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White Studies History’s Eyewitnesses


When you talk with Ted White about historical figures, he often uses the present tense. “Alice, Henry, and William James are exchanging letters bad-mouthing Justice Holmes in the 1880s,”White says. “Alice has an 1889 journal entry, ‘H. writes that he has received an affectionate!!! letter from Wendell Holmes, a marvel explained by his near arrival in London. They say he has entirely broken loose and is flirting as desperately as ever.’”

“When I first came upon the exchange,” White continues, “I thought that Holmes pretty much deserved what he got. But now that I know the Jameses better, I’m a lot more sympathetic to Holmes.”

The story not only illustrates the way that White can immerse himself in the past, but his abiding curiosity about what makes people tick and how they are perceived by others. Those qualities have shaped his scholarship. Since the early 1970s, White has sought to use history to challenge the view that law is simply a mirror of society, an enabler of its political and social agenda. White argues that law’s relationship to society is far more complex. To illustrate that view, he has focused on the intellectual history of leading American judges and legal scholars, and on the connections between their jurisprudence and the cultural setting in which they worked.

White sees the relationship of law to society as “a constantly changing interplay between the dominant ideas and attitudes of legal culture and factors in society at large.” He is interested in why lawyers, judges, and legal academics have come to believe in certain social ideals at various times in history. He is also interested in why some lawyers and judges have become famous, and others have remained obscure.

A key element of White’s approach is the debunking of “progressive historiography” (historiography being a generic term for the methodologies historians use to study their subjects). As White uses the term “progressive,” it does not refer to a political agenda, although many of the historians he associates with a “progressive” perspective have tended to be on the political left. By “progressive,” White means an approach to historical scholarship which assumes that history is a progression of events through time, inevitably leading to a future that is qualitatively better than the past. “Many ‘progressive’ historians believe that because the future is an improvement on the past, it is useful to project the central political issues and concerns of the 20th century — the century in which modernity came into being — back into the past.” The historian looks for historical events that foreshadow present day legal and cultural developments. In the process, a progressive historian tends to characterize historical events with reference to current contemporary issues.

White received his B.A. from Amherst College and his Ph.D. in American Studies from Yale University. Rather than pursuing an academic career as an assistant professor of American Studies or history, he chose to attend Harvard Law School. “I was apprehensive about a career in liberal arts teaching,” White says, “mainly, in retrospect, because I was 26 years old and didn’t want to join the mature work force.”

During his second year in law school, Yale University Press published his dissertation, The Eastern Establishment and the Western Experience: The West of Frederic Remington, Theodore Roosevelt, and Owen Wister. This brought him to the attention of Harvard faculty, who invited him to join some discussion groups in legal history. By his third year White had decided to pursue a career in law teaching, hopefully specializing in American legal and constitutional history. “It was a somewhat quixotic plan,”White says. “None of the major law schools was interested in legal historians at the time.”

In 1972 White joined the Virginia law faculty after a clerkship with Chief Justice Earl Warren of the Supreme Court of the United States.

Since that time, White’s 11 books have won numerous honors and awards, including final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the Littleton-Griswold Prize from the American Historical Association, the James Willard Hurst Prize from the Law and Society Association, the Scribes Award, and the Association of American Law School’s Triennial Coif Award.

“Ted illuminates everything he touches,” says Law Professor Barry Cushman ’86, White’s colleague and also an expert in constitutional history. “He’s a wonderful writer. He has a great gift for exposition and keen insight into interesting people and the inner lives that shape their public actions.”

Cushman sees a “a counter-progressive edge” to White’s work in that he shows that law “can be taken seriously as an intellectual discipline that is not merely an extension of partisan politics.” In other words, in order to understand constitutional development one must patiently reconstruct the intellectual histories of the prominent individuals who have shaped it. It is in exploring these “questions of individual intellectual biography … that Ted really shines,” says Cushman.

In an effort to minimize the projection of his own biases, explicitly or implicitly, into his scholarly evaluations, White employs an approach to historical scholarship that experiments with methodologies that seek to fuse the past with the present without losing sight of the fundamental differences between those time segments. “I really don’t study history for its own sake,” says White. “I study history for the same reason I like to travel. It’s a projection into another world. It’s a way of getting perspective on one’s own world, particularly hot button contemporary issues. Sometimes it’s helpful to detach oneself from the present, but I’m always doing it with the present in mind.”

