Brown, Dee, Bury My Heart at Wounded Knee: An Indian History of the American West (Thirtieth-Anniversary Edition) (New York: Henry Holt, 1970, 2000) ("The Fetterman Massacre made a profound impression upon Colonel Carrington. He was appalled by the mutilations--the disembowelings, the hacked limbs, the "private parts severed and indecently placed on the person." He brooded upon the reasons for such savagery, and eventually wrote an essay on the subject, philosophizing that the Indians were compelled by some paganistic belief to commit the terrible deeds that remained forever in his mind. Had Colonel Carrigngton visited the scene of the Sand Creek Massacre, which occurred only two years before the Fetterman Massacre, he would have seen the same mutilations--committed upon the Indians by Colonel Chivington's soldiers. The Indians who ambushed Fetterman were only imitating their enemies, a practice which in warfare, as in civilian life, is said to be the sincerest form of flattery." Id. at 137.).
Hamalainen, Pekka, The Comanche Empire (New Haven & London: Yale U. Press, 2009) (I suspect the "average" American's perspective on history of Native Americans in the American West and Southwest is pretty much bracketed by the end of the American Civil War, Custer’s comeuppance at the Little Big Horn, and Turner's thesis regarding the closing of the West. It is a perspective that, at best, sees Native Americans in decline, in defeat, or near defeat as European Americans expand westward. Little thought is given to the century or centuries before that period of defeat and decline, and to a period when Native Americans were very vibrant, powerful and, yes, imperial. Here we are provided the counter-perspective. "This book is about an American empire that, according to conventional histories, did not exist. It tells the familiar tale of expansion, resistance, conquest, and loss, but with a reversal of usual historical roles: it is a story in which Indians expand, dictate, and prosper, and European colonists, resist, retreat, and struggle to survive." Id. at 1. The Comanche Empire won the 2009 Bancroft Prize.).
November 30, 2009
November 28, 2009
ASPECTS OF AMERICAN NATIONALISM
Gordon, Linda, & Gary Y. Okihiro, eds., Impounded: Dorothea Lange and the Censored Images of Japanese American Internment (New York: Norton, 2009) ("These photographs exemplify Lange's mastery of composition and of visual condensation of human feelings and relationships. They also unequivocally denounce an unjustified, unnecessary, and racist policy. Lange's critique is especially impressive given the political mood of the time--early 1942. , just after Japan bombed Pearl Harbor. Hysterical fears of further Japanese attacks on the West Coast of the United States combined with a century of racism against east Asians to create a situation in which, as Carey McWilliams, later to become the editor of The Nation, remarked, you could count on your fingers the number of "whites" who spoke publicly against sending Japanese Americans to concentration camps. Even the liberal Dr. Seuss contributed a racist anti-Japanese cartoon." Id. at 6 (citations omitted).).
Robinson, Greg, A Tragedy of Democracy: Japanese Confinement In North America (New York: Columbia U. Press, 2009) (Why should you read this book on Japanese American history? "First, the camps remain oddly obscure in popular American memory: most ordinary people [Are lawyers and law students among the ordinary people?] I have spoken to have never even heard of them. Among those who are informed about the wartime events, there remain serious conflict over how to interpret their legacy. Were the camps an isolated result of wartime hysteria? How do they fit into the larger history of American racism? What impact did they have on Japanese communities outside the camps? Into the void of public knowledge has stepped a small but tenacious circle of assorted right-wingers and war buffs who continue to deny or rationalize the removal of Japanese Americans from the West Coast and the institution of camps. Their campaign gained new strength in the post-9/11 crisis, amid the deep national anxiety over immigrants and potential threats to national security. Clearly, the entire subject of Japanese American confinement taps into some deep sources of anxiety, and this makes it call out for clear-minded historical study." Id. at 3. "Numerous Californians expressed genuine, if irrational, anxiety that Japanese raids on the U.S. mainland would be forthcoming. In this climate, an outcry arose among circles of West Coast whites for the expulsion from the West Coast of all Japanese Americans, irrespective of citizenship. The center of agitation was California, which dwarfed its neighbors in size and wealth, and housed the largest interest groups. There nativist and commercial associations, eager to dispose of the long-disposed Japanese American population, take over their fertile lands, and eliminate the economic competition they represented, stepped in to encourage and take advantage of popular insecurity. As one official of the Joint Immigration Committee put it, "This is our time to get things done that we have been trying to get done for a quarter of a century," On December 22, 1941, as noted, the Los Angeles Chamber of Commerce petitioned General DeWitt for the "evacuation" of all persons of Japanese ancestry from the city. Soon after, the California American Legion called for the imprisonment of all Japanese "dual citizens" in concentration camps, and the California Joint Immigration Committee and Native Sons and Daughters of the Golden West passed resolutions favoring the removal of all Japanese Americans from the state. Another center of agitation was the members of the white agricultural groups, who resented the domination of the fresh-produce market by ethnic Japanese growers and middlemen. Groups such as the Western Growers Protective Association, the California farm Bureau, and the White American Nurserymen of Los Angeles lobbied for expulsion of Japanese farmers and promised that there would be no loss to farm production if Japanese Americans were expelled. A representative of an allied group, the Grower Shipper Vegetable Association, publicly admitted the roots of the position taken by the white groups: "We're charged with wanting to get rid of the Japs for selfish reasons. We might as well be honest. We do. It's a question of whether the white man lives on the Pacific Coast or the brown man"." Id. at 73. Read that passage again! Can you hear its echoes today among the ranting of TV and radio talk show hosts on the extreme right (not that the left does not have its share of ranting), including a hysterical "birther" at the town meeting who, noting that her father had fought in the Pacific during War World II, wants her country back? The numerous racial divides in America have long and deep-rooted histories, which lay just beneath the surface in event polite society. Still. our history is part of who we are as a nation and a people, expecially when we deny our history or give our history a false front. Denying our history, or giving it a sugar coating, will not protect our individual and collective liberties. "Governments and their leaders simply cannot be given arbitrary powers and trusted on faith to assure fundamental freedoms. Franklin Roosevelt, a great humanitarian and liberal, failed to notice the biased and self-interested nature of the call for removal, or considered it more prudent to remove the target of bias than to defend them from it. Hugo Black, a civil libertarian and defender of freedom, wrote the decision justifying mass removal on racial grounds. If such great men as these cannot be trusted, it seems to me that no lesser figures should. Rather. we owe it to ourselves to be jealous of our liberties." Id. at 304.).
Robinson, Greg, A Tragedy of Democracy: Japanese Confinement In North America (New York: Columbia U. Press, 2009) (Why should you read this book on Japanese American history? "First, the camps remain oddly obscure in popular American memory: most ordinary people [Are lawyers and law students among the ordinary people?] I have spoken to have never even heard of them. Among those who are informed about the wartime events, there remain serious conflict over how to interpret their legacy. Were the camps an isolated result of wartime hysteria? How do they fit into the larger history of American racism? What impact did they have on Japanese communities outside the camps? Into the void of public knowledge has stepped a small but tenacious circle of assorted right-wingers and war buffs who continue to deny or rationalize the removal of Japanese Americans from the West Coast and the institution of camps. Their campaign gained new strength in the post-9/11 crisis, amid the deep national anxiety over immigrants and potential threats to national security. Clearly, the entire subject of Japanese American confinement taps into some deep sources of anxiety, and this makes it call out for clear-minded historical study." Id. at 3. "Numerous Californians expressed genuine, if irrational, anxiety that Japanese raids on the U.S. mainland would be forthcoming. In this climate, an outcry arose among circles of West Coast whites for the expulsion from the West Coast of all Japanese Americans, irrespective of citizenship. The center of agitation was California, which dwarfed its neighbors in size and wealth, and housed the largest interest groups. There nativist and commercial associations, eager to dispose of the long-disposed Japanese American population, take over their fertile lands, and eliminate the economic competition they represented, stepped in to encourage and take advantage of popular insecurity. As one official of the Joint Immigration Committee put it, "This is our time to get things done that we have been trying to get done for a quarter of a century," On December 22, 1941, as noted, the Los Angeles Chamber of Commerce petitioned General DeWitt for the "evacuation" of all persons of Japanese ancestry from the city. Soon after, the California American Legion called for the imprisonment of all Japanese "dual citizens" in concentration camps, and the California Joint Immigration Committee and Native Sons and Daughters of the Golden West passed resolutions favoring the removal of all Japanese Americans from the state. Another center of agitation was the members of the white agricultural groups, who resented the domination of the fresh-produce market by ethnic Japanese growers and middlemen. Groups such as the Western Growers Protective Association, the California farm Bureau, and the White American Nurserymen of Los Angeles lobbied for expulsion of Japanese farmers and promised that there would be no loss to farm production if Japanese Americans were expelled. A representative of an allied group, the Grower Shipper Vegetable Association, publicly admitted the roots of the position taken by the white groups: "We're charged with wanting to get rid of the Japs for selfish reasons. We might as well be honest. We do. It's a question of whether the white man lives on the Pacific Coast or the brown man"." Id. at 73. Read that passage again! Can you hear its echoes today among the ranting of TV and radio talk show hosts on the extreme right (not that the left does not have its share of ranting), including a hysterical "birther" at the town meeting who, noting that her father had fought in the Pacific during War World II, wants her country back? The numerous racial divides in America have long and deep-rooted histories, which lay just beneath the surface in event polite society. Still. our history is part of who we are as a nation and a people, expecially when we deny our history or give our history a false front. Denying our history, or giving it a sugar coating, will not protect our individual and collective liberties. "Governments and their leaders simply cannot be given arbitrary powers and trusted on faith to assure fundamental freedoms. Franklin Roosevelt, a great humanitarian and liberal, failed to notice the biased and self-interested nature of the call for removal, or considered it more prudent to remove the target of bias than to defend them from it. Hugo Black, a civil libertarian and defender of freedom, wrote the decision justifying mass removal on racial grounds. If such great men as these cannot be trusted, it seems to me that no lesser figures should. Rather. we owe it to ourselves to be jealous of our liberties." Id. at 304.).
November 27, 2009
WHAT PERCENTAGE OF COLLEGE-EDUCATED AMERICANS WOULD KNOW, OFFHAND, WHAT CARTOONS ARE BEING REFERENCED IN THE BOOK'S TITLE?
Klausen, Jytte, The Cartoons that Shook the World (New Haven & London: Yale U. Press, 2009) ("The story of how the cartoon protest developed from small-scale local demonstrations to global uproar only to subside without a proper conclusion is fraught with unintended consequences and misunderstanding. The difference between genuine misunderstanding and deliberate misrepresentation is often difficult to establish. And when it comes to judging consequences and responsibility, things get murkier. Facts are sometime slippery, and what was once thought to be a fact about the cartoon controversy often turned out to be a misrepresentation or true but insignificant in the larger picture." Id. at 7. "Even people who were in the thick of the conflict felt at a loss to explain why twelve cartoons could set off such serious trouble. . . ." "The most common explanation relied in popularized versions of the "clash of civilizations" thesis. This is the idea that Islam and Christendom are separate and opposed civilizations, perpetually rubbing against each other. . . . From this perspective the protests were represented as entirely predictable results of the atavistic opposition of Muslims to Europe's secular values. . . ." Id. at 9-10. "As a Dane living in the United States, I quickly become absorbed by the events. I found myself being asked to explain how the "good Danes" had turned into hate-filled racists with no respect for human rights. I was more accustomed to being asked to tell the story of how the Danes rescued some seven thousand Jews during the Holocaust. Both stereotypes were wrong, I said, this is all about politics, on both sides. In retrospect I would allow more room for fumbling and misunderstanding, but I still think we need to regard the crisis as a political conflict rather than as a colossal cultural misunderstanding." Id. at 10. This is a worthy read. You will have to decide whether Professor Klausen is correct that the cartoon crisis is best viewed as a political conflict rather than a cultural one. Weighing merits of those two characterizations should cause American readers to consider whether many our domestic disputes, commonly characterized as part of the cultural war, are simply political and not really cultural. If so, the importance of the disputes are neither diminished nor enhanced, but perhaps some of the (rhetorical) heat is dissipated.).
