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John William Corrington on Intuition and Intellect

In America, American History, American Literature, Arts & Letters, Books, Essays, History, Humanities, John William Corrington, liberal arts, Literary Theory & Criticism, Literature, Modernism, Philosophy, Poetry, Religion, Scholarship, Southern History, Southern Literature, The South, Western Philosophy, Writing on October 17, 2018 at 6:45 am

In my edition of John William Corrington’s essays, I assembled Corrington’s unpublished notes and sections of his unpublished lectures from the early 1970s that he maintained in one document.  Because of the subject matter, I titled this section “Intuition-Intellect.”

This material demonstrates the shift in Corrington’s interests in poetry as a craft to more philosophical concerns that were influenced by poetry, or mythopoetics. His discussion of myth and his references to Eric Voegelin in these notes suggests that he had just begun to read Voegelin and to explore Gnosticism and myth criticism.

Corrington questions here the relationship between science and philosophy and hypothesizes about how the truths generated by science become mythologized to satisfy certain human desires. He proposes that science itself has a “mythic” character and claims that “the aftermath of every significant act of science is its mythologization.” Corrington speculates whether myth is inevitable because it fulfills something basic or instinctive in human nature.

Science amasses data for their predictive value, but asking what these data mean is the beginning of myth, which, properly understood, is another form of understanding and articulating truths about the world. However, myth can also, Corrington claims, have destructive implications at odds with truth. He warns about mismanaging myth, giving such examples as Nazism, Marxism, and free enterprise: ideological constructs that rely on abstract myth narratives to stamp out opposition.

Corrington critiques the scientism that has developed since the Enlightenment because he considers its emphasis on empiricism and rationalism to mask its role in formulating mythic patterns or archetypes for governing the phenomenal world, including the human social order. These patterns or archetypes, despite their mythic nature, are taken as authoritative and valid because they are conflated with or understood as scientific truth; in this manner they are assumed to be separate and apart from myth when in fact they constitute myth.  They are dangerous because they are presumed to be scientific truth subject to certain and definite application when in fact they represent mythopoetic urges to satisfy innate and instinctual human impulses.

Corrington transitions from this discussion of myth and science into a discussion of twentieth-century poetry and its “overintellectualization,” as evidenced by the implementation of supposedly scientific approaches to the study of poetry. Corrington considers the New Criticism to represent such a scientific approach to poetry.

The turn to reason and science, Corrington suggests, has destroyed the aesthetics of poetry just as it has destroyed human civilizations in the sociopolitical context. In both contexts there has been, he believes, a failure to realize the distinction between science and the mythologization of science, a failure that has led certain groups to mistake what is unreasonable and irrational for absolute reason and rationality, to believe, that is, that what is merely a pattern or archetype—a human construct—is something given and definite even apart from human knowledge of it. Those who fail to understand the distinction between science and the mythologization of science embrace a potentially destructive psychic system that mistakes science for its opposite. This essay shows that, as Corrington begins to transition away from the writing of poetry, he is also trying to integrate his interest in poetry with his growing interest in philosophy.

The exact date of this Corrington material is unknown; however, certain references suggest that Corrington wrote these notes in or around 1971. For example, he mentions a “new” album by the Rolling Stones, Sticky Fingers, which came out in 1971. It is possible that part of this material comes from a lecture that Corrington gave to the South-Central Modern Language Association in 1968. That lecture was titled “Cassirer’s Curse, Keats’s Urn, and the Poem Before the Poem.” Some of the material may have come from the National Science Foundation Lecture that Corrington titled “Science and the Humanities” and delivered at Louisiana State University in 1966. Corrington began the essay with four discursive notes under the heading “Statements and Questions.” Because the ideas in these notes are more fully developed in the text proper, I have moved them to the end of the essay.

“Intuition-Intellect” has been printed in my recent edition of Corrington’s work, which is available for purchase by clicking on the image below:

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John William Corrington’s Credo for Poets

In American History, American Literature, Arts & Letters, Books, Essays, History, Humanities, John William Corrington, liberal arts, Literary Theory & Criticism, Literature, Scholarship, Southern History, Southern Literature, The South, Writing on October 3, 2018 at 6:45 am

John William Corrington’s essay “A Poet’s Credo” appeared in the journal Midwest in 1961. In it, Corrington writes that over the course of the twentieth century, poetry gradually became less “intellectual,” a view he purports to share with Norman Mailer. Corrington decries as “love drivel” much of the poetry from the sixteenth to the twentieth century but considers the end of the nineteenth and the beginning of the twentieth century to have been a renaissance for poetry that is now in decline, with the notable exception of the poetry of Charles Bukowski, Allen Ginsberg, and Lawrence Ferlinghetti.

