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A Late Encounter With the Civil War, Civil War, historical memory, Michael Kreyling, Vanderbilt University

Review of “A Late Encounter With the Civil War,” by Michael Kreyling

In American History, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Nineteenth-Century America, Scholarship, Southern History, Southern Literary Review, The South on July 1, 2015 at 8:45 am

This review originally appeared here in Southern Literary Review.

Now that it’s 2015, the sesquicentennial of the Civil War has come to a close. Those who don’t follow such anniversaries may not have noticed it was ever here, but it was, although without the fanfare or nostalgia that marked the commemorations at the semi-centennial and the centennial.

Michael Kreyling, a professor of English at Vanderbilt University with an endowed chair and several books to his credit, brings a literary touch to his brief history of the Civil War—not of its battles and heroes and victims and villains but of the manner in which Americans have recalled those things over time. A history about history, conceived as a series of lectures, A Late Encounter With the Civil War bears a title that seems to apply as aptly to Kreyling (he’s had a long and distinguished career in literature but hasn’t worked extensively in the field of Civil War studies) as it does to the current era’s strained connection with the bloodiest conflict the nation has ever experienced.

Kreyling focuses on “collective memory,” a concept he purports to borrow from Maurice Halbwachs and Emile Durkheim and the premise of which is “that humans assemble or construct memory in the context of social life: we remember what our social groups require us to remember in order to maintain historical continuity over time and to claim our membership in them.” Collective memory is participatory rather than commanded, evolutionary rather than fixed, fluctuating rather than static; it emerges out of the conversations people within a given territory have regarding a particular event.

Kreyling is, of course, concerned with our collective memory of the Civil War. It is unclear which individuals enforce or control the regime of collective memory according to his paradigm, but presumably he means to suggest that all members of the community are at least partially complicit in the narrative perpetuation that becomes collective memory.

From the premise of collective memory Kreyling sets out to establish the constructedness of Southern narratives about the war and thereby to refute the assumption of Pierre Nova, who once claimed that “[d]ifferent versions of the Revolution or the Civil War do not threaten the American tradition because, in some sense, no such thing exists—or, if it does, it is not primarily a historical construction.” Kreyling submits, contra Nova, that historical memory is constructed because it involves both gradual initiation and exclusion: those who understand and promote the validated, official account are admitted into the group, members of which celebrate a shared past, whereas those who challenge the authorized narratives are marginalized or altogether excluded from the group. What the approved story of the Civil War is at the moment of the sesquicentennial remains unknown because, he says, only years after such a landmark can we objectively evaluate its cultural reception and narrative production.

Collective memory is not the same thing as personal memory. It is a “kind of complicated puppet theater” inasmuch as “we are the puller of strings” as well as “the figures pulled.” We not only “set dates for ceremonies of public memory and fill the ceremonies with choreographed activities” but also allow ourselves to be dragged along with such ceremonies; we resort to ritualistic commemoration to project the past onto our present, he explains, and to attempt to define ourselves both by and against our past.

Kreyling argues in his opening chapter that “the United States that formally remembered the Civil War at the semicentennial was different from the America of the centennial and sesquicentennial by one very powerful theme we can identify in retrospect: blood.” The subject of blood leads Kreyling into meandering discussions of The Great Gatsby and Bram Stoker’s Dracula. This chapter becomes less about the memory of the Civil War and more about early 20th-century eugenicist fascinations with blood, an element of romanticized fiction that is “latent symbolic” or “cultural” because it “invades or pollutes the endangered citadel of whiteness.”

Theodore Roosevelt used the term “race suicide” to express a widely shared fear of racial degeneration, which was linked, Kreyling alleges, to a perceived collapse of civilization. Kreyling ties Roosevelt’s term to both the creation of and reaction to popular works by D. W. Griffith and Thomas Dixon Jr. He even implicates Woodrow Wilson in the rapid proliferation of racism—and not just by recalling Wilson’s oft-discussed response to the screening of The Birth of a Nation in the White House.

The second chapter maps the shift from memorialization to mass anxiety as race-relations in America forced the nation to reconsider the meaning and purpose of the Civil War. Here Kreyling considers an array of figures, from Bruce Catton and Robert Penn Warren to Edmund Wilson and Flannery O’Connor, to substantiate the proposition that public interest in the Civil War was on the wane and overshadowed by the Civil Rights Movement and the Cold War. All of this is very interesting, but we shouldn’t be surprised that most of the population at that time was more interested in its present moment than in a war that had occurred a century earlier.

The third and final chapter speculates about those “negotiations” that we have “between what did happen” during the Civil War and “what we would prefer to remember.” I say “speculates” because Kreyling is careful not to seem rash or conclusory about our own moment. Rather than giving an answer, for instance, he says that “we need to ask” the question “[w]here is the South now?” That we may ask that question at all shows how much different our generation is from those which came before, as Kreyling demonstrates by surveying recent literary scholarship on the matter.

Wherever the South is now, it seems to have traveled far from “pure ancestor worship.” That doesn’t mean our memory has become unproblematic. Kreyling sees in the historical fiction of Newt Gingrich and William R. Forstchen, for example, a disturbing turn to a counterfactual mode of ritual that distorts our understanding of past events. Kreyling rounds out his discussion of Gingrich and Forstchen (among other people and texts) with an upsetting observation: “we commemorate past wars with new ones.” Such a strong and ambiguous claim demands clarification, yet Kreyling doesn’t elaborate, perhaps because long explication would detract from the lasting force and profundity of the closing remark.

As smoothly as this book reads, one wonders what its chief contribution will be. It’s certainly unique and innovative to, as Kreyling does, compare vampire fiction with the racist notion of thoroughbred whiteness that was in circulation at the semicentennial. On the other hand, there might be a good reason why this approach hasn’t been tried, and it’s not because no one has thought of it.

When a book doesn’t move professional historiography in a direction that unearths obscure details, that adds to the sum of knowledge on a precise topic, or that sheds light on events by examining them from the unexplored perspective of cultural outsiders, it can rely too heavily on style and creativity and entertainment value. Kreyling’s book isn’t devoid of scholarship, but it does push the bounds of that genre. Perhaps its greatest achievement is its capacity to raise provocative questions about our present relationship to a conflict that in some ways seems so distant, but in others so familiar.

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bar association, bar exam, Elizabeth Olson, Erica Moeser, Law School, Libertarianism, Lysander Spooner, Milton Friedman, New York Times, occupational licensure, professional licensure, The Freeman

Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate. State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences. Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search. With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

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Barron v. Baltimore, Decimocuarta Enmienda, Es buena la Decimocuarta Enmienda?, Samuel F. Miller

Es buena la Decimocuarta Enmienda?

In America, American History, Arts & Letters, Austrian Economics, Historicism, History, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Nineteenth-Century America, Philosophy, The Supreme Court on February 18, 2015 at 8:45 am

El artículo original se encuentra aquí. Traducido del inglés por Mariano Bas Uribe.

Pocas cosas dividen a los libertarios como la Decimocuarta Enmienda de la Constitución de Estados Unidos. Gene Healy ha observado que “Liberales clásicos de buena fe se han encontrado en ambos lados de la discusión”.

Por un lado están los que alaban la enmienda por evitar el poder de los estados para prejuzgar, dirigir, regular o usar fuerza de cualquier tipo para imponer leyes discriminatorias sobre sus ciudadanos. Por el otro están los que, aunque reconozcan la naturaleza problemática de las malas conductas y los actos inmorales del estado, no están dispuestos a consentir la transferencia de poder de los estados al gobierno federal, y en particular al poder judicial federal.

La división se reduce a las visiones del federalismo, es decir, al equilibrio o separación de los gobiernos estatales y nacional.

