Hostname: page-component-745bb68f8f-grxwn Total loading time: 0 Render date: 2025-02-09T23:25:04.810Z Has data issue: false hasContentIssue false
  • English
  • Français

History and Memory in Constitutional Adjudication

Published online by Cambridge University Press:  01 January 2025

Daphne Barak-Erez
Daphne Barak-Erez*
Affiliation:
Supreme Court of Israel
Get access Rights & Permissions [Opens in a new window]

Abstract

This article considers the different ways in which judicial decisions use and narrate history. It distinguishes between several forms of judicial recourse to history, including the difference between decisions which refer to general history and decisions that refer to the history of legal documents; and the difference between decisions on factual controversies that have historical significance and decisions that take judicial notice of history. At the same time, this article recognises that the division between these categories is not clear-cut. An analysis of constitutional case law sheds light on the ways in which courts harness historical events in order to justify their normative choices. More specifically, while some judicial decisions cite history in order to justify continuity with the past, others regard history as a cautionary tale that calls for a change of direction. In between, some decisions opt for a middle route, supporting continuity with historical decisions but offering new interpretations of their lessons. This article concludes by examining decisions that try to ‘learn’ from history, illuminating the enduring challenge in drawing different and even conflicting lessons from the very same historical event.

Type
Article
Information
Federal Law Review , Volume 45 , Issue 1 , March 2017 , pp. 1 - 16
Copyright
Copyright © 2017 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

This article is based on a lecture delivered on 5 August 2015, the 18th Geoffrey Sawer Lecture at the Australian National University. I would like to thank ANU, and in particular Professor Kim Rubenstein, the Director of the Centre for International and Public Law, ANU College of Law, for inviting me to present this lecture. Additional thanks go to Professor Roy Kreiner, Professor Assaf Likhovki, Dr Heather Roberts, Dr Yair Sagy and Dr David Schorr for their helpful suggestions; to Noam Kolt for his research assistance throughout the writing process; and to Kurtis G Anderson for his research assistance at the final stages.

References

1 See generally Larry, D Kramer, ‘When Lawyers Do History’ (2003) 72 George Washington Law Review 387Google Scholar.

2 See Kim Rubenstein, Ann Genovese and Trish Luker's ongoing Australian Research Council research project entitled The Court as Archive: Rethinking the Institutional Role of Federal Superior Courts of Record (DP 130101954).

3 This may come to us as no surprise, considering the focus of judicial decision-making on past events: ‘[b]oth law and history are interested in what happened in the past; both collect and assess evidence; and both are required to evaluate competing and contradictory accounts of the same events’: Ann, Curthoys, Ann, Genovese and Alexander, Reilly, Rights and Redemption: History, Law and Indigenous People (UNSW Press, 1st ed, 2008) 16Google Scholar.

4 See E H, Carr, What Is History? (Penguin Books, 2nd ed, 1986)Google Scholar. According to Carr, ‘[t]he facts speak only when the historian calls on them: it is he who decides to which facts to give the floor, and in what order or context’. Ibid 5. It is worthwhile to note the word ‘he’ in this sentence, which reflects the importance of the narrator from a different perspective—the gender one. This aspect of the matter is, however, beyond the scope of this essay.

5 See Paul, Finkelman, ‘The Constitution, the Supreme Court, and History’ (2009) 88 Texas Law Review 353Google Scholar; Helen, Irving, ‘Constitutional Interpretation, the High Court, and the Discipline of History’ (2013) 41 Federal Law Review 95Google Scholar.

6 Joshua, Stein, ‘Historians Before the Bench: Friends of the Court, Foes of Originalism’ (2013) 25 Yale Journal of Law & the Humanities 359, 388Google Scholar (‘Historians appreciate a past that is untidy and complicated; jurists hope to identify a single, correct result’). See also Jack, Rakove, ‘Tone Deaf to the Past: More Qualms about Public Meaning Originalism’ (2015) 84 Fordham Law Review 969Google Scholar.

