rs at robertsheridan.com
Fri Jan 1 17:58:28 PST 2010
The recent discussion on the top-ten conlaw 'stories' of the past decade
has prompted a further thought on the subject of historical perspective
and the challenge of identifying what 'really' motivates (or underlies)
changes in Conlaw.
Following the civil rights revolution marked by many stories (Jesse
Owens at Berlin, Joe Louis vs. Max Schmeling, & Jackie Robinson and
Baseball meaning America),cases including Shelley v. Kramer (1948) and
Brown v. Board (1954) and statutes such as the Civil and Voting Rights
Acts of 1964,5, the widely held, deeply felt notion of white supremacy
became writing on the wall. How long the disappearance was going to
take, no one knew, but it was a goner.
There are other such notions and it takes more effort and insight than I
possess to identify their contours, but I'm willing to bet that scholars
looking back will be able to identify and describe them satisfactorily
to their readers.
Let me offer what I think is another example.
This country was founded not entirely but in large part by Christian
people who believed that their effort was an example smiled upon by
God. Perhaps not the commercial colonies, but the religiously founded
ones certainly enjoyed this view. This was a Protestant view, there
being few others who counted such as Catholics and Jews. To this day
there are those who prefer to believe and proclaim that this is a
Christian country, especially vis-a-vis the Muslim world.
Those who believe in this Christian view of the world believe, I
believe, that they have found the answer and that the rest of the
country, if not the world, ought to fall in line. It is this attitude,
I believe, that supports their view that they can justifiably impose
their religious-based or -inspired beliefs on non-believers. Hence
religious icons may be placed in the Town Square, crosses on the hill
overlooking the town, laws previously outlawing homosexual conduct, gay
marriage, gays in the military, etc.
I'm suggesting what is well known, that there remains a cultural war in
which there are the supporters and the opponents of the notion that
these believers have the legal right to impose such moral, religious, or
cultural views. We label them, sometimes, as conservatives vs. liberals
or other terms.
This tug-of-war is what determines our Conlaw.
Examples: Hamilton's federalism, along with such as Marshall and
Webster, versus Jefferson and Jackson's 'Democracy,' the founding of the
Democratic Party, with some broken- field running around tacklers.
Marshall's nationalism persists, but the Federalists as a party
disappear. Other parties form, such as the Whigs and the Republicans.
The "culture of deference" (see Stiles's "Tycoon") is gradually torn
down, Vanderbilt being a very prominent example. Aristocracy yields as
the result of the Revolution, but wealthy Patricians continue to rule.
Jackson opposes patricians, exemplified by Biddle and the Bank. Today
we don't much like the idea that if you're better off, old money or new,
that you somehow have more votes than the next guy. Bill Gates and
Warren Buffett have to make their influence felt other ways and they do;
but they get only one vote apiece. Democracy, it is said, wins. One
person, one vote (when I was in law school it was "One man, one vote,"
but that just goes to show how old ideas, such as male supremacy, go by
the boards, thank you Wimmen's Lib and Burn the Bra.
It takes considerable time to develop the distance needed to assess such
changes, sometimes called 'evolution,' sometimes 'revolution.'
In the meantime, we fight it out, case by case, bill by bill,
demonstration by demonstration, riot by riot, election by election, and
For some strange reason I find this more interesting as a field of study
than some of the decisions. Why? Perhaps because it is interesting to
know where a controversy comes from in order to understand how it should
be resolved. Also, the decisions don't always choose to reveal their
origins, for political reasons, I should think. Maybe it's not politic
to tell a person his day is done. Just decide and skedaddle. Let the
pundits worry it to death.
But the historians, taking the longer view, the better ones, make it
their duty to try to understand what was really going on.
In this regard, I commend "What Hath God Wrought, The Transformation of
America, 1815-1848" by Daniel Walker Howe (Oxford University Press,
2007). He is Rhodes Professor of American History Emeritus of History
at Oxford University and Professor of History Emeritus at UCLA. His
description of attitudes that have been left behind, along with many
that persist, is most interesting.
It takes time and distance to gain perspective and thought to gain
insight to define the ideas that shape the contours of the wave that
overrides previous landmarks to becomes new law.
A law professor once explained why the British, in their law of
defamation, were more protective of reputation than we are. Their
emphasis on class status is much more important to them than ours is to
us, he explained. An example of distance (and knowledge), rather than
When you're in a boat far from shore, the tidal wave that passes under
you, with origins far off, is invisible until it destroys the beach.
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