November 24, 2009
AMERICA’S DEMOCRATIC REPUBLIC(??)
Burlingame, Michael, Abraham Lincoln: A Life, Volume One (Baltimore: The Johns Hopkins U. Press, 2008).
Burlingame, Michael, Abraham Lincoln: A Life, Volume Two (Baltimore: The Johns Hopkins U. Press, 2008) ("That American would hold a presidential election during a titanic civil war amazed German-born Francis Lieber, professor of history and political science at Columbia University. 'If we come triumphantly out of this war, with a presidential election in the midst of it,' he wrote in August 1864, 'I shall call it the greatest miracle in all the historic course of events. It is a war for nationality at a period when the people were not yet fully nationalized.' Democrats predicted that the administration would cancel the election in a brazen attempt to retain power, but Lincoln would not hear of it. 'We can not have free government without elections,' he believed; 'and if the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us.' " Id. at 646 (citations omitted).).
Elkins, Stanley, and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (New York & Oxford: Oxford U. Press, 1993) ("This book is an extended encounter with firstness. It begins with the first appearance of the United States as a self-acknowledged nation, at the moment when the nation first put on the organizing structure under which it still functions. But though the structure is still there, the character and substance of what was first contained within it have altered beyond recognition, a process which in fact was in motion almost from the beginning. Our book seeks to recover something of this earlier substance, some measure of what it was like--the difference it made--becoming a 'nation' after having been something else, especially in the experience of those persons most directly implicated in bringing this entity into being and setting it afoot. Our scope is defined by the opening cycle of the nation's public life, one we are calling the Age of Federalism. Federalism, as a way of perceiving a society's purposes and guiding its collective affairs, did not have a very long life. We wish to account, to whatever extent is possible, for Federalism's ascendancy, decline, and eclipse, and to discern something of what displaced it." Id. at 3.).
Fischer, David Hackett, The Revolution of American Conservatism: The Federalist Party in the Era of Jeffersonian Democracy (New York: Harper & Row, 1965) ("A few of the young Federalists, the most intelligent, slowly reached the conclusion that Federalism could never be successfully revived." Id. at 46. "Some of the young Federalists could foresee their own defeat but not the tarnished victories of their successors. In fear more than in hope they hedged their political bets in three ways. First, some of them moved uncertainly toward a conception of minimal government which represented another departure from the ideals of the old school. 'You must either make the government supreme or the people supreme,' Barent Gardenier said. 'I am for the latter.' In 1803 a Federalist declared, 'The prime duty of a free government is to treat all men alike, leaving their prosperity and success to depend upon their integrity, industry and skill." Id. at 47. "Another striking fact about the younger generation of Federalist leaders was the way in which they returned to Christianity, with an evangelical enthusiasm rarely in evidence among gentlemen of the old school." Id. at 48. "The possessing classes had particular reasons for favoring a revival of Christianity. 'Take away Religion,' wrote Lewis Tappan, who began his public career as a young Federalist, 'and what prevents the mass of people from violating laws of God and man? There may be some, philosophical enough to be moral without the sanctions of Religion. But the generality wants its commands to restrain and regulate their conduct.' . . ." Id. at 48-49. "A third way of hedging a political gamble was education--formal schooling to control the common man, not to liberate him. While Jefferson produced platitudes and ineffectual plans, Federalists even in own state, such as Charles Fenton Mercer, labored to construct systems of public education which carried far beyond the ideas of the old school. Their purposes appeared in their infatuation with Lancastrian pedagogy, with its order, discipline, and mindless memory training, a device not merely for making mass education practicable but for making conservative education effective." Id. at 49. "All of these developments, political, economic, religious, and educational, encapsulated a revolution in the structure of American society, from organic interdependence to individual autonomy, from deference to political democracy, but most of all from open to covert elitism. The revolution had begun before the War of Independence; it would continue after the War of 1812. But in the intervening years, and especially in the period 1800-1816, it would proceed with unparalleled momentum. Ironically, the young Federalists who hoped to control its effects would contribute to both its mass and velocity by their partisan political activity. . . ." Id. at 49. "The sudden expansion of popular participation in the period 1800-1816 is not the only indication of significant structural changes in American politics. New patterns of political ethics were apparent and new forms of political corruption, as well. New kinds of men were holding public office, even on the national level." Id. at 192. "Two ethical changes were most apparent. First, Party loyalty entered the pantheon of political virtue." Id. at 192. "A second ethical change concerned the relationship of politicians to the people, the recognition of popular will as a standard of right. What ended as morality began as necessity. An effective vote-getter in New York when asked for the secret of his popularity, replied candidly, 'To tell the truth, when my troops won't follow me, I follow them.' Something of the same mood is apparent in the statement of a North Carolina Federalist who reported to a friend, 'I have been in stinking quarter, sifting the minds of the people' " Id. at 193.).
Madison, James, Writings (New York: Library of America, 1999).
McDonald, Forrest, E Pluribus Unum: The Formation of the American Republic, 1776-1790, 2d. edition (Indianapolis: Liberty Fund, 1979) (Recently, while waiting as my car was being serviced, I had the rare opportunity to list to a morning news/entertainment program on the hyperconservative Fox station. I have to admit that its conception of democracy scared the hell out of me. And I understood why the town meetings on health care reform, etc., had devolved into anti-intellectual rants. It also reinvigorated my appreciation of the United States Constitution, and its creation of a "republican," rather than a "democratic" form of government. We the people are basically politically rash, if not insane, and need to be checked. There is often much discussion of the balance of power between the various branch of the government, with that balance of power serving as a check on each of the branches. However, perhaps insufficient attention is given to the much needed check the Constitution places on 'We the people'. "There was, however, one cardinal difference between Britain and America which made a mere copying of the British system unfeasible. England had a hereditary monarchy and a hereditary nobility, each of which, along with the people, prevented the other from an unchecked expression of its will; and the two combined checked the people. In America, which lacked these hereditary institutions, it was necessary to devise some kind of structural substitute. This did not mean creating an artificial monarch and an aristocracy of wealth or education, as some of the delegates . . . proposed; but dividing the people into various aspects or capacities of themselves." "In other words, "the people" were not, in any part of the multilevel government, allowed to act as the whole people. Instead, for purposes of expressing their will they were separated from themselves both in space and in time. This was accomplished by separating the people, both in space and in time, from those they elected." "The national government would have four parts: House of Representatives, Senate, Presidency, and Court. The House was the "democratic" branch, all its members being elected directly by the people every two years--not, however, by the people as a whole, but by the people as citizens of subdivisions of states. The Senate was elected by the legislatures of the several state, and was therefore chosen by the people indirectly through their directly elected representatives, and represented the people not s residents of districts, but of states. Senators were removed further from the people by a time barrier, one-third of them being elected every two years for six-year terms. The chief executive was chosen by electors who were chosen by one of three means, as the state legislatures should direct: by the people in districts, by the people in the state as a whole, or by the state legislatures themselves; his term was four years, intermediate between that of the two houses of Congress. The fourth part of the national government, the Court, was chosen by the president (who was chosen by electors chosen by the legislatures chosen by the people), with the approval of the Senate (chosen by legislatures chosen by the people), and for life. And in state and local governments comparably cumbersome arrangements would continue to prevail." "The result of this jerry-built structure was that government in the United States would be of (that is, from) the people; hopefully, it would be for the people; but by no means would it be by the people. The people had no instrumentality though which to exercise "the general will" immediately, and they could express it directly only by achieving a fantastic unanimity and sustaining that unanimity for fifteen or twenty years." "The division of every voter into many artificial parts of himself was one of three aspects of the genius of the American constitutional system. . . ." Id. at 313-315.).
Miller, William Lee, Arguing About Slavery: The Great Battle in The United States Congress (New York: Knopf, 1996) ("Many consoled themselves with the belief that the end of slavery would come about somehow and eventually, by the gradual unfolding of historical forces--by the expansion of the nation westward, into land whose climate and resources made slavery economically unprofitable. Daniel Webster as one who propounded this convenient view: slavery's demise was inevitable, so we would not have to do--should not do--anything to make it happen. Some scholars down to at least the middle of the twentieth century echoed this notion: slavery could have been ended just by the passage of time. In the twentieth century, white citizens often expressed a comparable attitude about the Jim Crow system that had had hardened into place in the late nineteenth century: time will change it--and only time will change it. Those who expressed this view were often suspiciously quick to insist that no positive human action--particularly no law--could hasten the slow workings of time against racial segregation. 'You can't change hearts by law,' it was said, and racial discrimination could be ended only by a 'slow process of education,' and not by any action whatever. Many who said that not only did no such educating, but used the insistent passivity of these ideas to oppose ('too fast') any effort to educate. It is a revealing curiosity of American popular attitudes that a people so practical, so optimistic, so energetic, so direct, so quick to say that anything can be done by an effort of will--impossible takes a little longer--on other topics, have regularly and abruptly turned to the opposite extreme on issues of slavery and race: nothing can be done. Leave it alone. Don't meddle. It cannot be fixed. American slavery and racial injustice cannot be ended by direct human decision and action." Id. at 15-16. "One might argue that the whole slavery-abolishing, union-enhancing, race-equalizing action is the greatest of all the achievements of this country, in its more than two centuries. We do not ordinarily think of it that way, because our common national memory is saturated with the Civil War, and to call this result a great national achievement may seem to slight the terrible destruction. But one might respond that such an assertion serves rather to underline, as people at the time certainly did, the redemptive meaning of the appalling sacrifices. Not all wars mean much in the end, after all the blood is spilled, but that one did." Id. at 505-506. "It is true that the nation's performance on racial issues in the century after the Civil War would include an appalling retreat, a capitulation in 1876, the imposition of black codes and Jim Crow, lynching and the Klan. It is true that there would be what historian C. Vann Woodward called a 'lost hundred years'--that it would be necessary for the nation with great strain and difficulty, to enact in 1964 a Civil Rights Act that did not do much more than repeat what had been enacted in a civil rights act almost a century earlier, and in 1965 a Voting Rights Act that did no more than to endeavor to make real what had been formally guaranteed by the Fifteenth Amendment ninety-five years earlier. It is true that the sections were scarred by the war in ways that have not vanished over a century and a quarter later. It is true that the North turned aside and went about moneymaking and (mostly) forgot the plight of freedmen, but nevertheless used the bloody shirt from the war, and the 'treasury of virtue' stored up in its alleged moral superiority, to dominate. It is true that the white South, defeated, constructed a new pattern of racial domination. But for all that, the nation did not fall apart, did not abandon republicanism (democracy), did abolish slavery, and did affirm the formal equality of black person (or rather of all persons born or nationalized in the United States, of all citizens without regard to race, color, or previous condition of servitude). It did strengthen the Union, and make itself more clearly one nation. Winning the war by itself would not have been sufficient to accomplish these things, if the opposition to them had been unconditional, unambiguous, absolute, unified, fueled by a radically contrary philosophy, and a bottomless hatred. But it was not." Id. at 511-512.).
