Allen Porter Mendenhall

Archive for the ‘America’ Category

Abolish the Bar Exam

In America, American History, History, Law on July 23, 2014 at 8:45 am

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This article originally appeared here at LewRockwell.comand was reposted on this blog last year in July.  I repost it here again this year for all those who are taking the bar exam this week and next week.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules — also known as black letter law — these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government — local, state, and federal — to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status. The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well.

Bar exams have been around in America since the eighteenth century, but before the twentieth century they were relaxed and informal and could have been as simple as interviewing with a judge. At the zenith of the Progressive Era, however, they had become an exclusive licensing agency for the government. It is not surprising that at this time bar associations became, in some respects, as powerful as the states themselves. That’s because bar associations were seen, as they are still seen today, as agents and instrumentalities of the state, despite that their members were not, and are not, elected by the so-called public.

In our present era, hardly anyone thinks twice of the magnificent powers exercised and enjoyed by state bar associations, which are unquestionably the most unquestioned monopolies in American history. What other profession than law can claim to be entirely self-regulated? What other profession than law can go to such lengths to exclude new membership and to regulate the industry standards of other professions?

Bar associations remain, on the whole, as progressive today as they were at their inception. Their calls for pro bono work and their bias against creditors’ attorneys, to name just two examples, are wittingly or unwittingly part of a greater movement to consolidate state power and to spread ideologies that increase dependence upon the state and “the public welfare.” It is rare indeed to find the rhetoric of personal responsibility or accountability in a bar journal. Instead, lawyers are reminded of their privileged and dignified station in life, and of their unique position in relation to “members of the public.”

The thousands of men and women who will sit for the bar exam this month are no doubt wishing they didn’t have to take the test. I wish they didn’t have to either; there should be no bar exam because such a test presupposes the validity of an authoritative entity to administer it. There is nothing magical about the practice of law; all who are capable of doing it ought to have a chance to do it. That will never happen, of course, if bar associations continue to maintain total control of the legal profession. Perhaps it’s not just the exam that should go.

Holmes’s Dissent in Bartels v. Iowa

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Oliver Wendell Holmes Jr., Rhetoric, Rhetoric & Communication, Writing on June 18, 2014 at 8:45 am

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Bartels v. Iowa, 262 U.S. 404 (1923), is short and to-the-point, extending and confirming the principles released by the United States Supreme Court that very day in Meyer v. Nebraska,[i] a companion case to Bartels that is also short and to-the-point. In Meyer, the Court struck down a Nebraska law restricting the teaching of modern foreign-languages to students from kindergarten to eighth grade. The majority in Meyer found that the law violated the Due Process Clause of the Fourteenth Amendment on the grounds that it infringed upon the liberty interests of teachers, who had a right to practice their profession without the interference of the state with their curriculum so long as that curriculum did not violate explicit State policy.[ii] There was, the Court reasoned, no link between the putative purpose of the law—to protect the welfare of children—and a threat to the public interest.[iii] The law was deemed arbitrary and not reasonably related to a legitimate state interest and, therefore, unconstitutional.

Holmes reserved his Meyers dissent—which maintained that this Nebraska law was constitutional—for the Bartels opinion. In Bartels, the United States Supreme Court addressed an Iowa law similar to the Nebraska regulation and reversed a decision of the Iowa Supreme Court, which had upheld the criminal conviction of a teacher who taught German to his students. “We all agree, I take it,” Holmes began his dissent, “that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one” (Bartels 412). The pronoun “we” lacks a clear referent. Does Holmes mean “we” justices or “we” Americans? The answer is probably the latter because “we” was (and is) widely and fluidly used to signify the assembled justices on the bench.

Holmes claims that the “only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment” (Bartels 412). He submits that he will not judge the law according to whether it is good or right but only pursuant to the terms of the Fourteenth Amendment. He states, to that end, that he may “appreciate the objection to the law” (“I think I appreciate the objection to the law”) but that the role of the judge is not to take sides on moral or political issues “upon which men reasonably might differ” (Bartels 412). “I am not prepared to say that it is unreasonable,” Holmes explains, using litotes, “to provide that in his early years [a student] shall hear and speak only English at school” (Bartels 412). If it is not unreasonable, then it is reasonable, and “if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar” (Bartels 412).