Corrington writes against the mass proliferation of quarterly journals that, he says, has resulted in the publication of more and more bad poetry. Corrington expresses appreciation for poets like Auden, Eliot, and Pound, but wishes there were more room in anthologies for writers like Bukowski, Ginsberg, and Ferlinghetti, who, he says, represent “the new vision, the new lightning that is shaking on the west coast and in New Orleans, in New York and along the tidewater.”

Corrington is not against modernist poets like W. H. Auden, T.S. Eliot, and Ezra Pound; rather, he is against those who continue to imitate or copy these figures. What Corrington prizes in poetry is originality, which he considers to be lacking in the industry of literary periodicals in no small part because the editors of such periodicals publish only poems that copy the poetry of an earlier age rather than staking out new territory.

Corrington calls this essay a “credo,” perhaps because of the incantatory rhythms of the essay in addition to the statement of his belief that lasting poetry is, paradoxically, that which seems new.

This essay is remarkable for revealing Corrington’s early affiliation with Beat writers. Early in his career Corrington was known as a poet and interested mostly in poetry. Later in life he began to retreat from poetry as he grew more interested in philosophy, specifically in the thinking of Eric Voegelin and Gnosticism.

“A Poet’s Credo” has been printed in my recent edition of Corrington’s work, which is available for purchase by clicking on the image below:

John William Corrington on the Uses of History and the Meaning of Fiction

In American History, American Literature, Arts & Letters, Books, Conservatism, Creative Writing, Essays, History, Humanities, John William Corrington, liberal arts, Literary Theory & Criticism, Literature, Scholarship, Writing on September 26, 2018 at 6:45 am

In 1966, John William Corrington delivered a lecture titled “The Uses of History and the Meaning of Fiction” as part of a discussion series created by the National Defense Education Act.

Corrington used the occasion to attack what he dubbed “realism” and to decry the use of verisimilitude in fiction. Corrington focuses on “dialogue” and suggests that, although his fiction is praised above all for its dialogue, the dialect spoken by his characters does not actually exist. He developed what he calls “synthetic speech,” a mix of Southern or Appalachian dialect coupled with African-American dialect.

Corrington surveys several “canonical” writers in his lecture for the way in which they employed dialogue and speech in their work, i.e., whether they were after the sounds that are actually spoken or some form of manufactured speech that served the rhetorical function of fiction.

Corrington believed that writers ought to strike a balance between actual and imaginary speech.

Although primarily a commentary on craft, this lecture reveals elements of Corrington’s traditionalism. His use of such phrases as “the best literature in the Western world” indicates his abiding conservatism and his belief in a literary canon characterized by fixed and unchanging aesthetic standards.

“The Uses of History and the Meaning of Fiction” has been printed in my recent edition of Corrington’s work, which is available for purchase by clicking on the image below:

John William Corrington on the Mystery of Writing

In Academia, American History, American Literature, Arts & Letters, Books, Conservatism, Creative Writing, Creativity, Essays, History, Humanities, John William Corrington, liberal arts, Literary Theory & Criticism, Literature, Scholarship, Southern History, Southern Literature, The South, Writing on September 19, 2018 at 6:45 am

In 1985, John William Corrington delivered a lecture (“The Mystery of Writing”) at the Northwest Louisiana Writer’s Conference in Shreveport, Louisiana, his hometown. The lecture is part memoir, part commentary on writing as a craft.

Corrington explained in his lecture that he wanted to be a musician before he wanted to be a writer. He discusses his education at Centenary College and the state of popular literature at the time. He explains that he left academia because he felt disenfranchised politically in the academy, thus causing him to enter law school.

The lecture demonstrates that Corrington saw himself as a Southern author who bemoaned the state of current popular writing. He notes how his popular writing for film and television earned him money though his literary writing—novels and poetry—was not profitable.

Although he wrote for film and television, Corrington disdained those media forms and felt they did not challenge viewers intellectually, at least not in the way that literature challenged readers.

