GROUNDSWELLS

[Robert Sheridan]

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 
so forth.

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 
time. 

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. 

rs