American Legal History
The idea of codification, the proposition that you can unify the law in a democratic way and then in doing so, you're making an improvement fundamental to the spirit of the American improvement, a technological invention for democratizing production linked to an understanding of the idea of political office in a democracy as pinnacle to patronage organizations built around the idea that governmnet should be anything that any man of common wisdom and understanding in practical daily life could serve in any meaningful job; thus, permitting the political parties to root themselves in government employment, allowing mass political parties to develop around the power of the federal government to provide the office work for the people who made them viable political organizations.

To the political theorist this is an odd hybrid imperial form. The Jeffersonian ideology grafted onto the Hamiltonian instruments. The political party enjoying to the victor go the spoils patronage politics using the federal customs service and the post office and other engines of federal authority as employment places for its party workers. This instrument claiming to be the democracy in power is of course extinguishing the Jeffersonian idea of yeoman government of the independent farmer, the small holder, the Whig in the English parlants. Of course, that's the whole point. Those are the people who are going to turn out to be the party of the northern industrialists - the anti Jacksonians. Jacksonism that democracy which is leading in the legal theory world towards the idea of the code. What is the British common law but the record of the antidemocratic aristocracy of old Europe? What are we but the democracy of freedom? Well, of course, among other things, an empire committed to slavery. But for the moment, the primary difficulty is that it is the debt and the urban workforce, not the landed small holder, who was going to be slowly generation after generation plotting his farms out using the surveyor services of Jefferson and Washington to buy his farms one plot at a time. That's not how it turned out.

The release of energy principle released Hamiltonian capitalism and the army and the empire. And soon will be releasing the railroad.

And the fundamental question is becoming what of slavery in that capitalist remaking of the system.

It's all very puzzling if you think much in terms of the traditional categories. The republican and democrat or the Jeffersonian or Hamiltonian. The ideology seemed conflicting and troublesome. One of the appeals to the American example to the onlookers in Europe in the 1840s and 50s was the extent to which if you didn't think about it in class terms, it was really pretty difficult to think about American politics at all from abroad. The two obvious forces that make sense out of the whole thing are the conflict between slavery and freedom, which to the onlookers like Marx or Engels was perfectly clearly a confrontation between the feudal system and the borgeoise of industrialization.

And the structure between that industrializing ownership class and its working force which was going from being farm daughters of the New Hampshire and western MA working in the mills and which was never, thanks to the plentiful presence of cheap land primarily without forcing the poor to work their children in factories as in England. There wasn't the capital accumulation sufficient either. I suppose the vulgar Marxist would have said to brought the matter to the pass at which there were enough machines to require the children to run them but the late teenage farm daughter. I don't know how we feel about that.

And it's true that social services in MA have never been all that lavish. MA law, I repeat in the Wars of the 17th and 18th centuries owe proportionately to its population as grave losses loses in the civil war. Indeed, graver losses than it loses in the Civil War at the King Philip's War time. So, MA always does a lot of bleeding and it always has a lot of disabled and troubled soldiers demobilized back into an economy that doesn't provide many jobs for them and is still a fairly lightly developed one. In NY there is slavery in the 18th c which changes substantially the way the workforce operates. But as you see at the edges of something that I wrote about the commercial debt system, there are a lot of people imprisoned for debt when the economy is down. That is, generally speaking, in peacetime. There are a lot of families, therefore, unable to provide for themselves because their wage earners are in jail. In the cities that we are therefore watching build themselves up, there's plenty of bases for hostility between the employers of masses of workers in factories, on the one hand, and the poor on the other.

There are, of course, skilled trades demonstrations in favor of bettwen work wages or working conditions and there are opportunist attempts by crafts laborers to take advantage of improvements in economic times as there should be.

But you can see the beginnings of an argument that's going to become a little fiercer down the road that the way that industrial capital treats its workers in the free parts of the empire isn't anything all that admirable.

Which can be played two ways. In the beginning, mostly as a question about don't we all have a common interest? We are both the owning class are we not?

Later, in the 1850s in a more surprising to our ears fashion, it will play as don't you understand that slavery is better than your system? We take care of our workers when they are old.

