The question before us is: How do we change the story? Marshall (and others later) knew more or less what he was doing and did it anyway (is the difference between liberals and conservatives just that the liberals feel a little more guilty later?). We are always told that there is no choice. That "freedom" as we understand it is actually about having no agency at all and letting the "invisible hand" do its thing.
The first time I read this case, in law school, of course the whole thing was just breathtakingly terrible, realizing that the foundations of property ownership in the United States came down to this. Thus cruddy, self-contradictory, illogical, inaccurate and unconvincing fiat of a decision. But I couldn’t stop rereading these passages, and they are what still play over and over in my mind:
“We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”
and
“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”
He could have just left it at the unconvincing argument of the defense, but he stops to note, that he isn’t really convinced himself, either, but, so be it, his job is to just say this is how it is and who is he to do otherwise. Did he say this because he wanted readers to know that he wasn’t so stupid as to be convinced that this decision was actually just? Or just as a sort of flex?
So anyway although legally probably what matters most about the decision is how it adopts the even more extravagant pretension of “discovery” of lands that other human beings were already living on, the part that sticks with me is how he took time to note, to make sure the reader knew: ‘We are staring the injustice of this in the face, we grasp how wrong this is under the general abstract morality we otherwise claim to believe in, but we are deciding it anyway, and we just want to make sure everyone knows that for all time.”
Which going back to the song, I think the weird threads he left there in his words are still dangling, and waiting to be picked up.
Carsie Blanton is now my new favorite listen! (I don't follow music much, so always appreciate suggestions like these. This one is particularly good, thanks!)
There was a great law paper I read last year -- have to try to find it again -- by a Native American law student on what it was like to sit in law school and have this case briefly discussed and its importance glossed over. I think it was called "Listen."
Your insight as someone who's been to law school is helpful for me because every time I read this case, or read about it, it just seems so horribly egregious, and I wonder if I'm missing something. But I don't think so. Your explanation about where he could have left it but didn't makes me stop and want to go back in again and try to figure out where his head was at. ESPECIALLY when he then refuted the same main arguments in Cherokee Nation v. Georgia some years later!
This part from your comment will stick with me: "‘We are staring the injustice of this in the face, we grasp how wrong this is under the general abstract morality we otherwise claim to believe in, but we are deciding it anyway, and we just want to make sure everyone knows that for all time.'
Which going back to the song, I think the weird threads he left there in his words are still dangling, and waiting to be picked up."
I shouldn't have chimed in here, I'm not even doing the Threadable read with you, and I had never learned that Marshall was a speculator, I need to read the Echo-Hawk book and the Blake Watson book too. The language of this case is just so impossible to accept, I'm glad you're writing about it. And that you liked the song, she has some great songs.
Why not chime in?! Most people aren't doing the readings, which is totally fine. The thing that hits me most is how little this case is known combined with how deep its influence still runs. I'm glad to know that people have thoughts.
I found that law review article I mentioned, titled "Listen" by Matthew L.M. Fletcher. It's part of why I think it's important to talk about, no matter how much or little we've read: "The story is huge. I cannot emphasize that enough. The story's many strands and fibers contain the fate of ten million, or twenty million, or maybe even 100 million, people living in this land before the Vikings or Columbus arrived."
The past and ongoing treatment of the U.S.' indigenous peoples is one of the things I'm most ashamed of about my country. It's absolutely bonkers what we did and what we look past every day. How do we rectify these injustices? I don't know. I'm currently in Antwer, Belgium, and as we look around at these gorgeous buildings we've talked about how they were built on what the Belgians did to the Congo. And I honestly don't know you could ever possibly set that wrong right.
It's so, so hard to know. I think one of my biggest frustrations, though, is when people around me shrug it off as all being too hard to repair or ameliorate. It can't hurt to start trying, somehow, can it? (Oof, Belgium and the Congo. The levels of horrific colonization all over the world, in fact. Just ... hard.)
'I noticed it and I paid 24 dollars for Manhatten: now I own the entire continent. Any treaties signed are mere whimsy.'
The entire English legal system was underlaid by basic aristocratic feudalism and Declaration notwithstanding, they just imported that system into the post-Revolutionary system. Congress and the legal sytem have been cleaning up ever since.
That's the entire point of the Federalist Society: to get back to that old time feudalism - when it benefits their friends.
As to what can be done about: I haven't got the faintest. You'd need a French-style purge of the old law and a complete reset and that wouldn't fix it either.
I really think that's what the Federalist Society wants. It's all about property and hierarchy.
None of those revolutions have ever fixed anything. The same people end up still running things, for the most part, or the same class of people (all the heads rolling from the French Revolution notwithstanding). Some sort of other direction has to be found ...
The question before us is: How do we change the story? Marshall (and others later) knew more or less what he was doing and did it anyway (is the difference between liberals and conservatives just that the liberals feel a little more guilty later?). We are always told that there is no choice. That "freedom" as we understand it is actually about having no agency at all and letting the "invisible hand" do its thing.
