Thomas Piketty, an academic apostle of the Left, once crowed in 2016 of the increasing correlation of higher educational attainment and the tendency to vote Democratic: high school graduates 44%, Bachelor degrees 51%, Masters 70%, and PhD degrees 76%. Does this mean that smarter people vote for the Democrats? Hogwash. The gap between smartness and possession of degrees has not been greater than in our time.
It’s fair to say that degrees and certificates in many cases just paper over human failings. We are still prone to unexamined and purely fashionable beliefs, an overwhelming desire to win at any cost, the penchant to make facts fit predetermined conclusions, and let hubris cloud our vision. Nothing much has changed for many of us after many years of schooling. Today, we have many such highly educated ideologues circulating amongst us.
It’s not necessarily a sign of brilliance to almost uniformly take crass positions on highly contentious issues. It heralds, if anything, a blind deference to peer group pressure. Not exactly evidence of high intellectual acumen. Abortion is one issue that brings to light a kind of organized intellectual debasement among the highly papered.
Dobbs v. Jackson Women’s Health Organization is before the Supreme Court. The case has attracted amicus briefs like flies to a feed lot. Stepping into the fracas is the American Historical Association and the Organization of American Historians in support of the Roe decision and abortion as a right. That wasn’t the first time. In 1989, 400 of them displayed their pro-abortion bona fides in Webster v. Reproductive Health Services.
Strange thing, though, these doyens of historical truth based their position on a falsehood in the original Roe v. Wade decision that was allowed to marinate and pass into their “consensus”. The fallacy stems from the uncritical adoption of the historical exegesis of a lawyer and abortion activist, Cyril Means, Jr., back in 1973. Means contended that abortion was a common-law liberty before the 19th century. He mangled primary sources, such as Samuel Farr’s 1787 medical treatise, to make it sound like abortion was an acceptable practice back then. Instead, his source, Farr, makes the opposite point if Means had only turned a few more pages: “. . . unborn embryos . . . may be supposed indeed from the time of conception, to be living animated beings, there is no doubt but the destruction of them ought to be considered a capital crime.” Historians, of all people, should know better but these didn’t. Apparently, professional integrity must not be allowed to get in the way of prejudices.*
The issue has always been fraught with an emotional tug-of-war between the unborn child and the mother in distress, but it’s very probable that the practice was nonetheless condemned going back centuries. Scholars have uncovered indictments in the 13th century for the killing of unborn children. In 1602, a woman in Surrey, England, was indicted for ingesting poison to kill the “child in her womb”. Many such examples exist in the historical record.
One cause for the confusion has much to do with state of knowledge, or lack thereof at the time, of the embryo (discovered in 1827 and the beginning of embryology) and pregnancy in general which led to the complicated picture in regards to early pregnancy abortions. There were muddled attempts in a few instances at determining when the baby was “alive”, using the arcane language of the “quickening”. Remember, this was a time when medicine was under the sway of Aristotle’s four humors (body fluids). Confederate general Stonewall Jackson was said to ride into battle during the Civil War with one arm raised to keep the fluids in balance. Still, it’s fair to say that abortion has always been considered at least an “inchoate felony” in the common law. The “inchoate” part is tied to the limited pre-natal understanding of the era.
It’s scandalous that professional historians have become so ahistorical. It’s equally scandalous that legal experts are willing to use deceit to establish far-reaching precedents. An example is the factual fraud in Mapp v. Ohio in 1961. The SCOTUS decision extended the exclusionary rule (Weeks v. US, 1914) to state court cases. After Mapp, the most violent perps – these are 90% plus tried in state courts – have a new legal weapon in their arsenal to take a walk.
The legal chicanery revolved around the belated claim of a lack of a valid search warrant. The case went all the way to the US Supreme Court under the false assertion that there was no search warrant. A simple examination of past issues of the Cleveland Plain Dealer establish beyond doubt that a valid search warrant was issued to enter the apartment of Dollree Mapp whose boyfriend was a bombing suspect (later convicted). She was charged with the possession of obscene materials as a consequence of the search. Authorities couldn’t locate the warrant during the legal proceedings in her case, but that wasn’t unusual in the era before photocopying. At most, there might be one or two extra carbonized paper copies in a dank basement file room where decay was rampant. Anyway, it wasn’t thought to be relevant since the operative legal principle was that evidence was considered valid no matter how it got to the court if it had a bearing on the case.
Ohio was blindsided late in the game by the defense assertion of no valid search warrant and a call for the Court to apply the exclusionary rule in state jurisprudence. If it was understood to be a point of contention earlier in the process, more stringent efforts at storing and retrieving these documents would have been made. The Court took the side of Mapp: no warrant, no allowable evidence, perp takes a walk. Now, with its application in state courts, where the overwhelming number of violent suspects are tried, the rule is extended to a suspected serial killer as much as a porn enthusiast. And to think that it all rests on an untruth. So much for the integrity of the titans of the law.
Even in cases when the Court reaches the right conclusion, oftentimes the reasoning is littered with drivel. More than that, these decisions sometimes show the degree to which our judicial aristocrats get sucked into vogueish patterns of thought. A classic in how to meander in junk thought but end in the right place is 1954’s Brown v. Board of Education. To bolster their argument that racial segregation was unconstitutional, they resorted to the bag of tricks of ideologically charged social science researchers.
The married research team of Mamie and Kenneth Clark, MA student in psychology and CCNY prof respectively, conducted experiments that allegedly proved that black children were mentally and emotionally scarred to a greater degree by segregation. As proof, they conducted studies such as the famous doll test. A small group of children were given dolls of different skin and hair colors. The doll of the lighter shade was preferred by all children, including the black children. Based on these preferences and answers to follow-up questions, the Clarks concluded that black children were traumatized with self-hatred. They further asserted that it was more acute among black children in segregated environments such as segregated schools. The test’s claims were cited in Earl Warren’s majority opinion.
Since that time, the failings of the experiment were laid bare. Everything from the small sampling to the biases of the researchers to the conclusions drawn from the children’s responses has drawn fire. Yet, there it was; a highly questionable study lassoed into the judgment of the most eminent jurists. The simple thought that crusading academics might not be the most reliable wasn’t a serious enough matter to avoid using them. Right conclusion in the decision, but a perplexing path to get there.
Later, the dam broke on using social science studies as a substitute and supplement to the law in judges’ decisions. The Coleman Report of 1966 proved to be a rich source to order forced busing, a court takeover of the management of the school districts in a region (St. Louis), and all sorts of incessant court and federal meddling in local schools. Earl Warren’s majority opinion in Brown set the precedent for incorporating activism, disguised as chic research, rather than the law, its text and history, into a court’s rulings. What’s next, filling court vacancies from the ranks of Harvard’s African and African-American Studies Department?
We are not well-served by the upper crust in many of our professions, our so-called best and brightest. Historians are ahistorical. The crème de la crème of the legal profession doesn’t hesitate to practice deceit to achieve the desired end. Shoddy social science studies are ingested into rulings that impact everyone in ways large and small. Maybe a civilization’s state of health is reflected in the state of health of its elites. Now that’s serious food for thought.
RogerG
*Read here: “The Corruption of History”, Ramesh Ponnuru, National Review, Nov. 29, 2021.