Your capitalism cchews them up and spits them out and then nothing. We live in an organic relationship to our slaves. That's the argument of Fitzhugh and Canibalzal. It's the argument of John Calvin Calhoun. It's why the great Columbia political historian Richard Halfstatter in a luminous essay on Calhoun called him the Marx of the master class. The critique of global capital that the slave owners at their most cornered launch into the political and legal debate of the 1850s is the rhetoric that properly characterizes the capitalists from the point of view of European socialism too.

So the complexities of all of the processes you can see that with some clarity in the codification movement, but the relevance of legal ideas to cultural structures is not usually to be found by lining them up one for one. What actually happens, of course, is that those things are sounded on the other side as well. It is the other side which is really the dominant outcome. The common lawyers win going away.

Kent's commentaries and stories, treatises, and the structuring of the Harvard curriculum after Story's categories. Not for nothing is he still bulling his finger down the corridor in the bottom of the Harvard Law School's foundational architectural view of itself right?

Bad as Pegasus is - and I hold no particular brief for that particular work - there is something advantageous about the fact that there are no structures of that degree of structural monumentality consecrated to the law of the Dark Ages at Columbia Law School. Harvard Law will never be able to destroy the statue of Joseph Story. It will always be there. The dane professor will continue to, like the skeleton of Jeremy Benthom, except literally indestructible. Sacriligious to surpass in any way. Never irrelevant or corrupt or anything. Always there somehow to remind you that law has to be thought about that way if it is to be thought about at all around here. That's the completeness in the end, truthfully, of the triumph of the common law in the US.

From the point of view of the intellectual or professional history, it ought to be thought of as the enormous cultural triumph that the preeminence of teh lawyers in the culture republic should have suggested was inevitable and indeed it was. The focus on codification movement doings in our intellectual history of American law is very optimistic. Characteristic in a way of the post Second World War American empire. It's like the belief that public international law in a codified form is eventually going to bring peace and end torture and so on.

Americans look back from the middle of the 20th c on the codification movement in the middle of the 19th and saw, even in David dudley Field's craziness of the unification and codification of the law of the world, they saw themselves. It was a mirror and they liked it.

They didn't like Joseph Story and I can't blame them.

But you take a day trip to Harvard and you see he won.

Or you can see how mnuch the stories view of the constitution characterized subsequent debate and made subseqquent distinctions of importance to the constitutional lawyers.

It's him and Marshall and as I say, the peculiarity of a situation is that in the end, to think of them as Federalists or Republicans is beyond the pail. They are the constituency of the way in which American law governs the empire. In the Supreme Courtness of it and in the common law nature of it and in the forms and rhetoric and argumentation that characterized it as it rose.

In the aspiration to and possession of purchase of unchallenged preeminence.

And in this sense, Swift against Tyson is probable just about as much a big deal as the conflicts a law guy would want you to think it is.

Not for nothing actually it seems to me in the end does Brandeis find himself entering into the great big world of constitutional law in order to overturn Swift against Tyson in Eerie.

It's a little like John Randolf of Roanoke on Marbury vs. Madison. Wrong wrong damnably wrong but no man in the US can say why or wherein so let me tell you about Article 3 again.

The need to do that is the result of how deeply Swift against Tyson represents the bones about how we came to think about things. Whichi s sort of odd. It was easy to decide in the US in Hudson vs. Goodman in 1816 that there was no federal common law of crime.

Or maybe that's not so hard to understand.

One can go very deep into the vaults of time where those who will take English Legal History with me which I think is probably nobody might have to go. You'd go back very deep into the vaults of time before you'd come close to the understanding of why the roots of ocmmon law insists on personal jurisdiction for criminal adjudication. Trial in absentia is not just unknown to the common law in crime, trial in absentia is not thinkable. IT's not a balance of the right, it precedes the idea that there is a defendant who has rights.

Trial in absentia doesn't exist in the common law because the common law believes that criminal jurisdiction arises out of the act of possessing the body. There couldn't be jurisdiction without possession of the body. Possession of the body is the magic which creates the ability to destroy it because of course, the common law is rational and it recognizes that the goal of criminal law is the destruction of the body.

It knows that you can cheat about that and conceal it and hide it from yourself, but in the end what you're going to do is harm. Question: Did you use personal jurisdiction to mean habeus corpus? Moglen: I'm sorry. What did you mean by that question. Question: The way you just used personal jurisdiction, you mean the physical presence of the person in court? Is that what personal jurisdiction is? Moglen: For crime? Yes. Actual jurisdiction over the person, an action in personum. Remember that the primary form of service in the civil law in the civil common law the ordinary civil procedure, the primary means of creation of jurisdiction have a lawsuit is arrest.