Holmes’s dissent in Bartels is not known as one of his most notable or outstanding dissents. Nevertheless, it has been referenced not only by the United States Supreme Court[iv] but also by federal and state courts.[v] Although the majority opinion has never been overruled, Holmes’s dissent generally is cited favorably. My approximate calculation based on Westlaw searches is that this dissent has been cited almost 200 times in cases, administrative decisions, and federal court documents such as amicus curiae briefs.

The topic of his dissent—foreign languages in public schools—has been revisited by later courts because it remains relevant, and in that respect, it is not surprising that the dissent continues to be cited. Yet the topic alone does not explain why Holmes’s dissent in particular remains popular, especially if it is not binding precedent. There are other non-binding documents on the topic, including social science studies and law review articles, that are also relevant but that have not been cited in large numbers. Although Holmes’s reputation has something to do with the abundance of citations to his dissent, insofar as his legal opinion carries great weight among jurists, the properties of his dissent likely contribute to its ongoing appeal.

What are these properties? Besides litotes, mentioned above, there is also aphorism: “No one would doubt that a teacher might be forbidden to teach many things.” These words are carefully chosen. It would be absolutist to state that no one would doubt that a teacher is forbidden to teach many things, or to state that no one doubts rather than no one would doubt that a teacher might be forbidden to teach many things, or to state that no one would doubt that a teacher might be forbidden to teach a particular thing rather than many things. This short sentence is so well qualified that it manages to articulate a pithy generalization without succumbing to embellishment or misrepresentation. Moreover, the phrase “no one would doubt that a teacher might be” is anapestic, sharing the same feet of such memorable verses as “’Twas the night before Christmas and all through the house.”

In the opening line to a dissent about language, the deliberate use of sigmatism, or the repetition of “s” sounds for dramatic effect, is striking: “[…] is desirable that […] citizens of the United States should speak.” It is as if Holmes defamiliarizes the “common tongue” (his words) as he writes about the “time [of youth] when familiarity with a language is established.” At the very least, he highlights the nuances of language in a dissent expressed in nuanced language and addressing the very legality of language acquisition within a public institution. In addition, Holmes empowers his dissent with a religious-like seriousness by referring to his fellow justices as “brethren,” and he appears figuratively to objectify his “mind” as something separate from his “consciousness” when he claims that “I cannot bring my mind to believe.”

These moves are not merely literary grandstanding but the instantiation of an important feature of Holmes’s philosophical pragmatism: the fallibility of human intelligence. He will not profess certainty but will formulate his reasoning only in cautious qualifications.

Holmes follows, therefore, with the declaration that the objection to the prohibition on the teaching of foreign languages in Iowa “appears to me to present a question upon which men reasonably might differ”  (my emphasis). His belief in the inherent limitations of human faculties prevents him from saying that the objection does present a question upon which reasonable men may differ.

Having introduced the theme of human knowledge, he turns to metonymy by referring to the state legislation as an “experiment” that the United States Supreme Court should not prevent from taking place. For aught that appears, either the term “experiment” or the state legislation may indicate the other; they are reversible concepts within the paradigm that Holmes establishes here. Treating the states as if they were laboratories, he gestures toward his conviction that the widening capacity of the aggregate knowledge of the community is made possible by allowing social experiments to take place on the most local levels, where the consequences of failure are minimized, whereas the failure of United States Supreme Court justices to rule properly regarding some law or another will have vast consequences that affect social coordination throughout the entire country. Subtle turns of phrase are enough for Holmes to implicate this grand philosophical notion to which he owes his most insightful dissents.

[i]262 U.S. 390 (1923).

[ii] “As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.” (Meyer 403)

[iii] “The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner [citation omitted] pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” (Meyer 403).

[iv] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 518-19 (1969).

[v] Examples of federal court cases referencing Holmes’s dissent include the following: Yniguez v. Arizonans for Official English, 42 F. 3d 1217, 1242 (9th Cir. App. 1994); Kramer v. New York City Bd. of Educ. 715 F. Supp. 2d 335, 342 (E.D. New York 2010); and Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-J, Aurora, Colo. 598 F. 2d 535, 540 (10th Circ. App. 1979). Examples of state court cases referencing Holmes’s dissent include State v. Hoyt. 84 N.H. 38, 146 A. 170, 171 (N.H. 1929), and Hamilton v. Deland, 198 N.W. 843, 227 Mich. 111, 113 (Mich. 1924).

