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Volume 24, Numbers 3 & 4 (2000) reprinted by permission Legal Studies Forum THE COMMUNITARIAN VISION OF CHIEF JUSTICE ROGER BROOKE TANEY GERARD E. GIANNATTASIO It was a speech so daring that a New England liberal could only give it in the deepest corner of the Deep South. This particular corner was a podium in the Manassas Auditorium of the University of Biloxi’s Jefferson Davis College of Law. Behind that very podium, pale hands resting on light oak now dark with age, the ex-President of the Confederacy had given his “Forward in Hope and Service” address in 1869 at the first convocation of what was then known simply as the Law School. In 1992, at the 132nd convocation of the same school, now named for Jefferson Davis, Professor David J. Boscawen’s lanky New England frame stood easily behind the same academic pulpit while under the small, brass-shielded incandescent bulb–added to the podium in 1925–were the notes for his “Toward Constitutional Vision” address. The New Englander’s speech considered a number of late twentieth century Supreme Court cases dealing with Federal intervention in the life of the individual citizen and the local community. They were decisions concerning integration and segregation, choice and abortion– among them ones familiar even to those not professionally concerned with the law–Brown v. Board of Education and Roe v. Wade. Perhaps transparent to the average citizen, more concerned with getting and keeping a job in these troubled times than in the fabric of the nation’s intellectual life, a crisis is currently ongoing in constitutional analysis. On one side are folks who might be tagged with labels like originalist, strict interpretationalist, and even positivist (historical or traditional). Process is process and the intent of the Framers (frequently found capitalized with relentless ferocity) trumps commonsense and any notions of morality left you from the playground or the churchyard. In the other corner find fundamental values jurisprudence, substantive due process, rights-sensitive theories, substance is substance, the framers’ mandates binding only if they bull’s-eye normative notions of justice, and interpretive constraint detached from the postivisitic will of an imaginary sovereign. These two less than well coordinated teams have grappled with each other and, in the name of original intent and words is words as pigs is pigs versus we know what’s just when we see it stretched on a slab before us, have each side fouled the other terribly below the belt and the ego, the two places where men–you gotta love ’em–will hurt the most. Professor Boscawen said little that was new in the early part of his address. He has been working on the impact of Federal law–statutory, decisional, and regulatory–upon localities since before Llewellyn University’s St. David’s College for Women fell victim to the so-called Sexual Revolution. What got the attention of Boscawen’s Southron audience was his treatment of the Supreme Court’s decision in Scott v. Sandford. Scott v. Sandford is better known to most Americans as Dred Scott. This is the famous “self-inflicted wound” that I’ve had law professors with straight faces tell me undid decades of steady growth in the nation’s confidence that our high court was the best arbiter of social change and legal disputes in our Republic. Let them tell it to the Cherokees who put their faith in that Court, I used to think when I was a law student. Now that I’m just a country lawyer and out of the power of law professors, I don’t get to meet many of them to say that to, just Father Paulie, Cousin Salvatore, and Zi Pasqual, who barely count. That’s called preaching to the already saved, of course. They learned social conscience from Grandfather Gesualdo, Great Uncle Nazareno, Ernie Bonanno, and Professor Bruno’s father, old Mr. Bruno–all union men and labor organizers in a time when it was worth your job to organize. Besides, Father Paulie, Uncle Gaetano’s Sal, and the Zio say the self-inflicted wound story is horse-puckey, like Holocaust denial. Professor Boscawen merely pointed out in his “Toward Constitu-tional Vision” address the deep true constitutional impulse motivating the much maligned author of the Dred Scott decision, Chief Justice Roger Brooke Taney (whose name is pronounced “Tawney,” not how you’d want to pronounce it out here on Long Island). Chief Justice Taney’s vision was of a union of states, states which, while they may or may not ever have been truly independent