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What was Gomillion v. Lightfoot?

In America, American History, Arts & Letters, History, Humanities, Law, Politics, Southern History, The South on August 21, 2013 at 8:45 am

Allen Mendenhall

This piece originally appeared here in the Encyclopedia of Alabama.

In Gomillion v. Lightfoot, the U.S. Supreme Court ruled in 1960 that Tuskegee city officials had redrawn the city’s boundaries unconstitutionally to ensure the election of white candidates in the city’s political races. The case was one of several events that laid the foundation for the 1965 Voting Rights Act, which prohibited discriminatory voting practices. The case was named for Tuskegee Normal and Industrial Institute (present-day Tuskegee University) professor Charles A. Gomillion, who was lead plaintiff, and the defendant, Tuskegee mayor, Philip M. Lightfoot, among other city officials.

Gomillion, dean of students and chair of the social sciences division at Tuskegee, for years had facilitated voter registration movements for blacks in Tuskegee. He learned in 1957 that several white citizens were promoting a bill in the state legislature to redefine the boundaries of the city to ensure election victories by whites in 1960. Resisting these efforts and urging others to oppose any referenda meant to disfranchise black voters, Gomillion and other activists appealed to the City Council, wrote to the County Commission, lobbied the state legislature, and published an open letter in the Montgomery Advertiser. Despite these efforts, Local Act No. 140, introduced by Samuel M. Engelhardt Jr., passed in the state legislature in 1957. It reconfigured the boundaries of the city from a simple square shape to a figure with 28 sides, removing from the city Tuskegee Institute and all but four or five of the nearly 400 black voters, but none of more than 1,300 white residents. Gomillion and the Tuskegee Civic Association treated this initial setback as an opportunity to institute legal proceedings and thereby to mobilize concerted political action.

Gomillion and other petitioners, black citizens of Alabama and residents (or former residents) of Tuskegee, alleged that the act violated the “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution. They claimed that the redrawn city boundaries disfranchised black voters; therefore, they alleged, the act had a discriminatory purpose. In fact, the act’s author, Engelhardt, was executive secretary of the White Citizens’ Council of Alabama.

Tuskegee’s white citizens were trying to change the city’s boundaries to head off the rise in African Americans registering to vote. After World War II, local African Americans wanted to play a more active role in the city’s civic life, and whites became more determined to deny them that right. Redrawing the city’s boundaries had the unintended effect of uniting Tuskegee Institute’s African American intellectuals with the less educated African Americans living outside the sphere of the school. Some members of the school’s faculty realized that possessing advanced degrees ultimately provided them no different status among the city’s white establishment.

Initially, the U.S. District Court for the Middle District of Alabama, in Montgomery, headed by Judge Frank M. Johnson, dismissed the case, ruling that the state had the right to draw boundaries, a ruling that was upheld by the Court of Appeals for the Fifth Circuit in New Orleans. The case was appealed before the Supreme Court on October 18 and 19, 1960. Gomillion did not travel to Washington, D.C., with the lawyers handling his side of the case. Veteran Alabama civil rights attorney Fred Gray and Robert L. Carter, lead counsel for the National Association for the Advancement of Colored People (NAACP), argued the case, with assistance from Arthur D. Shores, who provided additional legal counsel. They claimed that the state’s intent in the redistricting had been to discriminate covertly against African Americans.

On November 14, the Supreme Court rendered a unanimous decision in favor of the petitioners. Justice Felix Frankfurter, writing for the majority, held that the act violated the Fifteenth Amendment, which prohibits states from passing laws depriving citizens of the right to vote, and thus reversed the lower courts’ rulings. Frankfurter likewise dismissed the city’s appeal of generalities about state authority. He conceded that states retain extensive powers, but that they may not do whatever they please with municipalities. The case showed that all state powers were subject to limitations imposed by the U.S. Constitution; therefore, states were not insulated from federal judicial review when they jeopardized federally protected rights. In 1961, the results of the decision went into effect; under the direction of Judge Johnson, the gerrymandering was reversed and the original map was reinstituted.

Additional Resources

Elwood, William A. “An Interview with Charles G. Gomillion.” Callaloo 40 (Summer 1989): 576-99.

Gomillion, C. G. “The Negro Voter in the South.” Journal of Negro Education 26(3): 281-86.

Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Norrell, Robert J. Reaping the Whirlwind: The Civil Rights Movement in Tuskegee. New York: Alfred A. Knopf, 1985.

Taper, Bernard. Gomillion versus Lightfoot: The Tuskegee Gerrymander Case. New York: McGraw-Hill, 1962.

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Abolish the Bar Exam

In America, American History, Arts & Letters, History, Humanities, Law, Legal Education & Pedagogy, Nineteenth-Century America on July 10, 2013 at 8:45 am

Allen Mendenhall

This article originally appeared here at LewRockwell.com.

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.

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The Politics of Paternalism

In America, American History, Conservatism, Humanities, Jurisprudence, Law, News and Current Events, Politics, Southern History on July 3, 2013 at 8:45 am

Allen Mendenhall

This first appeared here at The American Spectator.

One of the Supreme Court opinions everyone is buzzing about — last Monday’s decision in Fisher v. University of Texas at Austin, a case involving that school’s affirmative action program — will not be monumental in our canons of jurisprudence.

The petitioner, Abigail Noel Fisher, a young white woman, applied to the university in 2008 and was denied admission. She challenged the decision, arguing that she would have been admitted under a colorblind system. The high court has now remanded the case back to the Fifth Circuit, holding that the lower court failed to properly ascertain whether the affirmative action program was the most narrowly tailored means to achieve the university’s diversity goal. In legal terms, the Fifth Circuit had failed to subject the program to “strict scrutiny.” Thus, additional litigation lies ahead; the case is not even over.

What will be remembered from Monday’s proceedings, though, is Justice Thomas’ concurrence, which treats affirmative action as paternalism — a word he implies but doesn’t use explicitly, at least not here.

The dichotomies “liberal” versus “conservative,” “left” versus “right,” complicate rather than clarify issues such as affirmative action. A better choice of words, if a dichotomy must be maintained, is “paternalism” versus “non-paternalism.” Viewing diversity in this light, as Justice Thomas does, enables us to understand and appreciate the forms that racism and discrimination take.

Those forms often are paternalistic: Person A assumes to understand the plight of person X and undertakes to care for and control him as a father would his children. Even if X were one day to achieve relative equality with A in real terms — opportunity, education, earning capacity — this dominance would persist so long as A views X as a needy inferior, and so long as X allows that presumption to persist.

Thomas’s concurrence places such toxic ideas under a microscope, and exposes the ironic double standards of those who resort to paternalism. For instance, the bulk of his concurrence describes how the university’s arguments in favor of affirmative action are the same or substantially similar to those once used to justify racial segregation and even slavery. “There is no principled distinction,” Thomas writes, “between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.”

Likewise, he adds, “Slaveholders argued that slavery was a ‘positive good’ that civilized Blacks and elevated them in every dimension of life.” Advocates of slavery and segregationists both argued, in other words, that their policies bettered the conditions of Blacks and minimized racial hostility on the whole. The form of these racist arguments is now being used to justify state discrimination through affirmative action programs.