 

 

Oliver Wendell Holmes, Jr., and the Literary Quality of his Prose

In America, American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Oliver Wendell Holmes Jr., Poetry, Rhetoric, Writing on June 11, 2014 at 8:45 am

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Oliver Wendell Holmes Jr.’s writings are known for their literary qualities.  The Class Poet at Harvard, the son of a famous poet, and a lifelong devotee of Emerson, Holmes often rendered his judicial writings in poetic prose.  Consider the following lines from Gitlow v. New York, which I have reformulated as a poem:

 

                 Gitlow v. New York[i]

                 A Poem[ii] (1925)

Every idea

is an incitement.

It offers itself for belief

and if believed

it is acted on

unless some other belief

outweighs it

or some failure of energy

stifles the movement

at its birth.

The only difference

between the expression

of an opinion and an incitement

in the narrower sense

is the speaker’s enthusiasm

for the result.

Eloquence may set fire

to reason.

But whatever may be thought

of the redundant discourse

before us

it had no chance of starting

a present conflagration.

 

The plain, raw idioms and variable feet in these lines resemble those characteristically employed by Stevens and William Carlos Williams. Holmes’s language here is similar in tone and rhythm to Williams’s in “The Red Wheelbarrow,” which was published just two years before this dissent. Holmes’s alliterative use of the letter “n” emphasizes mobility, momentum, and ignition: “incitement,” “energy,” “movement,” “incitement,” “enthusiasm,” “conflagration.” These nouns suggest provocation, stimulus, instigation; they are tied to ideas themselves, as in the line “every idea is an incitement,” hence the correspondingly alliterative “n” sounds in the words “expression” and “reason.” The metrical regularity of “Every,” “offers it…,” “for belief,” “failure of,” “energy,” “stifles the,” “at its birth,” “difference,” “narrower,” “Eloquence,” and “had no chance” accents the activity associated with thinking insofar as these dactylic words and phrases pertain to ideas or beliefs. Holmes follows a series of dactyls with spondaic feet just as he describes the possibility of combustion: “Eloquence [stress / slack / slack] may set fire [stress / stress / stress / slack] to reason [stress / stress / slack].” It is as though he wishes to create the sense of building pressure and then of sudden release or combustion. Two unstressed lines abruptly interrupt the heightened tension; the first appears with the transitional conjunction “But,” which signals a change in the tone. Holmes appears to reverse the intensity and calm his diction as he assures us that the “redundant discourse,” a phrase made cacophonous by the alliterative “d” and “s” sounds, has “no chance of starting a present conflagration.” A sudden move to iambic feet and hence to a lightened tone rounds out these lines and suggests that Holmes has smothered or extinguished whatever energy had been building with the three-syllable feet. These lines have become some of the most famous in American constitutional history most likely because of their memorable qualities, which contributed to the eventual vindication of the dissent.

Be that as it may, feet and meter are basic to English speech and writing and may be displayed in many other legal writings by less able judges and justices. It would be difficult to prove that Holmes deliberately set out to invest these lines with literary features, at least those pertaining to alliteration and feet. Holmes no doubt had an ear for language and probably intended to employ alliteration, rhythm, and rhyme in his writings, but how far does his intent extend?  Does the scanning exercise above give Holmes too much credit and attribute to his writings undeserved praise?  There is no empirical way to answer this question, but the speculation is, I think, worth the time.

 

[i] Gitlow v. N.Y., 268 U.S. 652 (1925).

 

[ii] My addition.

 

Allen Mendenhall Interviews Daniel J. Kornstein

In America, American History, Arts & Letters, Books, British Literature, Communication, Essays, Humanities, Literature, Oliver Wendell Holmes Jr., Politics, Rhetoric & Communication, Shakespeare, Writing on June 4, 2014 at 8:45 am
Dan Kornstein

Daniel J. Kornstein

Daniel J. Kornstein is a senior partner at the law firm of Kornstein Veisz Wexler & Pollard, LLP, in New York City.  He earned his law degree from Yale Law School in 1973 and has served as the president of the Law and Humanities Institute.  He has authored several books including Loose Sallies, Something Else: More Shakespeare and the Law, Unlikely Muse, Kill All the Lawyers? Shakespeare’s Legal Appeal, Thinking under Fire, and The Music of the Laws.  His writing has appeared in The New York Times, Wall Street Journal, Chicago Tribune, Baltimore Sun, and the Boston Globe.  In 2002, Dan received the Prix du Palais Littéraire from the Law and Literature Society of France.  In 2013, King Michael of Romania awarded him the Order of the Crown of Romania.

