For some long time I have been aware of the issue of academic bias and groupthink highlighted by KC Johnson in this article. I have been inclined to dismiss the expressed concern as overblown. Yes, there were outrageous manifestations such as Duke's Group of 88's complete disavowal of the rule of law and due process, but I always assumed that they were just unfortunate outliers.
The case that Johnson makes is not complete but is disconcerting. That the courts should have to rely on scholarship that is two generations old because academia is no longer pursuing serious studies is alarming.
A quick summary of the decision: the Montana court ruled that "unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history," requiring the justices to examine "the context of the time and place it was enacted, during the early twentieth century." To provide this necessary historical background, the Court repeatedly cited books by historians Helen Fisk Sanders, K. Ross Toole, C. B. Glasscock, Michael Malone, and Richard Roeder. The Court also accepted an affidavit from Harry Fritz, a professor emeritus at the University of Montana and a specialist in Montana history, who affirmed, "What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work 'in the essential interest of outsiders with local interests a very secondary consideration.'"
An attorney analyzing the decision, however, probably would have been surprised to see that the works of history upon which the Montana court relied were all published before 1977. She might even have wondered whether the court's reliance on older works suggested that it had ignored newer, perhaps contradictory, publications. But for anyone familiar with how the contemporary academy approaches U.S. history, the court's inability to find recent relevant works could have come as no surprise at all.
The study of U.S. history has transformed in the last two generations, with emphasis on staffing positions in race, class, or gender leading to dramatic declines in fields viewed as more "traditional," such as U.S. political, constitutional, diplomatic, and military history. And even those latter areas have been "re-visioned," in the word coined by an advocate of the transformation, Illinois history professor Mark Leff, to make their approach more accommodating to the dominant race/class/gender paradigm. In the new academy, political histories of state governments--of the type cited and used effectively by the Montana Supreme Court--were among the first to go. The Montana court had to turn to Fritz, an emeritus professor, because the University of Montana History Department no longer features a specialist in Montana history (nor, for that matter, does it have a professor whose research interests, like those of Fritz, deal with U.S. military history, a topic that has fallen out of fashion in the contemporary academy).
To take the nature of the U.S. history positions in one major department as an example of the new staffing patterns: the University of Michigan, once home to Dexter and then Bradford Perkins, was a pioneer in the study of U.S. diplomatic history. Now the department's 29 professors whose research focuses on U.S. history after 1789 include only one whose scholarship has focused on U.S. foreign relations--Penny von Eschen, a perfect example of the "re-visioning" approach. (Her most recent book is Satchmo Blows Up the World: Jazz Ambassadors Play the Cold War.) In contrast to this 1-in-29 ratio, Michigan has hired ten Americanists (including von Eschen) whose research, according to their department profiles, focuses on issues of race; and eight Americanists whose research focuses on issues of gender. The department has more specialists in the history of Native Americans than U.S. foreign relations.
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