teaching slavery

[Paul Finkelman]

self-servingly, Sandy's essay also appears in a more refined form in Slavery
and the Law (Madison House, 1997).  Many other fine essays are also in it along
with "brilliant editing."  Oh yes, I am the editor.

-
Prof. Paul Finkelman
Visiting at Northwestern School of Law of Lewis & Clark College
July 5-August 3, 2000
10015 SW Terwilliger Blvd.
Portland, OR  97219
(503) 768-6863
(503) 768-6671 (fax)
finkelma at lclark.edu
After August 3, University of Tulsa (918) 631-3706



Sanford Levinson wrote:

> Not surprisingly, given the significant number of pages devoted in Brest et
> al. to slavery (augmented in the new edition, incidentally, by way of
> additional consideration of the constitutionality of the Missouri
> Compromise), the role that slavery should play in the basic constitutional
> law course has interested me for many years. If anyone is interested in
> reading my thoughts on this, they are collected in Slavery in the Canon of
> Constitutional Law, 68 Chicago-Kent Law Review 1087 (1993).  I just happen
> to have a number of extra copies, and I would be delighted to mail them,
> posthaste (and postage paid) to anyone who requests one.
>
> Incidentally, I believe that the professoriate bears a great deal of blame
> for the abject ignorance of this history of slavery, American Indians, and,
> indeed, the events of 1865-1877 on the part of the current membership of
> the US Supreme Court (and the clerks who write their opinions), since
> nobody is forced to learn about such stuff in most constitutional law
> courses in most schools.  One can have no idea what the 13th and 14th
> amendments were about without having a notion of what "really" constituted
> slavery.  I.e., what it "simply" a formal legal status of A being owned by
> B, or was it a system, at least in the US, of systematic subordination of
> one group to another?  I.e., wasn't Taney basically correct that blacks had
> no rights that whites were "bound" to respect?  E.g., there is not the
> slightest claim by McLean or Curtis that there was anything amiss in blacks
> being denied the right to vote in the North, and McLean explicitly
> suggested that it would be perfectly constitutional for Congress to bar
> settlement of the territories by free blacks.  Obviously, it takes precious
> time to teach such things (or to teach about the move from the (false)
> promise of Cherokee Nation to the plenary power betrayal of Kagama.  From
> my perspective, far better to teach these (and the Insular cases as well,
> which will suddenly become relevant once more when Puerto Rico finally
> explodes in frustration at being treated as distinctly second-class
> citizens) than Marbury or, for that matter, the precise contours of the
> contemporary federalism cases, whose vitality is entirely a function of the
> forthcoming election.
>
> A final note:  I have tried for some years to generate some real argument
> among people who edit constitutional law casebooks (and those who use them)
> as to what is included and excluded.  We seem inordinately polite in this
> regard.  I think very highly of Gerry Gunther (my teacher at Stanford) and
> Kathleen Sullivan, but I also think that their exclusion of the history of
> racial oppression from their casebook disserves not only the students who
> are assigned the book, but also the country more generally insofar as it
> generates yet another generation of mal-educated, complacent lawyers who
> refuse to take seriously the possibility that Garrison was right in
> describing the Constitution as an agreement with Hell and a covenant with
> Death.  I pick on Gunther-Sullivan in part because I believe that it
> remains in no lower than second place (behind Tushnet et al.) in frequency
> of adoption.  The vagaries of legal education also help to explain, I
> believe, why so few are willing to confront Bruce Ackerman's argument about
> the status of the Fourteenth Amendment.  How many of us teach the
> provenance of the Fourteenth Amendment?  I do, and the new edition of our
> book has a discussion of the issue.
>
> I trust this represents enough gauntlet-throwing for one afternoon!
>
> Sandy

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