Miller, William Lee, The Business of May Next: James Madison and the Founding (Charlotte: U. of Virginia Press, 1992) ("One can learn something political from the insides of that great application of "rationality" to human organization, the bureaucracy (one learns among other things, perhaps without knowing the sociologist's term for it, that the informal organization is vastly different from the formal one on the chart.) One can learn a great deal from courts and the legal system, where general principles of social ordering intersect individual and concrete cases; it is no accident that the courtroom has been the most appealing arena of government for the drama and novel. But perhaps one can learn most about the ground and nature of politics in general, about the human being as a political animal, and also about politics in a republic, by participation in a legislature. A legislator going the rounds of bills and disputes and committees and second readings in a legislative body does not have command or superior authority, or a defined office with its piece of a putatively rational division of labor, or the explicit guidance of the law. In a "republican" legislature equal representatives of equal peoples must deal with each other as (more or less) equals, to persuade and deal and compromise and cast votes, and to mingle facts and values, interests and social goods in whatever proportions, and finally to decided collectively on the policy for a people." Id. at 11. "Enacting the laws of a people is a serious matter also because in the law coercion and reason, power and morality, meet. Law rests upon the ultimate sanction of physical violence, "legitimate" physical force, represented by the policeman, the jail, the soldier; government, of which law is the instrument, includes as a constituting element, in a famous definition, the "monopoly of legitimate violence." . . . When you drive too far over the speed limit, an officer of the law can come up behind you with his blue light flashing and force you to stop; when your protest breaks through the barriers the law has arranged, and when you go limp and refuse to cooperate, or when you resist arrest, an officer of the law may use the necessary physical force to restrain or coerce you, and you may be confined, against your will, by the power of the law, in a room with bars, that you will not be allowed to leave. At the time of this writing the states of the American union, as is now rare in civilized countries, may even, although the community is troubled and divided about this, kill you. The implicit threat of these ultimate uses of force runs through the while vast structure of the law: you must obey." "But the law does not properly rest simply upon this force or coercion and nothing else, nor is government wholly defined as the agency with a monopoly of legitimate violence. . . . In the traditions that formed the United States, in particular, but in the whole of Western history, and perhaps elsewhere as well, for law to be law it must guide and shape that use of force mot by whim, chance, interest, favoritism, personal pique or arbitrary will, but by reason and conscience: by forming the law of the social order in accord with the law written in what? Reason? A higher law? The moral order of the universe? The law written in the human heart, to which Antigone had appealed in Sophocles; tragedy? The Americans were more inclined than others to affirm or imply that beyond the written law there was a higher law that it should reflect. Otherwise "law" or "government" is sheer power and sheer interest, mine against yours, and human social life id a war, a jungle. A number of thinkers, and a number of human beings, have concluded, to be sure, that that is exactly what social life is. But not many Americans. [???] And not many of the English and other sources upon which the Americans drew--the republican forefathers of our forefathers. . . . Law for the Americans did not begin at the barrel if the gun; it began where reason and conscience met and managed force. The Americans were trying --to borrow from Madison's memos again--to substitute for violence and disorder "the mild and salutary coercion of the magistracy.'" Id. at 93-95.).
Miller, William Lee, The First Liberty: Religion and the American Republic (New York: Knopf, 1986) (“These immigrants groups would be at first much affected by the dominant culture---not only ‘American’ but also ‘Protestant.’ Will Herberg, whose book Protestant-Catholic-Jew caught the features of the religious scene in the 1950s, including the effects of the succession of generations of immigrants, agreed in conversation after one of the Fund for the Republic’s gatherings that the others of those ‘three faiths’ that had now become according to his book variant ‘ways of being American’ had all nevertheless been—neither he nor his interlocutor liked the word—‘Protestantized.’ But of course. A particular kind of Protestantism saturated the American nation in its early days; peculiarly vulnerable in part for the same reasons that it permeated the culture, as years wore on and institutions and points of views multiplied, it was permeated in return, creating the underlying American amalgam. If you read the descriptions of the characteristically ‘American’ in the accounts of nineteenth-century European observers or twentieth-century social scientists, and then read the descriptions (theirs and others) of the characteristics of mainline American Protestantism, you will find they are identical: individualistic, voluntaristic, ‘moralistic,’ ahistorical, self-reliant, proving worth by upward career, optimistic, philanthropically but not ‘politically’ generous; a phrase like ‘practical idealism’ bridges the two, if indeed they are distinct. And all of this could not help by affects the Lutherans, Catholics, Jews, and others who came into the nation in the period from the 1840s to the 1920s. It is of course often said that the immigrants became hyper-America, not only in the flag-waving but also in the cultural sense. This, too, had its religious dimension.” Id. at 272. “Nevertheless, even in early times the action was not all one way, and by the late twentieth century it has become another story. Among these immigrant religious communities there are most importantly the two to which Protestant Christianity is linked in what this nation in particular would learn to call the ‘Judeo-Christian tradition.’ And they have in common, although in utterly different ways, sharps contrasts to the prevailing American Protestant culture as it developed on two salient points: They are both communal-traditional-historical (and in the Catholic case institutional as well), as against the opposites of all those among the righteous dissidents of dissent in the New World, and they both have a high and serious intellectual tradition, which American Protestantism as it became pietistic and revivalist dropped overboard. The slightly utopian hope is that these historic religious communities can now do more affecting of the culture in their way, correcting what many would see to be limitations and faults--particularly when it comes to what a ‘Republic’ needs—in American Protestantism.” Id. at 272-273. Sorry Professor Miller, that “slightly utopian hope” of yours has yet to be realized as the first decade of the twentieth century begins to wind itself down. And, I (poor excuse of for a Roman Catholic that I am) might argue that the American Catholicism’s “serious intellectual tradition” is, itself, under siege and in decline. Many have argued that American education has declined significantly in the last half-century, and is declining further still now. There is no reason to think that am American Catholic intellectual tradition would not suffer direct or collateral damage as well. Moreover, America` has a long, and deep, anti-intellectual tradition. Is there any reason for confidence, as American Catholics become more Americanized, that their intellectual tradition will not also become Americanized and, as a consequence, less intellectual and more anti-intellectual?).
Stampp, Kenneth M., The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Knopf, 1956) (" 'To-day is the anniversary of American independence,' wrote an embittered South Carolina planter, in 1856. 'I have no doubt in many parts there will be pretensions of great rejoicings, but I cannot really rejoice for a fre[e]dom which allows every bankrupt, swindler, thief and scoundrel, traitor and seller of his vote to be placed on an equality with myself. . . . The Northern abolitionists are threatening and planning to take away or destroy the value of our Slave property, and the demon democracy by its leveling principles, universal suffrage and numerous popular elections, homestead laws, and bribery are sapping the foundations of the rights of property in every thing.' " Id. at 419 (citing Gavin Diary, entry for July 4, 1856). "Southern slaveholders were not the only nineteenth-century Americans who took a pessimistic view of "demon democracy" and questioned the value of their birthright of liberal ideals. In the North, too, many conservative men of property still nursed a Hamiltonian doubt of the people's capacity to govern themselves. But no other group was so solidly dedicated, by interest and necessity, to the proposition that men were created unequal as were the slaveholders of the Old South. No other group was so firmly rooted in a dying past, so fearful of change, so alienated from the spirit of the age." Id. at 419-420.).
Wood, Gordon S., The Creation of the American Republic, 1776-1787 (Chapel Hill: U. of North Carolina Press, 1969) ("As Joel Barlow noted in 1792, the word 'people' in America had taken on a different meaning from what it had in Europe. In America it meant the whole community and comprehended every human creature in the society; in Europe, however, it meant 'something else more difficult to define.' 'Society,' said Enos Hitchcock in 1788, 'is composed of individuals--they are parts of the whole.' And such individuals in America were the entire society" there could be nothing else--no orders, no lords, no monarch, no magistrates in the traditional sense. 'Without the distinctions of title, families, or nobility,' wrote Samuel Williams, 'they acknowledged and reverenced only those distinctions which nature had made, in a diversity of talents, abilities, and virtues. There were no family interests, connexions, or estates, large enough to oppress them. There was no excessive wealth in the hands of a few, sufficient to corrupt them' The American were thus both equal and unequal at the same time." Id. at 607. "Politics in such a society could no longer be simply described as a contest between rulers and people, between institutionalized orders of the society. The political struggles would in fact be among the people themselves, among all the various groups and individuals seeking to create inequality out of their equality by gaining control of a government divested of its former identity with the society. It was this disembodiment of government from society that ultimately made possible the conception of modern politics and the eventual justification of competing parties among the people. Those who criticized such divisive jealousy and opposition among the people, said William Hornby of South Carolina in 1784, did not understand 'the great change in politics, which the revolution must have necessarily produced. . . . . In these days we are equal citizen of a DEMOCRATIC REPUBLIC, in which jealousy and opposition must naturally exist, where there exists a difference in the minds, interests, and sentiments of mankind.' While few were as yet willing to justify factionalism so blatantly, many now realized with Madison that 'the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.' Legislation in such a society could not be the transcending of the different interests but the reconciling of them. Despite Madison's lingering hope, the public good could not be an entity distinct from its parts; it was rather 'the general combined interest of all the state put together, as it were, upon an average.''" Id. at 608.).
Wood, Gordon S., Empire of Liberty: A History of the Early Republic, 1789-1815 (The Oxford History of the United States) (Oxford & New York: Oxford U. Press, 2009) ("Most alarming to leaders like Madison was the fact that these abuses of individual rights by the state legislatures were backed by the bulk of the electorates in each state. In the 1770s the Revolutionaries had not conceived of the possibility of the people becoming tyrannical. When Tories had suggested in 1775 that the people might indeed abuse their power, good Whig patriots like John Adams had dismissed the notion as illogical: "a democratic despotism is a contradiction in terms." The crown or executive authority was the only possible source of tyranny; the people could never tyrannize themselves." "But by the 1780s many leaders had come to realize that the Revolution had unleashed social and political forces that they had not anticipated and that the "excesses of democracy" threatened the very essence of their republican revolution. The behavior of the state legislatures, in the despairing words of Madison, had called "into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of the Public Good and private rights" This was the issue that made the 1780s so critical to large numbers of American leaders." Id. at 19-20. On a completely different point, and because of my concerns about the decline of legal education: "Being a lawyer, a physician, a clergyman, a military officer, in other words, being members of what were beginning to be called "professions," was not yet considered having an occupation. Lawyers, for example, often tried to assure themselves and other that they were really gentlemen who only occasionally practiced some law. For such men, such as young Thomas Shippen, law was not as much a skilled profession as it was a desirable attribute of a man of learning, one, as James Kent told his Columbia law students in 1794, that out to be "usefully known by every Gentleman of Polite Education." Such gentlemen-lawyers were expected to read Horace as well as Blackstone, Cicero as well as Coke, history and poetry as well as common law books. Early in his adult life Jefferson had been a lawyer, but he scarcely resembled a modern practitioner calculating billable hours. He believed that the law, like all of learning, was important for a variety of reason. "It qualifies a man to be useful to himself, to his neighbors, and to the public. It is the most certain stepping stone to preferment in the political line."" Id. at 23.).
