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Thursday, August 31, 2017

Grading the Slave-Owning Framers (and Yourself) on a Historical Curve: The Moral Case Against/For George Washington -- and Everyone Else

Mike Dorf has an interesting post exploring whether and why monuments to slave-owning framers like Washington are more morally acceptable than monuments celebrating Robert E. Lee or Woodrow Wilson. Dorf notes that it is not enough merely to say that Washington is celebrated for reasons other than his racism and slave-owning. After all, the same could be said about Woodrow Wilson, yet the debate at Princeton over expunging the name of the Great Segregator and admirer of the Birth of the Nation is surely at least a close call -- closer, at least, than the case for re-naming our capital and tearing down the Washington Monument.

I agree with Dorf's assessment of Wilson, but I think that he overlooks the most important distinction between Wilson (on one hand) and Washington (on the other): Historical relativism. Historical figures -- i.e., everyone, including you, Gentle Reader -- should be graded on a curve. We cannot be expected to be much better than the people who surround us and the times into which we are born. Scoring an "A" in one's views about racial equality in 1789, therefore, ought to be much easier than scoring an "A" in 1912. Washington was surrounded by whites whose virulent and virtually unconsidered racism reenforced his belief that enslaved Africans were unfit for self-rule. Precious few in the late 18th century thought that slavery was such a moral abomination that it should be abolished immediately: "Immediatism" was several decades in the future. Wilson, by contrast, had the advice of William Monroe Trotter and the example of thriving black communities throughout the United States to steer him straight on the evil of racism. Yet he self-consciously persisted in adopting policies deplored by his contemporaries. Grade? I'd flunk Wilson, despite his achievement of appointing Brandeis.

I suggest, in short, that we should judge as we would be judged -- charitably, by the standards prevailing during his own time, the standards with which humans naturally take their bearings. By that standard, Washington (despite his quite aggressive efforts to recapture his slaves) easily outscores Wilson in my book. Surrendering power peacefully and conscientiously exercising power at the dawn of the republic to establish republican precedents -- those keep him on the pedestal in my book despite his all-too-human willingness to adopt the views about slavery prevailing with everyone except a few prescient Quakers and "fanatic" evangelicals.

That we should all be judged by the temper of our times naturally gives rise to the question: How well would we score if we were born in earlier times? There is a progressive smugness that judges the past by what we know today but avoids the touchy question of how we would be judged were we born in the world of yesterday. So take a test: Imagine what sort of morality or politics you would likely have if you had the age and social position roughly analogous to your current status but in the America of, say, 1750. Where do you guess you would likely stand on slavery, women's suffrage, Indian rights, and so forth? Be honest. If you are (as I am) a conventionally ovine sort of academic, in the middle of the academic road on most issues, then imagine that you likely would have been just that sort of person in 1750. An ACS liberal faculty member of 2017 with left-of-center views and teaching at a northeast law school, on this account, might likely translate into (I am guessing here) a New Light Congregationalist theology prof or schoolmaster (few law schools back then) who might have (in a fervor of Country Party egalitarian zeal) supported the Massachusetts Land Bank of 1744 but would have been shocked by women's voting and likely had no discernible views about slavery at all.

Humbling exercise, huh? So the next time you cry out to tear some equestrian off a pedestal, think a bit about coming off your own. Imagine yourself in someone else's rear-view mirror a century or two hence.

Posted by Rick Hills on August 31, 2017 at 09:26 PM | Permalink


I would have been a disenfranchised slave woman. I don't feel humbled by the exercise at all. I often imagine my ancestors' position in society in 1750, and that explains why I will not blindly honor our framers, including those who engaged in sexual activity with female slaves lacking the capacity to consent and allowed their children to remain enslaved. Our framers did great things for our country but wouldn't have acknowledged my full humanity.

Posted by: AnonProf | Aug 31, 2017 10:16:04 PM

I came here to say, less well, what AnonProf said above. Your thought exercise excludes the views of non-whites, and (more generally) excludes the views of those who are oppressed.