entities, were always true communities. The lean New Englander, who would have towered over Jefferson Davis with feet to spare, went on to say that, as far as legal and not legal was concerned, and quite narrowly speaking, Scott v. Sandford was correctly decided. I’m afraid Professor Boscawen hedged just a tinie-weenie bit on this point. It was sheer lawyerly reflex, of course. I do it all the time myself. We common lawyers are trained that way, and our waffling can’t be helped. It’s hard for us to make an adamant statement, except on behalf of a client, because education and predilection have put it in us to turn around and argue contra either for pay or just for the sport of it. Professor Boscawen, the Northern pundit whose Militia Law in the Colony of New Wales and Cornwall had taken the legal world by storm when it was published fifteen years before, went on to praise Chief Justice Taney’s communitarian vision. Into a stunned, reverent silence he stated his view that this notion of government, for which Dixie had taken up arms in 1861, was just when weighed against the freedom which informed and upheld it, that of free association. The lawyerly waffling came next as the New Englander went on to remind his audience that, unfortunately, this communitarian vision had been linked to slave-holding and inequality in 1861. This, he pointed out, need not be the case in the 1990s. He finished by suggesting the helpfulness of Chief Justice Taney’s vision of community to a quest for a constitutional interpretation seeking workable compromises with which Americans might actually be able to live. He concluded that this vision of the first Catholic to sit on the Supreme Court might be of more utility to the nation and its uniquely text based politics (fancy for “we got us a written Constitution”) than any intellectual posturing about a jurisprudence of original intent or windy rambling rhetoric about radically substantive paradigmatic hierarchies of normative constitu-tional meaning. “Toward Constitutional Vision” was as big a hit in Biloxi last August as Jefferson Davis’s “Forward in Hope and Service” had been in its day. For the rest of the weekend Professor Boscawen had to listen to people repeating back their favorite parts of his speech: Taney misunderstood, communitarian vision valuable, the South’s cause just, and Scott correctly decided (“As the law stood before the War, I understand that, sir, but correct, sir, correct”). It was with some relief that the good professor returned to the Commonwealth of New Wales and Cornwall, its capital of Owensboro, and his office in Llewellyn University School of Law’s Pulliam Hall. From his window he has a fine view of the once bustling, but now sleepy harbor, from whence, on the day after the First Bull Run, the steamers Robespierre, Darling, and Salvage Two had headed out into the waters of Long Island Sound bound for the defense of Washington. They had carried the Glendower Light Guard, the New Cornish Rifles, a detachment of Commonwealth Rangers, and the Ancient Company of Cannoneers with both cannons. The Jefferson Davis College of Law, in common with nearly all United States law schools, publishes a student edited legal journal called a law review. Some schools publish more than one. Llewellyn, for instance, publishes five: the Llewellyn Law Review, the Llewellyn International Law Review, the Llewellyn Arts and Literature Law Journal, the Llewellyn Appellate Studies Review, and the Llewellyn Journal of Jurisprudence and Legal Thought. The Jefferson Davis College of Law has only the University of Biloxi-Jefferson Davis Law Review and that journal desperately wanted to publish “Toward Constitutional Vision.” E. Chapper Cranshaw, the faculty advisor of the journal, called Professor Boscawen, Dean Rood called Professor Boscawen, and various of the Review’s student editors began telephoning from time to time, to “keep in touch” and inquire about the “Taney piece.” Informed that press of duties were preventing the New Englander from endowing his “little talk” with the “needful scholarly apparatus” without which it could not be printed, his callers hastened to assure him that he need not trouble himself with footnoting the document for, as was frequently the custom with presentations originally oral, student editors would see to this task subject to his final okay. Eventually, over winter recess, two members of the law student body, a second year associate editor who resided in the neighboring state of Connecticut and her fiancé, a third year student, arrived