7 In the words of Austin Sarat and Thomas Kearns, law is ‘an active participant in the process through which history is written and memory constructed’. See Austin, Sarat and Thomas, R Kearns, ‘Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduction’ in Austin, Sarat and Thomas, R Kearns (eds), History, Memory, and the Law (University of Michigan Press, 1999) 1, 3Google Scholar. See also Charles, A Miller, The Supreme Court and the Uses of History (Harvard University Press, 1969) 25Google Scholar (‘[b]y writing history into its opinions the Court contributes to the public's view of the American past as much as, and sometimes even more than, professional historians and other historical writers do’).

8 Jack, M Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) 3Google Scholar.

9 The article focuses on offering a typology of judicial references to history. Accordingly, it does not discuss temporal and cultural nuances, such as possible changes over time in the intensity of the recourse to history in judicial decisions or possible differences in the approach of various legal systems to this matter.

10 Judicial notice is a ‘court's acceptance, for the purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact; the court's power to accept such a fact’: Bryan, A Garner (ed), Black's Law Dictionary (West Group, 8th ed, 2004) 863–4Google Scholar.

11 See Amos, Funkenstein, ‘Collective Memory and Historical Consciousness’ (1989) 1(1) History & Memory 5Google Scholar; Paul, Connerton, How Societies Remember (Cambridge University Press, 1989)Google Scholar.

12 See, eg, Assaf, Likhovski, ‘“Tyranny” in Nineteenth-Century American Legal Discourse: A Rhetorical Analysis’ (1997) 28(2) Journal of Interdisciplinary History 205Google Scholar (describing British colonial regime); Ruti, G Teitel, Transitional Justice (Oxford University Press, 2002) 106Google Scholar (describing the Nazi regime).

13 In Australia, historical observations about the national psyche shaped the High Court's understanding of changes to the concept of federalism. Of particular interest is Justice Windeyer's account of the decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers’). According to Windeyer J, Engineers emerged out of the ‘growing realization that Australians were now one people and Australia one country and that national laws might meet national needs’: Victoria v Commonwealth (1971) 122 CLR 353, 396–7 (‘Payroll Tax Case’). In a similar vein, he explained that ‘by 1920 a new generation had arisen who thought of themselves as Australians and of Australia, not a State, as the country to which they belonged. That public law, whether given by courts or by legislators, should be responsive to public sentiment is not surprising’: Sir Victor Windeyer, ‘Some Aspects of Australian Constitutional Law’ (Speech delivered at the JA Weir Memorial Lecture, Edmonton, 13–14 March 1972), 36–7. Circumstances had changed and the time had arrived to disconnect from a colony-oriented, State-oriented federalism. It was this historical narrative, rather than erroneous legal doctrine, that paved the way for one of Australia's most radical constitutional developments. See generally Jeffrey, Goldsworthy, ‘Justice Windeyer on the Engineers’ Case’ (2009) 37 Federal Law Review 363, 363Google Scholar.

14 ‘Whilst courts may obtain the basal facts such as when a particular war broke out or other matters of record from reputable histories, analyses as to why certain things happened and generally how people behaved is not a matter which can be proved by the evidence of people who were not there but have ascertained the historical facts and then have analysed them to work out a conclusion’. Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364, 371 (Young J).

15 It is interesting to note in this context the controversy in the United States Supreme Court also on the meaning of Brown v Board of Education of Topeka, 347 US 483 (1954), which served as both a landmark precedent and a historical turning point in the struggle against racism in American national history. For this controversy see Parents Involved in Community Schools v Seattle School District No 1, 551 US 701 (2007) ('Parents Involved Case’) (discussing the use of race as a factor in student assignments to schools). See also Joel, K Goldstein, ‘Not Hearing History: A Critique of Chief Justice Robert's Reinterpretation of Brown’ (2008) 69 Ohio State Law Journal 791Google Scholar; Scarlet, Kim, ‘Judicial Opinion as Historical Account: Parents Involved and the Modern Legacy of Brown v Board of Education’ (2011) 23 Yale Journal of Law & Humanities 159Google Scholar.