The segregationists argued that integrated public schools would suffer from white flight; proponents of affirmative action argue that universities will suffer from a lack of diversity if discrimination is not allowed.

The segregationists argued that blacks would become the victims of desegregation once white children withdrew from public schools en masse and that separate but equal schools improved interracial relations; proponents of affirmative action likewise argue that minorities will be the victims if affirmative action programs are deemed unconstitutional and that diversity on campus improves interracial relations.

The segregationists argued that separate but equal schools allowed blacks to enjoy more leadership opportunities; proponents of affirmative action likewise argue that affirmative action programs empower minorities to become leaders in a diverse society.

The segregationists argued that although separate but equal schools were not a perfect remedy for racial animosity, such schools were nevertheless a practical step in the right direction; proponents of affirmative action likewise argue that it, although not ideal, nevertheless generates race consciousness among students.

In the face of these surprising parallels, Justice Thomas maintains that “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination” during the Civil Rights Era, so “the alleged educational benefits of diversity cannot justify racial discrimination today.”

He should not be misunderstood as equating affirmative action with the discrimination unleashed upon blacks and other minorities throughout American history. Although he acknowledges that affirmative action does harm whites and Asians, he is chiefly concerned with how such discrimination harms its intended beneficiaries: above all, blacks and Hispanics. “Although cloaked in good intentions,” Thomas submits, “the University’s racial tinkering harms the very people it claims to be helping.” He adds that “the University would have us believe that its discrimination is…benign. I think the lesson of history is clear enough: Racial discrimination is never benign.”

Why aren’t affirmative action programs — which Justice Thomas at one point refers to as “racial engineering” — benign? He gives several reasons: They admit blacks and Hispanics who aren’t as prepared for college as white and Asian students; they do not ensure that blacks and Hispanics close the learning gap during their time in college; they do not increase the overall number of blacks and Hispanics who attend college; and they encourage unqualified applicants to graduate from great schools as mediocre students instead of good schools as exceptional students. Moreover, Justice Thomas cites studies showing that minorities interested in science and engineering are more likely to choose different paths when they are forced to compete with other students in those disciplines at elite universities. What Justice Thomas considers most damning of all, however, is the “badge of inferiority” stamped on racial minorities as a result of affirmative action.

Just one small personal example: When I was in law school, a few of the guys in my study group began comparing professors, as students do regularly, and they were quite open in their opinion that our black professor could not have been as intelligent, because she had benefited from affirmative action programs. Read the rest of this entry »

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The 13 Virtues of Benjamin Franklin

In America, American History, Arts & Letters, Books, Ethics, History, Humanities, Literature, Western Civilization on June 26, 2013 at 8:49 am

Benjamin Franklin

In his autobiography, Benjamin Franklin listed 13 virtues by which he sought to live.  Here they are:

1.  TEMPERANCE. Eat not to dullness; drink not to elevation.

2.  SILENCE. Speak not but what may benefit others or yourself; avoid trifling conversation.

3.  ORDER. Let all your things have their places; let each part of your business have its time.

4.  RESOLUTION. Resolve to perform what you ought; perform without fail what you resolve.

5.  FRUGALITY. Make no expense but to do good to others or yourself; i.e., waste nothing.

6.  INDUSTRY. Lose no time; be always employ’d in something useful; cut off all unnecessary actions.

7.  SINCERITY. Use no hurtful deceit; think innocently and justly, and, if you speak, speak accordingly.

8.  JUSTICE. Wrong none by doing injuries, or omitting the benefits that are your duty.

9.  MODERATION. Avoid extreams; forbear resenting injuries so much as you think they deserve.

10.  CLEANLINESS. Tolerate no uncleanliness in body, cloaths, or habitation.

11.  TRANQUILLITY. Be not disturbed at trifles, or at accidents common or unavoidable.

12.  CHASTITY. Rarely use venery but for health or offspring, never to dulness, weakness, or the injury of your own or another’s peace or reputation.

13.  HUMILITY. Imitate Jesus and Socrates.

Franklin was a great man, even if he fell far short of his own high standards.  Lists like these can, I think, help one to improve oneself.  See my reading list for this year.

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Pragmatists Versus Agrarians?

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Politics, Pragmatism, Southern History, Southern Literature, Western Civilization, Western Philosophy, Writing on June 19, 2013 at 8:45 am

Allen Mendenhall

This review originally appeared here at The University Bookman.

John J. Langdale’s Superfluous Southerners paints a magnificent portrait of Southern conservatism and the Southern Agrarians, and it will become recognized as an outstanding contribution to the field of Southern Studies. It charts an accurate and compelling narrative regarding Southern, Agrarian conservatism during the twentieth century, but it erroneously conflates Northern liberalism with pragmatism, muddying an otherwise immaculate study.

Langdale sets up a false dichotomy as his foundational premise: progressive, Northern pragmatists versus traditionalist, Southern conservatives. From this premise, he draws several conclusions: that Southern conservatism offers a revealing context for examining the gradual demise of traditional humanism in America; that Northern pragmatism, which ushered in modernity in America, was an impediment to traditional humanism; that “pragmatic liberalism” (his term) was Gnostic insofar as it viewed humanity as perfectible; that the man of letters archetype finds support in Southern conservatism; that Southern conservatives eschewed ideology while Northern liberals used it to present society as constantly ameliorating; that Southern conservatives celebrated “superfluity” in order to preserve canons and traditions; that allegedly superfluous ways of living were, in the minds of Southern conservatives, essential to cultural stability; that Agrarianism arose as a response to the New Humanism; and that superfluous Southerners, so deemed, refined and revised established values for new generations.

In short, his argument is that Southern conservatives believed their errand was to defend and reanimate a disintegrating past. This belief is expressed in discussion of the work of six prominent Southern men of letters spanning two generations: John Crowe Ransom, Donald Davidson, Allen Tate, Cleanth Brooks, Richard Weaver, and M. E. Bradford.

Langdale ably demonstrates how the Southern Agrarians mounted an effective and tireless rhetorical battle against organized counterforces, worried that scientific and industrial progress would replace traditional faith in the unknown and mysterious, and fused poetry and politics to summon forth an ethos of Romanticism and chivalry. He sketches the lines of thought connecting the earliest Agrarians to such later Southerners as Weaver and Bradford. He is so meticulous in his treatment of Southern conservatives that it is surprising the degree to which he neglects the constructive and decent aspects of pragmatism.

Careful to show that “Agrarianism, far from a monolithic movement, had always been as varied as the men who devised it,” he does not exercise the same fastidiousness and impartiality towards the pragmatists, who are branded with derogatory labels throughout the book even though their ideas are never explained in detail. The result is a series of avoidable errors.