Wood, Gordon S., The Radicalism of the American Revolution (New York: Knopf, 1992) ("This book is part of a continuing inquiry into the democratization of early America . . . . Few subjects are more important to Americans, and perhaps to the rest of the world as well. Americans were not born free and democratic in any modern sense; they became so--and largely as a consequence of the American Revolution. After eighteenth-century Americans threw off their monarchical allegiance in 1776, they struggled to find new attachments befitting a republican people. Living in a society that was already diverse and pluralistic, Americans realized that these attachments could not be the traditional ethnic, religious, and tribal loyalties of the Old World. Instead, they sought new enlightened connections to hold their new popular societies together. But when these proved too idealistic and visionary, they eventually found new democratic adhesives in the actual behavior of plain ordinary people--in the everyday desire for the freedom to make money and pursue happiness in the here and now. To base a society on the commonplace behavior of ordinary people may be obvious and understandable to us today, but it was momentously radical in the long sweep of world history up to that time. This book attempts to explain this momentous radicalism of the American Revolution." Id. at ix. “The grass-roots Anti-Federalists concluded that, given the variety of competing interests and the fact that all people had interests, the only way for a person to be fairly and accurately represented in government was to have someone like himself with his same interests speak for him; no one else could be trusted to do so.” “Ultimately, the logic of this conception of actual representation determined that no one could be represented in government unless he had the right to vote. The interests of a person were so particular, so personal, that only by exercising the ballot could he protect and promote his interests. Election in America became the sole criterion of representation. Insofar as American politics became localist and dominated by interest groups and calls for extending the suffrage, the Anti-Federalists prepared the way. . . .” “The Anti-Federalist lost the battle over the Constitution. But they did not lose the war over the kind of national government the United States would have for a good part, at least, of the next century.” Id. at 259. “Many Americans of the early Republic, with varying degrees of reluctance and enthusiasm, came to believe that what they once thought was true was no longer true. Government officials were no longer to play the role of umpire; they were no longer to stand above the competing interests of the marketplace and make disinterested, impartial judgments about what was good for the whole society. Elected officials were to bring partial, local interests of the society, and sometimes even their own interests, right into the working government. Partisanship and parties became legitimate activities of politics. . . . “ Id. at 294. “A new generation of democratic Americans was no longer interested in the revolutionaries’ dream of building a classical republic of elitist virtue out of the inherited materials of the Old World. America, they said, would find its greatness not by emulating the states of classical antiquity, not by copying the fiscal-military powers of modern Europe, and not by producing a few notable geniuses and great-souled men. Instead, it would discover its greatness by creating a prosperous free society belonging to obscure people with their workaday concerns and their pecuniary pursuits of happiness—common people with their common interests in making money and getting ahead. No doubt the cost that America paid for this democracy was high—with its vulgarity, its materialism, its rootlessness, its anti-intellectualism. But there is no denying the wonder of it and the real earthly benefits it brought to the hitherto neglected and despised masses of common laboring people. The American Revolution created this democracy, and we are living with its consequences still.” Id. at 369.).
Burlingame, Michael, Abraham Lincoln: A Life, Volume Two (Baltimore: The Johns Hopkins U. Press, 2008) ("That American would hold a presidential election during a titanic civil war amazed German-born Francis Lieber, professor of history and political science at Columbia University. 'If we come triumphantly out of this war, with a presidential election in the midst of it,' he wrote in August 1864, 'I shall call it the greatest miracle in all the historic course of events. It is a war for nationality at a period when the people were not yet fully nationalized.' Democrats predicted that the administration would cancel the election in a brazen attempt to retain power, but Lincoln would not hear of it. 'We can not have free government without elections,' he believed; 'and if the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us.' " Id. at 646 (citations omitted).).
Elkins, Stanley, and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (New York & Oxford: Oxford U. Press, 1993) ("This book is an extended encounter with firstness. It begins with the first appearance of the United States as a self-acknowledged nation, at the moment when the nation first put on the organizing structure under which it still functions. But though the structure is still there, the character and substance of what was first contained within it have altered beyond recognition, a process which in fact was in motion almost from the beginning. Our book seeks to recover something of this earlier substance, some measure of what it was like--the difference it made--becoming a 'nation' after having been something else, especially in the experience of those persons most directly implicated in bringing this entity into being and setting it afoot. Our scope is defined by the opening cycle of the nation's public life, one we are calling the Age of Federalism. Federalism, as a way of perceiving a society's purposes and guiding its collective affairs, did not have a very long life. We wish to account, to whatever extent is possible, for Federalism's ascendancy, decline, and eclipse, and to discern something of what displaced it." Id. at 3.).
Fischer, David Hackett, The Revolution of American Conservatism: The Federalist Party in the Era of Jeffersonian Democracy (New York: Harper & Row, 1965) ("A few of the young Federalists, the most intelligent, slowly reached the conclusion that Federalism could never be successfully revived." Id. at 46. "Some of the young Federalists could foresee their own defeat but not the tarnished victories of their successors. In fear more than in hope they hedged their political bets in three ways. First, some of them moved uncertainly toward a conception of minimal government which represented another departure from the ideals of the old school. 'You must either make the government supreme or the people supreme,' Barent Gardenier said. 'I am for the latter.' In 1803 a Federalist declared, 'The prime duty of a free government is to treat all men alike, leaving their prosperity and success to depend upon their integrity, industry and skill." Id. at 47. "Another striking fact about the younger generation of Federalist leaders was the way in which they returned to Christianity, with an evangelical enthusiasm rarely in evidence among gentlemen of the old school." Id. at 48. "The possessing classes had particular reasons for favoring a revival of Christianity. 'Take away Religion,' wrote Lewis Tappan, who began his public career as a young Federalist, 'and what prevents the mass of people from violating laws of God and man? There may be some, philosophical enough to be moral without the sanctions of Religion. But the generality wants its commands to restrain and regulate their conduct.' . . ." Id. at 48-49. "A third way of hedging a political gamble was education--formal schooling to control the common man, not to liberate him. While Jefferson produced platitudes and ineffectual plans, Federalists even in own state, such as Charles Fenton Mercer, labored to construct systems of public education which carried far beyond the ideas of the old school. Their purposes appeared in their infatuation with Lancastrian pedagogy, with its order, discipline, and mindless memory training, a device not merely for making mass education practicable but for making conservative education effective." Id. at 49. "All of these developments, political, economic, religious, and educational, encapsulated a revolution in the structure of American society, from organic interdependence to individual autonomy, from deference to political democracy, but most of all from open to covert elitism. The revolution had begun before the War of Independence; it would continue after the War of 1812. But in the intervening years, and especially in the period 1800-1816, it would proceed with unparalleled momentum. Ironically, the young Federalists who hoped to control its effects would contribute to both its mass and velocity by their partisan political activity. . . ." Id. at 49. "The sudden expansion of popular participation in the period 1800-1816 is not the only indication of significant structural changes in American politics. New patterns of political ethics were apparent and new forms of political corruption, as well. New kinds of men were holding public office, even on the national level." Id. at 192. "Two ethical changes were most apparent. First, Party loyalty entered the pantheon of political virtue." Id. at 192. "A second ethical change concerned the relationship of politicians to the people, the recognition of popular will as a standard of right. What ended as morality began as necessity. An effective vote-getter in New York when asked for the secret of his popularity, replied candidly, 'To tell the truth, when my troops won't follow me, I follow them.' Something of the same mood is apparent in the statement of a North Carolina Federalist who reported to a friend, 'I have been in stinking quarter, sifting the minds of the people' " Id. at 193.).
Madison, James, Writings (New York: Library of America, 1999).
McDonald, Forrest, E Pluribus Unum: The Formation of the American Republic, 1776-1790, 2d. edition (Indianapolis: Liberty Fund, 1979) (Recently, while waiting as my car was being serviced, I had the rare opportunity to list to a morning news/entertainment program on the hyperconservative Fox station. I have to admit that its conception of democracy scared the hell out of me. And I understood why the town meetings on health care reform, etc., had devolved into anti-intellectual rants. It also reinvigorated my appreciation of the United States Constitution, and its creation of a "republican," rather than a "democratic" form of government. We the people are basically politically rash, if not insane, and need to be checked. There is often much discussion of the balance of power between the various branch of the government, with that balance of power serving as a check on each of the branches. However, perhaps insufficient attention is given to the much needed check the Constitution places on 'We the people'. "There was, however, one cardinal difference between Britain and America which made a mere copying of the British system unfeasible. England had a hereditary monarchy and a hereditary nobility, each of which, along with the people, prevented the other from an unchecked expression of its will; and the two combined checked the people. In America, which lacked these hereditary institutions, it was necessary to devise some kind of structural substitute. This did not mean creating an artificial monarch and an aristocracy of wealth or education, as some of the delegates . . . proposed; but dividing the people into various aspects or capacities of themselves." "In other words, "the people" were not, in any part of the multilevel government, allowed to act as the whole people. Instead, for purposes of expressing their will they were separated from themselves both in space and in time. This was accomplished by separating the people, both in space and in time, from those they elected." "The national government would have four parts: House of Representatives, Senate, Presidency, and Court. The House was the "democratic" branch, all its members being elected directly by the people every two years--not, however, by the people as a whole, but by the people as citizens of subdivisions of states. The Senate was elected by the legislatures of the several state, and was therefore chosen by the people indirectly through their directly elected representatives, and represented the people not s residents of districts, but of states. Senators were removed further from the people by a time barrier, one-third of them being elected every two years for six-year terms. The chief executive was chosen by electors who were chosen by one of three means, as the state legislatures should direct: by the people in districts, by the people in the state as a whole, or by the state legislatures themselves; his term was four years, intermediate between that of the two houses of Congress. The fourth part of the national government, the Court, was chosen by the president (who was chosen by electors chosen by the legislatures chosen by the people), with the approval of the Senate (chosen by legislatures chosen by the people), and for life. And in state and local governments comparably cumbersome arrangements would continue to prevail." "The result of this jerry-built structure was that government in the United States would be of (that is, from) the people; hopefully, it would be for the people; but by no means would it be by the people. The people had no instrumentality though which to exercise "the general will" immediately, and they could express it directly only by achieving a fantastic unanimity and sustaining that unanimity for fifteen or twenty years." "The division of every voter into many artificial parts of himself was one of three aspects of the genius of the American constitutional system. . . ." Id. at 313-315.).
