Out of the Cradle, Endlessly Rocking

In 2004, I published a book called Black Trials, a history of African Americans and the law from the colonial era to the present. The book grew from an undergraduate seminar which I taught in the American Studies program at Stanford in 1999, though its interpretive frame goes back to a doctoral dissertation about anthropology, jurisprudence, and American state development which I later published as Americans without Law.

The basic interpretive frame of Black Trials is the idea that the African American struggle for civic inclusion in the United States has involved a struggle to be viewed as a “people of law”—a struggle which also has involved a conflict about the nature of American law itself.

I discussed that idea in a talk I gave in 2005 at Syracuse University, where I also considered the meaning of the epigram of the book, taken from a poem by Walt Whitman. The talk can be found here.

John Stuart Mill and the Rule of the Clan in Sweden

Two items were published this week that brought me away from thinking about documentary film and back to The Rule of the Clan.

The first was a blog post titled “Why Libertarians Should Champion Social Liberty,” by Jerry Taylor of the Niskanen Center. Taylor advances a position that at first glance seems to run counter to core libertarian principles: he argues that “freedom is advanced by [government] preventing private racial discrimination.” This view is anathema to many libertarians, Taylors notes, who believe that government action to prevent private discrimination is “flatly immoral no matter how well-intentioned or worthwhile the consequences might be.”

But Taylor suggests that this is a misunderstanding of the libertarian tradition—one of whose patron saints, John Stuart Mill, had this to say in the first chapter of On Liberty:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.

Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Taylor then goes on to suggest—here’s the kicker—that “Mill’s heir on this matter might well be Mark Weiner.”

… Pause …

Sharp’s Numbers

Yesterday afternoon, I opened an important old book and was carried back over ten years of memory.

When I say old, I mean the book was printed in 1772. The book is important because it was critical to the development of the modern anti-slavery movement.

I’m in the midst of preparing a series of videos that will tell the story of the legal systems of the world through the story of their books and manuscripts. Right now, I’m working on a video about Blackstone’s Commentaries, the great eighteenth-century survey of the English common law. So I went to visit Mike Widener, Rare Book Librarian at Yale Law School, which has the best collection of Blackstone anywhere.

As Mike and I were talking about Blackstone, he also showed me some treasures from his recent headline-making acquisition from the library of British barrister Anthony Taussig. One of them caught me off guard.

Argentina: Populism, the State and Positive Rights

My new post is entirely in video format. It’s a short conversation with an Argentinean scholar about constitutional law in his country, including some differences between law there and in the United States. Our conversation touches on affirmative action, gay marriage, voter identification, and economic regulation, among other important issues. My wife says it’s fascinating, and I hope you’ll agree.

To watch, just click on the thumbnail below, or to see it in larger format (which I’d recommend), click above on the title of this post and then click again on the video window:

Between India and France

The U.S. Supreme Court has begun its new term (it does so the first Monday of each October), and it soon will hear oral arguments in the case of Fisher v. University of Texas. The Court’s decision in the case could be a turning-point in its jurisprudence of affirmative action, and perhaps a political turning-point for the nation. At issue is the legality of using race as a basis for preferring one candidate over another in college and university admissions.

A great deal has and will be written about the doctrinal questions at issue Fisher, particularly how the case differs from those the justices have considered in previous disputes about racial preferences. I’d like to offer a global, comparative view.

The issue in Fisher, in essence, is whether from a constitutional perspective the United States ought to resemble India or France. For years, the United States has pursued a middle course between the two nations with regard to race-based preferences. The current Court is now likely to hold that the United States ought to resemble France—which will be something of an irony given the Court’s conservative majority (conservatives in the United States not being known for their Francophilia).