First, what Langdale treats as a monolithic antithesis to Southern conservatism is actually a multifaceted philosophy marked by only occasional agreement among its practitioners. C. S. Peirce was the founder of pragmatism, followed by William James, yet Peirce considered James’s pragmatism so distinct from his own that he renamed his philosophy “pragmaticism.” John Dewey reworked James’s pragmatism until his own version retained few similarities with James’s or Peirce’s. Oliver Wendell Holmes Jr. never identified himself as a pragmatist, and his jurisprudence is readily distinguishable from the philosophy of Peirce, James, and Dewey. Each of these men had nuanced interpretations of pragmatism that are difficult to harmonize with each other, let alone view as a bloc against Southern, traditionalist conservatism.

Second, the Southern Agrarians espoused ideas that were generally widespread among Southerners, embedded in Southern culture, and reflective of Southern attitudes. By contrast, pragmatism was an academic enterprise rejected by most Northern intellectuals and completely out of the purview of the average Northern citizen. Pragmatism was nowhere near representative of Northern thinking, especially not in the political or economic realm, and it is hyperbolic to suggest, as Langdale does, that pragmatism influenced the intellectual climate in the North to the extent that traditionalist conservatism influenced the intellectual climate in the South.

Third, the pragmatism of Peirce and James is not about sociopolitical or socioeconomic advancement. It is a methodology, a process of scientific inquiry. It does not address conservatism per se or liberalism per se. It can lead one to either conservative or liberal outcomes, although the earliest pragmatists rarely applied it to politics as such. It is, accordingly, a vehicle to an end, not an end itself. Peirce and James viewed it as a technique to ferret out the truth of an idea by subjecting concrete data to rigorous analysis based on statistical probability, sustained experimentation, and trial and error. Although James occasionally undertook to discuss political subjects, he did not treat pragmatism as the realization of political fantasy. Pragmatism, properly understood, can be used to validate a political idea, but does not comprise one.

The Southern Agrarians may have privileged poetic supernaturalism over scientific inquiry; it does not follow, however, that pragmatists like Peirce and James evinced theories with overt or intended political consequences aimed at Southerners or traditionalists or, for that matter, Northern liberals. Rather than regional conflict or identity, the pragmatists were concerned with fine-tuning what they believed to be loose methods of science and epistemology and metaphysics. They identified with epistemic traditions of Western philosophy but wanted to distill them to their core, knowing full well that humans could not perfect philosophy, only tweak it to become comprehensible and meaningful for a given moment. On the other hand, the Southern Agrarians were also concerned with epistemology and metaphysics, but their concern was invariably colored by regional associations, their rhetoric inflected with political overtones. Both Southern Agrarians and pragmatists attempted to conserve the most profitable and essential elements of Western philosophy; opinions about what those elements were differed from thinker to thinker.

Fourth, Langdale’s caricature (for that is what it is) of pragmatism at times resembles a mode of thought that is alien to pragmatism. For instance, he claims that “pragmatism is a distinctly American incarnation of the historical compulsion to the utopian and of what philosopher Eric Voegelin described as the ancient tradition of ‘gnosticism.’” Nothing, however, is more fundamental to pragmatism than the rejection of utopianism or Gnosticism. That rejection is so widely recognized that even Merriam-Webster lists “pragmatism” as an antonym for “utopian.”

Pragmatism is against teleology and dogma; it takes as its starting point observable realities rather than intangible, impractical abstractions and ideals. What Langdale describes is more like Marxism: a messianic ideology with a sprawling, utopian teleology regarding the supposedly inevitable progress of humankind.

Given that pragmatism is central to his thesis, it is telling that Langdale never takes the time to define it, explain the numerous differences between leading pragmatists, or analyze any landmark pragmatist texts. The effect is disappointing.

Landgale’s approach to “superfluity” makes Superfluous Southerners the inverse of Richard Poirier’s 1992 Poetry and Pragmatism: whereas Langdale relates “superfluity” to Southern men of letters who conserve what the modern era has ticketed as superfluous, Poirier relates “superfluity” to Emerson and his literary posterity in Robert Frost, Gertrude Stein, Wallace Stevens, T. S. Eliot, William Carlos Williams, and Ezra Pound. Both notions of superfluity contemplate the preservation of perennial virtues and literary forms; one, however, condemns pragmatism while the other applauds it.

For both Langdale and Poirier, “superfluity” is good. It is not a term of denunciation as it is usually taken to be. Langdale cites Hungarian sociologist Karl Mannheim to link “superfluity” to traditionalists who transform and adapt ideas to “the new stage of social and mental development,” thus keeping “alive a ‘strand’ of social development which would otherwise have become extinct.”

Poirier also links superfluity to an effort to maintain past ideas. His notion of “superfluity,” though, refers to the rhetorical excesses and exaggerated style that Emerson flaunted to draw attention to precedents that have proven wise and important. By reenergizing old ideas with creative and exhilarating language, Emerson secured their significance for a new era. In this respect, Emerson is, in Poirier’s words, “radically conservative.”

Who is right? Langdale or Poirier? Langdale seeks to reserve superfluity for the province of Southern, traditionalist conservatives. Does this mean that Poirier is wrong? And if Poirier is right, does not Langdale’s binary opposition collapse into itself?

These questions notwithstanding, it is strange that Langdale would accuse the Emersonian pragmatic tradition of opposing that which, according to Poirier, it represents. Although it would be wrong to call Emerson a political conservative, he cannot be said to lack a reverence for history. A better, more conservative criticism of Emerson—which Langdale mentions in his introduction—would involve Emerson’s transcendentalism that promoted a belief in innate human goodness. Such idealism flies in the face of Southern traditionalism, which generally abides by the Augustinian doctrine of innate human depravity and the political postures appertaining thereto.

What Langdale attributes to pragmatism is in fact a bane to most pragmatists. A basic tenet of pragmatism, for instance, is human fallibilism, which is in keeping with the doctrine of innate human depravity and which Peirce numbers as among his reasons for supporting the scientific method. Peirce’s position is that one human mind is imperfect and cannot by itself reach trustworthy conclusions; therefore, all ideas must be filtered through the logic and experimentation of a community of thinkers; a lasting and uniform consensus is necessary to verify the validity of any given hypothesis. This is, of course, anathema to the transcendentalist’s conviction that society corrupts the inherent power and goodness of the individual genius.

Langdale’s restricted view of pragmatism might have to do with unreliable secondary sources. He cites, of all people, Herbert Croly for the proposition that, in Croly’s words, “democracy cannot be disentangled from an aspiration toward human perfectibility.” The connection between Croly and pragmatism seems to be that Croly was a student of James, but so was the politically and methodologically conservative C. I. Lewis. And let us not forget that the inimitable Jacques Barzun, who excoriated James’s disciples for exploiting and misreading pragmatism, wrote an entire book—A Stroll with William James—which he tagged as “the record of an intellectual debt.”

Pragmatism is a chronic target for conservatives who haven’t read much pragmatism. Frank Purcell has written in Taki’s Magazine about “conservatives who break into hives at the mere mention of pragmatism.” Classical pragmatists are denominated as forerunners of progressivism despite having little in common with progressives. The chief reason for this is the legacy of John Dewey and Richard Rorty, both proud progressives and, nominally at least, pragmatists.