I go to chancery and I buy a writ. Trespass I suppose or maybe account. It doesn't matter because that writ is the writ that tells the judge that he's entitled to hear the case. Writs are letters. Just things you send somebody. That's what a writ is. So, the writ I bought said I can maintain in the common pleas an action of trespass which I will plead there in the following terms so that the judge knows what I have bought my right to say in ? But that doesn't do anything about my getting the defendant there. Obviously, I'm going to need to write to other people to do that. They are the sheriff of the place where the person I am sueing on that writ I bought lives. And the writ I buy from him is the writ copious. Take him. I buy the capious writ and he goes out and arrests the defendant. Then he makes return on the capious that says I got him. And then we commence the action. He meantime, bailing himself which means getting some guys he pays to commit perjury to bail him. That is promise they will pay money. They hang around outside Westminster Hall and they wear straw in their shoes - this from hte 14th c apparently. Well into the 19th you can see him in Mr. Pickwick's papers. They wear straw in their shoes and they swear for anybody for twopence or later a crown that they will bail you to any amount. That is, they will stand your legal guarantor for whatever it takes to get you out. They're just judgment proof vagabonds but the courts don't inquire. It's a legal fiction. So you get arrested. You appear. You establish jurisidction and then you bail yourself. That's how an ordinary common law lawsuit works.

Consider, if you must, Bardell against Pickwick the famous action for breach of promise of m, which you can find in any places in the domain.

Is that a sufficient answer? OK.

The depth of the committment to personal jurisdiction in crime. If you think about it it's sort of easy for the Supreme Court in a deep theoretical way to come to the conclusion the constitution provides no authorization for a common law of crimes. The empire doesn't have primary jurisdiction anywhere. Where it does have primary jurisdiction is empty space. The federal lands. Congress has exclusive authority to legislate over the federal lands. It would be hard to say what applies in the federal lands the Congress hasn't made.

So you can get where they get with respect to the jurisdiction to the presence or absence of a common law of crimes in the federal system pretty quickly. It seems to fall out early for Marshall and for Story both.

But Swift against Tyson makes an enormous fundamental difference. It's not the thing doing the triumph of the common law. It's the triumph of the common law writ mailed to us, stamped, signed, and delivered. And what we have then is a system which the imperial courts acknowledge and therefore, may be said not merely to exist but to be guaranteed in a way.

We have a system to apply the reasoning, the sources, the culture, and the rhetoric of the common law to whatever it is that fundamentally concerns the empire in the private law of the states.

The empire's concerns are assumed to be comparatively thin. But the principle that McCulloch? against MD also provides is present there. Let the ends be legitimate within the definition of what the empire is for. Let the means be what the legislature has chosen. The results are and here, the legislature is after all, the courts acting in the declaration of the common law.

It's neithjer the English common law nor not the English common law. Reference was made somewhere to recession statutes in the conversation. It was well into the 20th c before people began to ask themselves what the recession statutes did as opposed to what they reflected. What is the actual legal consequence of the statute? The recession statute when one comes to look at it as a legal device, tends to turn out to be exactly what it's name implies. It passively receives what something else has sent. And the thing that sent it was ordinarily an act of Parliament applying to the colonies from which there then depend in some necessary sense a series of doctrines which it will be said have been received. What this typically means is that something has happened with respect to the title of the land. This is what reception statutes tend to do. They tend to attract the statutory English Land Law. You have to pull that over.

This, too, is a subject that if one wanted to understand the roots of law one would want to go back pretty far on. But to put it in its briefest form, the English Land Law is a funny thing for 700 years because if you know only the common law, you think it works very much one way and if you know about a few statutes it works very differently. Every Englishman knows about those few statutes but do they apply in N America?

The general rule, of course, is that statutes applied to the British domains in N America if they said they did. Which is fine almost all the time, btu in the law of land you will come to a serious difficulty because the statutes you really want to know about - the ones that define the character of English Land Law, as though in total ignorance of the fact that the common law looks very differently without them - are statutes of the late 13th c. They are dedonis conditionale - the statute known as Quiaentories of 1290. Do these apply in NY? This could be a real problem for the NY Court of Appeals facing a rent revolt in the Hudson River Valley in 1849, oddly enough.