16 See District of Columbia v Heller, 554 US 570 (2008). Justice Scalia, who wrote the majority opinion, provided an extensive history of firearm ownership and firearm legislation as the basis for his interpretation of the Second Amendment of the United States Constitution.

17 Morgan, Cloud, ‘A Conclusion in Search of a History to Support it’ (2010) 43(1) Texas Tech Law Review 29Google Scholar; Ethan, Bercot, ‘Forgetting to Weight: The Use of History in the Supreme Court's Establishment Clause’ (2014) 102(3) Georgetown Law Journal 845Google Scholar; Rebecca, Piller, ‘History in the Making: Why Courts Are Ill-Equipped to Employ Originalism’ (2015) 34(1) Review of Litigation 187Google Scholar.

18 Cloud, above n 17, 30.

19 See also Alexander, Lock and Jonathan, Sims, ‘Invoking Magna Carta: Locating Information Objects and Meanings in the 13th to 19th Centuries’ (2015) 15(2) Legal Information Management 74Google Scholar; Lord Sumption, ‘Magna Carta Then and Now’ (Speech delivered to the Friends of the British Library, 9 March 2015).

20 For a discussion of this distinction in the context of the Israeli Supreme Court, see Daphne, Barak-Erez, ‘Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court’ (2001) 16(1) Canadian Journal of Law & Society 93Google Scholar. The article focuses on the judicial narrative describing the events surrounding the establishment of Israel—the struggle for independence against the British ruler and the war of independence.

21 The concept of decisions based on proof shared by judges and historians was analysed by Carlo, Ginzburg, ‘Checking the Evidence: The Judge and the Historian’ (1991) 18(1) Critical Inquiry 79Google Scholar.

22 At the international level this started with the Nuremberg and Tokyo trials. One of the famous post-war criminal proceedings on the national level was the so-called Eichmann trial in which Israel prosecuted (and later executed) Nazi war criminal Adolf Eichmann. See Cr. App. 336/61 Eichmann v Attorney General, 18 PD 2033 (1962) IsrSC (‘Eichmann Case’).

23 For legal actions that concern the depiction of history in films, see Daphne, Barak-Erez, ‘The Law of Historical Films: In the Aftermath of Jenin, Jenin’ (2007) 16 Southern California Interdisciplinary Law Journal 495, 499–501Google Scholar.

24 See Stephen, Whinston, ‘Can Lawyers and Judges Be Good Historians?: A Critical Examination of the Siemens Slave-Labor Cases’ (2002) 20(1) Berkeley Journal of International Law 160Google Scholar. See also Leora, Bilsky, ‘Transnational Holocaust Litigation’ (2012) 23(2) European Journal of International Law 349Google Scholar.

25 See, eg, Jonathan, D Martin, ‘Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts’ (2003) 78(4) New York University Law Review 1518Google Scholar; Curthoys, Genovese and Reilly, above n 3, 9–10.

26 Irving v Penguin Books Ltd [2000] EWHC QB 115. See also Dennise, Mulvihill, ‘Irving v Penguin: Historians on Trial and the Determination of Truth Under English Libel Law’ (2000) 11(1) Fordham Intellectual Property, Media & Entertainment Law Journal 217Google Scholar; Wendie, Ellen Schneider, ‘Past Imperfect’ (2001) 110(8) Yale Law Journal 1531Google Scholar.

27 His curfew, like that of his fellow Japanese Americans, was approved at the time by the US Supreme Court. See Hirabayashi v United States, 320 US 81 (1943); Korematsu v United States, 323 US 214 (1944).

28 See Hirabayashi v United States, 828 F 2d 591 (9th Cir, 1987).

29 See Shaw v Reno, 509 US 630, 638–41 (1993).

30 See Obergefell v Hodges, Director, Ohio Department of Health, 576 US ___, 6 (2015) (‘Obergefell’): ‘The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time’. For further analysis of this case see infra section V(C).

