Amendment, or the state legislators who ratified it, anticipated the problems of interaction of church and state in the public schools."34

While both Rehnquist and O'Connor agree that "a page of history is worth a volume of logic," they do not agree on the content of that page of history. Rehnquist's history, according to Levy, is simply factually incorrect; Rehnquist's history, according to O'Connor, contains omissions and is flawed in interpretation.

More recently, in 1992, when the United States Supreme Court decided that invocations and benedictions by a member of the clergy at a public high school graduation was unconstitutional, Justice Scalia relied on Holmes's aphorism early in his dissenting opinion and then provided his history to demonstrate that "the history and tradition of our nation are replete with public ceremonies featuring prayers of thanksgiving and petition.''35 Scalia's version of that history needed to be provided because, he said, "the Court is so oblivious to our history as to suggest that the Constitution restricts 'preservation and transmission of religious beliefs . . . to the private sphere.'"

After drawing on Jefferson and Madison, Scalia turned to President Bush for history: "Most recently, President Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as president." The national celebration of the "religious holiday" Thanksgiving was also part of Scalia's history.36 With history such as this, Scalia concluded that the Establishment Clause of the First Amendment does not prohibit the inclusion of invocations and benedictions by clergy at public high school graduation ceremonies.

While Scalia quoted from James Madison's inaugural address, in which Madison acknowledged the "Almighty Being whose power regulates the destiny of nations," the president's views about the separate roles of government and religion were omitted from Scalia's "page of history." As Justice David Souter indicated in his concurring opinion: "During his first three years in office, James Madison . . . refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. . . . That he expressed so much doubt about the constitutionality of religious proclamations . . . suggests a brand of separationism stronger even than that embodied in our traditional jurisprudence."37

"Madison, in fact," wrote Levy, "had an exquisite sense of the separate jurisdictions of religion and government, and he shared Jefferson's belief in a high wall of separation between the two. . . . As for the phrase 'national religion,' he used it to describe the use of public funds for the support of interfaith invocations and benedictions, congressional and military chaplains, and a law incorporating a church in the District of Columbia, all of which he believed to be unconstitutional. His antagonism to government-assisted religion was extreme, even as to trifling matters."38

Justice Scalia referred to Thomas Jefferson's "supplications" in his inaugural address; however, Scalia's history ignored Jefferson's pronouncements regarding the separation of church and state. For example, among the omissions in Scalia's history is Jefferson's 1802 letter to the Danbury Baptist Association in which Jefferson declared that to "make no law respecting an establishment of religion or prohibiting the free exercise thereof" built "a wall of separation between church and state."39 Further, as Justice Souter pointed out in his concurring opinion: "President Jefferson . . . steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the religion clauses."40

Since the Court, according to Scalia, "is so oblivious to our history," he reminded the majority that the Declaration of Independence "appealed to the Supreme Judge of the world for the rectitude of our intentions."41 But Scalia's history omitted the historical fact that the Constitution of the United States contains no appeals to any "Supreme Judge" or "divine Providence." It is not clear why the Constitution is any less important as a historical document in American history. In fact, judges are supposed to be interpreting the Constitution, not the Declaration of Independence. Scalia's version of history is based on a series of crucial omissions, and it is questionable whether in this instance his "page of history is worth a volume of logic."

What becomes evident is that (1) it is not always clear whose history is being relied upon by the justices who begin with the premise that "a page of history is worth a volume of logic"; (2) in some instances the history contains false information; (3) even if there is no false information in the judicial opinion, history is distorted by the omission of relevant information; and (4) justices may look back at the same history and interpret it differently. With all these elements present, it is difficult to accept as a judicial principle the aphoristic, figurative "a page of history is worth a volume of logic."

The heavy reliance on history, applying the Holmes aphorism in arriving at a judicial decision, appears to reflect how a justice sees the Constitution. In Marsh v. Chambers, Burger had argued: "This unique history leads us to accept the interpretation of the First Amendment draftsmen from a practice of prayer similar to that now challenged."42 Referring to Burger's "unique history," Brennan responded in his dissenting opinion: "The argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers. . . . To be truly faithful to the Framers, 'our use of the history of their time must limit itself to broad purposes, not specific practices.'"43

This emphasis on the past is evident especially in Scalia's dissenting opinion in Lee v. Weisman, in which he invoked not only Holmes's aph

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Article Author: Haig Bosmajian