It is this sort of confusion puzzlement which reception statutes smooth over in the wisely governed territory of the Illinois. It's a discussion which arose because American legal historians and other kinds of historians in the late 19th c trained in the great place for training historians which was Germany. And they learned the grand mechanisms of late 19th c German scholarship than which there are no grander, more painstaking, or more ludicrous mechanisms.

But well into the second half of the 20th c, every great American scholar - that is, everybody who went to a great American university - imbibed the sufficient quantity of that Germanism to have a special reverence for the late 19th c German Dr. Rotin in the field, whatever the field is. Which now on paper which may not last 500 years because it is just beginning to be the time when paper has acid in it and begins to decay, thoose late 19th c German doctorates, they are the pinnacle of philological scholarship and their notes are incalculably important which is why nobody would ever think of rocking the boat in university politics. But will show up once in his or her career late in life dautering at a meeting of the library committee if it is even suggested that the state of preservation of the late 19th c German doctorate are less than ideal. Those books are sacred beyond anything in their field. At any rate, the historians who were trained that way were Brooks and Henry Adams you could suggest or many another, even those on the other side. They had a tendency to see reception in the way that they had been taught by the jurisprudential tradition in Germany to think of reception.

It's a powerful emotionally significant moment. And so they tried to find a similar powerful and sacred moment in the history of American legal history around the reception statutes and they wrote a little nonsense and then it went away.

Instead the victory of the commoon law is not made by state legislatures determininng the outcome. They're state legislatures. They do what they always do. They tax or they spend, preferrably on a cousin or on themselves. They don't rise to heights of this sort.

And after a certain moment in the history of the 19th c - not quite where we are now, but just a little bit ahead - they will do what a railroad company bribes them into doing because that's the business worth having. They're not spending a lot of time worrying about the reception of a common law. The reception of a common law is a elite issue decided in the courts and by the most elite of the court's elitely.

And it is intellectually a great success.

It completes a process of transplantation and it allows that extraordinary flexibility which Hurst is talking about in the release of energy principle. I have put back into the Wiki a copy of the great work of Morton Horwitz The First Volume of the Transformation of American Law, which I have linked back to the Oct 15th class. It is in a way the new left historians answer to Willard Hurst's great essays in the conditions of freedom in the 19th c US. IT is a way of interpreting the same material that Hurst describes for the purpose of showing how the law of the US before the Civil War was a primary source of subsidy to industrial development. To accept Hurst principle that the legal system of the US grew in the first 50 years of the 19th c with a purpose of facilitating the exponential expansion of the empire into the space created by the Louisiana Purchase and ultimately, therefore, to the continent as a whole.

But also, that the law of the US as it evolved in that period was specifically directed at the creation of certain kinds of wealth through certain kinds expansion and that largely corresponded to the perfectly familiar claim that mercantile capitalism used the law of the US before the Civil War to strengthen itself deeply. That Hamiltonianism triumphed over Jeffersonian's. And that and everybody who ever told the story that far told it this way through and that this mercantile capitalist system turned upon and destroyed slavery int he Civil War.

And most of those who told that much of the story that way went on to tell the story further by saying that having destroyed slavery as a mode of economic competition, mercantile capitalism reinstituted white supremacy because it had no beef with white supremacy.

The purpose of Horwitz's work was not necessarily to establish all of those points or in fact, to be drawn down that road at all. It was to ask the question how did American legal thought develop assuming that historical position in which legal thought is an actor. But it's an actor acted upon. If not absolutely determined by material circumstances, then so strongly influenced by them and the relative position of parties towards those material circumstances that the rest is not entirely necessary to discuss. Morty would have said in later years that when he wrote the book he was an older Marxist.

I think that's probably not right. When I read the book for the first time and began to form the sort of career that a lot of us did in the early 1980s in relation to that book, I was a sort of vulgar empiricist deeply skeptical of older Marxism as tending to do a lot of lumping where splitting would be a better idea. I started out thinking about legal history writing by thinking about how to quibble with Morty. I think, in all fairness, I won a couple of trivial rounds of the very kind that ought to tell you that you're wasting your time and you should do something else because it wasn't petty victories over whether this story was right or that story was right that determined what the transformation of American Law's first volume was about. The question was are we getting an understanding correctly of how the law of the US grew in the period in which the empire expanded across the continent suddenly? And teh crisis over the continuance of slavery rushed upon it.