Corrington’s conservatism is evident in his emphasis on a discernible literary tradition and his disgust for the technologies that made possible his own career. His advice for his audience is that they write about what they know, just as he writes about the South; therefore, he advises his audience not to become professional writers, but to find other employment as a source for writing. His discussion of good writing as an ongoing investigation of perennial themes calls to mind the controversial notion of the literary canon as developed by Harold Bloom, Allan Bloom, John Ellis, and E. D. Hirsch.

“The Mystery of Writing” has been printed in my recent edition of Corrington’s work, which is available for purchase by clicking on the image below:

Allen Mendenhall and Dan Sutter Discuss Appointments to the Supreme Court

In America, American History, Humanities, Law, The Supreme Court on September 5, 2018 at 6:45 am

In light of the Brett Kavanaugh hearings taking place this week, the following interview on the show “Econversations” is posted here.  This interview (filmed July 17, 2018) discusses the U.S. Supreme Court appointment process.

Is Ocasio-Cortez Right About Rights?

In America, American History, Arts & Letters, Books, Christianity, Civics, Conservatism, History, Humanities, liberal arts, Liberalism, Philosophy, Politics, Western Civilization, Western Philosophy on August 29, 2018 at 8:45 am

This article originally appeared here in The Intercollegiate Review. 

Colin I. Bradford writes fawningly that Alexandria Ocasio-Cortez, a member of the Democratic Socialists of America, reaffirms “the centrality of the individual, individual rights, liberty, and freedom in which respect, trust, fairness and responsibility loom large.” He depicts Ocasio-Cortez as the embodied union of individualism and collectivism, someone who, in his words, “sees the individual as both a solitary being with certain inalienable rights and as a citizen and member of society.”

There’s much to unpack in Bradford’s frightfully grand statements, but let’s briefly consider some historical context for them.

“Modern Western ‘democracies,’” says John W. Danford, “are actually better described as liberal commercial societies. They rest on principles of individualism and individual rights—especially legal rights—which are more fundamental than democracy, and also much newer.”

Individual Rights Came from Christianity

The belief that humans by their nature possess “rights” against which governments may not transgress has not always been commonly held. Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism (2014) made the compelling case that natural rights theories are distinctively Christian in origin. He presents the ancient pagans as tribal and patriarchal, characterized by fierce loyalty to kin and clan and lacking conscientious differentiations between public and private life. (The operative differentiation was between public and domestic life.) Inequality was accepted as a given; the notion of rights was practically nonexistent. What mattered was the family unit: secure lineage, child bearing, and glorification of the paterfamilias as the powerful hero. Cities emerged from familial corporate associations around which property relations were structured according to class hierarchies.

Correlated with the rise and spread of Christianity in the West was the proliferation of the concept of the individual as a rights-bearing creature with inherent dignity, which any legal order properly so called must recognize and protect. The teachings of Jesus Christ and St. Paul redirected political thought away from the material, phenomenal world and toward the afterlife, eternity, and the soul. The message that grace through Christ was available to anyone, not just rulers or the highborn, underscored the autonomy of the individual, the self-aware subject. A Christian emphasis on personal moral agency and responsibility, moreover, undercut Greek and Roman aristocratic culture and its attendant traditions of ancestor worship.

Siedentop contends, therefore, that Christianity, not the Renaissance, was the fountain of individualism. If the Enlightenment was the height of philosophizing about the relationship of the individual to society, then it was also the natural outflow of earlier eras shaped by Christianity. This narrative runs counter to the portrayal of medieval Christianity as closed and authoritarian and of the Enlightenment as predominately secular. It illuminates Danford’s description of modern liberal societies as fundamentally committed to individual rights embedded in the law.

Mutual Submission, Similar Ethics

A distinguishing feature of Enlightenment thinking was social contract theory, which is particularly important to the Anglo-American legal tradition as manifest in Magna Carta (1215), the English Bill of Rights (1689), the Virginia Declaration of Rights (1776), the Declaration of Independence (1776), and the U.S. Bill of Rights (1789–91). These documents enshrine the principles of equality under the law, basic human dignity, rule of law, consent of the governed, popular sovereignty, and natural rights.

The most celebrated delineations of social contract theory belong to Hobbes, Locke, and Rousseau. A simplistically synthesized account of their three hypothetical origins of political society runs like this: humans once existed as free agents in an ungoverned state of nature and eventually banded together in protective social units to enforce claims to property and defend against outside threats; voluntarily entering into these social units required individuals to give up unfettered liberty by consenting to the authority of a superintending body—a government— that exercised only those powers to which the individuals in the society corporately assented, either expressly or impliedly.

