March 4, 2009


Fogel, Robert William, Without Consent or Contract: The Rise and Fall of American Slavery (New York: Norton, 1989) ("Here then is a dilemma posed not only by the antislavery struggle but by most other moral movements: It is difficult in a democracy, if not impossible, to transform a moral movement into a winning political coalition without deeply compromising its moral integrity; it is also difficult to pursue one moral goal without compromising or even sacrificing other important moral goals." Id. at 388-389. Fogel closes this work with a section titled "Toward a Modern Indictment." He writes: "I believe that we should no longer interpret the moral problem of slavery within the framework of the indictment fashioned by the winners of the antislavery struggle..." "I believe that the new indictment should turn on four counts...." "The first, and overarching, count in the new indictment is that slavery permitted one group of people to exercise unrestrained personal domination over another group of people...." "Denial of economic opportunity is the second count of the new indictment of slavery...." "Denial of citizenship to slaves is the third count of the new indictment. Even the word 'alien' is too weak to describe the utter exclusion of slaves from civil and political rights...." "Denial of cultural self-identification is the fourth count in the new indictment...." Id. at 393-406. How many of those moral indictments apply to many of social and political issues plaguing contemporary American society? Fogel main point, however, concerns the true important achievement of the American Civil War. It is not the ending of slavery per se, or the maintaining of the union per se. It is something much more profound. Fogel begins with a reference to William E. Channing. "William E. Channing, who had hoped against hope that slavery could be ended by moral suasion alone, explained why the destruction of slavery was the moral imperative of his age. 'Slavery must fall, he said, because it stands in direct hostility to all the grand movements, principles, and reforms of our age, because it stands in the way of an advancing world.'" Then Fogel finishes as follows: "What the Civil War achieved, then, was more than just inflated wealth for northern capitalists and 'half' freedom for blacks ("the shoddy aristocracy of the North and the ragged children of the South"). It preserved and reinforced conditions favorable to a continued struggle for the democratic rights of the lower classes, black and white alike, and for the improvement of their economic condition, not only in America but everywhere else in the world. The fall of slavery did not usher in the millennium, it produced no heaven on earth, but it vitalized all the grand movements, principles, and reforms of Channing's age and of our own." Id. at 416-417. It is why the American slavery and the American Civil War will forever loom large in United States history... or loom large as long as their remains a United States to have a history.)

Lessig, Lawrence, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin Press, 2008) ("One great feature of modern society is the institutional respect we give to process designed to destroy the past. The free market is the best example. Democracy is another. In both cases, constant flux is not the objective.... But in both cases, the aim is to assure that the past survives only if it can beat out the future." "The commercial economies of the Internet are a fantastic example of exactly this dynamic. The neutral platform of the Internet democratized technical and commercial innovation. Power was thus radically shifted. The dropouts of the late 1990s (mainly from Stanford) beat the dropouts of the middle 1970s (from Harvard): Google and Yahoo! were nothings when Microsoft was said to dominate. This success of the new against the power of the old was made possible by a constitutional commitment in the architecture of the network to democratize innovation." "No government could have planned these successes, and not just because governments are unlikely to have the talent of the geniuses at the likes of a Google or an eBay. Rather, governments couldn't plan these successes because governments, at least, as we Americans know them, are inherently corrupted--not by bribery, not by greed, but by the reality of campaign financing, which lets them understand the views of only the last great success, and never the views of the next great success (which, as yet, lacks the funds to influence the government). Id. at 142.).

Litwack, Leon F., Been in the Storm So Long: The Aftermath of Slavery (New York: Knopf, 1979) (Behavioral law and economics? "The Civil War provided Americans with various opportunities to exploit the nation's military needs for personal profit and advantage. That white men should have used the recruitment of black regiments for such purposes is not altogether surprising. With the end of racial restrictions on enlistments, state and local bounties and military conscriptions instantly made black men valuable and marketable commodities. Capitalizing on the law which permitted a draftee to send a person in his place, the 'substitute broker' viewed the black man as a likely candidate; his lowly economic position often made him easier and cheaper to purchase, some were intimidated into enlisting, and the broker's commission for finding a 'substitute' justified whatever method he needed to employ. The practice became so widespread, in fact, that the War Department finally interceded and ruled that Negroes could substitute only for other Negroes. That decision not only forced brokers to look elsewhere but depressed the price which some blacks had been asking (and obtaining) for a substitute enlistment." Id. at 73.).

Wilson, Edmund, Patriotic Gore: Studies in the Literature of the American Civil War (New York: Oxford U. Press, 1962) ("Having myself lived through a couple of world wars and having read a certain amount of history, I am no longer disposed to take very seriously the professions of 'war aims' that nations make. I think that it is a serious deficiency on the part of historians and political writers that they so rarely interest themselves in biological and zoological phenomena.... Now, the wars fought by human beings are stimulated as a rule primarily by the same instincts as the voracity of the sea slug. It is true that among the among the animals other than man it is hard to find organized aggression of the kind that has been developed by humanity.... In any case, all animals must prey on some form of life that they can capture, and all will eat as much as they can find. The difference in this respect between man and the other forms of life is that man has succeeded in cultivating enough of what he calls 'morality' and 'reason' to justify what he is doing in terms of what he calls 'virtue' and civilization.' Hence the self-assertive sounds which he utters when he is fighting and swallowing others: the songs about glory and God, the speeches about national ideals, the demonstrations of logical ideologies. These assertions rarely have any meaning--that is, they will soon lose any meaning they have had--once a war has been got under way.... In the case, however, of a people which has just had a successful revolution, the situation is a little more complicated. The slogans that such a people shouts may at first express a real exaltation on the part of some social group or country which has succeeded in escaping the clutches of some other group or country that has been eating it, as well as enthusiastic hopes for the freer and happier society which it hopes to construct in the future.... But once the insurgent party has succeeded in imposing its own authority, if it feels itself strong enough to go further, it will devour as much as it can, and its slogans will lose all meaning.... And now we Americans of the United States, we too the self-congratutulary grandchildren of a successful revolution but driven, also by the appetite for aggrandizement, have been adding such terms as 'the American dream,' 'the American way of life' and 'the defense of the Free World' to these other forms of warlike cant." Id. at xi-xiii.).