Miller, William Lee, Arguing About Slavery: The Great Battle in The United States Congress (New York: Knopf, 1996) ("Many consoled themselves with the belief that the end of slavery would come about somehow and eventually, by the gradual unfolding of historical forces--by the expansion of the nation westward, into land whose climate and resources made slavery economically unprofitable. Daniel Webster as one who propounded this convenient view: slavery's demise was inevitable, so we would not have to do--should not do--anything to make it happen. Some scholars down to at least the middle of the twentieth century echoed this notion: slavery could have been ended just by the passage of time. In the twentieth century, white citizens often expressed a comparable attitude about the Jim Crow system that had had hardened into place in the late nineteenth century: time will change it--and only time will change it. Those who expressed this view were often suspiciously quick to insist that no positive human action--particularly no law--could hasten the slow workings of time against racial segregation. 'You can't change hearts by law,' it was said, and racial discrimination could be ended only by a 'slow process of education,' and not by any action whatever. Many who said that not only did no such educating, but used the insistent passivity of these ideas to oppose ('too fast') any effort to educate. It is a revealing curiosity of American popular attitudes that a people so practical, so optimistic, so energetic, so direct, so quick to say that anything can be done by an effort of will--impossible takes a little longer--on other topics, have regularly and abruptly turned to the opposite extreme on issues of slavery and race: nothing can be done. Leave it alone. Don't meddle. It cannot be fixed. American slavery and racial injustice cannot be ended by direct human decision and action." Id. at 15-16. "One might argue that the whole slavery-abolishing, union-enhancing, race-equalizing action is the greatest of all the achievements of this country, in its more than two centuries. We do not ordinarily think of it that way, because our common national memory is saturated with the Civil War, and to call this result a great national achievement may seem to slight the terrible destruction. But one might respond that such an assertion serves rather to underline, as people at the time certainly did, the redemptive meaning of the appalling sacrifices. Not all wars mean much in the end, after all the blood is spilled, but that one did." Id. at 505-506. "It is true that the nation's performance on racial issues in the century after the Civil War would include an appalling retreat, a capitulation in 1876, the imposition of black codes and Jim Crow, lynching and the Klan. It is true that there would be what historian C. Vann Woodward called a 'lost hundred years'--that it would be necessary for the nation with great strain and difficulty, to enact in 1964 a Civil Rights Act that did not do much more than repeat what had been enacted in a civil rights act almost a century earlier, and in 1965 a Voting Rights Act that did no more than to endeavor to make real what had been formally guaranteed by the Fifteenth Amendment ninety-five years earlier. It is true that the sections were scarred by the war in ways that have not vanished over a century and a quarter later. It is true that the North turned aside and went about moneymaking and (mostly) forgot the plight of freedmen, but nevertheless used the bloody shirt from the war, and the 'treasury of virtue' stored up in its alleged moral superiority, to dominate. It is true that the white South, defeated, constructed a new pattern of racial domination. But for all that, the nation did not fall apart, did not abandon republicanism (democracy), did abolish slavery, and did affirm the formal equality of black person (or rather of all persons born or nationalized in the United States, of all citizens without regard to race, color, or previous condition of servitude). It did strengthen the Union, and make itself more clearly one nation. Winning the war by itself would not have been sufficient to accomplish these things, if the opposition to them had been unconditional, unambiguous, absolute, unified, fueled by a radically contrary philosophy, and a bottomless hatred. But it was not." Id. at 511-512.).
Miller, William Lee, The Business of May Next: James Madison and the Founding (Charlotte: U. of Virginia Press, 1992) ("One can learn something political from the insides of that great application of "rationality" to human organization, the bureaucracy (one learns among other things, perhaps without knowing the sociologist's term for it, that the informal organization is vastly different from the formal one on the chart.) One can learn a great deal from courts and the legal system, where general principles of social ordering intersect individual and concrete cases; it is no accident that the courtroom has been the most appealing arena of government for the drama and novel. But perhaps one can learn most about the ground and nature of politics in general, about the human being as a political animal, and also about politics in a republic, by participation in a legislature. A legislator going the rounds of bills and disputes and committees and second readings in a legislative body does not have command or superior authority, or a defined office with its piece of a putatively rational division of labor, or the explicit guidance of the law. In a "republican" legislature equal representatives of equal peoples must deal with each other as (more or less) equals, to persuade and deal and compromise and cast votes, and to mingle facts and values, interests and social goods in whatever proportions, and finally to decided collectively on the policy for a people." Id. at 11. "Enacting the laws of a people is a serious matter also because in the law coercion and reason, power and morality, meet. Law rests upon the ultimate sanction of physical violence, "legitimate" physical force, represented by the policeman, the jail, the soldier; government, of which law is the instrument, includes as a constituting element, in a famous definition, the "monopoly of legitimate violence." . . . When you drive too far over the speed limit, an officer of the law can come up behind you with his blue light flashing and force you to stop; when your protest breaks through the barriers the law has arranged, and when you go limp and refuse to cooperate, or when you resist arrest, an officer of the law may use the necessary physical force to restrain or coerce you, and you may be confined, against your will, by the power of the law, in a room with bars, that you will not be allowed to leave. At the time of this writing the states of the American union, as is now rare in civilized countries, may even, although the community is troubled and divided about this, kill you. The implicit threat of these ultimate uses of force runs through the while vast structure of the law: you must obey." "But the law does not properly rest simply upon this force or coercion and nothing else, nor is government wholly defined as the agency with a monopoly of legitimate violence. . . . In the traditions that formed the United States, in particular, but in the whole of Western history, and perhaps elsewhere as well, for law to be law it must guide and shape that use of force mot by whim, chance, interest, favoritism, personal pique or arbitrary will, but by reason and conscience: by forming the law of the social order in accord with the law written in what? Reason? A higher law? The moral order of the universe? The law written in the human heart, to which Antigone had appealed in Sophocles; tragedy? The Americans were more inclined than others to affirm or imply that beyond the written law there was a higher law that it should reflect. Otherwise "law" or "government" is sheer power and sheer interest, mine against yours, and human social life id a war, a jungle. A number of thinkers, and a number of human beings, have concluded, to be sure, that that is exactly what social life is. But not many Americans. [???] And not many of the English and other sources upon which the Americans drew--the republican forefathers of our forefathers. . . . Law for the Americans did not begin at the barrel if the gun; it began where reason and conscience met and managed force. The Americans were trying --to borrow from Madison's memos again--to substitute for violence and disorder "the mild and salutary coercion of the magistracy.'" Id. at 93-95.).
Miller, William Lee, The First Liberty: Religion and the American Republic (New York: Knopf, 1986) (“These immigrants groups would be at first much affected by the dominant culture---not only ‘American’ but also ‘Protestant.’ Will Herberg, whose book Protestant-Catholic-Jew caught the features of the religious scene in the 1950s, including the effects of the succession of generations of immigrants, agreed in conversation after one of the Fund for the Republic’s gatherings that the others of those ‘three faiths’ that had now become according to his book variant ‘ways of being American’ had all nevertheless been—neither he nor his interlocutor liked the word—‘Protestantized.’ But of course. A particular kind of Protestantism saturated the American nation in its early days; peculiarly vulnerable in part for the same reasons that it permeated the culture, as years wore on and institutions and points of views multiplied, it was permeated in return, creating the underlying American amalgam. If you read the descriptions of the characteristically ‘American’ in the accounts of nineteenth-century European observers or twentieth-century social scientists, and then read the descriptions (theirs and others) of the characteristics of mainline American Protestantism, you will find they are identical: individualistic, voluntaristic, ‘moralistic,’ ahistorical, self-reliant, proving worth by upward career, optimistic, philanthropically but not ‘politically’ generous; a phrase like ‘practical idealism’ bridges the two, if indeed they are distinct. And all of this could not help by affects the Lutherans, Catholics, Jews, and others who came into the nation in the period from the 1840s to the 1920s. It is of course often said that the immigrants became hyper-America, not only in the flag-waving but also in the cultural sense. This, too, had its religious dimension.” Id. at 272. “Nevertheless, even in early times the action was not all one way, and by the late twentieth century it has become another story. Among these immigrant religious communities there are most importantly the two to which Protestant Christianity is linked in what this nation in particular would learn to call the ‘Judeo-Christian tradition.’ And they have in common, although in utterly different ways, sharps contrasts to the prevailing American Protestant culture as it developed on two salient points: They are both communal-traditional-historical (and in the Catholic case institutional as well), as against the opposites of all those among the righteous dissidents of dissent in the New World, and they both have a high and serious intellectual tradition, which American Protestantism as it became pietistic and revivalist dropped overboard. The slightly utopian hope is that these historic religious communities can now do more affecting of the culture in their way, correcting what many would see to be limitations and faults--particularly when it comes to what a ‘Republic’ needs—in American Protestantism.” Id. at 272-273. Sorry Professor Miller, that “slightly utopian hope” of yours has yet to be realized as the first decade of the twentieth century begins to wind itself down. And, I (poor excuse of for a Roman Catholic that I am) might argue that the American Catholicism’s “serious intellectual tradition” is, itself, under siege and in decline. Many have argued that American education has declined significantly in the last half-century, and is declining further still now. There is no reason to think that am American Catholic intellectual tradition would not suffer direct or collateral damage as well. Moreover, America` has a long, and deep, anti-intellectual tradition. Is there any reason for confidence, as American Catholics become more Americanized, that their intellectual tradition will not also become Americanized and, as a consequence, less intellectual and more anti-intellectual?).
Stampp, Kenneth M., The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Knopf, 1956) (" 'To-day is the anniversary of American independence,' wrote an embittered South Carolina planter, in 1856. 'I have no doubt in many parts there will be pretensions of great rejoicings, but I cannot really rejoice for a fre[e]dom which allows every bankrupt, swindler, thief and scoundrel, traitor and seller of his vote to be placed on an equality with myself. . . . The Northern abolitionists are threatening and planning to take away or destroy the value of our Slave property, and the demon democracy by its leveling principles, universal suffrage and numerous popular elections, homestead laws, and bribery are sapping the foundations of the rights of property in every thing.' " Id. at 419 (citing Gavin Diary, entry for July 4, 1856). "Southern slaveholders were not the only nineteenth-century Americans who took a pessimistic view of "demon democracy" and questioned the value of their birthright of liberal ideals. In the North, too, many conservative men of property still nursed a Hamiltonian doubt of the people's capacity to govern themselves. But no other group was so solidly dedicated, by interest and necessity, to the proposition that men were created unequal as were the slaveholders of the Old South. No other group was so firmly rooted in a dying past, so fearful of change, so alienated from the spirit of the age." Id. at 419-420.).
Wood, Gordon S., The Creation of the American Republic, 1776-1787 (Chapel Hill: U. of North Carolina Press, 1969) ("As Joel Barlow noted in 1792, the word 'people' in America had taken on a different meaning from what it had in Europe. In America it meant the whole community and comprehended every human creature in the society; in Europe, however, it meant 'something else more difficult to define.' 'Society,' said Enos Hitchcock in 1788, 'is composed of individuals--they are parts of the whole.' And such individuals in America were the entire society" there could be nothing else--no orders, no lords, no monarch, no magistrates in the traditional sense. 'Without the distinctions of title, families, or nobility,' wrote Samuel Williams, 'they acknowledged and reverenced only those distinctions which nature had made, in a diversity of talents, abilities, and virtues. There were no family interests, connexions, or estates, large enough to oppress them. There was no excessive wealth in the hands of a few, sufficient to corrupt them' The American were thus both equal and unequal at the same time." Id. at 607. "Politics in such a society could no longer be simply described as a contest between rulers and people, between institutionalized orders of the society. The political struggles would in fact be among the people themselves, among all the various groups and individuals seeking to create inequality out of their equality by gaining control of a government divested of its former identity with the society. It was this disembodiment of government from society that ultimately made possible the conception of modern politics and the eventual justification of competing parties among the people. Those who criticized such divisive jealousy and opposition among the people, said William Hornby of South Carolina in 1784, did not understand 'the great change in politics, which the revolution must have necessarily produced. . . . . In these days we are equal citizen of a DEMOCRATIC REPUBLIC, in which jealousy and opposition must naturally exist, where there exists a difference in the minds, interests, and sentiments of mankind.' While few were as yet willing to justify factionalism so blatantly, many now realized with Madison that 'the regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.' Legislation in such a society could not be the transcending of the different interests but the reconciling of them. Despite Madison's lingering hope, the public good could not be an entity distinct from its parts; it was rather 'the general combined interest of all the state put together, as it were, upon an average.''" Id. at 608.).