Las secciones primera y quinta de la Decimocuarta Enmienda son las más polémicas. La Sección Uno incluya la Cláusula de Ciudadanía, la Cláusula de Privilegios o Inmunidades, la Cláusula de Proceso Debido y la Cláusula de Igual Protección y la Sección Cinco otorga al Congreso la autoridad para aplicar legislativamente la enmienda. Estas disposiciones han dado mayores poderes al gobierno nacional, permitiendo a los tribunales federales a hacer que los estados cumplan las leyes federales con respecto a ciertos derechos (o supuestos derechos) individuales.

El Tribunal Supremo de Estados Unidos, en Barron v. Baltimore (1833), sostuvo que la Declaración de Derechos (las primeras diez enmiendas a la Constitución de EEUU) obligaban solo al gobierno federal y no a los gobiernos estatales. Mediante la Decimocuarta Enmienda, que fue ratificada oficialmente en 1868, el Tribunal Supremo de Estados Unidos y los tribunales federales inferiores han “incorporado” gradualmente la mayoría de las disposiciones de la Declaración de Derechos para aplicarlas contra los estados. Así que el gobierno federal se ha empoderado para hacer que los gobiernos estatales cumplan disposiciones que originalmente solo pretendían restringir los abusos federales.

Si el gobierno federal fuera el único o el mejor mecanismo para reducir el tipo de discriminación y violaciones de derechos prohibidos por la Decimocuarta Enmienda, esta sería bienvenida y aceptada. Pero no es el único correctivo concebible y, aparte, ¿no es contraintuitivo para los libertarios aplaudir y defender un aumento tanto en el ámbito como en el grado del poder federal, incluso si ese poder, en algunas ocasiones, haya producidos resultados admirables?

En contextos no relacionados con la Decimocuarta Enmienda, casi nunca resulta polémico para los libertarios promover remedios no gubernamentales, locales o descentralizados, para leyes y prácticas injustas y discriminatorias. A menudo se alega que la industria y el comercio y la simple economía son mejores mecanismos para reducir el comportamiento discriminatorio, ya se base en raza, clase, sexo, género o lo que sea, que la fuerza del gobierno. Aun así, frecuentemente esos libertarios que hacen sonar las alarmas acerca de las aproximaciones gubernamental, federal y centralizada de la Decimocuarta Enmienda a las leyes y prácticas discriminatorias son tratados de forma poco sincera, en lugar de con argumentos, como defensores de aquellas leyes y prácticas, en lugar de como oponentes por principio de las reparaciones federales centralizadas para daños sociales.

Cualquier debate sobre la Decimocuarta Enmienda debe ocuparse de la validez de esta aprobación. Durante la Reconstrucción, la ratificación de la Decimocuarta Enmienda se convirtió en una condición previa para la readmisión en la Unión de los antiguos estados confederados. Healy ha llamado a esto “ratificación a punta de bayoneta”, porque, dice, “para acabar con el gobierno militar, se obligó a los estados sureños a ratificar la Decimocuarta Enmienda”. La condición natural de esta reunificación contradice la afirmación de que la Decimocuarta Enmienda fue ratificada por un pacto mutuo entre los estados.

Los jueces federales consideran irrelevante el propósito de la enmienda

En 1873, el juez Samuel F. Miller, junto con otros cuatro jueces, sostuvo que la Decimocuarta Enmienda protegía los privilegios e inmunidades de la ciudadanía nacional, no la estatal. El caso afectaba a regulaciones estatales de mataderos para ocuparse de las emergencias sanitarias que derivaban de sangre animal que se filtraba en el suministro de agua. El juez Miller opinaba que la Decimocuarta Enmienda estaba pensada para ocuparse de la discriminación racial contra los antiguos esclavos en lugar de para la regulación de los carniceros:

Al acabar la guerra [de Secesión], los que habían conseguido restablecer la autoridad del gobierno federal no se contentaron con permitir que esta gran ley de emancipación se basara en los resultados reales de la contienda o la proclamación del ejecutivo [la Declaración de Emancipación], ya que ambos podían ser cuestionados en tiempos posteriores, y determinaron poner estos resultado principal y más valioso en la Constitución de la unión restaurada como uno de sus artículos fundamentales.

Lo que dice el juez Miller es que el significado y propósito de la Decimocuarta Enmienda (proteger y preservar los derechos de los esclavos liberados) se desacredita cuando se usa para justificar la intervención federal en los asuntos económicos cotidianos de un sector estatal concreto. La regulación estatal de los mataderos de animales no es una opresión del mismo tipo o grado que la esclavitud de gente basada en su raza. Argumentar otra cosa es minimizar la gravedad de la ideología racista.

El juez Miller reconocía que la regulación estatal en cuestión era “denunciada no solo por crear un monopolio y conferir privilegios odiosos y exclusivos a un pequeño número de personas a costa de una buena parte de la comunidad de Nueva Orleáns”, la ciudad afectada por los mataderos en cuestión, sino asimismo como una privación del derechos de los carniceros a ejercitar su profesión. Sin embargo, el juez Miller no creía que el gobierno federal tuviera derecho bajo la Constitución a interferir con una autoridad que siempre se había concedido a gobiernos estatales y locales.

Habiendo establecido al alcance limitado de la cláusula de privilegios o inmunidades en los Casos de los mataderos, el Tribunal Supremo acudió posteriormente a la Cláusula de Igual Protección y la Cláusula del Proceso Debido para echar abajo leyes bajo la Decimocuarta Enmienda. Pero el Tribunal Supremo no se ha detenido ante las leyes estatales: ha usado la Cláusula de Igual Protección y la Cláusula del Proceso Debido como pretexto para regular a ciudadanos y empresas privadas. La Decimocuarta Enmienda, que pretendía reducir la discriminación, se ha usado, paradójicamente, para defender programas de acción afirmativa que discriminan a ciertas clases de personas.

Ceder el poder a los jueces federales no les predispone a la libertad. Como la Sección Cinco de la Decimocuarta Enmienda permite al Congreso aprobar enmiendas o leyes que traten de infracciones estatales a la libertad individual, no es necesario ni constitucionalmente sensato que el poder judicial federal asuma ese papel. Los miembros del Congreso, al contrario que los jueces federales que disfrutan del cargo vitaliciamente, son responsables ante los votantes en sus estados y por tanto es más probable que sufran por su infidelidad a la Constitución.

A nivel conceptual, además, parece extraño que los libertarios defiendan internamente lo que condenan en relaciones exteriores, a saber, la doctrina paternalista de que un gobierno central más poderoso tendría que usar su músculo para obligar a cumplir a unidades políticas más pequeñas.

El legado de la enmienda

¿Ha generado resultados constructivos la Decimocuarta Enmienda? En muchas áreas, sí. ¿Son deplorables algunas de las ideologías contra las que se ha dirigido? En muchos casos, sí. ¿Eran malas las normas contra el mestizaje, las normas de segregación escolar y las normas prohibiendo a los afro-americanos actuar como jurados? Sí, por supuesto. Sin embargo no se deduce que solo porque algunos casos bajo la Decimocuarta Enmienda hayan invalidado estas malas leyes, esta sea necesaria o incondicionalmente buena, especialmente a la vista de la pendiente resbaladiza de precedentes que con el tiempo distancian a las normas de su aplicación pretendida. “Si los tribunales empiezan a usar la Decimocuarta Enmienda para aplicar derechos naturales libertarios”, advierte Jacob Huebert en Libertarianism Today, “no sería más que un pequeño paso para que empezaran a usarla para aplicar derechos positivos no libertarios”.