Dewey, behind James, is arguably the most recognizable pragmatist, and it is his reputation, as championed by Rorty, that has done the most to generate negative stereotypes and misplaced generalizations about pragmatism. Conservatives are right to disapprove of Dewey’s theories of educational reform and social democracy, yet he is just one pragmatist among many, and there are important differences between his ideas and the ideas of other pragmatists.

In fact, the classical pragmatists have much to offer conservatives, and conservatives—even the Southern Agrarians—have supported ideas that are compatible with pragmatism, if not outright pragmatic. Burkean instrumentalism, committed to gradualism and wary of ideological extremes, is itself a precursor to social forms of pragmatism, although it bears repeating that social theories do not necessarily entail political action.

Russell Kirk’s The Conservative Mind traces philosophical continuities and thus provides clarifying substance to the pragmatist notion that ideas evolve over time and in response to changing technologies and social circumstances, while always retaining what is focal or fundamental to their composition. The original subtitle of that book was “From Burke to Santayana,” and it is remarkable, is it not, that both Burke and Santayana are pragmatists in their own way? Santayana was plugged into the pragmatist network, having worked alongside James and Josiah Royce, and he authored one of the liveliest expressions of pragmatism ever written: The Life of Reason. Although Santayana snubbed the label, general consensus maintains that he was a pragmatist. It is also striking that Kirk places John Randolph of Roanoke and John C. Calhoun, both Southern conservatives, between these pragmatists on his map of conservative thought. There is, in that respect, an implication that pragmatism complements traditionalism.

Langdale relies on Menand’s outline of pragmatism and appears to mimic Menand’s approach to intellectual history. It is as though Langdale had hoped to write the conservative, Southern companion to The Metaphysical Club. He does not succeed because his representation of pragmatism is indelibly stamped by the ideas of Rorty, who repackaged pragmatism in postmodern lexica. Moreover, Langdale’s failure or refusal to describe standing differences between the classical pragmatists and neo-pragmatists means that his book is subject to the same critique that Susan Haack brought against Menand.

Haack lambasted Menand for sullying the reputation of the classical pragmatists by associating pragmatism with nascent Rortyianism—“vulgar Rortyianism,” in her words. Langdale seems guilty of this same supposition. By pitting pragmatism against Southern conservatism, he implies that Southern conservatism rejects, among other features, the application of mathematics to the scientific method, the analysis of probabilities derived from data sampling and experimentation, and the prediction of outcomes in light of statistical inferences. The problem is that the Agrarians did not oppose these things, although their focus on preserving the literary and cultural traditions of the South led them to express their views through poetry and story rather than as philosophy. But there is nothing in these methods of pragmatism (as opposed to the uses some later pragmatists may have put to them) that is antithetical to Southern Agrarianism.

Superfluous Southerners is at its best when it sticks to its Southern subjects and does not undertake comparative analyses of intellectual schools. It is at its worst when it resorts to incorrect and provocative phrases about “the gnostic hubris of pragmatists” or “the gnostic spirit of American pragmatic liberalism.” Most of its chapters do a remarkable job teasing out distinctions between its Southern conservative subjects and narrating history about the Southern Agrarians’ relationship to modernity, commitment to language and literature, and role as custodians of a fading heritage. Unfortunately, his book confounds the already ramified philosophy known as pragmatism, and at the expense of the Southern traditionalism that he and I admire.

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Bartram’s Travels and the Erotica of Nature

In America, American History, Arts & Letters, History, Humanities, Literary Theory & Criticism, Literature, Philosophy, Southern History, The South, Writing on May 29, 2013 at 8:45 am

Allen Mendenhall

This post first appeared here at the Literary Table in 2010.

I’ll limit my discussion of Bartram’s cognitive originality to some finer points made by Michael Gaudio, whose article, “Swallowing the Evidence,” is a mostly on-the-mark interrogation of Bartram’s persistent use of metaphor.

Gaudio writes that Bartram’s Travels, with its imagery of swallowing, mouths, and voids, calls into question Enlightenment aesthetics while signaling glaring absences in the putatively public sphere. Although Gaudio argues convincingly that Bartram’s imagery signifies an “Enlightenment view of the cosmos in which the natural and the social operate according to the same rational principles,” he privileges a political over an erotic reading, thereby reducing the text to a series of subversive patterns of visual perception. In fact, Bartram’s text is less about movement politics than it is about scientific or social politics.

Travels describes a journey lasting from 1773 to 1777, arguably the most intense moment in American political history, yet Bartram makes no mention of the Revolution, the Continental Congress, the Declaration of Independence, or any other political signifier. As the war between Britain and America raged, Bartram rummaged through woods recording data and collecting specimens. He might have been interested in undermining Enlightenment ideals, as Gaudio suggests, but he probably was not keen on likening sink holes to doubts about the democratic project. A better reading would treat Bartram’s concave, hollow, and gaping imagery as vaginal and his nature aesthetics as sexual. Such a reading not only sheds light on Bartram’s aesthetic facility but also gives rise to a better reading of Bartram’s politics as understood through depictions of Natives, black men, or property-owning colonials. Gaudio is right to argue that, for Bartram, “the work of the naturalist is the recording of not only the visibility of nature’s surfaces but also the struggle that leads to that visibility,” but he is wrong to ignore the language of penetration and other pseudo-sexual insinuations. Attending to this sexual language might have allowed Gaudio to enlist Bartram in the “anti-Enlightenment” project in other, more interesting ways—for instance, by contrasting Bartram’s observations of Indian tribes with the unwarranted assumptions of Enlightenment thinkers who dismissed Natives as mere barbarians or worse.

Gaudio submits that because Bartram’s aim was to “exhibit the self-evidence of nature” and to “set the full presence of its surfaces before the viewer,” Bartram’s appeals were necessarily visual. That much, I think, we can grant. But Gaudio goes too far when he contrasts Bartram with Bacon by claiming that the latter employed “rhetoric of penetration” to peer beneath nature’s surfaces whereas Bartram looked precisely to nature’s surfaces because he preferred architectural forms to dissected taxonomies. Gaudio suggests, in other words, that Bartram seeks out rational forms, which share a visual logic, to show nature’s uniform and universal manifestations. Nevertheless, Bartram’s rhetoric (like Bacon’s) is rich in references to penetration. Gaudio’s formative analogy therefore does not stand up to close examination.

“Having some repairs to make in the tackle of my vessel, I paid my first attention to them,” Bartram says of a particularly cheerful morning, adding, “my curiosity prompted me to penetrate the grove and view the illuminated plains.” Similarly, Bartram speaks of “penetrating the groves,” “penetrating the Canes,” “penetrating the forests,” penetrating the “first line” of alligators, “penetrating a thick grove of oaks,” and penetrating “the projecting promontories.” All of this penetration flies in the face of Gaudio’s argument that Bartram’s “voids” signal the limits of Enlightenment thought. Rather than avoiding vocabulary of penetration, Bartram embraces it. Bartram may be interested in surfaces, but he is also interested in—one might say seduced by—what lies beneath. He even employs sexual innuendo and other erotic lexica to portray what lies beneath.