Wood, Gordon S., Empire of Liberty: A History of the Early Republic, 1789-1815 (The Oxford History of the United States) (Oxford & New York: Oxford U. Press, 2009) ("Most alarming to leaders like Madison was the fact that these abuses of individual rights by the state legislatures were backed by the bulk of the electorates in each state. In the 1770s the Revolutionaries had not conceived of the possibility of the people becoming tyrannical. When Tories had suggested in 1775 that the people might indeed abuse their power, good Whig patriots like John Adams had dismissed the notion as illogical: "a democratic despotism is a contradiction in terms." The crown or executive authority was the only possible source of tyranny; the people could never tyrannize themselves." "But by the 1780s many leaders had come to realize that the Revolution had unleashed social and political forces that they had not anticipated and that the "excesses of democracy" threatened the very essence of their republican revolution. The behavior of the state legislatures, in the despairing words of Madison, had called "into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of the Public Good and private rights" This was the issue that made the 1780s so critical to large numbers of American leaders." Id. at 19-20. On a completely different point, and because of my concerns about the decline of legal education: "Being a lawyer, a physician, a clergyman, a military officer, in other words, being members of what were beginning to be called "professions," was not yet considered having an occupation. Lawyers, for example, often tried to assure themselves and other that they were really gentlemen who only occasionally practiced some law. For such men, such as young Thomas Shippen, law was not as much a skilled profession as it was a desirable attribute of a man of learning, one, as James Kent told his Columbia law students in 1794, that out to be "usefully known by every Gentleman of Polite Education." Such gentlemen-lawyers were expected to read Horace as well as Blackstone, Cicero as well as Coke, history and poetry as well as common law books. Early in his adult life Jefferson had been a lawyer, but he scarcely resembled a modern practitioner calculating billable hours. He believed that the law, like all of learning, was important for a variety of reason. "It qualifies a man to be useful to himself, to his neighbors, and to the public. It is the most certain stepping stone to preferment in the political line."" Id. at 23.).
Wood, Gordon S., The Radicalism of the American Revolution (New York: Knopf, 1992) ("This book is part of a continuing inquiry into the democratization of early America . . . . Few subjects are more important to Americans, and perhaps to the rest of the world as well. Americans were not born free and democratic in any modern sense; they became so--and largely as a consequence of the American Revolution. After eighteenth-century Americans threw off their monarchical allegiance in 1776, they struggled to find new attachments befitting a republican people. Living in a society that was already diverse and pluralistic, Americans realized that these attachments could not be the traditional ethnic, religious, and tribal loyalties of the Old World. Instead, they sought new enlightened connections to hold their new popular societies together. But when these proved too idealistic and visionary, they eventually found new democratic adhesives in the actual behavior of plain ordinary people--in the everyday desire for the freedom to make money and pursue happiness in the here and now. To base a society on the commonplace behavior of ordinary people may be obvious and understandable to us today, but it was momentously radical in the long sweep of world history up to that time. This book attempts to explain this momentous radicalism of the American Revolution." Id. at ix. “The grass-roots Anti-Federalists concluded that, given the variety of competing interests and the fact that all people had interests, the only way for a person to be fairly and accurately represented in government was to have someone like himself with his same interests speak for him; no one else could be trusted to do so.” “Ultimately, the logic of this conception of actual representation determined that no one could be represented in government unless he had the right to vote. The interests of a person were so particular, so personal, that only by exercising the ballot could he protect and promote his interests. Election in America became the sole criterion of representation. Insofar as American politics became localist and dominated by interest groups and calls for extending the suffrage, the Anti-Federalists prepared the way. . . .” “The Anti-Federalist lost the battle over the Constitution. But they did not lose the war over the kind of national government the United States would have for a good part, at least, of the next century.” Id. at 259. “Many Americans of the early Republic, with varying degrees of reluctance and enthusiasm, came to believe that what they once thought was true was no longer true. Government officials were no longer to play the role of umpire; they were no longer to stand above the competing interests of the marketplace and make disinterested, impartial judgments about what was good for the whole society. Elected officials were to bring partial, local interests of the society, and sometimes even their own interests, right into the working government. Partisanship and parties became legitimate activities of politics. . . . “ Id. at 294. “A new generation of democratic Americans was no longer interested in the revolutionaries’ dream of building a classical republic of elitist virtue out of the inherited materials of the Old World. America, they said, would find its greatness not by emulating the states of classical antiquity, not by copying the fiscal-military powers of modern Europe, and not by producing a few notable geniuses and great-souled men. Instead, it would discover its greatness by creating a prosperous free society belonging to obscure people with their workaday concerns and their pecuniary pursuits of happiness—common people with their common interests in making money and getting ahead. No doubt the cost that America paid for this democracy was high—with its vulgarity, its materialism, its rootlessness, its anti-intellectualism. But there is no denying the wonder of it and the real earthly benefits it brought to the hitherto neglected and despised masses of common laboring people. The American Revolution created this democracy, and we are living with its consequences still.” Id. at 369.).
THE DE-CHURCHING EDUCATIONAL INSTITUTIONS (OR, DE-CRYING THE ANTI-INTELLECTUAL TRADITION IN AMERICAN LIFE)
Tuchman, Gaye, Wannabe U: Inside the Corporate University (Chicago & London: University of Chicago Press, 2009 (Though the focus in on public research universities, what the author writes is very much applicable to non-research and private universities and colleges. The pace of the decline in universities and colleges as places of education and intellectual life has quicken in the last twenty years. Have we reached the point of no return? Perhaps so! Then again, even in the Dark Ages, learning was advanced in monasteries and the like. Perhaps, in these our postmodern Dark Ages, there will be pockets of intellectual life and learning away from the corporate universities. “This book is about how being “business-like” has affected today’s public research universities and how the changes in universities are, in turn, revealing emerging aspects of American life. It argues that the new emphasis on business has introduced new sorts of administrators who have different kinds of relationships with the professoriate. Increasingly, they try to govern them rather than govern with them. As a result, the process if auditing has become ever more important, as administrators create situations in which faculty members must account for themselves. Indeed, these administrative actions appear to be encouraging an accountability regime.” Id. at 21. “Here’s what matters: These and other treatments of grand trends insist that higher education is one of the last revered Western institutions to be “de-churched”; that is, it is one of the last to have its ideological justification recast in terms of corporatization and commodification and to become subject to serious state surveillance. Universities are no longer to lead the minds of students to grasp truth; to grapple with intellectual possibilities; to appreciate the best in art, music, and other forms of culture; and to work toward both enlightened politics and public service. Rather they are now to prepare students for jobs. They are not educate, but to train. To be sure, some of the great American private colleges and universities—such as Harvard, Yale, and the much younger Duke—still discuss past values when they define their current missions. But even when Nannerl Keohane, the liberal political theorist and past president of Duke University and Wellesley College, expresses her admirable vision for the education of students at research universities, she seems to be differentiating between the sort of education that may be offered at the elite private colleges and universities and the kind of training available to everyone else.” Id. at 41. “Although they use different grand narratives, many sociological commentators agree that since the last half of the twentieth century, many once-sacrosanct institutions have been “de-churched.” Law and medicine are probably the two most studied examples, for both professions have undergone extensive reorganization. Whether he is a doctor or a lawyer, the most lone practitioner in business for himself is no longer prototypical. Most lawyers are salaried the lawyers with the most prestige practice in large firms with a corporate clientele. . . . Law firms may have over twenty partners, all of whom are subject to the organization’s rules and regulations. Indeed, the law firm defines its partners and associates should get work done.” Id. at 41 (citations omitted). Anyone seriously interested in education, in being a serious educator, in obtaining a serious education, etc., should read this book. As a society we are sleepwalking our way to stupidity. Administrators who care not a ounce for education, will hire, retain, and promote faculty who, besides being poorly educated themselves, care even less about education—why should one care about educating students if what one get rewarded for is merely training them?--, producing trained but uneducated graduates who are good little worker bees. We have seen the enemy, it is us.).
November 23, 2009
THE SURGE
Finkel, David, The Good Soldiers (New York: Sarah Crichton Books/ Farrar, Straus & Giroux, 2009) (“Meanwhile, in other parts of Fort Riley, the other soldiers were getting ready, too. Finishing wills. Designating powers of attorney. Working their way down final medical checklists. Hearing. Heart rate. Blood pressure. Blood type. They went to health briefings and were told: Wash your hands. Drink bottled water. Wear cotton underwear. Watch out for rats. They put on their body armor and stood outside in a zero-degree wind chill for inspection and were told that the straps weren’t tight enough, the ceramic plates intended to stop high-powered sniper bullets were an inch off, their compression bandages and tourniquets were stored in the wrong place, they were effectively dead men. They went to a briefing on stress management and suicide prevention and were told by a chaplain, ‘This is important. If you are not ready to die, you need to get there. If you are not ready to die, you need to be. If you are not ready to see your friends die, you need to be.’ “ Id. at 12. “‘There’s only so many ways to polish a turd,’ Cummings said. . . .” Id. at 127.).
November 22, 2009
IN RESPONSE TO AN EMAIL RECEIVED FROM B. TURK REGARDING CONSUMER LAW
Asbury, John, Collected Poems 1956-1987 edited by Mark Ford (New York: Library of America, 2008) ("America is a fun country. Still, there are aspects of it which I would prefer not to think about. I am sure, for instance, that the large "chain" stores with their big friendly ads and so-called "discount" prices actually charge higher prices so as to force smaller competitors out of business. This sort of thing has been going on for at least 200 years and is one of the cornerstones on which our mercantile American society is constructed, like it our not. What with all our pious expostulations and public declarations of concern for the poor and the elderly, this is a lot of bunk and our own president plays it right into the lap of big business and uses every opportunity he can to fuck the consumer and the little guy. We might as well face up to the fact that this is and always has been a part of our so-called American way of life." From The Vermont Notebook (with Joe Brainard) (1975), at 327, 381.).
November 15, 2009
TODAY IS JUST ONE OF THOSE DAYS WHEN POETRY HELPS
Eugenio Montale, Collected Poems 1920-1954 translated from the Italian by Jonathan Galassi (New York: Farrar, Straus & Giroux, 1998).
From Cuttlefish Bones:
What you knew of me
was only a coat of paint,
the veil that clothes
our human fate.
And maybe behind the canvas
Was the still blue;
only a seal kept out
the limpid sky.
Or else it was the fiery
change in me,
revealing a burning ember
I’ll never see.
So that his husk became
my true substance;
the fire that isn’t quenched
for me was called: ignorance.
If you see a shadow
it’s no shadow—it’s me.
If only I could tear it off
and offer it to you.
From Cuttlefish Bones:
What you knew of me
was only a coat of paint,
the veil that clothes
our human fate.
And maybe behind the canvas
Was the still blue;
only a seal kept out
the limpid sky.
Or else it was the fiery
change in me,
revealing a burning ember
I’ll never see.
So that his husk became
my true substance;
the fire that isn’t quenched
for me was called: ignorance.
If you see a shadow
it’s no shadow—it’s me.
If only I could tear it off
and offer it to you.
November 12, 2009
THE LEGACY OF THE THIRD REICH
Evans, Richard J., The Third Reich at War (New York: The Penguin Press, 2008) (This is the final volume in Richard J. Evan's trilogy on the history of the Third Reich. I strongly recommend that you read the trilogy, which consists of The Coming of the Third Reich, The Third Reich in Power, and the present volume, The Third Reich at War. Why should you read this trilogy? The answer is contained in the final paragraph of The Third Reich at War. "Most of those who lived through the Third Reich and fought in its wars are no longer with us. Within a few decades there will be no one left who remembers it at first hand. And yet its legacy is still alive in myriad ways. History does not repeat itself: there will be no Fourth Reich. Neo-Nazism still finds its supporters, but nowhere has it shown any signs of even coming close to achieving real political power. The legacy of the Third Reich is much wider. It extends for beyond Germany and Europe. The Third Reich raises in the most acute form the possibilities and consequences of the human hatred and destructiveness that exist, even if only in a small way, within all of us. It demonstrates with terrible clarity the ultimate potential consequences of racism, militarism and authoritarianism. It shows what can happen if some people are treated as less human than others. It poses in the most extreme possible form the moral dilemmas we all face at one time or another in our lives, of conformity or resistance, action or inaction in the particular situations with which we are confronted. That is why the Third Reich will not go away, but continues to command the attention of thinking people throughout the world long after it has passed into history." Id. at 764.).