Intelectuales de la izquierda como Erwin Chemerinsky, Charles Black, Peter Edelman y Frank Michelman han defendido la protección y aplicación de “derechos de subsistencia” bajo la Decimocuarta Enmienda. Estos incluirían los derechos a comida, atención sanitaria y salario mínimo proporcionados por el gobierno. Las leyes estatales que evitaran estos derechos (que no proporcionaran estas prestaciones sociales) se considerarían inconstitucionales; el ejecutivo federal aseguraría así que todo ciudadano de los estados transgresores reciba atención sanitaria, alimentos y una renta básica, todo subvencionado por los contribuyentes.

Estoy dispuesto a admitir no solo que en la práctica yo litigaría bajo las disposiciones de la Decimocuarta Enmienda para representar competente y éticamente a mi cliente (imaginar un sistema en el que el poder federal no esté tan atrincherado es inútil para litigantes en un sistema real en que el poder federal está profundamente arraigado), pero también que, en un mundo más ideal, podría haber otras formas menos deletéreas de luchar contra discriminación y violaciones de derechos que la Decimocuarta Enmienda. El taller de la actividad diaria no atiende abstracciones esperanzadas. No se puede deshacer un sistema de la noche a la mañana: los abogados deben actuar con las leyes que tienen disponibles y no pueden inventar otras nuevas para sus casos o agarrarse a una mera política. No si quieren tener éxito.

En ausencia de la Decimocuarta Enmienda, muchas personas y empresas con quejas válidas podrían no tener soluciones constitucionales. Sin embargo eso no significa que los términos y efectos de la Decimocuarta Enmienda sean incuestionablemente deseables o categóricamente buenos. Se pueden celebrar las victorias logradas mediante la Decimocuarta Enmienda mientras se reconoce que debe haber un modo mejor.

La Decimocuarta Enmienda no es en sí misma un bien positivo sino un animal peligroso a manejar con cuidado. Los libertarios como clase tienen una devoción manifiesta impropia a su funcionamiento. Necesitamos en su lugar un debate, abierto, honrado y colegiado acerca de los méritos y la función de esta enmienda, no sea que otras criaturas similares miren al futuro y a costa de nuestras amadas libertades.

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Miles Smith, Robert E. Lee, Wendell Berry, Winston Churchill, Winston Churchill and the American Civil War

“Winston Churchill and the American Civil War,” by Miles Smith IV

In American History, Arts & Letters, Books, Britain, Conservatism, Economics, Essays, History, Humanities, Libertarianism, Nineteenth-Century America, Slavery, Southern History, The South on February 4, 2015 at 8:45 am

Miles Smith IV is a visiting assistant professor at Hillsdale College and a historian of the Old South and Atlantic World. He took his B.A. from the College of Charleston and holds a Ph.D. in History from Texas Christian University. He is a native of Salisbury, North Carolina.

Last week saw the alignment of a peculiar set of anniversaries: The Fiftieth anniversary of Churchill’s death, the seventieth of the liberation of Auschwitz by the Soviet Army, and the 208^th birthday anniversary of Robert E. Lee. Sir Winston Leonard Spencer-Churchill died in 1965. One century earlier General Robert E. Lee surrendered the Army of Northern Virginia to his Federal counterpart U.S. Grant. Churchill and Lee enjoyed widespread acclaim for their conduct—Lee in the late nineteenth and both he and Churchill in the latter half of the twentieth century. In recent years deconstructing both men enjoyed being the vogue of both academic and popular commentators. Both Churchill and Lee lived their lives as traditionalists. Neither embraced the social or moral innovation of their own eras. Modern commentators degrade both for their seemingly reactionary ideals. Unsurprisingly, Churchill adored Lee (and Abraham Lincoln as well). A recent historian opined that Lee’s “tragic flaw” was that he upheld the genteel values of eighteenth century Virginia “in a society that left older ideals of nobility and privilege behind.” One might grant that Lee’s aristocratic and heavy-handed slaveholding would understandably guarantee him a fair share of detractors in the early twentieth century, but this commentator offered as his reason for deconstructing Lee a calamitous rationale:

In the long run, Lee’s decision to follow Virginia out of the Union and resign his commission from the US Army further reveals his eighteenth century sensibilities which emphasize state over country and a parochial interest in defending home and family rather than one’s nation. In choosing loyalty to his state over loyalty to his country, Lee ensured that his destiny would be tainted by defeat and the specter of treason.

The disturbing notion that one’s parochial interest in defending his home and family constitutes a “fatal flaw” ultimately saw its hellish culmination in the totalitarian nationalist regimes of the twentieth century. It was Lee’s very cultured localism, tragically tinged as it was with slaveholding, that endeared him to Winston Churchill.[1]

Before Winston Churchill assumed the premiership of the United Kingdom and before he battled the nationalist brutes ruling Germany and Italy, he wrote history. In History of the English Speaking Peoples: The Great Democracies, the fourth volume of his history of the Anglosphere, his view of American history reflected a patrician education and disposition. Never comfortable in the twentieth century, Churchill kept the values of a bygone Victorian Era well into the middle of the twentieth century. In Lee he found a similarly anachronistic gentleman of the eighteenth century living in the nineteenth. Churchill wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and an exalted character.” He “weighed carefully, while commanding a regiment of cavalry on the Texan border, the course which duty and honour would require from him.” Churchill overstated Lee’s antipathy towards slavery but nonetheless seized on the Virginian’s conservative Whiggish politics. Lee knew secession to be dangerous and ill-advised “but he had been taught from childhood that his first allegiance was to the state of Virginia.” Churchill found Lee’s Old South an admirable but flawed reflection of British gentry. “There was,” said Churchill, “a grace and ease about the life of the white men in the South that was lacking in the bustling North. It was certainly not their fault that these unnatural conditions had arisen.” Churchill’s denotation of white men underscores his innate humanity. White men, he knew, built their civilization on the backs of enslaved people held in human bondage. “The institution of negro slavery,” Churchill knew, “had long reigned almost unquestioned.” Upon the basis of slavery “the whole life of the Southern states had been erected.” Churchill saw a “strange, fierce, old-fashioned life. An aristocracy of planters, living in rural magnificence and almost feudal state, and a multitude of smallholders, grew cotton for the world by slave-labour.” Churchill’s empathy for the planter class stemmed from his willingness to conceive them as a class that “ruled the politics of the South as effectively as the medieval baronage had ruled England.” Southerners who by varying degrees colluded with the capitalist system became feudal agrarians and misplaced Englishmen in Churchill’s romantic imagination. [2]

Southerners engaged in the capitalist system in the antebellum era. Not all southerners were equally capitalist, however, and the Whig planters of Mississippi and Louisiana embraced the economic, expansionistic, and modernizing nationalism of the United States in a way that horrified old planters in Virginia and Carolina. Nonetheless, the Old aristocratic Anglo-American planter communities provided Churchill with set pieces as he wrote his histories. Of Lee, Churchill somberly wrote that he “wrestled earnestly with his duty” during the secession crisis. “By Lincoln’s authority he was offered the chief command of the great Union army now being raised. He declined at once…” The immediacy of Lee’s refusal supplied Churchill with a heroically long-suffering but duty-bound Anglophone hero. Churchill made much of how Lee resigned, “and in the deepest sorrow rode across the Potomac bridge for Richmond. Here he was immediately offered the chief command of all the military and naval forces of Virginia.” Lee’s decision, thought Churchill, seemed beautiful and tragic. “Some of those who saw him in these tragic weeks, when sometimes his eyes filled with tears, emotion which he never showed after the gain or loss of great battles, have written about his inward struggle. But there was no struggle; he never hesitated.” Lee’s choice, declared Churchill, “was for the state of Virginia. He deplored that choice [and] foresaw its consequences with bitter grief; but for himself he had no doubts at the time, nor ever after regret or remorse.” Writing in 1858, Lee appeared as a forerunner of Churchill himself: warning of the disaster befalling England, but fighting determinedly when the conflict came. [3]

Sensitive to the political differences between Imperial Britain and the United States, Churchill nonetheless tried to make sense of the American Civil War and its aftermath. Churchill saw that “Radical vindictiveness” in Republican ranks “sprang from various causes. The most creditable was a humanitarian concern for the welfare of the negro.” Belief in the God-given humanity of African Americans was “shared only by a minority.” Churchill believed that “more ignoble motives were present in the breasts of such Radical leaders as Zachariah Chandler and Thaddeus Stevens.” Because they loved “the negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.” But Churchill argued that “there was another and nearer point.”

