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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.

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Richard Bulliet on The Americas, the Atlantic, and Africa, 1530-1770

In Academia, Arts & Letters, Historicism, History, Humanities, liberal arts, Pedagogy, Scholarship, Teaching on August 1, 2018 at 6:45 am

In the following lecture, Richard Bulliet discusses the Americas, the Atlantic, and Africa during the period of 1530-1170:

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.

Richard Bulliet on Transformations in Europe, 1500-1750

In Academia, Arts & Letters, History, Humanities, liberal arts, Pedagogy, Philosophy, Politics, Teaching, Western Civilization on July 18, 2018 at 6:45 am

In the following lecture, Professor Richard Bulliet discusses transformations in Europe during the period of 1500 – 1750:

Session Twenty-Six: Richard Bulliet on the History of the World

In Arts & Letters, History, Humanities, liberal arts, Pedagogy, Teaching on July 4, 2018 at 6:45 am

Here, in the twenty-sixth lecture of his course, The History of the World, Richard Bulliet discusses conclusions regarding the History of the World to 1500 CE and presents themes for a forthcoming course regarding the History of the World after 1500 CE:

Session Twenty-Five: Richard Bulliet on the History of the World

In Arts & Letters, Historicism, History, Humanities, liberal arts, Pedagogy, Teaching on June 20, 2018 at 6:45 am

Here, in the twenty-fifth lecture of his course, The History of the World, Richard Bulliet discusses the History of the World to 1500 CE, focusing on the Maritime Revolution:

Three Poems by James Hochtritt

In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on June 13, 2018 at 6:45 am

James Hochtritt has been a featured reader of his poetry at venues in California and Oklahoma over the years. He holds a Ph.D. in History from the University of Oklahoma and is a full-time professor of history at Rose State College in Midwest City, Oklahoma. He lives and writes in Midwest City.

EXETER, CALIFORNIA

He monitors smudge pots,
Shadows illuminating his face,
Black smoke burning his eyes.
A pungent aroma of citrus mixes
With an acrid blend of chemicals
Whose names he cannot pronounce.
His thoughts drift in and out,
Recollect his youth in Zihuatanejo,
Christmas memories, novenas, orphans,
Focus on the antics of a spotted dog
That ambles beside him.

Looking up at stars he fondles a small cross
On a silver chain around his neck,
Brings it to his lips as a gesture of faith.
Wishes he was back in bed
And the soft breathing of his wife.
Inhaling the bite of the night frost,
He squints at ornaments and candy-colored lights
Strung like a necklace around a house,
Counts three blessings for each of his children.

Disconnected from the earth in December’s dark
He dreams of home and his father.
Prays for those
Who bleed and give birth in the fertile soil of the fields
Among the insects and the furrows.
Hates that he understands
That men like him are necessary,
Harnessed mules, machinery,
Hands that sow what others reap.
The puzzling chasm that lies between
That which is holy and merely human.

VOTIVE

Passer’s by and visitors, strangers, reporters,
Relatives fold paper flowers and mementos
Into the honeycomb of the cyclone fence.
Tie ribbons onto wire, tape poems to poles,
Paste locks of hair onto photographs
Wrapped in angels made of foil.
Morning, noon, and night the vigil evolves
The guilt-ridden who survived, tourists,
The inquisitive and curious,
Weak knees, helplessness, countenance transfixed,
Palms and faces pressed against the barrier,
Introspection above the hole.
Low whispers barely audible,
Prayers to the beloved, Eucharist
For the grieving, comfort for the anguish.
Our penitence an epitaph,
Speechlessness, invocation of the lost,
Liturgy of tears, consecration of rubble.
Without pause, the requiem,
The mournful eulogy continues,
Watery eyes like reflecting pools or grottos,
Blank stares articulating silence,
Inability of the living to sanctify with words
The blasphemy of the aftermath.

HOUSE

Apologies were never enough.
Words flew like sparks from her mouth,
Her arms flapping up and down
Like some apoplectic bird.

Fixed in the cross hairs
Of her cubist eyes,
Her smeared lipstick
Angled her face into a cockeyed shape.
It was advisable to not say a word
But bob and flinch, hunch and cower.
Grit the teeth
Amidst the knickknacks
Swept from their places,
The shattered glass,
Interminable silences
Simmering like steam.
Ride it out the best a child could
Within the confines of the cage,
Until rage flattened to tears
And the claws retracted.

Only then was it safe
To venture a breath,
Feign a posture of guilt
With a downward glance
And tip-toe past the beast
Through the rancor and the ashes,
Escape into the fields
And the kisses of the rain.

Session Twenty-Four: Richard Bulliet on the History of the World

In Arts & Letters, History, Humanities, liberal arts, Pedagogy, Teaching, Western Civilization on May 30, 2018 at 6:45 am

Here, in the twenty-fourth lecture of his course, The History of the World, Richard Bulliet discusses the Latin West, 1200-1500:

Session Twenty-Two: Richard Bulliet on the History of the World

In Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities, liberal arts, Teaching on May 9, 2018 at 6:45 am

Here, in the twenty-second lecture of his course, The History of the World, Richard Bulliet discusses the History of the World to 1500 CE, focusing on Tropical Africa and Asia:

Session Twenty-One: Richard Bulliet on the History of the World

In Arts & Letters, Eastern Civilizaton, Historicism, History, Humanities, liberal arts, Pedagogy, Teaching on April 25, 2018 at 6:45 am

Here, in the twenty-first lecture of his course, The History of the World, Richard Bulliet discusses the History of the World to 1500 CE, focusing on Mongol Eurasia and its Aftermath:

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