November 11, 2009
MORAL ACCOUNTING: A LESSER WRONG IS STILL A WRONG
Grayling, A. C., Among the Dead Cities: The History and Moral Legacy of the WWII Bombing of Civilians in Germany and Japan (New York: Walker, 2006) ("In the course of the Second World War the air forces of Britain and the United States of America carried out a massive bombing offensive against the cities of Germany and Japan, ending with the destruction of Dresden and Tokyo, Hiroshima and Nagasaki. Was this bombing offensive a crime against humanity? Or was it justified by the necessities of war?" Id. at 1."The Holocaust throws such a deep and jagged shadow over the Second World War that the sum total of the harm done by all other non-Holocaust-related means is diminished by it; which is one reason why there has been so little said about culpabilities on the Allied side of the struggle--culpabilities which pale in comparison to Nazi atrocity, and which the victor nations have therefore allowed themselves to neglect. Dresden makes periodic appearances on public consciousness, but very few people (apart from apologists for ultra-right-wing interests; but they are not interested in truth or historical proportion; they have other fish to fry) see that the Allied area bombing campaigns over Germany and Japan merit inspection and evaluation. For if they constitute a wrong, even though it is dwarfed by the Holocaust and other Axis-committed aggressions and atrocities, they would still be a wrong. And that, to repeat, is what is being examined here." Id. at 116. "There are two major reasons why it matters to recognize and accept that the Allied bomber forces' area-bombing campaign constitute moral crimes. One is so that we in the victor nations can face up to our part in committing crimes in the course of that terrible war; crimes by a long way far less in magnitude than those committed by Nazism, though in the matter of comparisons the culpability of Allied area bombing should prompt uncomfortable reflection bout the moral company it keeps, given that it is more akin to Japanese actions in their infamous attack o Nanking than it is to, say, Henry Stimson's withdrawal of Kyoto from the list of atom-bomb targets. It is an obvious enough comment that only if a civilisation looks at itself frankly and accepts what it sees, can it hope to learn from the exercise, and progress in the right way and direction thereafter. The cliché, no less true and pertinent for being one, that applies here is that we owe it to our future to get matters straight about the past." "The second reason is that we are at risk of repeating mistakes if we do not face up to their commission in the past." Id. at 275. The issue of civilian causalities is not a merely a problem of the past, it is a pressing issue today. A few years ago there was a brief and passing interests in civilian "collateral damage," where civilian causalities were thought to be either unintended or absolutely necessary to achieve a "legitimate" target. That discussion faded from the public consciousness, mainly because our attention-span is about three news-cycles long and because those who raise the moral issue are characterized as unpatriotic (as not being in full support of the war effort, as not supporting our troops). In the context of mass bombing in the Second World War, Grayling confronts the moral questions. This is a context where the civilian deaths and casualties were not merely collateral but purposeful. Are there no civilian in war today; that is, has the civilian/combatant distinction not only been blurred but eradicated? And not simply by them, but by us? There are just wars. Yet, even in just war, certain means are morally wrong. Just ends do not justify unjust (or wrongful) means. Think.).
November 10, 2009
ASSAULTING HUMANITY
Goldhagen, Daniel Jonah, Worse Than War: Genocide, Eliminationism, and The Ongoing Assault on Humanity ( New York: PublicAffairs, 2009) (“We must stop detaching mass elimination and its mass-murder variant from our understanding of politics. We must stop thinking it is sufficient for historians to describe the events themselves and then posit some (reductionist) “explanation.” Or for social psychologists to reduce it to social psychology. Or for diversionists to attribute structural causality and responsibility to abstract institutions or to systems far removed—either in time, such as long-gone colonizers, or in space, such as global capitalism—from the agents of violence and death and the countries of their destructive deeds. Eliminationist politics, liked the politics of war, is a politics of purposive acts to achieve political outcomes, often of ultimate ends and often of desired power redistribution. Only when we recognize this can we begin to understand the varied phenomena that compose eliminationist politics and respond better to them politically. Id. at 271 (italic in original). “Unlike crimes against humanity, war against humanity precisely captures the character and magnitude of perpetrators’ onslaught in another fundamental way. When someone says that entire classes of people do not deserve to live, or live among us, he essentially declares war on a part of humanity, which qualifies, and should legally qualify, as war on humanity in general. How can we know the perpetrators will stop after completing their eliminationist assault on the first group or groups they target, or in the first country they target?” Id. at 574 (italic in original). “War against humanity conveys the alarming threat mass murderers and eliminationist perpetrators pose, and countries’ and peoples’ urgent need to mobilize themselves to fight it. Theirs is a war against everyone and or potentially everyone. It must be met with a single-minded effort of full force. It must be defeated. It is an emergency situation entailing sacrifice, including individual sacrifice for greater good. That is why, in principle, none of us is a bystander. We are all implicated in the war itself. Humanity must engage a war against humanity with all possible military means to safeguard itself, and its every part.” Id. at 575 (italic in original). Goldhagen has written a very powerful polemic, one that every thoughtful person should read. However, it is a polemic and must be thoughtfully read as such. Go back and read the last passage I have excerpted, taking note of the following phrases ”urgent need to mobilize themselves to fight,” “met with single-minded effort and full force,” “emergency situation entailing sacrifice,” “individual sacrifice for the greater good,” “[w] are all implicated,” and “[h]umanity must engage in a war against humanity.” It is Barry Goldwater’s “I would remind you that extremism in the defense of liberty is no vice.” (Delivered at the 1964Republican National Convention at San Francisco, California). No, extremism in the defense of liberty is a vice because it corrupts us and shatters whatever moral foundation we have for asserting our liberty. Goldhagen is correct that we must confront eliminationism and eliminationist, but he is wrong in asserting that such must be done single-mindedly. Such single-minded pursuit will destroy our own humanity. The single-minded pursuit of anything is, more than likely, a mistake. See James Traub, “Patterns of Genocide,” The NYT Book Review, Sunday, October 18, 2009.).
November 9, 2009
THE CATHOLIC CHURCH’S HOLOCAUST LEGACY
Goldhagen, Daniel Jonah, A Moral Reckoning: The Role of the Catholic Church in the Holocaust and Its Unfulfilled Duty of Repair (New York: Knopf. 2002) (“The anti-Semitism that the Church had spread implied or even openly asserted that Jews had to be eliminated from Christian society, such as by forced conversion or expulsion, even though the Church and its bishops did not call for their mass murder, and even though they often made a point of enjoining their faithful against committing violence. So when I refer to the church’s “eliminationist antisemitism,” unless specifically stated otherwise, it should be understood as an assertion either that the Church was calling for the nonlethal elimination of Jews or that its demonology of Jews was, however intended, compatible with or implied eliminationist solutions, including perhaps extermination—even through the Catholic Church was doctrinally opposed to , and itself did not advocate, killing Jews.” Id. at 25 (italics in original). “What must a religion of love and goodness do to confront its history of hatred and harm, and to perform restitution? Id. at 31. “A moral reckoning is predicated upon four notions: (1) that human beings are responsible for their actions; (2) that it is right for us to judge other people’s actions; (3) that to do so, we must have fair and clear criteria; and (4) that our judgments must be transparent in their reasoning to conclusions.” Id. at 119. See Richard Bernstein’s review, “The Church and the Jews, Down History’s Tragic Road,” NYT, Monday, December 9, 2002.).
November 8, 2009
GENOCIDE DENIAL
Roy, Arundhati, Field Notes on Democracy: Listening to Grasshoppers (Chicago: Haymarket Books, 2009) (From the essay, “Listening to Grasshoppers: Genocide, Denial, and Celebration”: “Genocide Denial is a radical variation on the theme of the old, frankly racist, bloodthirsty triumphalism. It probably evolved as an answer to the somewhat patchy dual morality that arose in the nineteenth century, when Europe was developing limited but new forms of democracy and citizens’ rights at home while simultaneously exterminating people in their millions in her colonies. Suddenly countries and governments began to deny or attempt to hide the genocides they has committed. ‘Denial is saying, in effect,’ Robert J. Lifton observes, that ‘the murderers didn’t murder. The victims weren’t killed. The direct consequence of denial is that it invites future genocide’.” Id. at 147 (citing talk by Robert J. Lifton, Center for the Study of Violence and Human Survival, John Jay College, City University of New York, January 29, 1996. Transcript available from Alternative Radio, http://www.alternativeradio.org/programs/LIFR-SMIR001.shtml. See Robert J. Lifton and Greg Mitchell, Hiroshima in America: A Half Century of Denial (New York: Harper Perennial, 1996). “Of course, today, when genocide politics meets the free market, official recognition—or denial—of holocausts and genocides is a multinational business enterprise. It rarely has anything to do with historical fact or forensic evidence. Morality certainly does not enter the picture. It is an aggressive process of high-end bargaining that belongs more to the World Trade Organization than to the United Nations. The currency is geopolitics, the fluctuating market for natural resources, that curious thing called future trading, and plain old economic and military might. Id. at 147-148.).
November 4, 2009
REVENGE and COURAGE
Miller, William Ian, Eye for an Eye (Cambridge: Cambridge U. Press, 2006) ("Humiliation aside, sometimes it is purely rational ... to pluck out that eye and chop off the hand, or take the pound of flesh from right around the heart. It means that the next time, and for quite a few times thereafter, you will not have to. People will, I bet, be very careful around such as the likes of you and will make sure they fulfill their undertakings where you are concerned. And remember: they did not have insurance as we do now, so it was all the most important that you take care to have your threats believable. That was a form of insurance against future harms that might otherwise be directed your way. In my writing on the Icelandic saga I have sought to hammer home the point that the wise bloodfeuder did not need to respond aggressively to every wrong done him; in fact, he was stupid and had a very short life if he did so. He just needed to make sure people thought him perfectly capable of avenging in blood the next offense done him." Id. at 52-53.).
Miller, William Ian, The Mystery of Courage (Cambridge & London: Harvard U. Press, 2000) ("When will we know that women are accepted as official players at aggressive combative courage? It is already granted in sports, woman on woman. Some are better at delivering hits and taking them than others, and they are honored for the virtue. But what about when it is woman versus man, say, as in war? We will not know that women have made it when they win silver stars or Medals of Honor. It will be whispered that the award is suspect, infected by the politics of courage, bruited about that it was granted because she was a woman, not in spite of it or independently of it. So how will we know? The answer is fairly easy. We will know women have made it when it is fully believed that they can be subject to a court-martial for cowardly conduct. Leave it to one of Stendhal's women--Mathilde de la Mole again--to make an epigram for the occasion: 'I can see nothing conferring honor . . . except sentence of death. It's the only thing that can't be bought.' Until cowardice can be attributed to a female, without such behavior being dismissed as just coming with the territory or as so much 'femming-out' on the order of shrieking at a mouse, the old order will still govern and do its work in restricting options for women, even as it relieves them for the moment from the oppressive and anxious burden of having to live up to the demands of aggressive masculine courage." Id. at 252-253. "There has been a recent spate of books and movies that look with great nostalgia on World War II, written by or directed by those who did not fight, who now in their middle age, when it is very safe for them to indulge this kind of wistfulness, think it vaguely amiss [] that they missed out on war. Most of my social class in the United States (myself included) bought substitutes for the only war we were eligible to fight in and would no doubt do so again. So when in middle age I come at last to believe that a nation builds up a moral treasury of merit by the sacrifices of its people in war and I begin to worry, like those ancient moralists, that we grow fat, lazy, and contemptible amidst our plenty, I don't have a leg to stand on to make that claim. My father could; he fought; but he is too wise to make it." Id. at 283.).