The sexual language in Travels serves to eroticize nature, which seduces with its enchanting if virginal charms. In a brilliant essay, Thomas Hallock speaks of botanic men (including William Bartram’s father, John) who turned “genteel ladies into fascinated subjects.” For these men, plants “served as a shorthand for intimate relationships that were transacted across vast space.” According to this logic, it follows that any “individual who interacts with the natural world takes on an ‘ecopersona,’ an identity or costume of manners that locates consumption of the natural within a given cultural code.” By ignoring the eros pouring forth from Bartram’s nature writings, Gaudio overlooks a very telling association between Native women, whom Bartram eroticizes, and nature, itself a sensual “organism.” More to the point, he misses Bartram’s odd constructions of eco-personae for Native women. Indeed, Bartram forges an association between nature and Native women in his “sylvan scene of primitive innocence,” which was “enchanting” and “perhaps too enticing for hearty young men long to continue idle spectators.”

In what Bartram calls a “joyous scene of action,” nature (read: passion) prevails over reason and European men are drawn helplessly—as if by Sirens—to the Native “nymphs” guarded by “vigilant” and “envious” matrons. The Native women are sensual and seductive because they seem in tune with Nature and the “Elysian fields.” In light of this analogy, Bartram speaks of Natives as “amorous topers,” “amorous and bacchanalian” dancers, amorous singers, and amorous and intriguing wives, just as he speaks of the “sweet enchanting melody of the feathered songsters” in their “varied wanton amorous chaces,” or of the “soothing love lays of the amorous cuckoo.” That is to say, Bartram effectively ties Native women to the carnal cravings of animal lust. For this reason, the desire to penetrate takes on a much stronger meaning than the one Gaudio describes vis-à-vis Bacon—it becomes not just about examinations of exterior surfaces but about the physical need and urge to thrust right through surfaces.

The land on and adjacent to a particular river “appears naturally fertile,” Bartram declares, “notwithstanding its arenaceous surface.” Surfaces can be deceiving, so Bartram digs deeper, so to speak, and identifies their sexual and reproductive possibilities. Similarly, he likens “many acres of surface” to a “delusive green wavy plain of the Nymphae Nelumbo,” a plant that represents sexual purity or virginity. In these and other instances, Bartram renders nature as a playground of erotic spaces for male pleasure. Simply put, Bartram’s nature is fertile and stimulates sexual arousal.

If, for Bartram, Native women were in harmony with nature and so were fertile and seductive—if they were hypersexualized—then Gaudio could have done far more with the vaginal motifs in Travels. Like countless others, he could have called into question the tropes, male gazing, and sexual power plays at work in the book and thereby achieved a “political” reading actually supported by the text. Gaudio is at his best when bringing to light metaphors that would seem easy to overlook, but his analysis fails for disregarding the obvious sexual and vaginal connotations evoked by these metaphors. At worst, his analysis fails for pivoting on a major assumption—that Bartram limited his analysis to surfaces and exteriors without regard to “the insides.” If anything, Bartram seems even more interested in “the insides” given his sexual renderings of a nature that invites penetration and carnal exploration.

See the following articles for more reading:

Abrams, Ann Uhry. The Pilgrims and Pocahontas: Rival Myths of American Origin. Boulder: Westview, 1999.

Fischer, Kirsten. “The Imperial Gaze: Native American, African American, and Colonial Women in European Eyes,” in A Companion to American Women’s History. Blackwell Publishing, 2002.

Fleming, E. McClung. “The American Image as Indian Princess.” Winterthur Portfolio. Vol. 2 (1965: 65-81).

Gaudio, Michael. “Swallowing the Evidence: William Bartram and the Limits of Enlightenment.” Winterthur Portfolio. Vol. 36, No. 1 (2001: 1-17).

Hallock, Thomas. “Male Pleasure and the Genders of Eighteenth-Century Botanic Exchange: A Garden Tour.” The William and Mary Quarterly 62.4 (2005): 32 pars. 13 Oct. 2009 .

The Travels of William Bartram. Ed. Mark Van Doren. New York: Dover Publications, 1928.

Schoelwer, Susan Prendergast. “The Absent Other,” in Discovered Lands, Inventing Pasts. Yale University Press, 1992.

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Thoreau, Environmentalism, Economy

In America, American History, Arts & Letters, Books, History, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Writing on May 22, 2013 at 8:45 am

Allen Mendenhall

This post first appeared here at The Literary Table in 2010.

Turning to the works of Henry David Thoreau might provide a “third way” and go some length toward resolving debates about the Environmentalists’ Dilemma.  I borrow the words “Environmentalists’ Dilemma” from Bryan G. Norton, who uses the phrase to refer to the competing discourses of two environmentalist camps: the economists and the moralists.  These camps would, Norton submits, provide very different answers to the question, “What is the value of biodiversity?”  Economists would emphasize “the actual and potential uses of living species” whereas the moralists “do not believe our obligations to protect nature can be traded off against other obligations” (Norton 29-30).  Economists would state the value of biodiversity in quantifiable, utilitarian, and anthropocentric terms whereas the moralists “insist that we have an obligation to protect all species, an obligation that transcends economic reasoning and trumps our mere interests in using nature for our own welfare” (Norton 30).  The dilemma for the environmentalist is which of the two realms, economic or moral, to heed.  Norton’s argument is that the two realms are not in fact mutually exclusive and that Henry David Thoreau supplies proof of their mutual reinforcement.  That Thoreau titles the opening chapter of Walden with one simple if unsuspecting word, “Economy,” is no coincidence.  The Environmentalists’ Dilemma, for Thoreau, is no dilemma at all: “most commentators have assumed that we should give one answer or the other,” but an absolute, totalizing separation is neither necessary nor accurate (Norton 31, my italics).  I agree with Norton and would like to extend his reasoning in this brief post, which draws its analysis from Thoreau’s Walden.

If economists first measure value “as contributions to human welfare” and then promise “an aggregation of values”—i.e., if they promise a calculation of “the contribution of nature to human welfare” as “commensurable and interchangeable with other human benefits”—then Thoreau was something of an economist (Norton 30).  As implied by the title of his opening chapter, Thoreau uses nature as an occasion to opine about human affairs, often in purely economic terms; he transforms the humble, small, and common scenes of nature into grand meditations about labor and profit.  “When my hoe tinkled against the stones,” he says of a day in the bean field, “that music echoed to the woods and the sky, and was an accompaniment to my labor which yielded an instant and immeasurable crop” (247).  Here, Thoreau’s profit—his “yield”—is not quantifiable in monetary terms but in vague moral insight:  “It was no longer beans that I hoed, nor I that hoed beans; and I remembered with as much pity as pride, if I remembered at all, my acquaintances who had gone to the city to attend the oratorios” (247).  Thoreau appreciates the value of labor (minimal physical input for cost-effective output—free food) while recognizing that such value goes far beyond the fiscal benefit of planting crops rather than purchasing food at a store: the labor becomes valuable for what it teaches about solitude, individualism, and freedom from materialism, and not just for its potential for monetary savings.  In this respect, Thoreau marries economics and morality.  Or, as Norton, looking elsewhere in Walden, puts it, “Thoreau describes the benefits of the transformation to higher values in terms of human maturation and fulfillment of potential, as improvements within human consciousness, not in terms of obligations to nature and extrinsic to human consciousness” (32).  In other words, in his celebration of nature, Thoreau takes pains to privilege human economy over natural aesthetic, although the former is dependent upon the latter for its “proceeds.”  Nature is a vehicle for arriving at virtue, thrift included.  It is good—and a good—but humanity is essentially of higher importance.

