There's Something About 1619

The thought of agreeing with Newt Gingrich about anything is one I find disagreeable.  For that matter, the sorry state of conservatism in these dark days is such that I'm disturbed whenever any of its current, usually self-appointed, spokesmen or women begin to hector us.

But being an honest and honorable sort, generally speaking, I find there is something wrong with what is being described as "The 1619 Project" delivered unto us by the New York Times and others.

What I find wrong with it isn't necessarily what the appropriately named Newt and other such pundits of the right find wrong with it, however.

One thing I find wrong with it is the language which appears, like all else on the Internet, unbidden in response to our clicks.  The Project, we're told, "aims to reframe the country's history, understanding 1619 as our true founding, and placing the consequences of slavery and the contributions of black Americans at the very center of the story we tell ourselves about who we are."

The wording strikes me as curious.  First, there is the juxtaposition of the words "our true founding" and "the story we tell ourselves about who we are."  The first phrase purports to refer to something that is true.  The second phrase refers to something which would generally be perceived as something which isn't true or at least not wholly true--a story which we, for reasons undescribed, tell ourselves.

The second phrase is more attuned to what I've encountered when reading more modern works of history.  They have an apologetic tone to them.  The authors seem to feel hesitant and even somewhat ashamed when they come to conclusions, and take pains to let the reader know that they're very aware of the fact that nothing, really, can be known or concluded about the past or indeed about anything, because we and our sources are all culturally, socially, and in any case universally so bent and twisted and turned that we are incapable of knowing what is true, there being no way to judge our truth as being superior to anyone else's.  I suspect you know the drill.

The first phrase, though, actually says that, in fact, our true founding was in 1619, and not at any other time.  It's a very bold, clear, absolute statement.  It is so absolute that it invites a challenge.

Putting any particular challenge aside for the moment, I can't help but wonder if the author or authors of this blurb wish to pay homage to the culture of uncertainty which infuses so much of our intellectual musings these day, but also want to make a point which might be thought far too certain, but for surpassingly good reason; i.e., to open our eyes to what the United States really is, and so change the story we tell ourselves presumably for the better.

Since so many of us have lately taken to making other broad, absolute statements regarding our nation--that it is Christian, that it is not one that should welcome people of a particular kind but instead should keep them out, that at least according to one local politician has in it cities which should remain as "white" as possible--one can sympathize with efforts to show otherwise.  But absolute statements of any kind are dangerous and making them does a disservice to us all when those statements are made in a public forum and have political purposes.

Is it even possible to establish that a nation was founded at a particular time?  Well, one can probably establish, to a reasonable degree of certainty (how I love this legal phrase) that the nation known as the United States exists or existed at time X and didn't exist at time Y.  One can also say with the same degree of certainty that it didn't exist in 1619, and didn't exist 100 years later.

So, clearly whatever the authors are saying, or at least wish to say, is that "our true founding" is something different from the establishment of the existence of the nation called the United States.   But what, then, is it?  How were "we" founded in 1619?

"We" apparently were founded when 20 or so enslaved Africans arrived in what is now Virginia in 1619.  This seems to be perceived by the Projectors (as it were) as the beginnings of slavery--where?  Well, it would have to be somewhere where slavery had not already begun and been in existence, presumably.  But slavery of Africans and of indigenous peoples had been in effect in the Americas for quite some time.  The Africans brought to Virginia in 1619 were removed from a Portuguese slave ship.  The Portuguese and the Spanish had been enslaving Africans and bringing them to their colonies in South America, the Caribbean, and Mexico and Central America for a great many years.  Since the Spanish held sway over parts of what is now the United States for years before 1619, it is very likely that slaves had been in use in parts of what is now Florida and Louisiana before "our true founding."

If this is true (there's that word again), though, and slavery had in fact existed in what is now the United States before 1619, does the slavery that was in existence before 1619 somehow mean less, in terms of "our founding" than the slavery which came into existence in Virginia in 1619, albeit only 20 or so slaves were purchased at that time?  Why?

I'm inclined to speculate that the slavery which existed before the arrival of those taken from the Portuguese by an English privateer (pirate, I would say) is not important to the Projectors because, well, that was Portuguese and Spanish slavery.  What's really important, so important as to be the basis of "our true founding" is the slavery that was fostered by specifically the English and, later, English colonists and citizens of the United States who were of English or British descent.  Anglos, I suppose they may be called.  For the purposes of the Projectors, they were the real slaveholders as far as "our true founding" is concerned.  They are, in other words, responsible for "our" slavery, our slave nation.

That would seem to be the point, and I think it a political one.  Who would care about Spanish and Portuguese slavery at this Project, or its legacy and influence?  The point does not seem to be that slavery is awful, and slaveholders contemptible, in any circumstances.  "Our" slavery is what's important.  "Our" tainted legacy is to be emphasized.  Not that of others.