at Professor Boscawen’s front door with a “memento” of his visit to the Gulf Coast. The New Englander graciously accepted the hydrostone bust of Jefferson Davis, finished with a bronze patina, and took the couple to lunch at the Llewellyn Faculty Club where he was meeting his wife Ruth Anne. It was Ruth Anne Boscawen who offered her husband a temporary respite from the renewal of entreaties for a publishable version of “Toward Constitutional Vision.” She suggested that her Davy wanted to run the address by the Suicide Colloquium. Of course, she didn’t call it the Suicide Colloquium. That’s Zi Pasqual’s name for it, and by way of our Uncle P is how we come into it. The Colloquium is almost thirty years old now, and Zi Pasqual has been attending it off and on since he was a junior at Llewellyn. That was during the Vietnam War. His AFROTC detachment commander, Lt. Col. Vincuillo, presented a paper, “Cautauk Concepts of Justice in the Practice of Captain Rioth Pembroke of the Middle Company of Long Island Rangers,” and Zi Pasqual had gone out of respect for both the colonel and the namesake of his elementary school. The Llewellyn University Colloquium on Jurisprudence, Rights Governance, and Social Thought, as it is more properly known, is called annually by Professor Boscawen and his senior colleague Converse Wolmanger, the Colloquium’s founder. To be invited to attend you must have either a juris doctor and a Ph.D. in philosophy or law or one of the degrees and be working on the other. This sounds complicated and elitist, but Llewellyn graduate, law, and health science students can take it as an elective seminar for a writing requirement, if appropriate, and juniors and seniors at Llewellyn and the Ap Pearse College of Art and Design can take it with the permission of either of the callers. People are not exactly busting down either Professor Wolmanger or Boscawen’s door to get into the Colloquium. Representative papers this year have included “Goat-Footed Innocents: The Slaughter of the Trap Rock Cultists in Burkean Perspective”; “Algonkian Creation Myths: A Moral Code Deconstructed”; “A Feminist Medea: Sacrifice or Victim?”; “Cannibalism as Text: Decrypting the Donner Party”; “Dispute Resolution in Five Alternative Culture Communes 1962-1982”; and “The Waite and Fuller Courts: A Qualitative Reconsideration and Statistical Exegesis.” Either people who need the Colloquium find it, or else the Colloquium finds those whom it needs. Zi Pasqual has been attending quite regularly for years now and finds his mind thoroughly exercised by its offerings. Every Friday morning during the school year he and Cousin Blaise take a Port Adams-Owensboro Steamship Company ferry to New Wales and Cornwall, returning back across the Sound to Floyd County in the evening. When Desmond and Uncle Gaetano’s Tony were alive and taking advanced degrees, they frequently accompanied Zi Pasqual to the Colloquium. It was then a bunch of us fell into the habit of meeting at Arianne and Julia’s for Friday night dinner after their return. The Colloquium is composed of a hard core of teachers of jurisprudence and philosophy at colleges and universities in southern New England and on eastern Long Island. In addition there are visiting scholars and the two Kittel Fellows, some graduate students, a few law students, the odd medical or dental student, and at least one undergraduate taking departmental honors each semester. Zi Pasqual qualifies because he holds a joint appointment at Floyd Community College in the Secretarial Science (Law Office Management, Advanced Legal Executive Assistant) and the History, Philosophy, and Religious Studies Departments (Law in American History, Religion, and Thought; Sports Law; Thinking about Abominations). He also teaches legal writing off and on at Grafton. It was to this assemblage that Professor Boscawen duly submitted “Toward Constitutional Vision” and a draft of “Etienne Anclerc’s A Wise Woman of the Cautauks: A Seventeenth Century Frenchman’s English Text as Fractured Mirror of Native American Reality.” Clearly he did not expect the Colloquium to spend the major part of the week’s meeting on his little talk in Mississippi. The week before, as piles of the two papers were being passed around among the Colloquium’s participants (technically known– honest!