31 City of Richmond v J A Croson Co, 488 US 469 (1989).

32 According to Justice O’Connor: ‘There was no direct evidence of race discrimination on the part of the city in letting contracts or any evidence that the city's prime contractors had discriminated against minority-owned subcontractors’: Ibid 480. In contrast, Justice Marshall recounted in his dissent the ‘sordid history of Virginia’s, and Richmond's attempts to circumvent, defeat, and nullify’ school desegregation and numerous other civil rights: 545 quoting Bradley v School Board of Richmond, 462 F.2d 1058, 1075 (1973) (Winter J). An emphasis on the lack of a history of school segregation in the school districts concerned in the case was also part of Chief Justice Roberts’ opinion in Parents Involved Case, 551 US 701 (2007).

33 Robert, M. Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 4Google Scholar.

34 See Elizabeth, Mertz, ‘The Uses of History: Language, Ideology, and the Law in the United States and South Africa’ (1988) 22 Law & Society Review 661Google Scholar.

35 See Inga, Markovits, ‘Selective Memory: How the Law Affects What We Remember and Forget About the Past—The Case of East Germany’ (2001) 35 Law & Society Review 513Google Scholar; Andrew, Henderson and Kim, Rubenstein, ‘Court Records as Archives—The Need for Law Reform to Ensure Access’ in Ron, Levy and others (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press, forthcoming)Google Scholar. Obviously an even more overt example of legislative intervention in public discourse on history — and this is said with full acknowledgment of its importance—is the legislation prohibiting holocaust denial (predominantly used in Europe). See also Eric, Stein, ‘History Against Free Speech: The New German Law Against the “Auschwitz”—and Other—“Lies”’ (1986) 85 Michigan Law Review 277Google Scholar; Lawrence, Douglas, ‘The Memory of Judgment: The Law, The Holocaust, and Denial’ (1995) 7(2) History & Memory 100Google Scholar. A controversial example to be mentioned here is the new initiative in Poland to prohibit reference to the concentration camps as ‘Polish’. See ‘Poland approves bill outlawing phrase “Polish death camps”’, The Guardian, 17 August 2016.

36 A separate question which is beyond the reach of this article concerns the potential influence of court decisions on public opinion. For the complex relationship between judicial decisions and public opinion, see Nathaniel, Persily, Jack, Citrin and Patrick, J Egan (eds), Public Opinion and Constitutional Controversy (Oxford University Press, 2008)Google Scholar. For the effect of press coverage of judicial decisions, see Bryna, Bogoch and Yifat, Holzman-Gazit, ‘Mutual Bonds: Media Frames and the Israeli High Court of Justice’ (2008) 33 Law & Social Inquiry 53Google Scholar.

37 ‘We respect religious conscience because our Pilgrim forefathers left persecution in Europe. We guarantee racial equality because of Lincoln, the Civil War, Martin Luther King, the March on Washington, and the police riot at the Edmund Pettus Bridge. We guarantee rights of criminal defendants because of the actions of King George and his imperial government. Unpack a constitutional doctrine and you will usually find a story about the past, about a people, about its commitments, about its promises to itself, about what it has taken proudly from its past and what it has scornfully rejected, about its hopes, about its goals, about its fears. Unpack a disagreement about the Constitution and you will find a disagreement about stories, about what was done to whom by whom, what it means, and whether and why it is worth remembering’: Balkin, above n 8, 3. As a history of justification, the historical narrative of judges will tend to be relatively linear, leading to a definitive conclusion—in contrast to expert historians who tend to avoid single meanings. See also John, Waugh, ‘Lawyers, Historians and Federation History’ in Robert, French, Geoffrey, Lindell and Cheryl, Saunders (eds), Reflections on the Australian Constitution (Federation Press, 2003) 25, 28Google Scholar: ‘Historians find multiple intentions and diverse experiences in federation, while lawyers usually strive to establish single meanings in order to support definitive judgments’.