AM: Thanks for taking the time to discuss your new book with me, Dan. The name of the book is Loose Sallies, and as you state in your introduction, it’s not about fast women named Sally. For those who haven’t read the introduction or purchased the book yet, could you begin by discussing the book generally and say something in particular about your chosen genre: the essay.

Loose SalliesDJK: Thank you, Allen, for this opportunity. Those of us who occasionally write are, as you know from your own experience, always delighted to have a chance to explain a bit about how and why we scribble. Loose Sallies is a collection of essays written over the past 25 years mostly about topics of general interest. The first 75 pages is about the drafting of the U.S. Constitution in 1787 and why that remarkable process and its end result are still so important to us today. The rest of the book ranges over a wide variety of topics, from our precious civil liberties to profiles of some famous judges and lawyers to current controversies. It should, I hope, appeal to everyone.

AM: Phillip Lopate has said that the essay is a “diverting” type of literature and that its hallmark is intimacy. You call the essay “intimate, informal and reflective, as if you are sitting at home in your living room or dining room and having a pleasant, sometimes provocative, sometimes stimulating, but always, one hopes, insightful and enlightening conversation.” I agree. The essay is my favorite genre because it’s the genre of the person. You can’t know a person until you’ve met the persona he creates in his essays—and if you don’t write essays, you may not know yourself. Who are your favorite essayists, and what is it about their essays that you find compelling?

DJK: My favorite essayists are the obvious ones: Montaigne, Francis Bacon, Addison & Steele, Hazlitt, Lamb, Orwell, Mencken, Macaulay, Emerson, V.S. Pitchett, E.B. White, Lewis Thomas, George Will, Virginia Woolf, Edmund Wilson, and Joseph Wood Krutch. My favorite living essayists are Lopate and Joseph Epstein, the former editor of The American Scholar magazine. All these writers make their essays compelling by their clarity of thought and uniqueness of expression and their ability to communicate original, stimulating ideas, making us see familiar things in a new light. Epstein, for example, can write on literary personalities as well as personal topics we all think we know about but do not really. Everyone in my pantheon of great essayists is a superb writer with a distinctive and memorable style.

AM: I recently interviewed James Elkins, a law professor at West Virginia University, here on this site, and he talked about lawyer poets and said that “our iconic images of lawyer and of poet are put to the test when we think about one person writing poems and practicing law.” You have something to say about this seeming double life. “Writing,” you say, is “part of my double life. I have a life other than the lawyer’s life I lead on the surface. The two sides—law and writing—reinforce and complement each other.” I’ve heard the phrase “the two worlds” problem used to describe the lawyer who is also a writer. But this doesn’t seem to be a problem for you, does it?

DJK: A lawyer IS a writer. Writing is most of what a lawyer does. To be a good lawyer, one needs to be a good writer. Verbal facility, sensibility to language, and lucid thinking are prerequisites for both. A legal brief and a piece of expository writing have much in common. Both have a point to make to persuade the reader. Both rely on effectively marshaling evidence to demonstrate the correctness of a particular perspective. The topics may differ, but the skill and technique are similar. The problem facing the lawyer-writer is more one of time and energy and desire than anything else. Law is a demanding profession, which means taking time off to do anything else cuts into one’s otherwise free moments. But if you want to write, you make the time.

AM: I’m curious, when did your love of literature begin? Did you have an “aha!” moment, or did the love evolve over time?

DJK: I cannot recall ever not loving literature. My paternal grandfather was a printer at Scribner’s and when I was a little boy he gave me four books by Robert Louis Stevenson that my grandfather had himself set in type in 1907. I gave Treasure Island to my son and Kidnapped to my daughter, and still have the other precious two volumes on my shelves.

I remember my father taking me as a youngster to the Public Library at Fifth Avenue and 42nd Street to get my first library card. In those days, the main building had a circulation department, and my father’s choice for my first library book was, of course, Tom Sawyer, a good choice for a ten-year old boy.

I remember as a teenager reading as much as I could in addition to books assigned in school. There were nights spent, in classic fashion, with a flashlight under the covers after bed time.

Inspiring teachers helped too.

AM: You’ve written a lot on Shakespeare. How did your fascination with him come about?

