an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The following section, relating to the required curriculum, of the Florida Omnibus Education Bill was recently passed by the Florida legislature and signed by Gov. Jeb Bush (declared, incidentally, by the Weekly Standard on its cover as "the best governor in America"):
(g) The history of the United States, including the
2 period of discovery, early colonies, the War for Independence,
3 the Civil War, the expansion of the United States to its
4 present boundaries, the world wars, and the civil rights
5 movement to the present. The history of the United States
6 shall be taught as genuine history and shall not follow the
7 revisionist or postmodernist viewpoints of relative truth.
8 American history shall be viewed as factual, not as
9 constructed, shall be viewed as knowable, teachable, and
10 testable, and shall be defined as the creation of a new nation
11 based largely on the universal principles stated in the
12 Declaration of Independence.
What can this possibly mean? Would it be permissible for a history teaching in Florida to present, say, conflicting views of the Jacksonians and the Cherokees regarding the forced removal from Georgia, on the ground that it is simply a fact, and not constructed, that there were, indeed, conflicting views regarding the forced removal? Query, is it permitted to call it "The Trail of Tears," given that this is certainly a "constructed" term, just as, indeed, is the case with "the Holocaust" (see Peter Novick's excellent book on the subject) or, for that matter, "the French and Indian War, which is the American name for the Seven Years War.
Note that the young must be taught that that it is simply the case (and not a constructed notion) that the "new nation [was] based largely on universal principles stated in the Declaration of Independence." Does the "largely" allow a Florida teacher to note that these "univeral principles" were denied with regard to (for starters) slaves, women, indentured servants and others without property, Jews, "Mohammedans," in some colonies non-Protestants, etc., or are these "constructed" notions.
Does the "civil rights movement to the present" include teaching about women's rights, including access to abortions, disability rights, and gay- and lesbian-rights? Could labor history, which is omitted from the list, be shoehorned into the "civil rights movement" (even though organized labor was often antagonistic to the move for full rights for African-Americans)?
Is it relevant whether a single member of the Florida legislature (or "America's best governor") could get even a "Gentleman's C" on a test question asking them to discuss "relativism" and "post-modernist viewpoints of relative truth"?
Finally, are there any "relatists" or "post-modernists" who deny that American history is "knowable, teachable, and testable"? What would it mean to assert this?
I look forward to finding out whether the Florida legislature will similarly declare that the "correspondence theory of truth" is correct and that, say, Thomas Kuhn (or perhaps David Hume) cannot be taught in the Florida public schools, except as exemplars of error, and so on. (Incidentally, would it violate the statute to teach one or another of Justice Holmes's savage dismissals of the notion of natural law?)
Is this legislation basically harmless venting by ignorami who should simply be ridiculed by people like me (and, I suspect, most of the readers of this blog), or is it something "we" should be worried about? I omit, of course, the third option, which is that reasonable people should be grateful that the Florida legislature is willing to stand up to the "relativists" and "post-modernists" who are destroying America. Am I wrong to do so? Posted
by Sandy Levinson [link]
Generally, yeah, this kind of thing is just a bad joke, a sop to one or another dumbass constituency. But in this case I think it's happy instance of unintended consequences. I think it reads more naturally as pro-reality rather than anti-post-modernism. That is, I would read it as supporting a secular rather than a religious view of history, which is a *definite* win in today's climate. And though I doubt it was meant that way, it would be easy enough to flip it around in practice. Especially since most of the people who are scared of post-modernism are as dumb as a bag of hammers anyways. /ducks/ :-)
How will this provision be construed under statutory consstruction rules? Do we look to the intent of the enactors? If so, can we look to legislative history to aid in determining such intent? Or are we limited to the meaning of the provision at the time of enactment or as understood? If "meaning" and/or "understood" are to apply, then by what measures and of whom? And does the striking of "revisionist" and "postmodernist" mean that revisionism and postmodernism must therefore be acceptable as meant and/or understood at the time of enactment in its construction?
By the way, is there a conflict with the First Amendment's speech clauses?
Maybe Jeb Bush will attach a statement to the act reserving future executive challenge on constitutional and other grounds, in preparation for his presidential ambitions.
If the history of the United States shall be taught as "genuine" history, it will doubtless include a genuine discussion of the great industrialist and innovator Henry Ford, who said, "History is bunk."
Our right wings friends never fail to remind us that we are a "Christian nation" because, among other things, the Declaration of Independence references God ("the Creator") - who is noteably absent in such other important founding documents as, say the Constitution. So I don't doubt that there is a reason why the Declaration of Independence is held up as the model of the principles defining our country, and not, say, the Constitution - which actually defines our government. No Bill of Rights need be mentioned here, no sirree, not when God can brought up instead.
I look forward to finding out whether the Florida legislature will similarly declare that the "correspondence theory of truth" is correct and that, say, Thomas Kuhn (or perhaps David Hume) cannot be taught in the Florida public schools, except as exemplars of error, and so on.
Damn, Levinson, shut up before you start giving them ideas!
None of this really matters. The A+ program introduced by Jeb Bush in Florida has pretty much eliminated social studies and history from the curriculum. Students who do not pass the FCAT (state test) are removed from Social Studies classes and assigned to test-taking classes. History classes are now being told that they have to focus on reading and not history. Schools that consistently score low on the FCAT (mainly high poverty schools) are given a special waiver so they don't have to meet the state standards for social studies -- they don't have to teach it.
I know because I live in Florida and I'm an educator.
I think you are a little harsh here, though I really liked the Kuhn comment. I mean taking the position that there are facts about history that are testable (and getting them right) actually requires that they not deny any of the controversies that you mention. Saying that there are facts about history does not entail that these facts are known or universally agreed upon. It certainly doesn't prevent some of these facts from being of the form, "X and Y thought different things about Z".
Mostly this is just a feel good measure aimed at an exageration of certain relativists. While kinda ridiculous there are have been a handful of people who believed some ridiculous things in the name of cultural relativism (any society's story of history is equally valid). Sure this is mostly a gross charachature and has nothing to do with the coherence theory of truth (which requires coherence with experimental evidence as well) but what's the big problem if they attack non-existant idiots?
As far as things for legislatures to do this seems like a relatively harmless way to keep them entertained.