Its hard to believe we buy it. But we do.
It is hard to believe. But you're right. And changing the story really seems to be a vital part of changing how we act and what we justify.
This song always makes me think of Johnson v M’Intosh, https://carsieblanton.bandcamp.com/track/american-kid.
The first time I read this case, in law school, of course the whole thing was just breathtakingly terrible, realizing that the foundations of property ownership in the United States came down to this. Thus cruddy, self-contradictory, illogical, inaccurate and unconvincing fiat of a decision. But I couldn’t stop rereading these passages, and they are what still play over and over in my mind:
“We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”
and
“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”
He could have just left it at the unconvincing argument of the defense, but he stops to note, that he isn’t really convinced himself, either, but, so be it, his job is to just say this is how it is and who is he to do otherwise. Did he say this because he wanted readers to know that he wasn’t so stupid as to be convinced that this decision was actually just? Or just as a sort of flex?
So anyway although legally probably what matters most about the decision is how it adopts the even more extravagant pretension of “discovery” of lands that other human beings were already living on, the part that sticks with me is how he took time to note, to make sure the reader knew: ‘We are staring the injustice of this in the face, we grasp how wrong this is under the general abstract morality we otherwise claim to believe in, but we are deciding it anyway, and we just want to make sure everyone knows that for all time.”
Which going back to the song, I think the weird threads he left there in his words are still dangling, and waiting to be picked up.
Carsie Blanton is now my new favorite listen! (I don't follow music much, so always appreciate suggestions like these. This one is particularly good, thanks!)
There was a great law paper I read last year -- have to try to find it again -- by a Native American law student on what it was like to sit in law school and have this case briefly discussed and its importance glossed over. I think it was called "Listen."
Your insight as someone who's been to law school is helpful for me because every time I read this case, or read about it, it just seems so horribly egregious, and I wonder if I'm missing something. But I don't think so. Your explanation about where he could have left it but didn't makes me stop and want to go back in again and try to figure out where his head was at. ESPECIALLY when he then refuted the same main arguments in Cherokee Nation v. Georgia some years later!
This part from your comment will stick with me: "‘We are staring the injustice of this in the face, we grasp how wrong this is under the general abstract morality we otherwise claim to believe in, but we are deciding it anyway, and we just want to make sure everyone knows that for all time.'
Which going back to the song, I think the weird threads he left there in his words are still dangling, and waiting to be picked up."
I shouldn't have chimed in here, I'm not even doing the Threadable read with you, and I had never learned that Marshall was a speculator, I need to read the Echo-Hawk book and the Blake Watson book too. The language of this case is just so impossible to accept, I'm glad you're writing about it. And that you liked the song, she has some great songs.
Why not chime in?! Most people aren't doing the readings, which is totally fine. The thing that hits me most is how little this case is known combined with how deep its influence still runs. I'm glad to know that people have thoughts.
I found that law review article I mentioned, titled "Listen" by Matthew L.M. Fletcher. It's part of why I think it's important to talk about, no matter how much or little we've read: "The story is huge. I cannot emphasize that enough. The story's many strands and fibers contain the fate of ten million, or twenty million, or maybe even 100 million, people living in this land before the Vikings or Columbus arrived."
Full text: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1250&context=mjrl
Had never read that either, thanks so much for the link!
The past and ongoing treatment of the U.S.' indigenous peoples is one of the things I'm most ashamed of about my country. It's absolutely bonkers what we did and what we look past every day. How do we rectify these injustices? I don't know. I'm currently in Antwer, Belgium, and as we look around at these gorgeous buildings we've talked about how they were built on what the Belgians did to the Congo. And I honestly don't know you could ever possibly set that wrong right.
It's so, so hard to know. I think one of my biggest frustrations, though, is when people around me shrug it off as all being too hard to repair or ameliorate. It can't hurt to start trying, somehow, can it? (Oof, Belgium and the Congo. The levels of horrific colonization all over the world, in fact. Just ... hard.)
Or they say it's so far in the past, what's the point?
Yes. That, too.
" I took it; now it’s mine."
'I noticed it and I paid 24 dollars for Manhatten: now I own the entire continent. Any treaties signed are mere whimsy.'
The entire English legal system was underlaid by basic aristocratic feudalism and Declaration notwithstanding, they just imported that system into the post-Revolutionary system. Congress and the legal sytem have been cleaning up ever since.
That's the entire point of the Federalist Society: to get back to that old time feudalism - when it benefits their friends.
As to what can be done about: I haven't got the faintest. You'd need a French-style purge of the old law and a complete reset and that wouldn't fix it either.
elm
so
I really think that's what the Federalist Society wants. It's all about property and hierarchy.
None of those revolutions have ever fixed anything. The same people end up still running things, for the most part, or the same class of people (all the heads rolling from the French Revolution notwithstanding). Some sort of other direction has to be found ...