In the end maybe it came down to everybody's changing political and intellectual commitments in their real lives over the years, but lik emost people who've done history, I tend to think it's the other way around. The view of your own times is colored by where you work if you're a professional historian who spends his or her life in the sources of the past.

Jack Hexter wrote a wonderful essay called "An Historian's Day" as an American historical Association presidential address in the 50s in which he said let's consider my day. If presentism is realyl teh problem of historical writing and if my day is what determines how I write my history, how do I spend my day? The answer is I spend my day ignoring the newspaper and reading the history of Northern Europe in hte 16th c. I know less about my day in the newspaper than I know about N Europe in the 16th c by orders of magnitude. And in ordinary daily life I tend to reason about the world around me by resorting to the stuff I know best which has to do with English politics and Dutch education and German economics in the 16th c. So, whence this belief that my day affects my writing. But you have to be an archival historian working with your head altogether in the archives for that approach to be true. Adn one of the things I now find as I teach history and do something else, is that indeed, once you are doing something else, the way you are thinking about history becomes presentist.

I now realize that the presentism is creative. The body of evidence that I possess is what it is. I don't add to it by research anymore. I read other people's secondary literature and I acquire their opinions and some sense of the flavor of the sources that they use but I cultivate no primary sources of my own. I don't immerse myhself anywhere as I once immersed myself in the legal life of 18th c NY. And so when I think about the question how did the law of the evolving empire work in the first half of the 19th c I realize I am asking a question which I feel I understand better by reference to things that are happening in my own time and that I know vividly about.

And by that standard it would be correct to say that hte law of the first half of the 19th c does, as Horwitz so vehemently argued out of string citations from State supreme court cases, the law rewarded those actively using the environment at the expense of those passively employing it in traditional form. Whether it is tort doctrine about railroad side fires or water laws he described or Pache about everything I had to say about how wrong he was about commercial arbitration in NY in the 18th c, as though that really ought to matter. He is right to say that the relations between the BAR and commercial interests in the 30s and 40s of the 19th c and coming out of developments in the 18th c, not all of which I think he correctly understood, produced a very clear sense that the purpose of law is to facilitate development.

The NY Times is busily writing about the economics of Bloomberg's building boom and how it didn't work. What was it? The release of energy principle: deregulate the developers by massively liberalizing zoning law and easing up on regulatory matters and allowing the mob to grow unchecked in the crane inspection business and everything else.

And it did release a lot of energy and a lot of buildings went up. Judging whether they overdid it drastically might affect one's vote in a ? election but I can hardly imagine it, particularly not one in which the incumbent spends 100 million dollars of his own money to be reelected.

The release of energy principle in the comfort of the comfortable are directly related aren't they? This is when incentives theory becomes big. You have to get out of my way and allow me to get a bigger piece of the pie. That's why I do things. And it's a form of argument about the nature of social life which is common to a fat land. TO a place where there's a lot of extra and the real purpose is to get yours of it.

When the barrel fills up ecologically and gets tight, people look to legal devices to protect what they have because the number of potential claimants is so much larger than the number of potential victories to be had by unaided effort of one's own. In an environement of free land and other forms of resources subsidy to enterprise, the demand for rules that get out of the way and allow you to get what you can get to will tend to be great. Thus says the legal sociologist.

And proof of course would be forthcoming of that point recurrently. You would go and look longitudinally through the way human beings and law work and you'd find a lot of that.

Indeed, you'd probably find more of it than the alternative. It is a regularity. Deregulation signals surplus or is assoiciated with it.

Deregulation, under conditions of surplus, tends to result in increasing inequality says the legal sociologist and there is no shortage of historical demonstration for that. Very little to be said on the other side.

The funny thing is that the inequality can be masked to a significant extent, says the historical geographer, if you spread people out spatially.

Inside the walls of the traditional European city, the medieval city, or in its near and visible suburbs on its hilly flanks, a significant change in conditions in inequality will be immediately registered as they will in villages and other places in the world where people must concentrate and live in community to survive.