Posted by: Sam | Aug 31, 2017 10:31:52 PM

AnonProf, the exercise is not to imagine what your ancestors would have believed. The exercise is to imagine what you yourself, occupying a position closely analogous to the position you actually occupy NOW, would do and believe. The successful (like yourself, a law prof) are always complacent, the oppressed less so: You cannot claim the benefit of the insights that your ancestors earned through their suffering.

So...what sort of highly educated and economically secure person would you have been back in 1750 -- for I infer that you are such a person today, given that your a law prof? Like it or not, you are part of the Establishment now -- so how empathetic a member of the Establishment would you have been back in 1750?

Of course, this act of imagination requires one to engage in a bit of abstraction of along Saul Kripke's "Naming and Necessity" lines: One has to idecide what characteristics are necessary for one's identity. (Gender? Race? Etc.). But the point of the exercise is to ask whether you will be judged in the future as you judge the past. Trust me: Economically secure and successful people like yourself likely are have lots of views and habits that the future will find appalling. (If you eat meat, for instance, I am pretty sure that a couple hundred years hence, your daily life will be viewed by our descendants, assuming we have any, as revolting and oppressive).

So try to exercise a bit of imaginative charity for your own future reputation: Maybe posterity will repay the favor.

Posted by: Rick Hills | Aug 31, 2017 10:32:18 PM

Hills: "Precious few in the late 18th century thought that slavery was such a moral abomination that it should be abolished immediately:" Yeah except for those who were enslaved.

Posted by: Sam | Aug 31, 2017 10:44:49 PM

So Sam, let me ask you. Right now, there are actual people who are enslaved in (among other places) the Sudan. http://www.huffingtonpost.ca/diane-bederman/slavery-africa_b_3975881.html

What have you done to help them? Nothing whatsoever? Or given a few bucks? If so, then maybe you should dismount your high horse about how righteous you would have been living as a successful and highly educated member of the Establishment in 1750.

(If I am wrong, and it turns out that you really are a latter-day David Walker or Wilberforce, then my apologies-- and my hat's off to you).

Posted by: Rick Hills | Aug 31, 2017 10:51:21 PM

Today I occupy the position of black female law prof. I think you're asking me to switch two components of my identity (race and sex) and imagine the opinions I would have held as a white male law professor in 1750. I recommend that you change those components of your identity and consider whether those changes would have any impact on your opinions. Imagine yourself as a black female law professor in 1750 (even though the first black female law prof wasn't born until 1875) and tell me how you would feel about the institution of slavery or the disenfranchisement of women. I think that the flaw in your exercise is that it fails to acknowledge the impact of identity on the outcome. If I were a white male law prof in 1750 and I believed the enslaved population and women to be inherently inferior to me, then I wouldn't deserve any monuments in my honor even if I had made other great contributions to society.

Posted by: AnonProf | Aug 31, 2017 10:59:07 PM

Rick, you just moved the goalposts in your response to me. If your initial post had been of the sort "The vast majority of people never really live up to their own stated moral/philosophical views" I would have agreed with you wholeheartedly. I don't really live up to my own stated moral/philosophical views, which is why I don't give away my income down to the world-average standard of living and don't spend all my time working to alleviate the worst things in the world; you are right about that, and I suck in that sense even though I spend most of my working time trying to alleviate the problems of those less fortunate than myself. I try to do better ever day, but I suck. But still the point remains that even leaving that nearly universal failing aside, your post ignored the moral and political beliefs of those who are oppressed.

Posted by: Sam | Aug 31, 2017 11:12:29 PM

AnonProf, I really will stop after this round, as I have to write my Con Law syllabus. (I am in China now, so it is 11 AM here).

The point of the exercise is to test only a tiny part of your identity -- your capacity for empathy and sense of justice -- while putting yourself into the shoes of the people from the past that you are criticizing. So, yes, I am asking you to give up huge swathes of your identity. You don't have to accept the invitation, of course.

