Howard Oath

[Michael McConnell]

Is this a fair description of the historical turn of events:

(1) Legal heroes like Houston and Marshall worked for vindication of
constitutional principles that today we all recognize as valid both legally
and morally, but were controversial at the time.

(2) They were accused of (among other things) "social engineering," the
definition of which was something like: trying to change society without
regard to law.

(3) In response to this criticism, Houston had two options (among others).
He could say, "no, this is not social engineering; this is vindication of
the law."  No doubt he said that, many times, to little avail, and perhaps
it was sounding defensive. Or, he could say "darned right, we're social
engineers in the service of justice -- and a good thing too." (Obviously, I
am making up these quotes.) Apparently, he said something along these lines.
In effect, he was turning a term of oppobrium into a badge of pride -- a
rhetorical move that has been made many times, as groups like the "Quakers,"
the "Wobblies" and "QueerNation" illustrate.

(4) Today, we do not share the doubts that some well-meaning people (I think
of Herbert Wechsler) had about whether Houston and Marshall were acting in
accordance with law. Today, we would not describe them as "social
engineers." That term has returned to its former sense, as a mildly
opprobrious term for those who wish to change society without regard to law.
Accordingly, the social meaning of Houston's words is different to our ears
than it was in his time.

I suspect that this, rather than any disagreement over the worthiness of
Houston's and Marshall's cause, is the source of the current difference. If
Mark and Rick agree with this, maybe we can move on to other matters of
substance.




Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112
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