The Radicals saw that if the negro was given the vote they could break the power of the Southern planter and preserve the ascendancy over the Federal Government that Northern business interests had won since 1861. To allow the Southern states, in alliance with Northern Democrats, to recover their former voice in national affairs would, the Radicals believed, be incongruous and absurd. It would also jeopardise the mass of legislation on tariffs, banking, and public land which Northern capitalists had secured for themselves during the war. To safeguard these laws the Radicals took up the cry of the negro vote, meaning to use it to keep their own party in power.

Churchill conceived of the Civil War from a perspective of a Briton deeply suspicious of the effects of modernizing industrial nationalism. His best known Liberal biographer, Lord Jenkins, painted him as a champion of Free-trade economic libertarianism and of workers as well. William Manchester, a far more conservative biographical voice, likewise understood Churchill as essentially a Free-trader whose conservatism remained confined to foreign policy. Free-trade economic views never allowed Churchill to entirely embrace the relationship between corporation and nation that characterized post-Civil War American politics. [4]

Capitalism accompanied Free-trade in Churchill’s mind, and he affirmed capitalism in his ideals about society. But he likewise displayed antipathy for the wedding of corporation and nation that followed the American Civil War. Of the captains of industry he wrote that “Carnegie and Rockefeller, indeed, together with Morgan in finance and Vanderbilt and Harriman in railroads, became the representative figures of the age,” when compared to the “colourless actors upon the political scene.” “Though the morality” of the captains of industry “has often been questioned, these men made industrial order out of chaos. They brought the benefits of large-scale production to the humblest home.” Still, Churchill saw the Gilded Age American Union as racked “by severe growing pains” and unrest. “There was much poverty in the big cities, especially among recent immigrants. There were sharp, sudden financial panics, causing loss and ruin, and there were many strikes, which sometimes broke into violence.” Most disturbing to Churchill the free trader, “Labour began to organize itself in Trade Unions and to confront the industrialists with a stiff bargaining power. These developments were to lead to a period of protest and reform in the early twentieth century.” Churchill’s deep ambivalence about the wedding of capitalism and nationalism led him the recognize “gains conferred by large-scale industry” but also to lament that “the wrongs that had accompanied their making were only gradually righted.”[5]

Churchill’s British perspective offered a nuanced perspective that stood outside the intemperate screeds of Lost Cause southerners, and the more numerous and far more influential hyper-nationalist hagiography devoted to the white northern liberators. Churchill understood that slavery constituted the great systemic evil of the nineteenth century United States and caused the Civil War. His libertarian proclivities left him unconvinced of the necessity of 800,000 dead. In this he prefigured agrarian Wendell Berry who noted in his essay “American Imagination and the Civil War” that a botched emancipation was far batter than no imagination. But Berry also noted that history demands that a botched emancipation be criticized for what was botched. David Goldfield, former president of the Southern Historical Association, declared in his America Aflame that his work was “neither pro-southern nor pro-northern. It is anti-war, particularly the Civil War.”[6]

To his credit, Abraham Lincoln regretted the Civil War’s violence in 1865 and subsequently proposed an expeditious readmission criterion for the seceded states, only to have it scuttled by Radical Republicans after his assassination. Unbeknownst to Lincoln, who genuinely seemed interested in restoring the status quo ante bellum, the war unleashed the ideological monstrosity of modern industrial nationalism on the American polity. Harry Stout recognized that industrial nationalism tarnished the war’s consequence of liberating African Americans from chattel slavery. Elliott West’s history of the Nez Perce War of 1877 posited the idea of a greater Reconstruction, whereby the Republican Party remade the entirety of the continental American polity in the image of white capitalistic, militaristic, Evangelistic Protestant nationalism. Native Americans stood in the way of the American nation, and the U.S. Army ruthlessly destroyed the last free Indian societies in the Far West. Societal transmutation on that scale necessitated violence in the name of the nation. Jackson Lears pointed out in his Rebirth of a Nation that racism on a societal scale (southern and northern) fed this nationalism driven by a political organization formally committed to black liberty. By 1900, four decades of almost uninterrupted Republican government turned the United States into an imperialistic nation-state. Though to a small degree mitigated institutionally in the United States by a lingering federalism, nationalism with its muscular industrial core eventually threw Europe into the nightmare of two world wars.[7]

Few American historians have offered an anti-nationalist vision of the Civil War. The camps seemed too rigidly defined for works such as Churchill’s to remain valid. Churchill’s vision of the American Civil War Era is at once not southern enough for Lost Cause partisans, nor is it sufficiently pro-northern for Neo-Abolitionists. Churchill saw the conflict as a tragedy. Nationalist historians and political philosophers generally counted the war a blessing; to think it a tragedy negated the benefits of union and emancipation. British Marxist Robin Blackburn exasperatedly asked why “a willingness on the part of the United States to admit the possibility that the war was not the best response” to secession or slavery was seen as condoning either.[8]

Conservative historians understandably co-opted Churchill into the pantheon of Anglo-American heroes committed to the maintenance of the Western World and to its transcendent expression of human liberty. Much of the resilience involved in Churchill revolves around the image of a nationalist military chieftain committed to Britain’s place in the world. That image is true—Churchill biographer Carlo d’Este argued that his subject was one of the humans truly born for war—but not complete. John Keegan once described Churchill as a true libertarian, and this seems an appropriate corrective given the multitude of remembrances published on this fiftieth anniversary of his passing.[9]

[1] Glenn W. LaFantasie, “Broken Promise,” Civil War Monitor 13 (Fall, 2014): 37

[2] Winston S. Churchill, A History of the English-Speaking Peoples Vol. 4: The Great Democracies.

[3] Churchill, Great Democracies.

[4] Roy Jenkins, Churchill: A Biography (New York: Farrar, Straus, & Giroux, 2001), 398-401; William Manchester, Last Lion: Winston Spencer Churchill, Visions of Glory (New York: Little & Brown, 1989), 361.

[5] Churchill, The Great Democracies.

[6] Wendell Berry, “American Imagination and the Civil War,” in Imagination in Place (Berkeley, CA: Counterpoint, 2010), 27; David Goldfield, America aflame: How the Civil War Created a Nation (New York: Bloomsbury, 2011).

[7] Elliott West, The Last Indian War: The Nez Perce Story (Oxford and New York: Oxford University Press, 2009); Jackson Lears, Rebirth of a Nation: The Making of Modern America (New York: HarperCollins, 2009).

[8] Robin Blackburn, “Why the Muted Anniversary? An Erie Silence,” CounterPunch (18th April 2011):

[9] Carlo d’Este, Warlord: A Life Winston Churchill at War, 1874-1945 (HarperCollins, 2008); John Keegan, Winston Churchill: A Life (New York: Penguin, 2002), 27.

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American Spectator, Damon Root, F. A. Hayek, Herbert Spencer, Oliver Wendell Holmes Jr., Overruled: The Long War for Control of the U.S. Supreme Court, Richard Posner, U.S. Supreme Court

Review of Damon Root’s “Overruled: The Long War for Control of the U.S. Supreme Court”

In American History, Arts & Letters, Book Reviews, Books, Judicial Activism, Judicial Restraint, Jurisprudence, Libertarianism on January 28, 2015 at 8:45 am

This review originally appeared here in the American Spectator.

