RBG, Historian: Why Justice Requires Memory

Last Thursday, President Donald Trump went to the National Archives Museum to promote a more “pro-American” version of our national past. Criticizing those who “[rewrite] American history to teach our children that we were founded on the principle of oppression, not freedom,” Trump insisted that our founders “set in motion the unstoppable chain of events that abolished slavery, secured civil rights, defeated communism and fascism, and built the most fair, equal and prosperous nation in human history.”

One night later, we lost an American who did as much as anyone to secure those rights and build that equality. But Ruth Bader Ginsburg knew that there was nothing “unstoppable” about those achievements. She understood that the oppression woven into a story of liberation could only be unravelled with determination, dissent, and a knowledge of the complexity and contingency of history.

I hadn’t thought much about the importance of the past to Ginsburg until Saturday night, when students and faculty in our department gathered — outdoors, socially distanced — to observe Constitution Day by watching the 2018 documentary RBG.

As it tracked her early legal career, the film came to the 1973 case of Air Force lieutenant Sharron Frontiero, who had been denied housing and medical benefits available to male officers. “A person born female continues to be branded inferior for this congenital and unalterable condition of birth,” Ginsburg famously argued in her brief, then proceeded to illustrate her claim with examples drawn from American history. In a ten-page historical overview that quoted everyone from Thomas Jefferson and Dolley Madison to Sojourner Truth and Alexis de Tocqueville, she demonstrated how the law had denied equality to both women and African Americans:

Neither slaves nor married women had the legal capacity to hold property or to serve as guardians as their own children. Neither blacks nor women could hold office, serve on juries, or bring suit in their own names. Men controlled the behavior of both their slaves and their wives and had legally enforceable rights to their services without compensation.

While some progress was made over time, RBG concluded that “men viewing their world without rose-colored glasses would have noticed in the last century, as those who look will observe today, that no pedestal marks the place occupied by most women.” Over two decades later, having ascended to the nation’s highest court as its second female justice, Ruth Bader Ginsburg continued to look at American history without nostalgia or despair.