Conservative-Legal-Movement Law Is Really Just a Kaleidoscope
After taking a nearly-month-long hiatus from blogging here about legal issues, and blogging only very lightly about other things, I posted this controversial post last Friday and participated in a lengthy comments thread. The final comment of mine, in reference to some of the preceding comments of others and of mine, reads:
A final point on this subject: Whatever the predominant ethnicity of the brutal “states’ rights” culture of much of the South, an important indication that its core is not ethnicity but instead the defense of the “right” of states to allow slavery, or to allow whatever brutality they want to allow, is that (as I said above) Appalachia itself, which has a very large Scots-Irish population, actually had (I believe) very few plantations. West Virginia, after all, was not a Confederate state, and northern Kentucky had large contingents of soldiers who joined the Union army.
I don’t think this is an ethnicity legacy. I think it’s a plantation-culture political and cultural legacy—one that is at the very essence of the Conservative Legal Movement, whether its adherents are from the South or instead from, say, New Jersey, upstate New York and Northwestern Indiana, or northern California. The attribution of the current, funhouse-bizarre states’-rights legal movement to the alleged “structure” of the Constitution is a pre-Civil War, and therefore pre-Reconstruction Amendments, construct. It should be recognized for the machination of constitutional law that it is.
So much of Conservative Movement constitutional and statutory-interpretation law is really just a kaleidoscope—false statements of fact, sleight-of-hand redefinitions of standard-English words and of earlier-defined legal standards, comedy-routine-caliber the-knee-bone-is-connected-to-the-thigh-bone-which-is-connected-to-the-hip-bone (whether or not it actually is) Dictionary games, malleable-as-needed Court-created legal doctrines, and a deeply institutionalized look-the-other-way-at-everything-but-Conservative-Movement-claims ethos.
What a cesspool.
A carefully crafted one, in fact.
Enough said. For the moment.
It is amazing what a minefield the Civil War still remains. The Appalachian connection was flawed but understandable given the reputation of the Scotch-Irish who settled the Appalachians. (Whether accurate or not.)
There was no West Virginia before the Civil War. It was founded in June 1863 because most of the mountain people of Virginia did not support the secession.
My great great grandfather was living in Clay county Kentucky when he enlisted in a Kentucky Volunteer Infantry unit which was being formed in 1861. (It was taken into the Union Army almost immediately.) Clay county is in the southern and eastern part of the state. It is a mountain county.
Kentucky tried to remain neutral, but that was impossible. It doesn’t seem to be possible to describe Kentucky’s north-south leanings by location in the state. The people of the mountain region were generally pro union. There was a generally confederate area in south central Kentucky but men from that area traveled to northern counties to enlist in the Union army. The divisions were very ‘messy’ and are subject to oversimplification. In Kentucky even families were split.
Apparently the Appalachian region of Tennessee was also pro union:
http://en.wikipedia.org/wiki/Tennessee_in_the_American_Civil_War
As to the rest, I would say that our state attitudes are shaped by different state histories. And simplification encourages misunderstanding. The south has a regional view which is at least financially conservative and for very good reasons. Beyond that the region begins to fragment.
You have my sympathy for wandering into that minefield. Have a good day.
“Malleable as needed court doctrines”. This is true of most civil and perhaps criminal laws as well. Back in the day, at the U of C Law School, Karl Llewellan and Soia Mentschikoff used to demonstrate this in the area of commercial law, the down stroke being that courts kept available parallel inconsistent lines of case law so that one could be selected to fit the result the court desired. That the same thing goes on at the constitutional level should not be a surprise given the political nature of the Supreme Court.
Thanks, JimH, for that history. Yes, West Virginia indeed seceded from Virginia precisely in order to not be part of the Confederacy. As a state, it was a Union one. And your summary of Kentucky’s and Tennessee’s history also is spot-on. I was aware that both Tennessee and Kentucky had large Union contingents, but other than groups from Northern Kentucky, I didn’t (and don’t) know the specifics. I posted this post because I felt uncomfortable with some commenters’ attributions of ugly aspects of Southern culture and politics to one ethnic group—an ethnic group predominant in much of Appalachia as well as in the South.
But I’m curious about what the very good reasons are for the South’s being financially conservative. Having poor educational systems, poor safety nets (especially in the poorest of these states), and relying heavily on federal largesse for such things as hurricane disaster relief and cotton-farming subsidies while claiming to be self-sufficient and independent of the federal government, strikes me as something other than financial conservativism. But, to each his or her own, I guess.
Hmm. Where are Karl Llewellan and Soia Mentschikoff when we really need them, Jack?
Beverly Mann wrote: “But I’m curious about what the very good reasons are for the South’s being financially conservative.”
The area south of the Mason Dixon line was not poor before the Civil War. But much of the wealth of that area was in the value of slaves. The south had generally not industrialized. It was much more of a farming economy, although sometimes on the grand scale of plantations.