To White, studying the methodology historians use is perhaps even more interesting than the history itself. “It’s conventional wisdom among historians,” he says, “that it’s bad for a historian to take a present perspective and project it back on the past. In one sense this is obviously correct. People in the past don’t think the same way that we do. Their mindset is not the same as ours. If we go back there and try to make them into us, then we’re making a mistake.” But there’s more to it than that, White adds. “As present actors, we can’t avoid projecting our concerns onto the historical record. All one has to do is to match up contemporary issues with the tendencies of historical scholarship at any period in time to see the projection phenomenon. I’m very interested in the technique of avoiding too crude a projection of present concerns while at the same time writing history that has some contemporary bite. I experiment with my own approach a lot. I like to move around in time, and I like to move around in emphasis, because I think that not only keeps me from getting stale and predictable, it keeps me self-conscious. It’s also just more fun.”

White’s methodology has led him to bring a fresh perspective to many historical figures and topics, including Oliver Wendell Holmes, Jr., Earl Warren, John Marshall, Alger Hiss, Felix Frankfurter, Louis Brandeis, the New Deal, and even baseball. “I’m trying to write books with shelf life,” he says. “I’m trying to avoid writing books that are just responses to contemporary issues, and thus reflect a point of view that quickly becomes out of date. I want my books to be around for people to draw upon for many years. The hope of some of my revisionist work is that it might end up becoming conventional wisdom, even though ‘contemporary wisdom’ doesn’t endure indefinitely.”

A good example of White’s technique will be seen in his new book on Alger Hiss, Alger Hiss’s Looking-Glass Wars, scheduled for release next spring. In 1948, Whitaker Chambers, a senior editor at Time magazine, appeared in front of the House Un-American Activities Committee and accused Hiss, a Harvard law graduate and former clerk for Chief Justice Oliver Wendell Holmes who held several key positions in the New Deal administration, of being a communist spy. The accusation poured gas on a simmering flame of American fears about the communist threat, and it exploded on to the front pages, leading to one of the most sensational criminal trials of the 20th century. Hiss was convicted, and spent nearly five years in jail. When he was released, he began an aggressive campaign designed to convince the world he was innocent. It was largely successful, but in the late 1990s, after the fall of the Soviet Union, a combination of classified U.S. and Soviet intelligence documents clearly identified Hiss as an agent for Soviet military intelligence.

The Harrison Chair is an implicit statement that even though I rarely do work that is explicitly about contemporary issues, and I write books that aren’t as conveniently packaged as law review articles, somehow my work has engaged my colleagues.

In the book, White attempts to re-engage with the mind, and the times, of the historical figure he is researching. In this instance, he starts with the premise that Hiss is indeed guilty, and that his long public campaign to prove himself innocent was a grand deception. White then asks why did Hiss engage in so conspicuous a campaign to vindicate himself, one that would invite others to closely scrutinize his life and career, and possibly to expose him. He also asks why Hiss’s campaign, which resulted in ABC televison’s erroneously reporting, on Hiss’s death in 1996, that he had been cleared of all charges of spying for the Soviets by Russian President Boris Yeltsin, was so successful.

“From 1948 until 1996 when Hiss died,” White says, “almost none of the information successively released about him was helpful to his cause. Most of it was really quite damning. Yet in 1992 a great many media announced that the Russians had cleared Alger Hiss, and in 1996 ABC Television News repeated that conclusion. Both the 1992 and 1996 reports about Hiss were completely erroneous — Hiss had not been cleared of espionage charges, and the Russians had not cleared him. I thought, how do you explain this?” White’s book explores this massive gap between the facts of Hiss’s life and the conclusions many people came to draw about him. He also paints a portrait of a very complex man who “was extremely successful at being a spy and in deceiving others about it. Hiss liked keeping secrets and he liked being in control, and he was a dedicated. ‘true believer’ communist. He thought that by lying about his secret work he was being loyal to all those who shared his ideals, and to all the people who believed in his innocence. Even though he knew their belief in him was an illusion, he didn’t want to let them down.”

It is scholarship of this kind that has brought White so many awards and a national reputation as one of the foremost experts in American legal and constitutional history. Now, he has been honored as one of the David and Mary Harrison Distinguished Professors, the Law School’s most prestigious Chair.

“It’s a big thrill,” he says, “primarily because I’ve been at this institution for a long time and there have been times when I haven’t been completely sure that the sort of work I was doing was at the center of what my colleagues valued. The Harrison Chair is an implicit statement that even though I rarely do work that is explicitly about contemporary issues, and I write books that aren’t as conveniently packaged as law review articles, somehow my work has engaged my colleagues. That’s the nicest part, this internal recognition. I love this institution: I can’t imagine a better place to have a job in law teaching. The Harrison Chair comes at a time in my career when I would like to think that I have a lot of productive time ahead of me, so I can try to pay the institution a little back for the honor.”

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