The sounds coming from the echo chamber suggest that Damon Root’s new book Overruled: The Long War for Control of the U.S. Supreme Court has been an uncheckered success. On the book’s cover Randy Barnett declares it

a riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.

Writing for the Volokh Conspiracy blog at the Washington Post, Ilya Somin praises the book as the “most thorough account of the libertarian-conservative debate over judicial review so far.”

In the Wall Street Journal Michael Greve critiques the obvious weaknesses in Root’s narrative — its oversimplification — with which, Greve says, “legal historians may quarrel.” But Greve accepts Root’s negative portrayal of Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter, notable expositors of the doctrine of judicial restraint. The trio, Greve claims, “had not the foggiest notion of the Constitution,” which they “loathed… as inimical to their vision of government by experts.”

Here’s a contrary opinion from a libertarian student of the law: Root’s book suffers from caricature. His approach pits essentialized binaries (what he calls “two competing visions”) against one another in a fight for the good that one binary allegedly represents. History is rich and complex and not simply or without consequence pressed into two-sided struggles. Root would have benefited from a more concerted effort to understand the range of perspectives and heuristics embraced by jurists across a spectrum of backgrounds and beliefs.

Root purports to tell a story “which stretches from the Civil War period to the present,” but the key players are just three people: Holmes, Robert Bork, and Justice Stephen Field. The first two represent the doctrine of judicial restraint that might send “the whole country straight to the devil”; the third man represents an “aggressive legal approach” that Root attributes to libertarianism. Root seeks to show how conservatives over the course of the twentieth century adopted a jurisprudence of restraint that was once the darling of progressives. The subtext is twofold: that today’s conservatives need to be told their legal theory derives from the left, and that current libertarian jurisprudents are part of a more dependable school of thought.

The problem is that the divide between libertarians and conservatives is not so clear in the legal context. In fact, many of both adhere to the basic tenets of originalism and textualism, although within those operative paradigms they may disagree. It’s also difficult to discern whether a judge is conservative or libertarian, since his job is to analyze constitutional provisions and statutes and prior decisions to determine what the law is, not what he wants it to be. A judge may be forced to rule against his political interests if the statutory authority is both unambiguous and constitutional; in such moments the judge has no power to overturn the will of the voters as manifest in legislation or to alter the Constitution.

The most devastating shortcoming of Overruled is its tendency to reduce complicated cases and figures to artless political categories. Root’s Holmes is a fictional type, a stock character, not the actual jurist of history. Look no further than Thomas Sowell for a libertarian — or someone often categorized as a libertarian — who champions Holmes’s jurisprudence rather than considering him an enemy. The real Holmes had much in common with F.A. Hayek, as Richard Posner has revealed in law review articles and in his book Law, Pragmatism, and Democracy.

Before Hayek, Holmes formulated his own version of “the knowledge problem,” maintaining that no one judge or group of judges should presume to understand the facts on the ground well enough to direct the goings on in local communities with disparate values and conflicting objectives. We learn the diverse preferences of citizens through the feedback mechanisms of the market and should not have them prescribed for us through the commands of judges and justices. That’s why Holmes deferred to state legislatures to, in his words, “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.”

Root advocates an inversion of Holmes’s jurisprudence, for something loosely akin to rule by Platonic Guardians: put wise activist philosophers on the bench, he seems to say, and they can waive their magic wands to perform libertarian miracles. With such power and leeway, couldn’t they also do the opposite? Couldn’t they impose on us a scheme of “rights” — to subsistence or a basic income — that’s antithetical to the free market? Scholars on the left such as Erwin Chemerinsky, Charles Black, Peter Edelman, and Frank Michelman champion the same expansive approach that Root celebrates. Their goal, however, is to empower the judiciary to impose a statist agenda by regulating business and eradicating economic liberties.

If Root’s claim is true that libertarian jurisprudents are “the sworn enemies” of Holmes, then why has Posner — who’s no dummy — declared Holmes to be “liberal only in the nineteenth-century libertarian sense, the sense of John Stuart Mill and, even more, because more laissez-faire, of Herbert Spencer”? Posner goes further, suggesting that Holmes “made laissez-faire his economic philosophy.”

Holmes was influenced by Spencer and versed in Mill. It isn’t accurate to assert, as Root does:

Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as a villain in his Lochner dissent.

For starters, Holmes did not cast Spencer as a villain; he simply stated that Spencer’s views on economics were irrelevant to the Fourteenth Amendment, which secured federal citizenship for former slaves and prohibited the states from abridging the privileges or immunities of that citizenship. In reality, Holmes’s assessments of Spencer were mixed, and the justice’s letters are sprinkled with references to him. He cited Spencer while developing a theory of torts. He read Spencer’s autobiography. He criticized Spencer less for his philosophy than for his style and idealism, saying, for instance, “He is dull. He writes an ugly uncharming style, his ideals are those of a lower middle class British Philistine.”

Louis Menand has written that Holmes’s “personal sympathies were entirely with the capitalists.” That seems right: he once jested that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.” Nevertheless, Holmes was no libertarian. What libertarian would proclaim, “Taxes are what we pay for civilized society”? Just because he wasn’t a libertarian, however, doesn’t mean he offered no good insights.

Holmes read Adam Smith shortly before writing his dissent in Abrams v. U.S., in which he trumpeted that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent has been dubbed “libertarian” by so many commentators that listing them all would take up the space of this entire review. Surprisingly, Root mentions Holmes’s affirmance of the conviction of Eugene Debs under the Espionage Act of 1917 but fails to address this more famous dissent, which doesn’t square with Debs’s case.

It’s possible to attack Holmes shrewdly, without raw polemics that skip over inconvenient facts. David Bernstein’s Rehabilitating Lochner does that, condemning the ideas and not the man who held them. Only the cartoonish cover of Bernstein’s book, which depicts Holmes being punched out by Justice Wheeler Peckham in a boxing ring, is unfair to Holmes.

Whether Bork can be easily lumped together with Holmes is another matter. Bork called Holmes’s dissent in Lochner “flawed,” even though he agreed with most of it. He decried Holmes’s marketplace metaphor in Abrams as “foolish and dangerous.”

Root’s book may appeal to already-within-the-pale libertarian readers but won’t interest many beyond that audience. That’s probably a good thing. The truth is that judicial restraint and judicial activism are not palpably partisan creeds that can be readily summarized or easily illustrated. Labeling them “conservative” or “libertarian” is not conclusive as to their substance. Judges with wildly divergent worldviews have pushed the limits of their authority to reach their desired result in certain cases.

In the book’s opening pages, Root asserts that Elena Kagan, who claimed in her confirmation hearings that the political branch, not the judiciary, was the proper mechanism for dispensing with bad laws, “had placed herself squarely within a long and venerable legal tradition that seeks to give the government wide control over regulatory affairs while simultaneously preventing most interference from the courts.” This is missing the point. The courts, which Root wishes to vest with wider control over regulatory affairs, are not necessarily an outside check on our problematically powerful government; they are part of our problematically powerful government.

The federal judiciary is an arm of the state, plain and simple, peopled by unelected judges and justices who aren’t accountable to the people. It’s thus strange to see Root cast the judiciary as the people’s branch. If a member of Congress isn’t representing the people’s interest, the people can, excuse me, throw the rat out. Federal judges, on the other hand, must be impeached.

Root’s recommendation for a more robust judiciary makes sense only if most judges are libertarians. Most aren’t. Therein lies the case for judicial restraint.