38 For the importance of historical narratives in constitutional preambles see Liav, Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law 714, 717Google Scholar (mentioning the examples of the preamble of the South African Constitution which declares that the people ‘recognise the injustices of the past’ and ‘honour those who suffered for justice and freedom in our land’ and the preamble of the Constitution of the People's Republic of China which notes that ‘China is one of the countries with the longest histories in the world’); Adeno Addis, ‘Constitutional Preambles as Narratives of Peoplehood’ (Research Paper No 16–2, Tulane University School of Law, March 2016) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754290> (discussing the way preambles provide a useful collective political identity which empowers ‘the People’).

39 Balkin, above n 8, 3: ‘[w]e do this now because we did that then’, or ‘we do not do this now because we promised ourselves we would never do that again’.

40 Gerald, Postema, ‘On the Moral Presence of Our Past’ (1991) 36 McGill Law Journal 1153Google Scholar.

41 For applying Postema's approach with regard to history, see Jeremy, Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ (1995) 17 Sydney Law Review 5Google Scholar.

42 L P Hartley, The Go-Between (Hamish Hamilton, 1953), opening line.

43 G K Chesterton expressed this sentiment in the following words: ‘Tradition means giving a vote to the most obscure of all classes, our ancestors. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death’. G K, Chesterton, Orthodoxy (John Lane, The Bodley Head, London, 1909) 85Google Scholar.

44 See, eg, Marsh v Chambers, 463 US 783 (1983) (describing the 200-year long history of the sessions of Nebraska's legislature opening with a prayer as justification for the legality of its operation, including its funding by the State); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (referring to the history of the relationship between Australia and Papua New Guinea in order to make the argument that the Australian citizenship in this case was not ‘real’. The decision invoked colonial standards and stated that Papuan Australian citizens historically ‘had no right … to vote in Australian elections and referenda’, ‘could perform no jury or other civic service in Australia’ and lacked the right to enter or reside in the mainland of Australia: 449, 470, 481). See also Kim, Rubenstein and Jacqueline, Field, ‘What Is a “Real” Australian Citizen? Insights from Papua New Guinea and Mr. Amos Ame’ in Benjamin, N Lawrance and Jacqueline, Stevens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press, 2016) 100, 100–2Google Scholar).

45 Roe v Wade, 410 US 113 (1973).

46 Ibid 130–40. In a similar manner, it is possible to point to the example of section 41 of the Australian Constitution where studies of the actual history of its drafting (connected to the feminist struggle for voting rights of women) led to a criticism of its narrow reading by the Australian High Court. See Elisa, Arcioni, ‘R v Pearson; Ex Parte Sipka : Feminism and the Franchise’ in Heather, Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Bloomsbury, 2014), 55Google Scholar (alternative judgment written by Kim Rubenstein).

47 Washington v Glucksberg, 521 US 702 (1997).

48 Ibid 720–1.

49 539 US 558 (2003) (‘Lawrence’).

50 Ibid 598 (2003) (citations omitted).

51 Obergefell, 576 US ___ (2015).

52 With whom Scalia and Thomas JJ agreed.

53 Obergefell, 576 US ___, 5 (2015).

54 Ibid 8.

55 Ibid 3.

56 Ibid 2 (emphasis added). Roberts CJ continued: ‘In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition’. It is interesting to note that Roberts CJ also sought to convey a ‘historical lesson’ as part of his argument that the way in which pressing public issues have (traditionally) been resolved—by Congress rather than the Supreme Court—should be preserved. Rallying against the majority's so-called ‘heavy-handed judicial intervention’ (at 27) Roberts CJ evoked a particular historico-political narrative: ‘Those who founded our country would not recognize the majority's conception of the judicial role’: at 25.