But if you find it impossible to imagine having a different race and sex, then try another thought experiment: Imagine that you are a black elite living in a society in which women and blacks are in charge, whites are habitually enslaved, all of your friends and neighbors assure you that such an enslaved state is for the best of all concerned, and you profit personally from the slaves' enslavement. (If you want some help, I guess you could watch Desmond Nakano's "White Man's Burden," https://en.m.wikipedia.org/wiki/White_Man%27s_Burden_(film) . I warn you that it is not a great movie).

Do you imagine that you would have struck off the chains of your slaves, given up most of your wealth, endured the jeers of your peers, and so forth? Why? What have you been doing now, in 2017 that suggests you have such an extraordinary resistance to peer pressure, such willingness to overcome your own self-interest, such lack of complacency?

As I noted to Sam in my earlier comment, I don't know the answer to those questions, because I do not know you. So far as I know, you might be heroically resistant to pressure from family and friends and exceptionally empathetic to people whose sufferings you do not share and from whose oppression you benefit. If so, hat's off to you. If not, then the fact of your sex and race really is irrelevant to this post.

Posted by: Rick Hills | Aug 31, 2017 11:15:01 PM

As others have said, but to put an even finer point on it, I think you are assuming that "social position" excludes ascribed characteristics like gender and race, and includes only achieved characteristics like education and profession. Unhappily for you, social position is not universally or even mostly understood to exclude the former and include only the latter. (See e.g, Lindemann, for example.)

In addition, there are many law professors--adjuncts, lecturers and VAPs among them--whose economic security pales in comparison to tenure-track and tenured profs. (And of course, there are strong correlations between race/gender and economic insecurity.) I think it's a fair point others make that in your effort to knock people off their pedestals of critique, you are inadvertently reinforcing the need for critique by assuming that your audience either is white and male, raceless and genderless, or uninfluenced by race and gender in your imaginary exercise..

Posted by: Anonime911 | Aug 31, 2017 11:20:20 PM

Sam -- clean shot: I plead guilty and amend my post accordingly. Yes, of course, those who were enslaved because of a society's racism would have objected -- and did object -- to slavery and racism. Toussaint Louverture certainly belongs in our pantheon of heroes.

But perhaps special credit is also due to those who lacked personal and self-interested reasons to resist contemporary norms? So I give special kudos to Joshua Evans, the 18th century Quaker who had no personal reason to fight against slavery but did so anyway. https://www.jstor.org/stable/41935203 I'd donate money to replace every statue of Lee with a monument to Joshua any day.

Posted by: Rick Hills | Aug 31, 2017 11:24:33 PM

I'll be done after this post too. If I imagine the world you describe, I would like to think I'd be heroic, which is why I do my best to call out injustices and oppression against those who identify as Muslims, LGBTQ, and persons with disabilities even though I don't occupy those identities. One of the reasons I became a lawyer is that I'm more comfortable fighting for others than I am fighting for myself. Just as Sam said, I'm not perfect and there's much more I can do. But when I think about honoring people with monuments and adding them to our history books, I want us to focus on the people who had the courage to speak out and resist even when it wasn't popular and even when doing so put their lives at risk. On the other hand, I have no expectation that history will be kind to those who lack the courage or insight to fight against oppression.

Posted by: AnonProf | Aug 31, 2017 11:33:23 PM

"prescient Quakers and "fanatic" evangelicals"

Others referenced slaves and I assume free blacks but there was a minority at the time that strongly rejected slavery and did not have the same views as George Washington regarding the institution. They were not all Quakers and evangelicals. Gather, e.g., a few were deists. There weren't that many obviously but I think you are stacking the deck.

"Where do you guess you would likely stand on slavery, women's suffrage, Indian rights, and so forth?"

I very well might be like other white philosophically inclined males with some education at the time that found slavery wrong, thought Indians should have some degree of fair treatment [as was the case c. 1830 when there was a strong dissent to the Jacksonian policy] and respected the intelligence and place in public life of women. Suffrage very well might have seen rather extreme but given the philosophical trends of the time where sacred crows of all sorts were challenged, I don't know really.