The merger, as it were, of economics and morality finds its most obvious expression in Thoreau’s various price listings: the costs of building a house; the profits turned from harvesting corn, potatoes, turnips, and beans; the expenses of food and clothing; and the overhead in maintaining a self-sufficient lifestyle.  Of these, John Updike writes,

The long opening chapter, “Economy,” joyously details just how to build a house […] down to a list of expenses totaling $28.11 1/2.  Briskly marketing to the world his program of austerity and self-reliance, he itemizes the few foodstuffs he paid for and the profits he obtained from his seven miles of bean rows.  (xiv, my italics)

Updike’s choice of the word “marketing” is important, revealing as it does that Thoreau’s economics did not stop at savings and cutbacks, but actively advertised a lifestyle at once economic and environmentalist.  Thoreau sold his routine and persona to a curious public, a few of whom bought—and bought into—the ultimately published and publicized form (the book).

On the one hand, Thoreau’s frugality is a lesson about simplicity and prudence; on the other hand, it offers a more environmentally friendly approach to architecture and construction while simultaneously warning about the destructive effects of what today we might call “the tragedy of commons.”  I have neither the time nor space to fully hash out my ideas about the tragedy of commons.  I will, however, quickly supply Steven C. Hackett’s definition for the term and then offer a short justification for my reference to it.  According to Hackett,

The tragedy of the commons is most likely to occur under the conditions of open-access or other poorly designed and enforced property rights regimes.  The tragedy of the commons outcome results from strategic behavior—behavior that an individual takes based on how other people are expected to behave and respond.  At the heart of the tragedy of commons is the belief that if one were to conserve the CPR, others will take what was conserved, and the CPR will degrade (116).

Thoreau’s worries about the tragedy of commons are evident in a few abrupt asides.  Take, for instance, these lines regarding hunting:

Almost every New England boy among my contemporaries shouldered a fowling piece between the ages of ten and fourteen; and his hunting and fishing grounds were not limited, like the preserves of an English nobleman, but were more boundless even that those of a savage.  No wonder, then, that he did not oftener stay to play on the common.  But already change is taking place, owing, not to an increased humanity, but to an increased scarcity of game, for perhaps the hunter is the greatest friend of the animals hunted, not excepting the Humane Society (329).

It seems abundantly clear that Thoreau refers here to the phenomenon—now known as the tragedy of commons—whereby people acting in their own self-interest use up a limited shared resource, in this case animal prey, despite their knowledge that doing so will be bad for everyone.  [Consider this point in light of another sentence by Thoreau: “By avarice and selfishness, and a groveling habit, from which none of us is free, of regarding the soil as property, or the means of acquiring property chiefly, the landscape is deformed, husbandry is degraded with us, and the farmer leads the meanest of lives” (257-58).]  Perhaps the tragedy of commons motivates Thoreau’s declaration that “if all men were to live as simply as I then did, thieving and robbery would be unknown” (269-70).  After all, thieving and robbery “take place only in communities where some have got more than is sufficient while others have not enough” (270).

Economics and morality also apply—albeit more tenuously—to what Michael Berger calls Thoreau’s “study of ecological dynamics in forests,” a “vigorous program of research” about seed dispersal and its spontaneous generation (381-82).  Although Berger does not explicitly say so, he implies that Thoreau’s scientific forays lend authority to his literary works.  This authority allows Thoreau to promote himself and his philosophical vision.  Berger analyzes Thoreau’s The Dispersion of Seeds, which was not published until 1993.  Nevertheless, Berger’s observations apply almost as aptly to various passages in Walden.  Setting out to show that Thoreau’s somewhat Darwinian ideas were not only sophisticated but also pioneering, Berger posits, “Thoreau’s seed dispersal ecology was […] rich in significance regarding the various kinds of complicated mechanisms, principles, and patterns by which species of plants succeed one another in local ecosystems” (382).  To substantiate this point, Berger quotes the following from The Dispersion of Seeds:

In this haphazard manner Nature surely creates you a forest at last, though as if it were the last thing she were thinking of.  By seemingly feeble and stealthy steps—by a geologic pace—she gets over the greatest distances and accomplishes her greatest results.  It is a vulgar prejudice that such forests are ‘spontaneously generated,’ but science knows that there has not been a sudden new creation in their case but a steady progress according to existing laws, that they came from seeds—that is, are the result of causes still in operation, though we may not be aware that they are operating. (383)

This passage recalls Thoreau’s claim in Walden that “where a forest was cut down last winter another is springing up by its shore as lustily as ever” (302).  Thoreau’s point, at any rate, is, in both cases, that forests (in all their various manifestations—trees, plants, etc.) will spring up as if on their own: independent of the botany or vegetation that preceded them.  In the “big picture,” the economics and morality at issue have to do with Thoreau’s ability to market himself and his ideas.  If he could pit himself as both scientist and writer, his writings would gain both cultural and actual currency as well as popular credibility.  This coupling of scientific sophistication with moral sensitivity produces, in Updike’s words, Thoreau’s thinginess: “the thinginess of Thoreau’s prose […] still excites us, the athleticism with which he springs from detail to detail, image to image, while still toting something of Transcendentalism’s metaphysical burden” (xxii).  Without science, Thoreau is little more than a gushing nature enthusiast; without science or the metaphysical burden, he “comes close to being merely an attentive and eloquent travel writer” (Updike xxii).  Fortunately, Thoreau recognizes the need to economize while moralizing, and to do the former well required a certain scientific literacy.  Norton is more generous than I because he casts Thoreau’s scientific observations about the forest as having nothing to do with self-promotion and everything to do with the Environmentalists’ Dilemma.  Thoreau’s self-promotion notwithstanding, Norton’s praise does tend to demonstrate the manner in which Thoreau yoked science to economics and morality:

Thoreau quite explicitly recognized that the forest, a dynamic system, had a ‘language of its own, and that the transition form the immature state was both literary and scientific. […]  He saw that one learns more important things by relating an organism to its environment than by dissecting an organism into parts.  This indicates that Thoreau was on the right track, seeking the secret of life and its organization in the larger systems in which species live.  Especially, he thought we learn more important things about human behavior, and the evaluation of it, by observing organisms in environments.  He believed that if he could unlock the code of nature’s language, it would provide the key to a new, dynamic and scientific understanding of nature.  The key prerequisite for this change to a more contemplative consciousness was development of a new ‘language’ of human values based on analogies from the ‘language’ of nature. (40)

If Norton is right, as I believe he is, then the Environmentalists’ Dilemma is not so paralyzing as some would suggest.  Indeed, Thoreau’s Walden shows how economy and morality can participate with each other in unique and even scientific ways.