–as colloquiants) Professor Boscawen suggested that of the speech, the question was merely should it be published? Concerning his reading of Anclerc, the questions were more substantial: did Anclerc mean to say what Boscawen says that Anclerc says, do we trust Rioth Pembroke’s journal entry regarding Anclerc’s fluency in Algonkian, and what weight do we give to the first French translation in 1764 and to the second French translation in 1807 given the differing political climates which informed them? Zi Pasqual was quite excited about “Toward Constitutional Vision.” The piece on Etienne Anclerc was of interest, of course. Etienne’s descendants have become Onclerks and O’Clerks in America. We have some of each in the family. Several years back an erect, gray-haired Frenchman arrived in Port Tackapausha, and Salome Brochevoth, at the public library, sent the former Free French commanding officer of the current Etienne Anclerc’s father to Arianne and Julia’s. Thus were we all put into contact with Cousin Etienne who is a police sergeant in France and whose hobby is genealogy. At the Colloquium on the appointed week, Professor Boscawen started off the session as promised by asking those assembled whether they thought the Mississippi piece should be published or not. There was a general outcry against it. From the uproar a consensus quickly emerged that the address should not only not be published, but all copies of it should be shredded to prevent the possibility of it ever seeing print. In the old days there wouldn’t be a further tale to tell. Zi Pasqual would have wanted to say something, but Desmond and Tony would have flagged him off well before he hit the wall. Unfortunately, Tanya’s Desmond, who was a senior ADA for the county, was gunned down by the Russian mafia, and my Tony, who used to go ocean kayaking with him, took to going out alone. As for Cousin Blaise, in some ways he’s a less stable load than the Zio. When Professor Boscawen asked if anyone thought the speech should be published, Zi Pasqual had his hand up right away, suggesting it was valuable indeed to look beyond the now irrelevant portions of Scott v. Sandford, rescuing in it what was still pertinent for today. There had been five papers given at the Colloquium concerning constitutional interpretation in the preceding year. All had criticized Supreme Court attacks on Roe v. Wade. Only one had mentioned women or children or fetuses or abortion and that one only in the footnotes. Most had spoken about chattel slavery without mentioning the Civil War and treating the Reconstruction amendments as if they were evolutionary growths and not the fruits of a savage armed contest. For rhetorical effect most of those papers had discussed Dred Scott at length and with stern, obligatory disapprobation. Constitutional interpretation nowadays consists of choosing either a theory of originalism or non-originalism and applying it to a particular societal problem to reach a solution set out beforehand. The Constitution is reduced to an intellectual jungle gym where an agile mind performs feats of acute reasoning to disguise the fact that all movement is in a circle and the mind, however nimble, is closed. “Toward Constitutional Vision” called a shuffle hoe a shuffle hoe, a bayonet a bayonet, a wire hanger a wire hanger, and a crowner a crowner. Professor Boscawen never lost sight of the fact that the question of slavery had been settled by a civil war that had been won and a war for independence that had been lost. Despite whatever tricks a spry mind with a light touch could perform on the constitutional jungle gym, the New Englander recognized that a case about a runaway slave bore no special relation to one about a woman’s right to choose or the state’s mandate to protect life. Human values of community had supported the Constitution in 1787 as in 1861. Such values still upheld the document as the millennium approached and it was to these Professor Boscawen suggested attention be paid rather than to the pious myth of original intent, a scholarly seance, or the firm assurance that words have a meaning, close your eyes and take your pick. Zi Pasqual had not had time to finish his remarks before hearing himself condemned for defending Roger Taney’s communitarian vision. He told us that evening, over dinner at Arianne and Julia’s, that, for a brief moment of horror and denial, he thought the Colloquium actually believed chattel slavery might be reinstituted and the South made to rise again if Roger Brooke Taney were rehabilitated and a jurisprudence of community values given the merest shadow of a fair hearing. Zachariah Koingberg, the enfant terrible of twelfth century canon law known amongst colloquiants as Zack King Kong, had waxed eloquent in detailing the damage Roger