DJK: Like most people, I first met Shakespeare in high school English classes. Luckily for me, around the same time New York had a summer program of free Shakespeare in Central Park, which continues to this day. Starting in the summer of my junior year in high school — 1963 — I began to see two of Shakespeare’s plays every summer. It was at one of those performances — Measure for Measure in 1985 — that the passion grabbed me. I was 37 years old and had been practicing law for 12 years. As I sat watching Measure for Measure, I realized for the first time how much the play was about law, and that recognition — the “fascination” you refer to — set me off on a project that would last years. First, I wrote a short essay about Measure for Measure for the New York Law Journal, our daily legal newspaper. Then, months later, I saw a production of The Merchant of Venice and wrote another essay. From there, one thing led to another, and before long, I had the makings of a book.

I reread the plays I had read as a student and read many others for the first time. Then I read as much as I could find about Shakespeare and the law. The result was my 1994 book called Kill All The Lawyers? Shakespeare’s Legal Appeal.

I am still fascinated by Shakespeare. Each time I read or see one of his great plays, I get something new out of it.

AM: Many essays in Loose Sallies concern politics, law, government, and current events. You discuss the Founders, Holmes, Bill Clinton, Hugo Black, Steve Jobs, Ayn Rand—all sorts of people and even some decisions of the U.S. Supreme Court. You manage to do so without coming across as overtly political, polemical, or tendentious. How and why?

DJK: It is a question of style and goal. Every one of the essays has a thesis, some of which may even be controversial. The idea is to persuade your reader to accept your thesis, and that requires care and sensitivity, logic and demonstration, not name-calling or verbal table-pounding. If I am “overtly political, polemical or tendentious,” I will probably not convince anyone who does not already agree with me. A writer has to be smoother and subtler. We live in a country right now riven by political and cultural partisanship. Public controversy today between “red” and “blue” is almost always shrill. A reader tires of it; it becomes almost an assault on our sensibilities. To reach people’s hearts and minds, you have to credit both sides of an issue but explain patiently and show convincingly why you think one side is more correct than another. I am not running for public office so I have no “base” to appeal to. But I can at least try to keep the tone of the debates I engage in civil and pleasant.

AM: Do you consider the essays on these topics literary essays?

DJK:Most of the essays in Loose Sallies are not about so-called “literary” topics. True, one is about the literary style of Supreme Court opinions, and two discuss Justice Holmes’s opinion-writing style. But they are exceptions. So I do not think the essays for the most part are “literary” in that narrow sense. Nor do I think they are “literary” by way of being precious or mannered. I genuinely hope, however, that they are “literary” in the sense of being clear, crisp, well-written statements on a variety of topics of interest to all Americans today.

AM: Thank you for taking the time to do this interview. Loose Sallies has been enjoyable for me. I keep it on my desk in the office so that, when I need a ten-minute break, I can open it and read an essay. I slowly made my way through the entire book in this manner: a break here, a break there, and then, one day, I was finished. I really appreciate all that you have done not just for the law, but for arts and literature. It’s nice to know there are lawyers out there like you.

Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

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Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

Holmes and the Pragmatic Common Law

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, The Supreme Court on May 7, 2014 at 8:45 am

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No summary could do justice to the wealth of literature about Oliver Wendell Holmes Jr.’s relationship to C.S. Peirce, William James, and John Dewey, but a few points of commonality are worth mentioning. First, Holmes was akin to Peirce in the embrace of fallibilism and the scientific method. Holmes disliked natural law thinkers because they purported to know the truth about the law by way of reason or moral teaching. In contrast, Holmes believed that the common law gradually filtered out the most workable, although not necessarily the most moral, theories; in fact, he felt that it was not the province, expertise, or training of the judge to explore issues of morality. He also believed that truth was best determined by a community of inquiring minds rather than by a judge ruling in isolation or by a justice with only eight colleagues to help work through his or her analysis. Therefore, he adhered to the doctrine of judicial restraint and deferred to statutes enacted by legislatures, which consisted of representatives elected by and accountable to the people.

Second, his notion of truth was like James’s: fluid but ultimately associated with the conglomerate views of a majority that have been tested and corroborated by concrete evidence. Holmes did not share James’s optimism, but he did share his literary sparkle. He also shared James’s meliorism and pluralism. The Common Law is a testament to the melioristic nature of the common law system. Holmes’s judicial restraint and deference to local legislatures, moreover, attest to his recognition of diverse local communities and associations that enable social cooperation and legal growth.