The Civil War caused a lot of property destruction in Virginia and General Sherman’s march through Georgia, South Carolina, and North Carolina was especially destructive. But Mississippi and Tennessee also had their share of battle sites and destruction.
Also the south suffered a higher percentage of deaths of military age men than the north.
Then came the 13th Amendment to the US Constitution and emancipation with no compensation to the previous owners. (As crazy as it sounds today, England had provided some compensation when it emancipated slaves in 1833.)
Combine all of that and you get abject poverty throughout the south. Thousands of southerners moved to Brazil and Mexico rather than live there.
Kentucky had not seceded but emancipation hit it hard too and so it had some of the economic problems of the deep south.
If your people and businesses are poor, then your tax receipts will be poor at every governmental level. Southern state, county, and city governments were forced to spend their pennies wisely, even miserly. There was generally poor funding of the educational systems and the social safety net was almost nonexistent. Being forced to underfund education made it that much more difficult to recover from the Civil War.
That miserly spending requirement lasted until at least 1970 and even then only relaxed because of federal poverty programs injecting funds into the south. The real improvement seems to have come in the late 1980s as manufacturers began to move south.
But when you use that philosophy of government spending for over a century, it becomes ingrained. So even as some improvement came along, the citizens expected its representatives to carefully guard the treasury.
The other lasting impact of the Civil War was the southern hatred of the Republican party. Even in 1960 southerners would proclaim that they would rather vote for a yellow dog than vote for a Republican. So the Democrats dominated southern politics but they were financially conservative.
To take the internal splits in the confederacy a bit futher. Northern Alabama was not a strong supporter of the south, again because it did not have plantations, and large parts are sort of similar to eastern TN. (Recall that Andrew Johnson came from the Great Valley in Tn). In Tx the german contingent did not want to be on the southern side. Thus 30 miles from where I live is the True to the Union monument in Comfort Tx commemorating a force that was heading to Mexico to go north. It was attacked by a confederate force and wiped out. Note that a 35 star flag is always flown at half staff at the monument.
Wow. I have to say that this conversation is really, really informative and interesting. Now I’m glad I waded into the subject.
Jim, I did know about the Southern Democrats/Solid South and the DixieCrats. I grew up in a politics/political-history-obsessed, Northern liberal Democratic home, hearing all the details. But I didn’t know the other specifics of your post and of Lyle’s.
Thanks, guys.
It will occur to some that it still should not have taken over a century for the south to recover from the Civil War.
But the abject poverty after the war was pernicious.
As I said before it caused southern state governments to underfund education.
And if you were an intelligent person and graduated from a state college or university then what? Opportunities were very poor, better to move west and later to the north. Each year the best and brightest graduates would have had a great incentive to leave the state and the south.
And today we understand the value of a well developed infrastructure. But in the south, that often had to be done on the cheap. We often find that what was cheap today is not that cheap in the long run.
And how could southern states compete with the vibrant manufacturing sector in the north which just kept improving. Building on one success after another.
It appears that it is very difficult to pull yourself up by your bootstraps.
We should remember that now as our economy seems to have been downsized over the last decades. It will probably take us much longer to recover than we think. And of course talking about a recovery assumes that the damage is not continuing.
Anecdote: I worked for a couple of years (2004-2006) in Mount Vernon Ohio. At about 45 miles north of Columbia, it is in the southern part of Ohio, but still I was surprised to find a large statue of a Confederate soldier in the town square, with this inscription:
“In memory of the honorable citizens of Knox County who lost their lives in the Great Rebellion of 1861-1865.”
I thought to myself, I guess the Revolutionary War must have been the Lesser Rebellion.
(It was a nice town and I enjoyed my time there but I didn’t expect the statue, which you can see from about a mile away on the main road in from I-71.)
Beverly
i am glad us borderers have been exonerated. thing is, to the extent i identify with my scotch ancestors… i don’t actually know i have any… it is because of their resistance to English tyranny. I don’t know if that is a part of American Southern self-identification, but it wouldn’t surprise me since every teen ager of whatever ancestry and whatever part of the country feels something like patriotic pride in displaying the Rebel flag.
Absolutely sure this will be misunderstood. I’d have a lot to say about the other comments here… which i think i mostly agree with… but my comments would be entirely uninformed.
I do think the politics of the south does descend from the politics of the plantation, which included somehow keeping the white trash (me) on the side of the planter…against his own best interests. but there is nothing very new about that. the kings of england had no trouble enlisting armies from the very people they oppressed. and of course the average german supported Hitler to his own hurt. not of course sure that the average german was scotch irish, but i could have concluded that from your first foray into racist political theory.
now i’m wondering if Reynolds Price and William Faulkner were Scotch Irish right wing hate crazed dog fighters.