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Anarchism, anarchist, “Self-Reliance”, Capitalism, classical liberalism, Cornel West, Emerson's Liberalism, Libertarianism, Lockean-libertarian liberalism, Ludwig Von Mises, nature, Neal Dolan, Politics, Ralph Waldo Emerson, The Anti-Capitalistic Mentality

The Classical Liberalism of Ralph Waldo Emerson

In America, American History, American Literature, Arts & Letters, Austrian Economics, Books, Economics, Emerson, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Western Philosophy on January 7, 2015 at 8:45 am

“The less government we have, the better.”^[1] So declared Ralph Waldo Emerson, a man not usually treated as a classical liberal. Yet this man—the Sage of Concord—held views that cannot be described as anything but classical liberal or libertarian. His is a pastoral libertarianism that glorifies nature as a source of insight and inspiration for those with a poetical sense and a prophetic vision.

None other than Cornel West, no friend of the free market, has said that “Emerson is neither a liberal nor a conservative and certainly not a socialist or even a civic republican. Rather he is a petit bourgeois libertarian, with at times anarchist tendencies and limited yet genuine democratic sentiments.”^{^[2]} “Throughout his career,” Neal Dolan adds, “Emerson remained fully committed to the Scottish-inflected Lockean-libertarian liberalism whose influence we have traced to his earliest notebooks.”^{^[3]} An abundance of evidence supports this view. Dolan himself has written an entire book on the subject: Emerson’s Liberalism (University of Wisconsin Press, 2009). Emerson extolled the “infinitude of the private man”^{^[4]} and projected a “strong libertarian-liberal emphasis”^{^[5]} in his essays and speeches. He was not an anarchist: he believed that “[p]ersonal rights, universally the same, demand a government framed on the ratio of the census” because “property demands a government framed on the ratio of owners and of owning.”[6] Nevertheless, he opined that “[e]very actual State is corrupt”[7] and that, if the people in a given territory were wise, no government would be necessary: “[W]ith the appearance of the wise man, the State expires. The appearance of character makes the State unnecessary.”[8] One need only look to one of Emerson’s most famous essays, “Self Reliance,” for proof of his libertarianism.

“Self‑Reliance” is perhaps the most exhilarating expression of individualism ever written, premised as it is on the idea that each of us possesses a degree of genius that can be realized through confidence, intuition, and nonconformity. “To believe your own thought, to believe that what is true for you in your private heart is true for all men,” Emerson proclaims, “that is genius.”^{^[9]}

Genius, then, is a belief in the awesome power of the human mind and in its ability to divine truths that, although comprehended differently by each individual, are common to everyone. Not all genius, on this view, is necessarily or universally right, since genius is, by definition, a belief only, not a definite reality. Yet it is a belief that leads individuals to “trust thyself”^{^[10]} and thereby to realize their fullest potential and to energize their most creative faculties. Such self‑realization has a spiritual component insofar as “nothing is at last sacred but the integrity of your own mind”[11] and “no law can be sacred to me but that of my nature.”^{^[12]}

According to Emerson, genius precedes society and the State, which corrupt rather than clarify reasoning and which thwart rather than generate productivity. “Wild liberty develops iron conscience” whereas a “[w]ant of liberty […] stupefies conscience.”[13] History shows that great minds have challenged the conventions and authority of society and the State and that “great works of art have no more affecting lesson for us than this. They teach us to abide by our spontaneous impression with good‑humored inflexibility then most when the whole cry of voices is on the other side.”^{^[14]} Accordingly, we ought to refuse to “capitulate to badges and names, to large societies and dead institutions.”^{^[15]} We ought, that is, to be deliberate, nonconformist pursuers of truth rather than of mere apprehensions of truth prescribed for us by others. “Whoso would be a man,” Emerson says, “must be a noncomformist.”^{^[16]}

Self‑Interest and Conviction

For Emerson as for Ayn Rand, rational agents act morally by pursuing their self‑interests, including self‑interests in the well‑being of family, friends, and neighbors, who are known and tangible companions rather than abstract political concepts. In Emerson’s words, “The only right is what is after my constitution, the only wrong what is against it.”^{^[17]} Or: “Few and mean as my gifts may be, I actually am, and do not need for my own assurance or the assurance of my fellows any secondary testimony.”^{^[18]} It is in everyone’s best interest that each individual resides in his own truth without selling off his liberty.[19] “It is,” in other words, “easy to see that a greater self-reliance must work a revolution in all the offices and relations of men.”[20]

It is not that self‑assurance equates with rightness or that stubbornness is a virtue; it is that confidence in what one knows and believes is a condition precedent to achieving one’s goals. Failures are inevitable, as are setbacks; only by exerting one’s will may one overcome the failures and setbacks that are needed to achieve success. Because “man’s nature is a sufficient advertisement to him of the character of his fellows,”[21] self-reliance enables cooperative enterprise: “Whilst I do what is fit for me, and abstain from what is unfit, my neighbor and I shall often agree in our means, and work together for a time to one end.”[22] Counterintuitively, only in total isolation and autonomy does “all mean egotism vanish.”[23]

If, as Emerson suggests, a “man is to carry himself in the presence of all opposition, as if everything were titular and ephemeral but he,”^{^[24]} how should he treat the poor? Emerson supplies this answer:

Do not tell me, as a good man did to‑day, of my obligation to put all poor men in good situations. Are they my poor? I tell thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent, I give to such men as do not belong to me and to whom I do not belong. There is a class of persons to whom by all spiritual affinity I am bought and sold; for them I will go to prison, if need be; but your miscellaneous popular charities; the education at college of fools; the building of meeting‑houses to the vain end to which many now stand; alms to sots; and the thousandfold Relief Societies;—though I confess with shame I sometimes succumb and give the dollar, it is a wicked dollar which by and by I shall have the manhood to withhold.^{^[25]}

These lines require qualification. Emerson is not damning philanthropy or charity categorically or unconditionally; after all, he will, he says, go to prison for certain individuals with whom he shares a special relationship. “I shall endeavor to nourish my parents, to support my family, to be the chaste husband of one wife,” he elaborates.[26] Emerson is, instead, pointing out, with much exhibition, that one does not act morally simply by giving away money without conviction or to subsidize irresponsible, unsustainable, or exploitative business activities.

It is not moral to give away a little money that you do not care to part with or to fund an abstract cause when you lack knowledge of, and have no stake in, its outcome. Only when you give money to people or causes with which you are familiar,[27] and with whom or which you have something at stake, is your gift meaningful; and it is never moral to give for show or merely to please society. To give morally, you must mean to give morally—and have something to lose. The best thing one can do for the poor is to help them to empower themselves to achieve their own ends and to utilize their own skills—to put “them once more in communication with their own reason.”[28] “A man is fed,” Emerson says, not that he may be fed, but that he may work.”[29] Emerson’s work ethic does not demean the poor; it builds up the poor. It is good and right to enable a poor man to overcome his conditions and to elevate his station in life, but there is no point in trying to establish absolute equality among people, for only the “foolish […] suppose every man is as every other man.”[30] The wise man, by contrast, “shows his wisdom in separation, in gradation, and his scale of creatures and of merits as wide as nature.”[31] Such separation and gradation are elements of the beautiful variety and complexity of the natural, phenomenal world in which man pursues his aims and accomplishes what he wills.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”^{^[32]} Much ink has been spilled to explain (or explain away) these lines. I take them to mean, in context, that although servile flattery and showy sycophancy may gain a person recognition and popularity, they will not make that person moral or great but, instead, weak and dependent. There is no goodness or greatness in a consistency imposed from the outside and against one’s better judgment; many ideas and practices have been consistently bad and made worse by their very consistency. “With consistency,” therefore, as Emerson warns, “a great soul has simply nothing to do.”^{^[33]}