If you can spread the population across the space, says the historical geographer, your chances of sustaining growth and inequality are very great.

And thre are interesting internal propositions oyu can offer once again, even says someone so shrewed and non-doctrinal as Edward Gibbon. There are interesting things that happen in a place like the Roman Empire when you have done that in one sense but you have still left a large number of the poor living among the rich. Indeed, the ancient city goes towards bread and circuses for a reason, says he.

And the historian of law has to agree with that also. The real forms of order aren't kept by law in the city. The real forms of order are kept by welfare policy and policing.

Those are the engines of power. The political balance is traditionally maintained by surveillance, a subject about which we could work together it you like. Maybe in the spring.

American society responds to the opportunities that present itself by spreading across the land. Mainting masks against inequality, among other things, to provide stability. Both systems of mercantile capitalism and slavery do that in the US because there's a llto of land to spread into.

Napolean enabled the US to increase its resources more internally than externally by requiring it to conquer no significant territory in order to double in size. After that, projection of military force is both possible and necessary. Not much military force, but enough. And of course, conducted in teh grand old spirit of aggressive war.

Once you have inhabited the valley of the Mississippi, then, well, then fortunately between you and any place you might want to go is Texas, about which many bad things and very few good things can be said.

The only good thing you can say about TX is that it is part of the Mexican part of the Spanish empire and in that part, slavery is illegal. So the one good thing you can say about TX is you cna't take slaves there which explains why people are going to attempt to detach it from MExico and attach it to the US so that they can take their slaves there.

And then of course tehy make you fight for it. They do that all the time. Once you let the Texans in the empire then their basic principle is that you should fight for them. They're very inclined to fight. They live in what in the European spaces called "borderland." TX is our Ukraine. It's a meeting place of hostile mutually uncomprehending groups all of which operate, generally speaking, not at their best behavior. It's mediated by a communication system entirely constructed around violence.

IT would be like that anyway but it has Commanche in it and once that's true that's how it is.

The only thing all those people ar egoing to be able to agree upon is that Commanchee must be obliterated so they're going to commmit defensive genocide, but that's the way they tend to be, you understand, inside that box. To be fooled into fighting a war for it, who in his right mind would let that happen?

Of course, in due course what happens happens, has to happen. The place fill sup with slaves filled by people violating Mexican law. The Mexican governemnt raises itself to one of its occasional attempts to have law. Owners of the black people in TX rise in revolution in defesnse of the sacred rights of life, liberty, and property. Their initial efforts to resist the Mexican army go poorly, but we are required by the Texans for the longest time to enoble them in their last stand victory in support of slavery in TX.

Remember the Alamo. Or at least rent your car from it. Can you imagine making a brand out of it?

Here fell our guys defending the illegal slavery of Texas. Rent from us.

And in the end, they're going to seek what they are delicately going to have the US Congress refer to as the reannexation of TX. The RE is the whole joke. Oh, we're not waging aggressive war. We're not annexing TX, we're REannexing it. We had some claim or other that nobody on Earth ever would have accepted, etc. This is why we have to fight. That's ok we're going to realy do what we want which is to take CA but we're going to be compelled to wind up with Texas.

And Ralph Waldo Emerson, the sage of Concord, says the US will take TX as a man takes arsenic. It will destroy him that he swallows it.

Before the US was gentily compelled by its need for CA to take TX, one eveining in 1845 in the spring the pro-slavery TX republic Sam Houston, was having dinner in NY with his headfund backers. You will of cours eunderstand that there's a heap of benefit to be had by speculating in TX land bank script right? You can buy today as waste paper the notes of hand by a TX institution of financial services backed by a bunch of land with armadillos on it.

But what if it was the US of America the day after tomorrow? So Sam Houston is having dinner with the venture capitalists who are financing the proslavery TX Republic hoping to turn themselves into the owners of places like Midland, which they're going to do. And the question is raised what happens, Sam, if the US government never agrees to acquire TX and you have to have the TX Republic. What are it's ultimate boundaries? Sam Houston took a piece of paper, an envelope or letter lying on the table and on the back he drew a map like Aruth Lafford drawing on the cocktail napkin - some sacred moment in western intellectual history. Everybody knows about Arthur Lafford and the cocktail napkin, but Sam Houston, this you should know. So he draws a map of the US as he understands the shape of N America on the back of this letter and he draws as the boundaries of hte Republic of TX, the boundaries of the confederate states of the US. And TX and New Mexico and AZ halfway.