The social contract for a mature, successful society involves a collection of individuals wise enough to appreciate the reciprocal advantage of mutual submission and similar enough in ethics and morals to prescribe the proper scope, limits, and structure of the approved ruling authority. The U.S. Constitution, in theory, represents a social contract: a pact between citizens and its rulers that restrains government, divides power, and sets competing interests against one another with offsetting effect.

U.S. Supreme Court “Expansions”

The U.S. Supreme Court, in cases regarding the Fourteenth Amendment, began in the twentieth century to evaluate claims of unremunerated, allegedly fundamental rights in light of the history of judicial safeguards. A purported right was deemed presumptively fundamental if it enjoyed an established tradition of formal recognition by Anglo-American courts. Under this interpretive scheme, when the Supreme Court determined that an alleged right was nonfundamental, the alleged right would not be incorporated (via the doctrine of substantive due process) to apply against the states. The Supreme Court, however, gradually recognized particular suspect rights within broader categories of long-established rights. The so-called right to privacy, for example, that had valid antecedents in the common law was repurposed to include phenomena unknown at the common law.

The tendency of the Supreme Court in the twentieth century to expand (and, in some cases, to limit) the scope of alleged rights reveals, I think, that a privileged group of robed lawyers are inadequately equipped to philosophize about rights. The validity of alleged rights accrues socially, from the bottom up, when they can be traced over time to long-standing, if not immemorial, usage, customs, mores, and traditions, and when their practical applications have been tested by successive generations. Certain rights are natural, that is, prior to government promulgation, but their intelligibility is deeply historical, rooted, contextual, situational, and embedded.

Rights or Privileges?

One could argue, and Siedentop suggests, that Christianity’s institutionalization of rights discourse created the conditions necessary for secularization, in effect that Christianity ushered in a culture that led to its gradual removal from civic society. Siedentop postulates, in other words, that the success of Christianity eventuated its demise in the Western public sphere. The story of rights discourse in U.S. Supreme Court decisions lends credence to this perspective, revealing that prevailing notions of rights have grown to encompass what were once merely privileges.

If institutions follow culture, however, then a constitution that contemplates individual rights is only as good as the people it controls: a populace without extensive virtue will weaken or decline regardless of its organizational governance and administrative framework. Christianity may not have promoted ideas that caused its erasure from our governing institutions; rather, the people of the United States may have drifted away from the Christian ideas that made those institutions effective and stable.

Bradford recognizes that “individualist values of liberty, property rights, freedom and sovereignty worked well in the 20th century as the foundations of competition, free markets, democracy and the nation state.” Yet he sees these concepts as inadequate today, lacking something he believes Ocasio-Cortez can supply, to wit, a form of collectivism that in his representation facilitates community and social harmony. He simply fails to see that the unique individualism that emerged out of Christianity generated the community and social harmony he now desires.

There is no individualism absent the recognition that every human life, anywhere and everywhere, is precious and important. It follows from that premise that no one may violate the rights of others who themselves have not violated another’s rights. This principle, extended to society writ large, creates the conditions necessary for community to flourish. Individualism in Christian societies aided the growth of cities, institutionalized the dignity of the human person as a bearer of rights, and challenged rather than empowered abusive government. Ocasio-Cortez should not hope to eradicate this kind of individualism, for it has accomplished more good for humanity than the socialism she purportedly embraces.

Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

A Better Sort of Constitutional Learning: James McClellan’s Liberty, Order, and Justice

In American History, Arts & Letters, Books, Britain, History, Humanities, Law, Philosophy, Scholarship on July 25, 2018 at 6:45 am

This piece originally appeared here in Law & Liberty.

Attorney General Jeff Sessions not long ago characterized the office of sheriff as a “critical part of the Anglo-American heritage of law enforcement.” This plain statement of an incontrovertible fact should not have been controversial. Yet with clockwork predictability, social media activists began excoriating Sessions for his ethnocentrism.

Even those who should have known better—Bernice King (daughter of Martin Luther King, Jr.), the NAACP, college-educated personalities in the Twittersphere—piled on the criticism, accusing Sessions of racism and suggesting the term “Anglo-American” was a dog whistle for white nationalists and the alt-Right. It was another sign of how uninformed many in our society have become, and of how name-calling and crude labeling have replaced constructive dialogue and civil conversation in the political sphere.