Ludwig von Mises seems to have adopted the animating, affirming individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity. Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”^{^[34]} “Those authors,” he adds, “who merely repeat what everybody approves and wants to hear are of no importance. What counts alone is the innovator, the dissenter, the harbinger of things unheard of, the man who rejects the traditional standards and aims at substituting new values and ideas for old ones.”^{^[35]} This man does not mindlessly stand for society and the State and their compulsive institutions; he is “by necessity anti‑authoritarian and anti‑governmental, irreconcilably opposed to the immense majority of his contemporaries. He is precisely the author whose books the greater part of the public does not buy.”^{^[36]} He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

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

There is an understandable and powerful tendency among libertarians to consider themselves part of a unit, a movement, a party, or a coalition, and of course it is fine and necessary to celebrate the ways in which economic freedom facilitates cooperation and harmony among groups or communities; nevertheless, there is also a danger in shutting down debate and in eliminating competition among different ideas, which is to say, a danger in groupthink or compromise, in treating the market as an undifferentiated mass divorced from the innumerable transactions of voluntarily acting agents. There is, too, the tendency to become what Emerson called a “retained attorney”^{^[37]} who is able to recite talking points and to argue the predictable “airs of the bench”^{^[38]} without engaging the opposition in a meaningful debate.

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

“It is easy in the world,” Emerson reminds us, “to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.”^{^[39]} We can stand together only by first standing alone. Thus, “[w]e must go alone.”[40] You must “[i]nsist on yourself”[41] and “[s]peak the truth.”[42] You must channel your knowledge and originality to enable others to empower themselves. All collectives are made up of constituent parts; the unit benefits from the aggregate constructive action of motivated individuals. Emerson teaches us that if we all, each one of us, endeavor to excel at our favorite preoccupations and to expand the reach of our talent and industry, we will better the lives of those around us and pass along our prosperity to our posterity.

^{^[1]} Ralph Waldo Emerson, “Politics,” in Emerson: Essays & Poems (The Library of America, 1996), p. 567.

^{^[2]} Cornel West, The American Evasion of Philosophy (University of Wisconsin Press, 1989), p. 40.

^{^[3]} Neal Dolan, “Property in Being,” in A Political Companion to Ralph Waldo Emerson, edited by Alan M. Levine and Daniel S. Malachuk (The University Press of Kentucky, 2011), p. 371.

^{^[4]} Ralph Waldo Emerson, correspondence in The Journals and Miscellaneous Notebooks of Ralph Waldo Emerson, 16 vols., ed. William H. Gilman, Ralph H. Orth, et al. (Cambridge: Harvard University Press, 1960-1982). This quote comes from Vol. 7, p. 342.

^{^[5]} Neal Dolan, Emerson’s Liberalism (University of Wisconsin Press, 2009), p. 182.

[6] Emerson, “Politics,” at 560.

[7] Emerson, “Politics,” at 563.

[8] Emerson, “Politics,” at 568.

^{^[9]} Ralph Waldo Emerson, “Self-Reliance,” in Emerson: Essays & Poems (The Library of America, 1996), p. 259.

^{^[10]} Emerson, “Self-Reliance,” at 260.

[11] Emerson, “Self-Reliance,” at 261.

^{^[12]} Emerson, “Self-Reliance,” at 262.

[13] Emerson, “Politics” at 565-566.

^{^[14]} Emerson, “Self-Reliance,” at 259.

^{^[15]} Emerson, “Self-Reliance,” at 262.

^{^[16]} Emerson, “Self-Reliance,” at 261.

^{^[17]} Emerson, “Self-Reliance,” at 262.

^{^[18]} Emerson, “Self-Reliance,” at 263.

[19] Emerson, “Self-Reliance,” at 274.

[20] Emerson, “Self-Reliance,” at 275.

[21] Emerson, “Politics,” at 566.

[22] Emerson, “Politics,” at 567.

[23] Emerson, “Nature,” in Emerson: Essays and Poems, p. 10. The original reads “all mean egotism vanishes” rather than “vanish.”

^{^[24]} Emerson, “Self-Reliance,” at 262.

^{^[25]} Emerson, “Self-Reliance,” at 262-63.

[26] Emerson, “Self-Reliance,” at 273.

[27] “Consider whether you have satisfied your relations to father, mother, cousin, neighbor, town, cat, and dog,” Emerson says. Emerson, “Self Reliance,” at 274.

[28] Emerson, “Self-Reliance,” at 276.

[29] Emerson, “Nature,” at 13.

[30] Emerson, “Nature,” at 27.

[31] Emerson, “Nature,” at 27.

^{^[32]} Emerson, “Self-Reliance,” at 265.

^{^[33]} Emerson, “Self-Reliance,” at 265.

^{^[34]} Ludwig von Mises, The Anti-Capitalistic Mentality (Auburn: The Ludwig von Mises Institute, 2008), p. 51.

^{^[35]} Mises, The Anti-Capitalistic Mentality, at 51.

^{^[36]} Mises, The Anti-Capitalistic Mentality, at 51.

^{^[37]} Emerson, “Self-Reliance,” at 264.

^{^[38]} Emerson, “Self-Reliance,” at 264.

^{^[39]} Emerson, “Self-Reliance,” at 263.

[40] Emerson, “Self-Reliance,” at 272.

[41] Emerson, “Self-Reliance,” at 278.

[42] Ralph Waldo Emerson, “The Divinity School Address,” in Emerson: Essays & Poems (The Library of America, 1996), p. 77.

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Appalachia, Interview with Robert J. Ernst, North Carolina, Robert J. Ernst, Southern Literary Review, The Civil War, The Inside War

Interview with Robert J. Ernst, author of “The Inside War”

In America, American History, American Literature, Arts & Letters, Books, Creative Writing, Fiction, History, Humanities, Nineteenth-Century America, Novels, Southern History, Southern Literary Review, Southern Literature, The Novel, The South, Writing on December 4, 2014 at 8:45 am

This interview originally appeared here in Southern Literary Review.

Robert Ernst

APM: Thanks for taking the time to sit down for this interview, Bob. Your novel The Inside War is about an Appalachian mountain family during the Civil War. How long have you been interested in the Civil War?

RJE: I have had an interest in the Civil War for many years. Specifically, the effect of the war on Appalachia became an interest as I researched family history, now more than a decade ago. I realized that not much had been written, outside of academic treatises, on this aspect of the war. Bushwhacking ambushes, bands of roving deserters, intensely opposed partisan factions, and a breakdown in civil society befell western North Carolina. Of course, much study had been given to the poverty of the area during the twentieth century, but not much, save bluegrass music, about its culture. What I discovered was a vibrant pre-war society thoroughly rent by the war. And, the area did not recover.

APM: The story of Will Roberts, your novel’s protagonist, is similar to that of many actual soldiers who fought for the Confederacy. How much historical research went into this book? It seems as if there are a number of events in your story—Sammy Palmer’s shooting of the sheriff, for instance—that track historical occurrences.

RJE: Much of the story is based on historical events. In fact, Will Roberts was a real person, as was his brother, Edwin. I traced their wartime adventures, researched the battles and conditions of their captivity and wove a fictional story around them. Likewise their wives, as portrayed in the story, were based on real people, although their story is more fictionalized. The novel does incorporate many historical characters and events that occurred in the vicinity of Marshall, North Carolina, by which I attempt to portray a picture of the character of the area and the severe impact of the war on it.

APM: There are some themes in the book that cover an aspect of the Civil War that is not often covered. Tell us about those.