And he draws a line up the middle of the inter mountain west of the continental divide and then back down again through the prairie to TX. And that's his view of the republic of TX if the US doesn't acquire it.

If you look at a map of the states carried by George W. Bush in the year 2000 and you look at Sam Houston's map, you will disocver something really quite important about the American empire.

I suppose you could go out, Emerson was right or something.

At the time, it looked rather less than that.

A grandson of Ethan Allen who was serving with the nonentity commander of American forces in Mexico who is going to be elected pres of US, Zachary Taylor, grandson of Ethan Allen, Boston brahmin. He's down there on the moment where they're going to fix their bayonnets at Sorentino and get ehir asses kicked by the Mexicans or not. He says "So here we are crossing the border into Mexico one step towards the dissolution of the US." It's clear enough what the Mexican war is if you're a northerner. IT's the beginning of hte expansion of the slave portion of the empire towards predominance. That's the difficulty it presents.

But it isn't nearly the question of equality or inequality as between the slave empire and the free empire. It's also what is the fate of the landless working man in the city? You wouldn't know it of course to think in terms of a frontierman. There, the feeling of the urgency over the expansionism will be felt in the opposition to the Mexican adventure by a young Illinois congressman who's going to lose his seat for opposing the war.

And he says this war seems to him quite like that of the farmer he knew in the Indiana frontier who said I don't want much I only want what gines mine. And with that joke, Abraham Lincoln loses his way in American politics and he gets defeated at the next election and goes home to practice law in a state of deep total depression.

Spent years moving his pieces so carefully in Whig Illinois towards that seat in the House of Representatives. He's been a diligent supporter of his constituents, which mostly means in seeking their pensions.But, he's a railroad lawyer too. He knows what you do in Washington and he's been so careful about it all and over his opposition to this insane war has blown his career.

And there's where the equality thing looks to them. It has to do with the equality between the free part of the empire and the slave part of the empire. But, if you're not from Illinois and you're not from NY, you might feel the pressure of the people who work there growing. Where's the land for them?

Where's the payoff for them?

And there's plenty of hostility and racial antagonism and who are the Irish anyway adn plenty of anti-Catholicism and growing feeling that immigrants shouldn't be here.

Whoever immigrants are, which usually means those who came later than I did, of course, since tehre isn't anybody who didn't come from someplace pretty much.

And in that environment, as in all other environments that mix up the people, white supremacy has its purposes. It's useful. SO it's used.

And I think it does make sense to recognize in all those ways the presence of the themes, the release of energy, the disrimination of class structure, the spatial separation of rising inequality, in different mixtures with the victory of elite thought and the compression of democratic ideology into material stakes in the state. And all the other important simplifications of rapid social and geographic development inside the legal system which is internally primarily driven by debate about wha thte condition of the common law is.

And meantime, people are making themselves lawyers.

They're studying in law offices. They're getting some grasp of how some business is done. And they're moving out. They're going someplace like everybody else. Some drifting around, some determinately rising up, some lookingt o raise themselves by diligence and effort.

That Abe Lincoln. Not a crazy example.

You know, he'll say that the history of his family could be found best in Gray's elligy. IT's merely the forgotten toil of the poor. He does mean it when he says that God must have loved the poor people, he made so many of them. He does mean for political reasons, for he is nothing ever ever ever not but political. He does mean for political reasons to exaggerate his commonality.

But he's a self-made man. That's the point. And there's nothing untrue about it.

And he's married up. He intended quite clearly to do and he has done it.

HE married into Kentucky aristocracy.

But the real point is he's going to be a lawyer and he's gotten to understand how to have a political practice. His law partner said that his ambition was a little engine that knew no rest.

And it seems right. It describes not just him, but a lot of lawyers like him. Their self made independence seeking in the growth to grow materially and politically acquisitive. And the frontier is their element.

It's a sort of unusual thing to contemplate right? That really good people could be out making practices for themselves? Of course, if they had grown up in Philadelphia they wouldn't have to do such things, not if they had grown up in the right Philadelphia. It's true in a way right? People apprentice with their fathers still or with the close professional firends of their fathers. And there are the people who go to Harvard Law School. But that doesn't mean anything to A Lincoln. It can't. It's another world.