57 George, Santayana, The Life of Reason: Introduction and Reason in Common Sense (MIT Press, Critical Edition, 2011) vol VII book 1, 172Google Scholar: ‘Those who cannot remember the past are condemned to repeat it.’

58 Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’).

59 Webber, above n 41.

60 Mabo (1992) 175 CLR 1, 104.

61 Ibid.

62 This new awareness opened the door for a renewed willingness to evaluate arguments on native title and indigenous rights. Litigants and their legal teams harnessed indigenous history in order to make their case, adamant that the ‘search for present justice … necessarily involve[s] serious historical research and argument’: Curthoys, Genovese and Reilly, above n 3, 9. The courts responded agreeably, describing in their judgments brief histories relevant to the disputes before them. See, eg, Yarmirr v Northern Territory (1998) 82 FCR 533, [17] (Olney J); Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (18 December 1998); De Rose v South Australia [2002] FCA 1342 (1 November 2002) [147]–[196] (O’Loughline J). See also Curthoys, Genovese and Reilly, above n 3, 88.

63 Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa (1996) 4 SA 672.

64 Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 21(2).

65 Socialist Reich Party Case, Bundesverfassungsgericht [German Constitutional Court], 1 BvB 1/51, 23 October 1952 reported in (1952) 2 BVerfGE 1. The decision refers to the fact that the framers of the German Constitution were ‘enlightened by recent experiences’. In a similar manner, the German Constitutional Court decided to disqualify the communist party. See Communist Party Case, Bundesverfassungsgericht [German Constitutional Court], 17 August 1956 reported in (1956) 5 BVerfGE 85. See also Justin Collings, Democracy's Guardians—A History of the German Federal Constitutional Court, 1951–2001 (Oxford University Press, 2015). It should be noted that after the writing of this essay was completed the German Constitutional Court decided not to prohibit the Neo-Nazi party (National Democratic party) operating in Germany. It explained that this party disrespects the free democratic order and resembles National Socialism, but that there are no specific and weighty indications which suggest that it will succeed in achieving its anti-constitutional aims. National Democratic Party Case, Bundesverfassungsgericht [German Constitutional Court], 2 BvB 1/13, 17 January 2017. The analysis of this case is beyond the reach of this essay.

66 EA 1/65 Yeredor v Chair of the Central Elections Committee, 19(3) PD 365, 388 (1964) IsrSC. Chief Justice Agranat quoted in his majority opinion an earlier decision given by Justice Witkon (in HCJ 253/64 Jeris v Superintendent of the Haifa District, 18(4) PD 673, 679 (1964) IsrSC) who stated that those who witnessed the destruction of democracy by fascist forces in the days in the Republic of Weimar will never forget the lesson. For further analysis and criticism, see Pnina, Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (University of California Press, 1997) 181–95Google Scholar.

67 Eventually section 7A was added to Basic Law: The Knesset (Israel).

68 See, eg, the dissenting opinion of Justice Marshall in Skinner v Railway Labor Executives Association, 489 US 602, 635 (1989), which dealt with the constitutionality of urine tests of railway employees in order to detect drug and alcohol use (from the perspective of the Fourth Amendment's prohibition on search and seizure without probable cause). Justice Marshall stated: ‘Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure . The World War II relocation-camp cases, Hirabayashi v United States, 320 US 81 (1943); Korematsu v United States, 323 US 214 (1944), and the Red scare and McCarthy-era internal subversion cases, Schenck v United States, 249 US 47 (1919); Dennis v United States, 341 US 494 (1951), are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it’ (emphasis added): 635. See also 654–5.

69 Bradwell v Illinois, 83 US 130 (1873); Minor v Happersett, 88 US 162 (1875). In fact, for Justice Bradley in Bradwell, the relevant history for deciding the case at hand—the entitlement of women to be accepted to the Illinois Bar—seemed to be the tradition regarding the domestic role of women: ‘The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood’: 141.

70 Loving v Virginia, 388 US 1, 12 (1967), cited in Obergefell, 576 US ___, 11 (2015).

71 576 US ___, 11 (2015).