Third, Holmes’s celebration of the instrumentalism of the common law smacks of Dewey’s instrumentalism and its Darwinian complements. Like Dewey, Holmes moved pragmatism away from the science, logic, and mathematics that intrigued Peirce, away from the moral psychology and religious vibrancy that intrigued James, and towards the social and political considerations that intrigued Dewey. Holmes and Dewey were, to some degree, consequentialists; they cannot be made out as pure utilitarians—far from it—but their analyses do tend to focus on the importance of outcomes to the evaluation of human action. Finally, Holmes and Dewey emphasized the value of experiment and were majoritarian in that they maintained faith in the ability of distinct communities to arrive at unique solutions to pressing social issues and to memorialize those solutions in official legislation.

These three pragmatist influences enabled Holmes to create a theory of the common law unique to him that both accounted for and distanced itself from the legal positivism of John Austin and Hobbes, who traditionally have been thought of as adversaries of common law theory.

Thomas Jefferson, George Wythe, and the Case of Howell v. Netherland

In America, American History, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Slavery, Southern History, Thomas Jefferson on April 23, 2014 at 8:45 am

Allen 2

Howell v. Netherland was a Virginia case about the child of an interracial sexual union. Decided in April 1770, Howell opens with the account of the plaintiff’s grandmother, “a mulatto, begotten on a white woman by a negro man, after the year 1705, and bound by the churchwardens, under the law of that date, to serve to the age of thirty-one.”[1] The plaintiff, Howell, sued Netherland for his freedom. Netherland had purchased Howell from a previous owner, who had also owned Howell’s mother and grandfather.

A twenty-seven-year-old Thomas Jefferson served as Howell’s attorney. He argued inter alia that Howell’s grandmother was white, but more importantly that “under the law of nature, all men are born free.”[2] This position makes Howell a precursor to the landmark Somerset case in 1772.[3] “This is what is called personal liberty,” Jefferson says of freedom under the law of nature, “and is given him by the author of nature, because necessary for his own sustenance.”[4] Jefferson adds that “every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will.”[5] Such language, coming six years before the Declaration of Independence and eleven years before the first edition of Notes on the State of Virginia, is striking for its seeming emphasis on equality under the natural law.

Jefferson’s opposing counsel in this case was George Wythe, the man who had trained Jefferson in legal practice and who arguably did more during his lifetime than Jefferson to oppose the institution of slavery. In this case, however, Wythe remains the steadfast defender of a slave owner. This fact should remind us of the contingencies of lawyering and the conditions and qualifications that attach to any line of reasoning or rhetoric appearing in court documents about slavery.

When we review archives from the era of slavery in America, we must remember that a lawyer’s words cannot be taken as representative of his thoughts or worldview: he is a participant in a legal contest and advocating for the interests of his client. What Jefferson or Wythe thought about slavery cannot be deduced from this case, so attempts at such deduction should not be made.

[1] Howell v. Netherland, Jefferson 90, April 1770, available in Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, Vol. 1 (New York: Octagon Books, Inc., 1968) at 90-91.

[2] Ibid., my italics.

[3] William G. Merkel, “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism,” 38 Seton Hall L. Rev. 555 (2008) at 559.

[4] Ibid.

[5] Ibid.

The American Founders and Natural Law Jurisprudence

In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 am

Allen 2

The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]

 

NOTES

[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

Michael Blumenthal Publishes “Just Three Minutes, Please,” with West Virginia University Press

In America, American Literature, Arts & Letters, Books, Creative Writing, Essays, Humanities, Law-and-Literature, Literature, Michael Blumenthal, News and Current Events, News Release, Poetry, Politics, Writing on March 5, 2014 at 8:30 am

Just Three Minutes, Please

West Virginia University Press is pleased to announce the publication of Just Three Minutes, Please: Thinking out Loud on Public Radio, by Michael Blumenthal.

In these brief essays, Blumenthal provides unconventional insights into our contemporary political, educational, and social systems, challenging us to look beyond the headlines to the psychological and sociological realities that underlie our conventional thinking.

What’s wrong with the contemporary American medical system? What does it mean when a state’s democratic presidential primary casts 40% of its votes for a felon incarcerated in another state? What’s so bad about teaching by PowerPoint? What is truly the dirtiest word in America?

These are just a few of the engaging and controversial issues that Michael Blumenthal, poet, novelist, essayist, and law professor, tackles in this collection of poignant essays commissioned by West Virginia Public Radio.