The influence of slavery on the United States is unquestionably profound.  It would be foolish to think otherwise, perhaps even delusional.  It's a horrible legacy. To define that legacy, to describe that influence on the United States now, is perfectly legitimate, and even necessary and essential to an understanding of our nation.

But I think it foolish to claim that "our true founding" took place at a particular time when a particular event took place.  We should know better by now to attribute great and complicated nations, cultures and societies, and even more simple things, to a single cause.  The 1619 Project undermines itself by making such a claim.

Justice and the Law

I'm an admirer of Patrick O'Brian's great series of historical novels set during the time of the Napoleonic wars, featuring as their heroes Captain Jack Aubrey and Dr. Stephen Maturin, members of the Royal Navy.  One of the novels caused me some pain when I read it, due to its depiction of lawyers, judges and the law.  Fans will know I refer to The Reverse of the Medal, in which Aubrey is treated very poorly by the legal system of the time due to the machinations of his various enemies.  I refer specifically to that portion of the novel in which the sophisticated Maturin tries to convince his not very sophisticated friend that he should not expect a just outcome, given the nature of the system and those who are a part of it.

Readers, if not fans, of this blog know that I'm a lawyer and have been one for a long time.  It's not easy for even a jaded practitioner like me to watch, as it were, as the beloved characters in a beloved series of novels by a beloved author excoriate the profession in which I've labored for most of my life.  I don't think an author necessarily believes what his/her characters seem to believe or say they believe, even when those beliefs are stated so definitively, but can't help but feel a bit downcast when I read, and sadly re-read, that passage of the book.

Lawyers and judges are condemned by Maturin for being devoted to the law uber alles, so to speak.  Edward Gibbon is cited as someone who shares this view, and a anecdote involving the great historian is also cited.  Gibbon supposedly challenged a lawyer to acknowledge his client was guilty, only to be told by the lawyer that he could not know whether that was the case until the judge determined his client's guilt.  Gibbon thought this to be a "miserable" example of sophistry, or used words to that effect.  As I interpret the passage, it criticizes lawyers as disregarding justice and morality, and substituting the law in their place.  Thus lawyers do not care about what is right or what is wrong, and do not strive to achieve what is right instead of what is wrong.

It strikes me, however, that it is Gibbon and others who think like him who make a fundamental error in judgment, not lawyers.  Lawyers understand that the law is not what is just, or right, or moral.  Those who criticize the law for being unjust don't understand what the law is, and foolishly--naively--believe that it is what it is not.  But, nonetheless, the law is the law.

To address Gibbon's example:  "Guilt" in the law is not necessarily "guilt" as commonly understood.  In the American system, someone is guilty of a crime if that guilt is established beyond a reasonable doubt.  It happens that those who commit a crime sometimes can't or aren't shown to be guilty of that crime because, for various reasons, proof beyond a reasonable doubt isn't shown, or the jury believes it hasn't been established.  So it's quite correct to say that one doesn't know whether a defendant is guilty in the law until found to be guilty, even if it's true that they did something wrong and committed a crime.

Happily, I don't practice criminal law.  I don't doubt, though, that defense attorneys sometimes know that their clients committed a crime.  Because a lawyer would know that it's quite possible that someone who commits a crime may be acquitted (even if the glove does fit) a lawyer may decline to represent a defendant because he/she feels it would be wrong to do so.  Or they may choose to do so regardless because in our system all are entitled to a defense, and to be treated as innocent until proven guilty.

That, good or bad, is the law.  One might say that the law is what it is for good, sound policy reasons; that it is preferable that such a strong burden of proof is imposed on the state so that it is difficult to prove someone committed a crime even when they did, as the innocent are thereby protected.  One might say otherwise.  Then one is making a judgment about the law, whether it is good or bad.  But one isn't saying that the law defines what is good or bad, or should do so.  That's a critical error.

I think one of the first duties of a lawyer who litigates, who represents a client in the court system, is to explain to a client that what is just, what is right, may result but need not result in a courtroom.   O. W. Holmes is said to have spoken these words to a young lawyer who appeared before him in court:  "This is a court of law, young man, not a court of justice."  The judge could not have given sounder advise to a novice lawyer.

The law is a vast system developed over time to regulate our affairs.  It may sometimes be consistent with morality, it may sometimes be perverted by it or by a particular view of it, as in the case of Prohibition.  But it's not intended to be a system of morality, and we don't respect it for being such a system.  We respect it because it's the law, and it would be foolish to ignore it.

Lawyers and judges are a part of the system.  They know how it works.  They fulfill a particular purpose, and have a particular function.  They may perform that function well or poorly, they may practice morally or may not.  They may be condemned for being immoral, certainly, but only those who confuse morality and the law will maintain that they act immorally by practicing law, and should not do so unless they wish to claim that the entire system of law is immoral, and are prepared to defend that claim.  

I suspect that most won't make that claim, or if they make it won't be able to defend it.