More on the Sessions Letter

Ilya Somin, at the Volokh Conspiracy, has written a powerful post about why conservatives, libertarians and constitutional federalists should opposed the nomination of Jefferson Sessions to be U.S. attorney general.  In brief, Somin objects to Sessions's support for asset forfeiture, his enthusiasm for the war on drugs, and his opposition to penal reform.  I am hoping that Stephen Presser, whose oped I discussed yesterday, does not think Somin's post is arrogant and presumptuous (as he referred to other professors who oppose Sessions), even though it appears to make recommendations to the Senate. "What makes them think they know more than senators?" Presser asked.

This gives me an opportunity to say something more about petitions to Congress, and other expressions of disagreement with the government, which I think are essential in democracy and not, as Presser put it, merely "pious pontification"

One of the most shameful eras in U.S. congressional history began in 1836 when the House of Representatives passed a resolution that automatically refused to receive anti-slavery petitions.  Known as the "gag rule," the resolution was drafted in response to the repeated petitions of the American Anti-Slavery Society, which had begun several years earlier.  Although there were very few law professors in early nineteenth century America, the Anti-Slavery Society was composed of many of the leading academics, clergy, and intellectual of the day, who were often dismissed as arrogant and presumptuous.  The gag rule remained in effect until 1844.

The belittling of anti-slavery academics and intellectuals, however, continued until the Civil War.  At the 1851 trial of Castner Hanway -- who had been indicted for treason in connection with the Christiana Slave Rebellion -- U.S. Supreme Court Justice Robert Grier began the proceedings by mocking the Boston intellectuals who had written articles objecting to the severity of the charge.  They had, said Grier, "taken upon themselves to settle the whole law with regard to these proceedings, that this transaction is not treason."  A Pennsylvanian, Grier was sitting as one of two trial judges, as did all justices when riding circuit. He was contemptuous of writers "from what is called the Athens of America" who presumed, as he put it, "that we have not the same degree of illumination here as they have there."

Eight years later in Cleveland, the presiding judge expressed similar sentiments about the ministers, students, and professors who had been indicted for their participation in the Oberlin Fugitive Slave Rescue.  Abolitionism, he said in his charge to the grand jury, "is almost invariably characterized by intolerance and bigotry." "While those who cherish this dogma," he continued, "claim and enjoy the protection of the law for their own lives and property, they are unwilling that the law should be operative for the protection of the constitutional rights of others," by which he meant the constitutional right to own human beings as property.

At the trial itself, the prosecutor also scorned academics. "People around Oberlin think so little of the government and the statutes of the Federal Government, when they interfere with their sympathies with negro men and women, that the consider their violation a good joke."

Of course, I am not equating contemporary opposition to Sessions with antebellum abolitionism, but I do want to point out the long-standing tradition of American anti-intellectualism. Unfortunately, intellectuals and academics have been belittled throughout U.S. history.  Thus, I found it quite uncalled for when my friend Stephen Presser derided the  "huge gaggle" of 1100 law professors who signed a letter opposing the Sessions nomination. I happen to know that Presser's own scholarly values are admirable and rock solid, which is why I found his oped so disappointing.

I did not sign the Sessions letter, but I think it is a very good thing when contrary opinions are presented to Congress (and the other branches), even by professors.

Comments

[Captain Hruska Carswell, Continuance King]

Those who oppose his policies, need to pick their battles. If we oppose EVERYTHING, nobody will listen to us. We need to draw a line and fight where it really counts. This fellow, if he acts like John Ashcroft, Alberto Gonzales or Michael Brown he will be gone. On the other hand, we need to fight like hell for a Supreme Court seat that was pilfered from Obama.

[anon]

"Of course, I am not equating contemporary opposition to Sessions with antebellum abolitionism ..."

Really?

Perhaps PResser actually researched the issues, rather than relying on the Party's talking points (which, interestingly, keep changing. The items identified above, at least in part, are matters of law that the Congress, with the full support of the Party, passed (asset forfeiture, and the war on drugs, fully supported and advanced by Congress and every President since Reagan, especially Clinton.)

Opposition to penal reform? What is the evidence for this?

Comparing yourself to abolitionists while advancing such thin and questionable claims does smack of a haughty, holier than thou, moralistic tone, which is SOOOO inappropriate under the circumstances.

[Patrick S. O'Donnell]

Re: "the long-standing tradition of American anti-intellectualism." Indeed, this is one of the most vigorous and recalcitrant traditions in this country's history, and the Right is particularly adept at exploiting its vices (if I recall correctly, Tocqueville suggests or implies how or why anti-intellectualism is woven into the fabric of American society). The blog of the Society for U.S. Intellectual History, appropriately enough, has had a number of posts treating this topic (enter the term in its search engine). Of course "academics" are treated as synonymous with "intellectuals" although a normative definition of the latter (say, courtesy of Chomsky or Sartre or Kagarlitsky) would probably exclude quite a number of the former (I prefer adjectival qualifications: academic, technocratic, radical, statist, what have you). In any case, visit the U.S. Intellectual History blog for occasional provocative discussions of this subject: http://s-usih.org/blog

[Captain Hruska Carswell, Continuance King]

Tocqueville, 1000 Law Professors, a day at the Art Institute v. A Hot Babe, a 1000 horsepower truck, a day hunting. Pretty simple decision.

[VoteTrump]

A 1970 mustang boss hoss up in the front with 2 blondes that are looking for love, a case of Coors, thise were the days, yes Captain, a hard choice indeed.
You are correct whatever side you are on you must select the battle royales otherwise you exhaust yourself.

[anymouse]

"... and other expressions of disagreement with the government, which I think are essential in democracy..."

At least now they are, after an 8 year hiatus.

[anon]

Are VoteTrump and the Captain the same person? Seem to have a very similar "style."

[VoteTrump]

I can assure you we are distinct persons.

[concerned_citizen]

The Captain had been pretty virulently anti-Trump on some other fora in the lead up to the election (at least, someone using that same handle). He seems to have resigned himself to Trump in the interim.

In any event, no, unlikely to be "VoteTrump".

Oh, and just to keep it topical, does the OP win a Godwin's Corollary award?

[anon]

The "Captain" is a ruse, quite obviously, and he often posts comments in response to "his" own comments. I don't think it is impossible that this person has created another ruse to pose as another commenter, so that he can confer with himself on his own comments.

The fact that the "Captain" is so vulgar, so often, and often posts on completely irrelevant matters (he seems fixated on cars and car sales, traffic tickets, scummy attorneys) and the fact that "VoteTrump" comments, in "response" to Steve's post above:

"A 1970 mustang boss hoss up in the front with 2 blondes that are looking for love, a case of Coors, thise were the days, yes Captain, a hard choice indeed."

One has to wonder. Whether the same person, or two, intent can be inferred from these comments. I've long believed that the "Captain" is engaged in an effort to discredit all the comments on this site.

[concerned_citizen]

LoL. One person's evidence of nefarious intent and/or conspiracy looks to another much like a bored (and frustrated) small-law lawyer blowing off a bit of steam as stream-of-consciousness wackiness and what not.

And if one of the things one is frustrated about is 200+ law schools flooding the market with, say, 18,000 more new law grads than there are new law jobs for, why not vent a bit on a law prof `site?

Granted, I don't visit here every week (or even every month) like some do, so I may have missed some of his more egregious comments.