72 Obergefell, 576 US ___, 11 (2015).

73 Loving v Virginia, 388 US 1, 12 (1967), cited in Obergefell, 576 US ___, 11 (2015).

74 Bowers v Hardwick, 478 US 186 (1986).

75 Lawrence, 539 US 558 (2003).

76 Ibid 568. Subsequently, Justice Kennedy casts additional doubt on the history of sodomy laws and their enforcement and concludes this part of his decision by stating: ‘In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated’: 571.

77 HCJ 72/62 Rufeisen v Minister of Interior, 16 PD 2428 (1962) IsrSC.

78 Ibid 2438.

79 Ibid 2441.

80 HCJ 58/68 Shalit v Minister of Interior, 23(2) PD 477 (1970) IsrSC.

81 See also Daphne, Barak-Erez, ‘Who is a Jew and the Law—Between London and Jerusalem’ in Rene, Provost (ed), Mapping the Legal Boundaries of Belonging: Religion and Multiculturalism From Israel to Canada (Oxford University Press, 201) 143Google Scholar. Another example for conflicting historical narratives of Jewish tradition has been the controversies around pig-related prohibitions—between those which have regarded them as expressions of respecting religious Jewish values and those which have regarded them part of Jewish culture in the broader sense. See Daphne, Barak-Erez, Outlawed Pigs: Law, Religion and Culture in Israel (University of Wisconsin Press, 2007)Google Scholar.

82 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 (‘Community Party Case’). The Australian approach to this matter was very different than the one expressed by the German Constitutional Court (in a complete different political context). See above n 65.

83 Communist Party Dissolution Act 1950 (Cth).

84 Community Party Case (1951) 83 CLR 1, 150 (Latham CJ) (dissenting): ‘It is not necessary for the Government and Parliament to wait until war is actually raging and a crisis is upon us before preparing for war contingencies and legislating against hostile acts, whether internal or external, and whether actually performed or only apprehended’.

85 Ibid 187. See also George, Winterton, ‘The Communist Party Case’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 110Google Scholar; Roger, Douglas, ‘Cold War Justice? Judicial Responses to Communists and Communism, 1945–1955’ (2007) 29 Sydney Law Review 43Google Scholar. Later on, the historical significance and the lesson of the Communist Party Case became a subject for controversy in the context of the constitutional challenge made to the validity of anti-terrorism provisions under the Criminal Code (Cth). In Thomas v Mowbray (2007) 233 CLR 307, 384 Kirby J (dissenting) took the opportunity to re-tell the legal and political history of the Community Party Case, stating that ‘[i]n many respects, the contemporary concerns about “terrorism” are analogous to the fears earlier expressed about communism leading to the enactment of the Communist Party Dissolution Act 1950 (Cth)’.

86 As already mentioned (see above n 36) the contribution of judicial decisions to public awareness is dependent on many factors. While not all court decisions become part of public discourse, some decisions, however, become very influential. In Israel, for example, the Eichmann case (see above n 22). See Hanna, Yablonka, The State of Israel Vs. Adolf Eichmann (Schocken Books, 2004)Google Scholar.

87 Arguably, the courts’ focus on the normative consequences of judicial narration rather than on its ‘objectivity’ or on history ‘as it really happened’ is an anathema to the historical profession, according to its classical understanding. See generally Peter, Novik, That Noble Dream: The ‘Objectivity Question’ and the American Historical Profession (Cambridge University Press, 1988).Google Scholar However, at least according to post-modern historiographical perspectives, courts perhaps are an (if not the ) appropriate forum for expounding historical narrative, particularly in light of their advantages in terms of public access and media attention, certainly compared with the obscure writings of some historians. Yet, unlike professional historians, courts’ engagement with general history may ultimately be constrained by public opinion about the historical events which they narrate. While professional historians can freely depart from the historical consensus, judges may be reluctant (and indeed unable) to do so. See Barry, Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009)Google Scholar.