Taney had done to the Court, the country, and the Constitution. It seemed to our uncle that Professor Boscawen looked like he was sorry he had ever heard of the State of Mississippi or, for that matter, Pasquale Cecil Ziti, Assistant Professor of Secretarial Science/History, Philosophy, and Religious Studies and the most recent inductee into the Rioth Pembroke Elementary School Hall of Fame. The Colloquium became engulfed in a most uncharacteristic and quite uncollegial babel as everyone spoke out at once against Chief Justice Taney and his lone champion. Even the sage Converse Wolmanger, gentle and tolerant soul that he is, gazed at Zi Pasqual aghast. Professor Boscawen moved vigorously to regain control as moderator of the Colloquium, making it abundantly clear “Toward Constitutional Vision” was to be put away forever in a dark place. Zi Pasqual subsided after that and said very little for the remainder of the meeting’s two hours. During the break Zack King Kong caught up with him by the coffee cart to further comment on how miserable had been Roger Brooke Taney’s failure in constructing a legal solution to the problem of slavery and abolition. The Zio hardly needed such a surfeit of reminding and turned the conversation instead to the trustworthiness of Rioth Pembroke’s diaries. Zi Pasqual is a slower thinker than the rest of the lawyers in the family when it comes to the law. He’s a jurisprudent, rather than a country lawyer or a Wall Street attorney, and can afford to spend days thinking long thoughts. It wasn’t until he was midway between the Commonwealth and the Island that the reason for the Colloquium’s violent reaction to “Toward Constitutional Vision” occurred to him. He could tell he was halfway across Long Island Sound at the time because the ferry Peggy Eton, which he was aboard, was just passing the Abigail Adams, headed in the opposite direction, and the two were saluting each other with blasts of their horns. At dinner Zi Pasqual put it to the rest of us, whether we thought he had it figured out. You see, he proposed, if you adopt a jurisprudence of communitarian values, you are giving weight to how it is that ordinary Americans live and to what it is they believe. Parents in Queens, for instance, who did not hold with the notion that their six-year-olds should be introduced to homosexuality in the classroom would no longer be such constitutional outlaws. At the same time, our Zio went on, the Constitution would cease being an intellectual jungle gym through which academics with agendas to advance and others with axes to grind might swarm while constructing arguments designed to coax a decision that will force everyone else to do things their way. Our founding document would become less of a tool for the dictation of an outside, other, and ever more impertinent and alien will which has come now to involve itself increasingly in every nuance of the most private portions of a formerly free citizenry’s individual lives. The Constitution might instead find itself once more a human, vital plan for a living government. By the time Uncle P had finished with his little speech, which he must have thought out and practiced to himself coming home on the Peggy Eton, he was holding one arm up with his fork aloft like the torch of the Statue of Liberty. He was really quite pleased with himself. We all clapped, the children with great enthusiasm. After dinner we sent Zi Pasqual and Cousin Blaise off to the basement to roll around on the floor with the children and the dogs while we cleared the table and washed the dishes. It had been vermicelli with the Zio’s four types pepper, three types onion, two types mushroom, and three types meat sauce. He always makes extra that we put into quart containers for Father Steve-o to take back to the rectory. I’m afraid we all agreed with Zi Pasqual. A jurisprudence finding constitutional insight in the life of our local communities would empower the people one neighborhood at a time. We also all agreed Zi Pasqual will be teaching secretarial science until he retires. Better he should have flipped a coin and gone with, heads, strict construction, or, tails, a rights-based constitutional theory. As for the Colloquium, they might give heed to Justice Robert Houghwout Jackson’s comment in Terminiello v. Chicago, back in 1949: “There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” I’m just a country lawyer myself, but it seems to me that Dred Scott got more of a hearing from Roger Brooke Taney than Roger Brooke Taney got from the Colloquium. |