Miller, William Ian, The Mystery of Courage (Cambridge & London: Harvard U. Press, 2000) ("When will we know that women are accepted as official players at aggressive combative courage? It is already granted in sports, woman on woman. Some are better at delivering hits and taking them than others, and they are honored for the virtue. But what about when it is woman versus man, say, as in war? We will not know that women have made it when they win silver stars or Medals of Honor. It will be whispered that the award is suspect, infected by the politics of courage, bruited about that it was granted because she was a woman, not in spite of it or independently of it. So how will we know? The answer is fairly easy. We will know women have made it when it is fully believed that they can be subject to a court-martial for cowardly conduct. Leave it to one of Stendhal's women--Mathilde de la Mole again--to make an epigram for the occasion: 'I can see nothing conferring honor . . . except sentence of death. It's the only thing that can't be bought.' Until cowardice can be attributed to a female, without such behavior being dismissed as just coming with the territory or as so much 'femming-out' on the order of shrieking at a mouse, the old order will still govern and do its work in restricting options for women, even as it relieves them for the moment from the oppressive and anxious burden of having to live up to the demands of aggressive masculine courage." Id. at 252-253. "There has been a recent spate of books and movies that look with great nostalgia on World War II, written by or directed by those who did not fight, who now in their middle age, when it is very safe for them to indulge this kind of wistfulness, think it vaguely amiss [] that they missed out on war. Most of my social class in the United States (myself included) bought substitutes for the only war we were eligible to fight in and would no doubt do so again. So when in middle age I come at last to believe that a nation builds up a moral treasury of merit by the sacrifices of its people in war and I begin to worry, like those ancient moralists, that we grow fat, lazy, and contemptible amidst our plenty, I don't have a leg to stand on to make that claim. My father could; he fought; but he is too wise to make it." Id. at 283.).
LIKE IT OR NOT, WE ALL MUST COME TO TERMS WITH ALISA ROSENBAUM
Burns, Jennifer, Goddess of the Market: Ayn Rand and the American Right (New York & Oxford: Oxford U. Press, 2009) (“This book firmly locates Rand within the tumultuous American century that her life spanned. Rand’s defense of individualism, celebration of capitalism, and controversial morality of selfishness can be understood only against the backdrop of his historical moment. All sprang from her early life experiences in Communist Russia and became the most powerful and deeply enduring of her messages. What Rand confronted in her work was a basic human dilemma: the failure of good intentions. Her indictment of altruism, social welfare, and service to others sprang from her belief that these ideals underlay Communism, Nazism, and the wars that wracked the century. Rand’s solution, characteristically, was extreme: to eliminate all virtues that could possibly be used in the service of totalitarianism. It was also simplistic. If Rand’s great strength as a thinker was to grasp interrelated underlying principles and weave them into an impenetrable logical edifice, it was also her great weakness. In her effort to find a unifying cause for all the trauma and bloodshed of the twentieth century, Rand was attempting the impossible. But it was this deadly serious quest that animated tall of her writing. Rand was among the first to identify the problem of the modern state’s often terrifying power and make it an issue popular concern.” “She was also one of the first American writers to celebrate the creative possibilities of modern capitalism and to emphasize the economic value of independent thought. In a time when leading intellectuals assumed that large corporations would continue to dominate economic life, shaping their employees into soulless organization men, Rand clung to the vision of the independent entrepreneur.“ Id. at 2-3. “Once unleashed, Rand’s ideas helped power an ideological explosion on the right that culminated in an independent libertarian movement. These new libertarians distinguished themselves proudly from traditional conservatives, who in turn greeted the movement with dismay. At times, libertarians talking fervently about revolution seemed to have more in common with the left than the right. For a brief moment it even seemed that libertarianism or anarchism might become the latest addition to the New Left’s rainbow of ideologies. But since Rand had so deeply imprinted capitalism upon the face of the libertarian subculture, this latent potential never fully developed. Instead, libertarians remained fierce defenders of the free market and apologists for all social consequences thus engendered. The greatest contribution of Rand’ Objectivism was to moor the libertarian movement to the right side of the political spectrum.” Id. at 247-248. “Rand had little appreciation for her new fan base. During her annual public appearances she called libertarians “scum,” “intellectual cranks,” and “plagiarists.” Because she defined Objectivism as her personal property, she viewed libertarian use of her ideas as theft. What others would see as tribute or recognition of her work, Rand defined as “cashing in” or plagiarism. . . . . Rand’s writings were a sort of ur-text for the libertarian movement. They could be challenged, interpreted, reinterpreted, adopted, celebrated—but never ignored. Whether she liked it or not, libertarians would always consider Rand a vital part of their intellectual heritage.” Id. at 258. See the review "Capitalism's Martyred Hero," The Economist, October 24, 2009).
Heller, Anne C., Ayn Rand and the World She Made (New York; Nan. A. Talese/Doubleday, 2009) (“Like Dickens, Rand’s art is the art of the melodrama. At heart, she was a nineteenth-century novelist illuminating twentieth-century social conflicts. Her novels and the best of her essays are well worth reading now, when issues of wealth and poverty, state power and autonomy, security and freedom still disturb us.” Id. at xiii. “Gallant, driven, brilliant, brash, cruel, as accomplished as her heroes, and ultimately self-destructive, she has to be understood to be believed.” Id. at xiv. See Adam Kirsch, "Capitalist With a $," The NYT Book Review, Sunday, November 1, 2009.).
Heller, Anne C., Ayn Rand and the World She Made (New York; Nan. A. Talese/Doubleday, 2009) (“Like Dickens, Rand’s art is the art of the melodrama. At heart, she was a nineteenth-century novelist illuminating twentieth-century social conflicts. Her novels and the best of her essays are well worth reading now, when issues of wealth and poverty, state power and autonomy, security and freedom still disturb us.” Id. at xiii. “Gallant, driven, brilliant, brash, cruel, as accomplished as her heroes, and ultimately self-destructive, she has to be understood to be believed.” Id. at xiv. See Adam Kirsch, "Capitalist With a $," The NYT Book Review, Sunday, November 1, 2009.).
November 3, 2009
ASSERTING JURISDICTION BEYOND ONE’S BORDERS, AND WITHHOLDING SOME RIGHTS WITHIN ONE'S BORDERS
Raustiala, Kal, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (Oxford & New York: Oxford U. Press, 2009) (Notwithstanding the catchy title—no doubt chosen for marketing purposes--, the focus of this book is not constitutionality but rather territoriality. That is, the title should be dropped and the subtitle elevated to full-title status. How and when does a nation’s law apply outside and within its territorial borders. “This book is about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? At one level, these questions are narrow and lawyerly, and there is indeed a large legal literature on these topics. At another level, however, the nature of the connection between law and land raises profoundly significant political, economic, and social questions.” ”. . . In a deep sense legal power is defined territorially, and has been since the sovereign state came into being in seventeenth-century Europe. The basic jurisprudential principles is a simple one: where you are determines what rules you are governed by.” “Yet, perhaps precisely because this principle of territoriality is so commonplace, it is rarely examined and surprisingly ill defended.” Id. at v-vi. “This book has several aims. The first is to explain why territoriality is a significant concept and why the American legal system, like other legal systems, has traditionally been presumptively territorial.” “[The] second aim is to trace, in very broad brushstrokes, the evolution of territoriality in American law from the founding era to today. Territoriality has always been an important principle, but as a practice, as well as a principle, it has a complicated past (and an even more complicated present). Id. at vi. “[The] final aim is to advance several claims about the evolution of territoriality. First, extraterritoriality has shown surprising continuity in its purpose even as its form has changed. . . . But despite dramatic changes in form, the primary function of extraterritoriality has remained much the same. That function . . . is to manage and minimize the legal differences entrenched by Westphalian sovereignty.”* “Second, extraterritoriality is paralleled by what I call intraterritoriality. Just as extraterritoriality has long been a way to conceptually redraw maps, te redefine what is inside and outside the scope of a sovereign’s law, intraterritoriality has served to delineate differences within national borders, particularly as the United Sates grew in size and power. Intraterritorial doctrines, such as the claim that some constitutional rights do not in some American territory, reflect the tension between the demands of liberal constitutionalism and the imperatives of global power politics.” Id. at vii. *See the Treaty of Westphalia in 1648.)
November 2, 2009
(DIS)CONNECTED TO WHAT WE EAT
Foer, Jonathan Safran, Eating Animals (Boston: Little, Brown, 2009) (“I, too, assumed that my book about eating animals would become a straightforward case for vegetarianism. It didn’t. A straightforward case for vegetarianism is worth writing, but it’s not what I’ve written here.” Id. at 13. “As I came to see, war is precisely the right word to describe our relationship to fish—it captures the technologies and the techniques brought to bear against them, and the spirit of domination. As my experience with the world of animal agriculture deepened, I saw that the radical transformations of fishing has undergone in the past fifty years are representative of something much larger. We have waged war, or rather let a war be waged, against all the animals we eat. This war is new and has a name: factory farming.” Id. at 33. “The power brokers of factory farming know that their business model depends on consumers not being able to see (or hear about) what they do.” Id. at 87. IT MAY OR MAY NOT BE IMMORAL TO EAT ANIMALS. HOWEVER, IT IS CERTAINLY IMMORAL TO IGNORE, AND NOT KNOW, THE SOURCES OF YOUR FOOD AND THE PROCESSES OF BRINGING SAID FOOD TO YOUR PLATE.).
November 1, 2009
CONNECTED TO BUILDINGS: ON THE SOCIAL MEANING OF ARCHITECTURE
Goldberger, Paul, Why Architecture Matters (New Haven & London: Yale U. Press, 2009) (“The purpose of this book is to explain what buildings do beyond keeping us out of the rain. . . .” “Architecture begins to matter when it goes beyond protecting us from the elements, when it begins to say something about the world—when it begins to take on the qualities of art. . . .”The making of architecture is intimately connected to the knowledge that buildings instill with us emotional reactions. They can make us feel and they can also make us think. . . .” “Buildings tell us what we are and what we want to be, and sometimes it is the average ones that tell us the most.’ Id. at ix-xii. "Architecture . . . is the making of place and the making of memory. The urban impulse is an impulse toward community--an impulse toward being together and toward accepting the idea that however different we may be, something unites us. But what do we do in an age when every force pushes us away from cities, pushes us apart rather than together? And how do we make valid, lasting memory when it becomes so easy not to see the familiar, when we take it for granted and no longer even notice it? As we move more and more into an age in which we do not automatically build cities, an age in which architectural experiences seem increasingly standardized and homogenized--and hence all the more susceptible to the dangers of familiarity--we have to think hard about how the experience of being together will come to pass and how architecture can express a sense of community, a sense of common ground, and still somehow be able to possess both vitality and valid meaning for our time." Id. at 234. I always take note of the architecture of law school buildings. Increasingly new law school buildings look like government office buildings (the domain of the bureaucrats). Or, the resemble small convention centers (the domain of the marketers). Very few new law school building convey the serious, solemn, and dignified power and aura of LAW. In approaching a law school building, I always thought, one should be overwhelm with feelings akin to approaching a court: that serious matters would be considered and decided here. Unfortunately, many contemporary law school buildings project the image of a traffic or small claims court, or a mini-mall.).
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