For further reading, see the following:

Berger, Michael.  “Henry David Thoreau’s Science in the Dispersion of Seeds.”  Annals of Science.  Vol. 53 (1996:  381-397).

Hackett, Steven C.  Environmental and Natural Resources Economics:  Theory, Policy, and the Sustainable Society.  M.E. Sharpe, 2001.

Norton, Bryan G.  Searching for Sustainability:  Interdisciplinary Essays in Philosophy and Biology.  Cambridge University Press, 2003.

Thoreau, Henry David.  Walden.  Houghton Mifflin Company, 1893.

Updike, John.  “Introduction.”  Walden.  Princeton University Press, 2004.

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Glory and Indignity

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Historicism, History, Humanities, Politics, Southern History, The South on February 20, 2013 at 8:45 am

Allen Mendenhall

The following review first appeared here at The University Bookman.

John Randolph of Roanoke
by David Johnson.
Baton Rouge: Louisiana State University Press, 2012

“I am an aristocrat. I love liberty, I hate equality.” Thus spoke John Randolph of Roanoke (1773–1833), one of the most curious, animated figures ever to grace American soil. That David Johnson’s biography of Randolph is the first of its kind since Russell Kirk published John Randolph of Roanoke in 1951 suggests how deteriorated American memory and education have become. Randolph ought to be studied by all American schoolchildren, if not for his politics then for the vital role he played in shaping the nation’s polity. Dr. Kirk declared that in writing about Randolph, he was summoning him from the shades. If so, Johnson has gone a step farther and brought Randolph into the sunshine to reveal just how spectacular a man he really was.

Kirk’s biography of Randolph was in fact his first book. Kirk dubbed the colorful Virginian a “genius,” “the prophet of Southern nationalism,” and the “architect of Southern conservatism.” In The Conservative Mind, Kirk treats Randolph as a necessary link between George Mason and John C. Calhoun and proclaims that Randolph should be remembered for “the quality of his imagination.” Randolph enabled the proliferation and preservation of the conservative tradition in America. He became an icon for decentralization and localism.

Why would a scandalous, sickly, go-it-alone, riotous rabble-rouser appeal to the mild-mannered Dr. Kirk? The answer, in short, is that Randolph was as conservative a politician as America has ever produced, and he was, despite himself, a gentleman and a scholar. Eccentric though he appeared and often acted, Randolph celebrated and defended tradition, championed small government and agrarianism, sacrificed careerism and opportunism for unwavering standards, professed self-reliance and individualism, took pains to preserve the rights of the states against the federal government, delighted in aristocratic tastes and manners, read voraciously the great works of Western civilization, cultivated the image of a statesman even as he attended to the wants and needs of his yeomen constituents, discoursed on weighty topics with wit and vigor, and adhered to firm principles rather than to partisan pandering. Admired by many, friend to few, he made a prominent display of his wild personality and unconditional love for liberty, and he devoted himself, sometimes at great cost, to the ideals of the American Revolution, which had, he claimed, marked him since childhood.

Remembered chiefly (and, in the minds of some progressives, unfortunately) for his contributions to states’ rights doctrines and to the judicial hermeneutics of strict constructionism, Randolph was responsible for so much more. The son of a wealthy planter who died too young, Randolph became the stepson of St. George Tucker, a prominent lawyer who taught at the College of William and Mary and served as a judge on the Virginia General District Court and, eventually, on the Virginia Court of Appeals, the United States District Court for the District of Virginia, and the United States District Court for the Eastern District of Virginia. A cousin to Thomas Jefferson, Randolph studied under George Wythe and his cousin Edmond Randolph. A boy who was forced to flee his home from the army of Benedict Arnold, Randolph later played hooky from college to watch the orations of Fisher Ames, the stout Federalist from New York, and Madison. He served in the U.S. House of Representatives as well as the U.S. Senate, and was, for a brief time, Minister to Russia. A supporter of Jefferson before he became Jefferson’s tireless adversary, he criticized such individuals as Patrick Henry, Washington, Madison, Monroe, John Adams, Henry Clay, and Daniel Webster. He was sickened by the Yazoo Land Scandal, opposed the War of 1812 in addition to the Missouri Compromise, and promoted nullification.

Many conservatives, Kirk among them, have tended to overlook the more unpalatable aspects of Randolph’s life, whether personal or political. For instance, Randolph was, more than Jefferson, enthralled by the French Revolution and supportive of its cause. He manufactured a French accent, used a French calendar, and called his friends “Citizens.” In his twenties, he referred to himself as a deist “and by consequence an atheist,” and he acquired, in his own words, “a prejudice in favor of Mahomedanism,” going so far as to proclaim that he “rejoiced in all its [Islam’s] triumphs over the cross.” One might excuse these infelicities as symptoms of youthful indiscretion and impetuosity, but they do give one pause.

Not for lack of trying, Randolph could not grow a beard, and although he spoke well, his voice was, by most accounts, awkward, piping, off-putting, and high-pitched. His critics have painted him as a villain of the likes of Shakespeare’s Richard III: resentful, obstinate, loudmouthed, and as deformed in the mind as he was in the body. Yet Randolph cannot be made into a monster. More than others of his station in that time and place, Randolph was sensitive to the problems of slavery, which had only intensified rather than diminished since the Founding. He freed his slaves in his will, granted them landholdings in Ohio, and provided for their heirs. Slavery was incompatible with liberty, and Randolph, despite being a product of his time, appears to have worried much about the paradox of a nation conceived in liberty but protective of institutional bondage. Randolph asserted, in some way or another, over and over again, that his politics were based on a presumption of liberty, which was (and is) the opposite of slavery and governmental tyranny. Read the rest of this entry »

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Žižek’s Real Desert

In America, Arts & Letters, Book Reviews, Books, Humanities, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Civilization, Western Philosophy on February 13, 2013 at 8:45 am

Allen Mendenhall

In short, America should learn humbly to accept its own vulnerability as part of this world, enacting the punishment of those responsible as a sad duty, not as an exhilarating retaliation—what we are getting instead is the forceful reassertion of the exceptional role of the USA as a global policeman, as if what causes resentment against the USA is not its excess of power, but its lack of it. 

                             —Slavoj Žižek, Welcome to the Desert of the Real

Žižek does not overload his writing with normative statements.  Here, however, he clearly puts forth an “ought.”  He recommends that America accept its vulnerability.  What is not said in this sentence, but what is abundantly clear throughout the second chapter of Welcome to the Desert of the Real, is that accepting vulnerability represents, for Žižek, an alternate way between “the dialectical category of totality.”