C.K. Williams, Pulitzer Prize-winning poet proclaims that Blumenthal has “The intellect of a scholar, the sensitivity of a poet, the objectivity of a professor of law: it hardly seems possible that so many virtues can be embodied in one book of short talks.”

Dalton Delan, Executive Producer of In Performance at the White House for PBS, declares: “David Sedaris and Ira Glass have a brother from another mother, and his name is Michael Blumenthal. His soulful NPR essays are profound thought-clouds from one of America’s finest poets.”

As a widely published poet and novelist, Blumenthal brings along a lawyer’s analytical ability with his literary sensibility, effortlessly facilitating a distinction between the clichés of today’s pallid political discourse and the deeper realities that lie beneath. This collection will captivate and provoke those with an interest in literature, politics, law, and the unwritten rules of our social and political engagements.

Michael Blumenthal is a Visiting Professor of Law and Co-Director of the Immigration Clinic at West Virginia University College of Law. A former Director of Creative Writing at Harvard University, he is the author of eight books of poetry, as well as All My Mothers and Fathers, a memoir; Weinstock Among The Dying, a novel; When History Enters the House, a collection of essays; and “Because They Needed Me”: The Incredible Struggle of Rita Miljo To Save The Baboons of South Africa, a book-length account of his work with orphaned infant chacma baboons in South Africa. His first collection of short stories, The Greatest Jewish-American Lover in Hungarian History, is forthcoming.

To order this book, visit wvupress.com, phone (800) 621-2736, or visit a local bookstore.

Just Three Minutes, Please: Thinking out Loud on Public Radio by Michael Blumenthal
March 2014 / 120pp / PB 978-1-938228-77-3: $16.99/ ePub 978-1-938228-78-0: $16.99

Transcendental Liberty

In America, American History, Arts & Letters, Creativity, Emerson, Essays, Ethics, History, Humane Economy, Humanities, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Rhetoric, Western Philosophy, Writing on January 15, 2014 at 8:45 am

Allen 2

This essay originally appeared here in The Freeman.

“The less government we have, the better.” So declared Ralph Waldo Emerson, a  man not usually treated as a classical liberal. Yet this man—the Sage of  Concord—held views that cannot be described as anything but classical liberal or  libertarian.

None other than Cornel West, no friend of the free market, has said that  “Emerson is neither a liberal nor a conservative and certainly not a socialist  or even a civic republican. Rather he is a petit bourgeois libertarian, with at  times anarchist tendencies and limited yet genuine democratic sentiments.” An  abundance of evidence supports this view. Emerson was, after all, the man who  extolled the “infinitude of the private man.” One need only look at one of  Emerson’s most famous essays, “Self Reliance,” for evidence of his  libertarianism.

“Self-Reliance” is perhaps the most exhilarating expression of individualism  ever written, premised as it is on the idea that each of us possesses a degree  of genius that can be realized through confidence, intuition, and nonconformity.  “To believe your own thought, to believe that what is true for you in your  private heart is true for all men,” Emerson proclaims, “that is genius.”

Genius, then, is a belief in the awesome power of the human mind and in its  ability to divine truths that, although comprehended differently by each  individual, are common to everyone. Not all genius, on this view, is necessarily  or universally right, since genius is, by definition, a belief only, not a  definite reality. Yet it is a belief that leads individuals to “trust thyself”  and thereby to realize their fullest potential and to energize their most  creative faculties. Such self-realization has a spiritual component insofar as  “nothing is at last sacred but the integrity of your own mind” and “no law can  be sacred to me but that of my nature.”

According to Emerson, genius precedes society and the State, which corrupt  rather than clarify reasoning and which thwart rather than generate  productivity. History shows that great minds have challenged the conventions and  authority of society and the State and that “great works of art have no more  affecting lesson for us than this. They teach us to abide by our spontaneous  impression with good-humored inflexibility then most when the whole cry of  voices is on the other side.” Accordingly, we ought to refuse to “capitulate to  badges and names, to large societies and dead institutions.” We ought, that is,  to be deliberate, nonconformist pursuers of truth rather than of mere  apprehensions of truth prescribed for us by others. “Whoso would be a man,”  Emerson says, “must be a noncomformist.”

Self-Interest and Conviction

For Emerson, as for Ayn Rand, rational agents act morally by pursuing their  self-interests, including self-interests in the well-being of family, friends,  and neighbors, who are known and tangible companions rather than abstract  political concepts. In Emerson’s words, “The only right is what is after my  constitution, the only wrong what is against it.” Or: “Few and mean as my gifts  may be, I actually am, and do not need for my own assurance or the assurance of  my fellows any secondary testimony.”