Fortunately, there’s a good, levelheaded primer for understanding the basic framework of American government that teachers and other leaders should recommend and assign to our ignorant masses: James McClellan’s Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government, which the Liberty Fund published in 2000.

McClellan, who passed away in 2005, was a proud Virginian who taught at several universities, including the University of Virginia, and was, among other things, the James Bryce Visiting Fellow in American Studies at the Institute of United States Studies (University of London) and president of the Center for Judicial Studies at Claremont McKenna College in California. He was also for a time a senior resident scholar at Liberty Fund.

Liberty, Order, and Justice is McClellan’s best known work. It maps the history and philosophy that shaped the U.S. Constitution and its amendments and is separated into seven parts, each appended with primary sources that are reproduced in full or in part: Magna Carta, the Petition of Right, the English Bill of Rights, the Mayflower Compact, the Declaration of Independence, the Virginia Bill of Rights, the Federalist Papers, the Virginia Plan, the New Jersey Plan, the Northwest Ordinance, and many others.

As a straightforward overview of the seminal concepts that characterize American government—separation of powers, republicanism, federalism, checks and balances, rule of law—this volume could serve, and probably has served, as the principal textbook for a high school or college course. The “Suggested Reading” lists at the end of each of its sections provide more than enough supplemental material to round out a semester of comprehensive study.

A work of such breadth and scope is impossible to summarize. McClellan begins with British history, in particular the emergence of Parliament, the evolution of the common law, and the development of legal doctrines and principles that responded to changing circumstances. He discusses the differences between the French and American Revolutions, and their respective effects upon the imaginations of Americans who were alive at the time. He devotes an entire section to the Philadelphia Convention, which he says, perhaps overstating, was “often more like a gathering of polite friends than an assemblage of angry political zealots.”

McClellan’s chief concern is federalism, a principle that appears throughout. He highlights disagreements between the Federalists and the Anti-Federalists, warning that “we should not presume that the Anti-Federalists were wrong.” He adds: “The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters.”

Lest his readers get lost in the historical and conceptual details, McClellan prefaces each section with the heading “Points to Remember,” followed by numbered outlines of central facts and themes. This feature enables easy memorization and study—another reason the book is suited for the classroom. 

For the most part, McClellan recounts historical events dispassionately, and lays out influential concepts with no personal pique or ideological bent. Only occasionally is he tendentious, and then only subtly so. For instance, his judicial hermeneutics seek out authorial intent, thereby rejecting textualism and signing on to a now passé version of originalism. “The basic interpretive task,” he submits, “is to determine the intent of the Constitution, laws, and treatises, and to construe all instruments according to the sense of the terms and the intentions of the parties.”

This statement might have made Justice Antonin Scalia unhappy.

He’s also skeptical of natural law, stating:

It may well be that we are all governed by a higher, unwritten natural law, emanating from God; that certain rights are by nature indelibly impressed upon the hearts and minds of all mankind; and that the spirit of ’76 is incorporated into our fundamental law. The problem is that these concepts, whatever their merit and value, are not provided for in the Constitution, and there is no evidence that the Framers ever intended them to be.

This statement would have made Justice Scalia happy.

McClellan calls Sir William Blackstone’s Commentaries on the Laws of England a “great compendium of learning,” a term of endearment that applies equally to Liberty, Order, and Justice. The two have a similar aim: to synthesize disparate principles into a coherent treatise and to explain the origins and foundations of the current legal and political order. In a different age, when information wasn’t immediately available and students couldn’t google their way to quick answers, this book might well have become as important as the Commentaries.

Its cheerful conclusion, at any rate, seems naïve in our present moment: “What we have offered you in this book is the basic structure of America’s constitutional order. It is up to you to preserve and improve that structure; and you have a lifetime in which to work at it.” Were he alive today, McClellan might not be so optimistic.

A Conversation Regarding Thomas Goode Jones

In America, American History, Books, History, Humanities, Law, liberal arts, Nineteenth-Century America, Politics, Scholarship, The South on November 8, 2017 at 6:45 am

The American Bar Association: An Economic Perspective

In Academia, America, American History, Economics, History, Humane Economy, Law, Law School, Legal Education & Pedagogy, Libertarianism on October 18, 2017 at 6:45 am
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