He could no more go to Harvard Law School than an African could.

The basic truth of the matter is that there's a whole society that exists in that condition. It can make plenty of itselfbut it's of the West.

And its values are fundamentally different. Its law, however, is not fundamentally different. At least, it says all the same things in the books. All the same things and it's the same common law and in a way, that of course is the crucial issue. The empire can pretend to be fundamentally uniform when it is fundamentally like all empires multiplicitous. But it isn't committed primarily to local freedoms. It hasn't the problem of the Hungarian freedoms in Hungary and whatever it is in Austria. It doesn't exist even in the checker board that the English common law did in the 12th c. It's not worried primarily about but ? in Kent. The law of Alabama doesn't vary that much from the law of Tennessee. In fact, in the 20th or 19th c, there's less to be concerned about in some sense there than there was in the 18thc.

The international private law of the empire of the US is the federal common law made in Swift against Tyson.

If law is about selling or financing a farm or even financing a railroad, though that will be a plenty corrupt and dirty subject, there isn't going to be a lot to question about how the law works. Maybe in part because Swift against tyson makes sure in its own ? that there's no problem with railroad financing, for example. That there is a system of credit and debt and a structure of payments that crosses the entirety of the system of the US is absolutely crucial. It's a common market empire from the beginning. That's the release of energy principle at work.

But slavery is going to be right in the middle of every single problem.

In the end you have to make some basic decisions inside this legal system that looks so uniform and harmonious.

IT's not just that over there there is slavery.

It's that over here, there are people who over there, would be slaves. Now what?

That's the problem.

It's a problem of recognition.

At the other end of the whole little enterprise between us where I feel Charlie Black and Louis Armstrong in convo with one another there's a floating proposition. The prima material of tragedy is the failure to recognize kinship. I suppose it's about Sophocles in the first sense but it's about America in the second. The difficulty that is overwhelming, which is for better or for worse and mostly just for itself spreading across the continent. The tragedy that's overcoming it is the failure to recognize kinship. This person over here would be a slave over there. Now what?

How much do you recognize the person?

The pieces are moving towards the moment when the Chief Justice of the US will say in the ex? tones that 5 votes have on the US Supreme Court that the constitution didn't creat in the federal empire any rights in the black man that the white man was bound to respect by which he means in the federal courts, as a person diverse in citizenship from someone else.

To get to that legal conclusion is to be unable to recognize kinship. That's its radical name. That's the tragedy and where it arise is at the boundary between the slave world and the free world in the same empire.

Look, you have to ask yourself. What will you do? You're in a train station. There's a whole lot of people in the broad daylight and somebody comes through dragging a human child on the end of a chain. What are you going to do?

You know that you can walk into Grand Central Station late for a train and step over a homeless person lying on the sidewalk. You know you can do that. If you think about doing it, you might not be completely comfortable with yourself, but you know you can. Now tell me. Can you cultivate the state of mind necessary to be in that train station? Let's call the place Cincinnati, Ohio - watching somebody pulling a little child through the station on a train? DOes it really matter if you see the chain but it's not actually clanking?

With what reluctance you may imagine the ceaselessly ambitious A Lincoln is ever going to speak about any question about which his honest opinion truly given could again terminate his political career. With a full understanding of how deeply he feels the inclination never to destroy his career again by telling the truth, I would point out to you the correctness of the proposition that a house divided against itself cannot stand because if you can put yourself in that position, you know that divided against yourself at that moment, you cannot stand either. In the end about this, there are going to be choices. And teh choice of indifference or refusal to acknowledge is of course, the primary one. Almost everybody does it almost all the time.

But it's the same A Lincoln who says "You can fool all of the people some of the time. And you can fool some of the people all the time. But you can't fool all the people all the time." The problem isn't only to be found in the fishers of the law at the edges of Kentucky or VA or Ohio. It's not a problem which exists solely because there are systems in conflict.

It's the problem that we actually all have all the time. There exists in justice. What are you going to do about it? IT's really all it is. But it's there and it won't go away. See you tomorrow.


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r1 - 21 Dec 2009 - 23:02:10 - IanSullivan
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