It is not that self-assurance equates with rightness, or that stubbornness  is a virtue; it is that confidence in what one knows and believes is a condition  precedent to achieving one’s goals. Failures are inevitable, as are setbacks;  only by exerting one’s will may one overcome the failures and setbacks that are  needed to achieve success.

If, as Emerson suggests, a “man is to carry himself in the presence of all  opposition, as if everything were titular and ephemeral but he,” how should he  treat the poor?  Emerson supplies this answer:

Do not tell me, as a good man did to-day, of my  obligation to put all poor men in good situations. Are they my poor? I tell  thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent,  I give to such men as do not belong to me and to whom I do not belong. There is  a class of persons to whom by all spiritual affinity I am bought and sold; for  them I will go to prison, if need be; but your miscellaneous popular charities;  the education at college of fools; the building of meeting-houses to the vain  end to which many now stand; alms to sots; and the thousandfold Relief  Societies;—though I confess with shame I sometimes succumb and give the dollar,  it is a wicked dollar which by and by I shall have the manhood to withhold.

These lines require qualification. Emerson is not damning philanthropy or  charity categorically or unconditionally; after all, he will, he says, go to  prison for certain individuals with whom he shares a special relationship. He  is, instead, pointing out, with much exhibition, that one does not act morally  simply by giving away money without conviction or to subsidize irresponsible,  unsustainable, or exploitative business activities. It is not moral to give away  a little money that you do not care to part with, or to fund an abstract cause  when you lack knowledge of, and have no stake in, its outcome. Only when you  give money to people or causes with which you are familiar, and with whom or  which you have something at stake, is your gift meaningful; and it is never  moral to give for show or merely to please society. To give morally, you must  mean to give morally—and have something to lose.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of  little minds, adored by little statesmen and philosophers and divines.” Much ink  has been spilled to explain (or explain away) these lines. I take them to mean,  in context, that although servile flattery and showy sycophancy may gain a  person recognition and popularity, they will not make that person moral or great  but, instead, weak and dependent. There is no goodness or greatness in a  consistency imposed from the outside and against one’s better judgment; many  ideas and practices have been consistently bad and made worse by their very  consistency. “With consistency,” therefore, as Emerson warns, “a great soul has  simply nothing to do.”

Ludwig von Mises seems to have adopted the animating, affirming  individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity.  Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”  “Those authors,” he adds, “who merely repeat what everybody approves and wants  to hear are of no importance. What counts alone is the innovator, the dissenter,  the harbinger of things unheard of, the man who rejects the traditional  standards and aims at substituting new values and ideas for old ones.” This man  does not mindlessly stand for society and the State and their compulsive  institutions; he is “by necessity anti-authoritarian and anti-governmental,  irreconcilably opposed to the immense majority of his contemporaries. He is  precisely the author whose books the greater part of the public does not buy.”  He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian, you may not accept the endorsements and propositions  in this article as unconditional truth, but must, instead, read Emerson and  Mises and Rand for yourself to see whether their individualism is alike in its  affirmation of human agency resulting from inspirational nonconformity. If you  do so with an inquiring seriousness, while trusting the integrity of your own  impressions, you will, I suspect, arrive at the same conclusion I have  reached.

There is an understandable and powerful tendency among libertarians to  consider themselves part of a unit, a movement, a party, or a coalition, and of  course it is fine and necessary to celebrate the ways in which economic freedom  facilitates cooperation and harmony among groups or communities; nevertheless,  there is also a danger in shutting down debate and in eliminating competition  among different ideas, which is to say, a danger in groupthink or compromise, in  treating the market as an undifferentiated mass divorced from the innumerable  transactions of voluntarily acting agents. There is, too, the tendency to become  what Emerson called a “retained attorney” who is able to recite talking points  and to argue predictable “airs of opinion” without engaging the opposition in a  meaningful debate.

Emerson teaches not only to follow your convictions but to engage and  interact with others, lest your convictions be kept to yourself and deprived of  any utility. It is the free play of competing ideas that filters the good from  the bad; your ideas aren’t worth a lick until you’ve submitted them to the test  of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s  opinion; it is easy in solitude to live after our own; but the great man is he  who in the midst of the crowd keeps with perfect sweetness the independence of  solitude.” Let us stand together by standing alone.

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