RJE: The tactic of bushwhacking, or ambushing mountain patrols, is one. Guerrilla warfare as a matter of accepted tactics was new and was a terrifying degradation of the morality of warfare. There was a real cultural divide among the citizens of western North Carolina between those who supported the North, the “tories,” and those who supported the Confederacy. These divisions played out in many ways, most notably in atrocities like the Shelton Laurel massacre, but more subtly in familial and neighbor relationships. I doubt many women suffered as did those in Appalachia, from the depredations, theft and physical threat of the men who populated the mountains during the war. I was surprised to learn of the inhumane prison conditions at Ft. Delaware. Everyone knows of Andersonville, but not many are aware of Ft. Delaware. We know of the great Civil War battles, but there were scores of skirmishes every week that terrified the contestants and shaped their perceptions. Certainly, Roberts’s family suffered greatly, even though their war happened in the background to better known events.

APM: You seem careful not to glorify war but to present it as the complex tragedy that it is. The book’s epigraph states, “For those who have suffered war.” I wonder if the process of writing this book taught you anything about war itself. What do you think?

Allen Mendenhall

RJE: The grand histories of the conflicts, eulogizing the fallen and celebrating the victorious are all necessary parts of our remembrance of a terrible, national conflict. What I found in researching this story was intense personal suffering, unnoted except at the basic unit of society, the family, and rippling out to the church, neighborhood and town. Why would a woman abandon her children? What would drive a member of the home guard to massacre captives – mere boys? How could people, so crushed, hope? And, of course, the main theme of The Inside War is hope; hope after, and despite the loss and suffering. As we deal with the veterans of the conflict with radical Islamists we need to surround them with a culture of hope.

APM: From one attorney to another, do you think being a lawyer affects your writing in any way—from the preparation to the organization to the style?

RJE: That’s interesting. Certainly the actual practice of law involves clear writing. I have a hard time reading novels written in stream of consciousness or in rambling, shuffling styles. So, hopefully this book will be understandable and clear to the reader. I like the process of legal research and enjoyed the process of researching this book. However, the characters, though based on historical figures, came about from my imagination, which is why the book is a novel and not a history.

APM: It’s been said that the Revolutionary War produced political philosophy in America whereas the Civil War produced literature. Do you agree with this, and if so, why?

RJE: Perhaps the truth in that statement devolves from the Revolutionary War defining the creation of a nation, the Civil War defining its character. The revolution tested the theories of individual liberty and melded them, free of sovereign control, imperfectly into a new nation. The Civil War represents a gigantic challenge to the notion that a nation of citizens can be free. Millions were intimately involved in the latter conflict and the upheaval and changes were intensely felt and recorded in innumerable books. But the fundamental story of both wars is ongoing, in my view, and that is America must re-experience, “a new birth of freedom,” with regularity if America is to retain her vibrancy and hope.

APM: Thanks, Bob, for taking the time. I appreciate it, and I know our readers do, too.

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Alabama, Chattahoochee Valley, Columbus, Emigration to Liberia, Eufaula, Georgia, Golconda, Matthew F.K. McDaniel, NewSouth Books, Slavery, Southern Literary Review

Review of “Emigration to Liberia” by Matthew F.K. McDaniel

In American History, Arts & Letters, Book Reviews, Books, Georgia, Historicism, History, Humanities, Laws of Slavery, Politics, Scholarship, Slavery, Southern History, Southern Literary Review, The South, Writing on November 26, 2014 at 8:45 am

This review originally appeared here at Southern Literary Review.

Emigration to Liberia is the story of the nearly 500 African-Americans who left Columbus, Georgia, and Eufaula, Alabama, from 1853 to 1903, to emigrate to Liberia, the West African nation that was founded in 1822 by United States colonization.

Matthew F.K. McDaniel marshals evidence from written correspondence and newspapers to piece together the first narrative treatment of those African-American emigrants from this specific region, which he calls the “Chattahoochee Valley.” He contends that the establishment of Liberia united many Northerners and Southerners for different reasons, namely, in the North, for the gradual abolition of slavery, and, in the South, for the stability of the slave system once freed African-Americans were removed from the purview of their brothers and sisters in bondage.

Liberian emigrants from the Chattahoochee Valley made up roughly ten percent of the total number of emigrants to Liberia from the entire United States; therefore, the story of the migration from this region reveals much about the overall characteristics of the entire emigrant movement and provides clues as to why many emigrants decided to leave in the first place.

“To blacks,” McDaniel explains, “the prospect of Liberia was escape, safety, and opportunity. They could own their own land in their own country and be governed by their own people. Liberia was a new start and a new future for families, far from the whites who had oppressed them.”

McDaniel supplies enough historiography to interest and benefit historians working in the field, but enough narrative to engage non-specialists. At only 64 pages, excluding the highly useful notes and bibliography, his book can be read in a single sitting. Its brevity has to do with the fact that it began as a 2007 master’s thesis in history at the Louisiana State University. Credit must be given to the editors at NewSouth Books for having the wisdom, faith, and generosity to take a chance on such a short but important work.

Settled by Europeans between 1816 and 1823, Eufaula fell into the hands of whites after the 1832 Treaty of Cusseta forced the Creek Indians off their ancestral land. Columbus was founded in 1828, six years after the founding of Liberia. The future of the African Americans who remained in Eufaula and Columbus turned out to be much different from that of the emigrants to Liberia, many of whom suffered or returned to America.

“Liberia was neither American or African,” McDaniel submits, “but a strange medley of the two worlds, and it disappointed many of the Chattahoochee Valley emigrants,” who became stuck “within a stringent social hierarchy” that was “similar to the one they had escaped from.” They were not used to the tropical climate and were not skilled in the work that was specific to the region; they discovered, too, that the native Liberian elite “mimicked the customs and styles of the whites who had once looked down upon them.”

An appendix rounds out McDaniel’s research by listing the names, ages, sexes, and, among other things, occupations of all the emigrants who sailed in either the 1867 or 1868 voyages to Liberia aboard the ship Golconda. To run your finger down the list, slowly, is to invite questions about who these people were, what they were like, what they did for entertainment, what their wishes and dreams were, what they were leaving behind and hoping to accomplish with their move to Africa, and what happened to them after they arrived there. Facts and data are limited, so, in many cases, we cannot know for sure.

McDaniel has done well with what information he had available to him. Let’s hope he’s inspired others to pick up where he left off. This is a story worth telling and knowing.

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common law, deterrence, Felony Murder, Oliver Wendell Holmes Jr., punishment, The Felony-Murder Rule

The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

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1066, Battle of Hastings, fee simple, fee tale, freehold, knights, life estate, nonfreehold, periodic tenancies, Property, tenancies at will, tenants, terms, William the Conqueror

British Origins of American Estate and Land Law

In American History, Britain, Economics, History, Humanities, Law, Property on September 17, 2014 at 8:45 am

Estates and land are the foundation of property law in England and the United States. After the Battle of Hastings in 1066, when William the Conqueror, or William I, became the King of England, he recognized that land ownership was essential to the governance of his kingdom. Announcing himself owner of all English lands, he distributed property to those loyal to him. The recipients became “tenants”; the rent was called “services”; knights performed “services” on behalf of the king, thus earning their honorific title and their rights to certain lands.

William bestowed a special designation, tenant in chief, to those who were offered more land than they could use. Everything necessary to survive and flourish at this time came from the land: food, water, shelter, building supplies and other equipment, and mineral resources. Tenants, therefore, would parcel out tracts of their land to others in exchange for fees and services. Recipients of the parceled tracts would parcel out smaller tracts of land, and this process of parceling would continue until the people living on the land had no rights to the land.

The result was that ownership in tracts of land became known as freehold or nonfreehold. Interests in freehold tracts included fee simple estates, fee tale estates, and life estates; interests in nonfreehold tracts included periodic tenancies, terms, and tenancies at will. These six categories of land ownership and title remain with us today.

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