Against the prevailing rhetoric that deludes Americans and other Western peoples into thinking that they have two choices—between “Them” or “Us,” “Capitalism” or “The Other,” “Inside” or “Outside,” “First World” or “Third World”—Žižek attempts more than merely to reveal a third-way between competing totalities.  He seeks instead to interrogate the competing totalities and to show how they are narrativized to mask the symptoms of our own desires.  He demonstrates that “We” have constructed our own fundamentalisms that oppose—yet mirror—the fundamentalisms of “The Other.”  There is an evil to both sides of whatever lies beneath constructed dualities; only by searching for that evil can we place 9/11 in its proper context.  The totalities of “Them” versus “Us,” for example, can be redefined such that Bush and Bin Laden “are both ‘Them’ against Us.”  The point of this recasting is to suggest that 9/11 and its aftermath do not represent grand moral narratives leading inexorably to a clear choice: for or against terrorism.  Rather, 9/11 and its aftermath are what upset America’s perception of itself as “an island exempt from this kind of violence, witnessing it only from the safe distance of the TV screen.”  9/11 was a wake-up to reality, not to morality.

For this reason, 9/11 and its aftermath ought to blur any simple claims to moral superiority as well as any ideological interpretation of the deaths of the victims.  9/11 did not bring about ethical or ideological clarity.  “Far from offering a case apropos of which we can adopt a clear ethical stance,” Žižek asserts, “we encounter here the limit of moral reasoning: from the moral standpoint, the victims are innocent, the act was an abominable crime.”

But few people are innocent, at least if innocence means completely removed from any system that is complicit in the rise of violence and extremism; nearly everyone is implicated in some system or another that contributed (and contributes) to the rise of fundamentalism.  To construct a crude “good guy” versus “bad guy” narrative is to create a false abstraction that validates the very behavior that generated the hostility motivating the crimes to begin with.  To construct that narrative is to placate personal guilt and to shield “Us” from identification with “The Problem.”

Because of these arguments, Welcome to the Desert of the Real disrupts the apparent unity of the dialectical categories that Americans and other Western peoples accept uncritically.  It challenges the images and stories that seem to have as their goal the legitimation of violence.  Whatever one thinks of Žižek—I am, for the record, not a fan—his arguments in this book deserve careful consideration.

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The Enduring Importance of Justice Holmes: A Brief Note

In America, American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Liberalism, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on December 19, 2012 at 9:00 am

Allen Mendenhall

There is an argument to be made that Oliver Wendell Holmes Jr. matters more today than he did in his own lifetime, even if he is, with a few exceptions, less understood.  He continues to be the most cited Supreme Court justice in United States history, and his pithy phrases, hard-hitting prose, and axiomatic opinions and dissents continue to obtain as law; even when they do not obtain as law, they almost always remain valid candidates for becoming law.

Holmes wrote his ambitious tome The Common Law to outline the history of the development of Anglo-American jurisprudence as it played out in the complex interactions among people down through the centuries.  In so doing, he showed that law is a meliorative process of applying and organizing—with mixed purposes and results—general principles in different ages.  Holmes’s attention to precedent as both a corrective heuristic and a systematic hermeneutic grounded in case patterns and practices demonstrates how common law systems work.  In recent Supreme Court cases, justices on both the putative “left” and “right” wing of the court have cited Holmes to authorize certain viewpoints, and Holmes’s writings are recycled so often by judges that they appear to have been central to ensuring the validity and viability of the very organism—the common law—that they sought to improve and describe.

Holmes was, and is, known for his deference to local legislatures; he did not think that unelected judges should be able to impose their viewpoints upon distinct, regional cultures and communities.  He resisted sprawling interpretations of words and principles, even if his hermeneutics brought about consequences he did not like.  He was open about his willingness to decide cases against his own interests.  As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

Louis Menand, in The Metaphysical Club, asserts that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes,” because he was “utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”  In other words, Holmes did not reach his decisions because they would produce results that he could applaud; he reached them because he thought they were conclusions he had to arrive at in light of facts, circumstances, precedents, and rules.  A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions.  For instance, David Bernstein’s Rehabilitating Lochner (University of Chicago Press, 2011) tickets Holmes’s dissent in Lochner v. New York as a denunciation of business interests, but that was not the case.  Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview (economic or otherwise) into the life of a community with an opposing worldview.  As Frankfurter said of Holmes, “He has ever been keenly conscious of the delicacy involved in reviewing other men’s judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom.”

In this respect, Holmes is a pragmatic pluralist in the manner of William James, and his judicial outlook seems to enact a more political version of James’s religious masterpiece “Varieties of Religious Experience.”  Holmes’s jurisprudence might even be dubbed “Varieties of Political Experience.”  Holmes’s position on judging is analogous to James’s suggestion in “Varieties of Religious Experience” that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices.  James put forth the idea of a “pluralistic universe,” which he envisioned to be, in his words, “more like a federal republic than an empire or a kingdom.”  Holmes likewise contemplated the notion of a federal republic in his opinions and dissents, especially in his deference to the states and their legislatures.  Although countless biographers and historians have noted the relationship between Holmes and James, I have yet to see an article-length treatment of this federalist aspect of their commonalities.

Holmes is often harnessed in the service of some conservative or liberal position—the most polemical on this score is Albert W. Alschuler’s Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2001)—but it is a mistake to treat his writings as an endorsement of the politics they enabled.  The most recent article published on Holmes, “The House that Built Holmes” by Brad Snyder (Vol. 30 of the Law & History Review, 2012), argues that Holmes’s reputation is largely a product of the iconic status to which young progressives elevated him, even though, ironically, Holmes disagreed with their politics.  In fact, Holmes did not support many of the projects that his decisions made possible; nor did he consider his own views unconditionally right; he therefore refused to insert his ideas into places where a faraway, federal judge’s opinion did not belong.  Menand seems to suggest that Holmes’s experiences as a soldier in the 20th Massachusetts, during the Civil War, shaped Holmes’s views about law, particularly with regard to regional particularities and idiosyncrasies.  His entire life, Holmes would couch his catchy rhetoric in the vocabularies of war, and he insisted that certitude, such as it was, could lead only to violence.

Absolute, uncompromising certitude is precisely what Holmes had against natural law jurisprudence.  Holmes saw natural law as an excuse for those who thought their worldview was correct to impose their politics onto others with different ideas.  Holmes defined truth as the system of his own limitations and as whatever it was that he could not help but believe.  Truth, for him, was no grounds for policy; it was simply what one does with what one knows.

In “The Path of the Law,” Holmes put forth the bad man theory or prediction theory of law, which holds that we should not view the law as an abstract statement about morals, but as those consequences which a bad man predicts will obtain if he chooses one course of action instead of another.  The law is, accordingly, a prediction about what will happen if one performs certain acts.  Such informed, calculated guessing—a habit acquired and refined by experience—is the way most of us decide to do one thing or another.  Most of us do not, when we stop at a traffic light, for example, consider the morality of the action we are performing, but instead consider the ramifications of our potential act should we actually carry it out.

That Holmes continues to be such a hotly contested figure, that his writings continue to be cited by judges at all levels, state and federal, suggests that his legacy remains important and that his ideas, however misunderstood, continue to figure the direction of American law and government.