Posted by: Joe | Aug 31, 2017 11:37:59 PM

I would add I understand what you are trying to do and there is some value to it. I hope those in the future treat us fairly too.

Posted by: Joe | Aug 31, 2017 11:40:37 PM

One need not reach back that far to grade themselves on a curve. Where were people on gays in the military and the Solomon amendment re military recruiting? Where are they now on transgender personnel? "We cannot be expected to be much better that the people who surround us and the times into which we are born." As dispiriting a proclamation as that is in general, it seems particularly inapposite for people whom we would commemorate with statues or monuments. Were the public right now (post Civil-war, as it were) to choose to commemorate a jurist who argued in favor of excluding gay military personnel or against same-sex marriage, essentially it would be deciding to disregard the moral stain AND send the message that the LGBT community's interests don't really count in assessing someone's moral position.

Posted by: Anonime911 | Sep 1, 2017 7:46:40 AM

I'm with you except for the "achievement in appointing Brandeis" part. Also, Washington was the first Western leader in almost 2K years to resign voluntarily, to be replaced democratically. That's worthy of a monument; Wilson didn't do anything remotely as significant and praiseworthy.

Posted by: David Bernstein | Sep 1, 2017 8:08:42 AM

"in almost 2K years"

Who was the last person?

Posted by: Joe | Sep 1, 2017 10:21:24 AM

I'm not sure how to feel on this topic. But I tend to lean against inspecting the social positions of the people for which we make monuments. I think of a statue made to Sir Isaac Newton. He most probably held odious (now) views on homosexuals if he even thought of it as an issue for debate. Can this view influence his "worthiness" for a monument? Can we not put some marble up somewhere for someone doing the society altering invention of calculus?

Another point, Neil Armstrong walked on the moon. Being born in 1930, he would probably not have the same ideas on gender and race as a sophomore at Berkeley right now. Can monuments to one of the inventors of calculus and the first person to step on a heavenly body stand on their own merits even if these people were not social gadflies for the oppressed and downtrodden?

Posted by: dan | Sep 1, 2017 10:35:32 AM

This is a bad gedankenexperimental design, for the reasons pointed out above... and for another:

With very, very few exceptions, almost none of us know enough about the entire context of what we do/are now to imagine a reasonable analog 250 years in the past. For example, "law professor" (indeed, professor of any kind) in the 1760s? Or "public intellectual"? It's even tough to transfer to merely a century ago, in Wilson's time; just imagine, for a moment, the hypothetical professor's relationship to the hypothetical athletic department. It might well make for entertaining fiction... but that's about it.

And somewhere in there, the law of unintended consequences deserves more attention.

Posted by: C.E. Petit | Sep 1, 2017 10:55:13 AM

I think your post is correct, bracketing the difficulties of the thought experiment you pose. An interesting question is where this line of reasoning leaves Lee and other Confederate generals. Were there many people from the early-1860s South who thought slavery was wrong? I really don't know.

Posted by: Asher Steinberg | Sep 1, 2017 12:53:33 PM

Asher: "An interesting question is where this line of reasoning leaves Lee and other Confederate generals. Were there many people from the early-1860s South who thought slavery was wrong? I really don't know."

1. There were LOTS of people from the early-1860s South who thought slavery was wrong, and you DO know this. Using the word "people" as shorthand for "white people" is at least lazy, and often is a sign of lazily racist thinking.

2. This takes the "grading on a curve" thing to new heights of silliness. Slavery was THE debated political moral issue of the day. Lee knew that LOTS of white folks, even, thought it was an abomination. You can't morally "grade him on a curve" just because he sided with the self-interest of himself and his local "peers" on a debate that everybody knew was hot and important.

Posted by: Sam | Sep 1, 2017 1:16:53 PM

First. I'm genuinely ignorant on the point I said I was ignorant on. Feigning ignorance on things I should know about isn't one of my argumentative strategies.

Second, I am not sure what role localism should play in our relativist assessment of someone's morality. I believe this is a contested question in philosophical literature. You would probably agree that American attitudes on slavery in 1860 might not bear too heavily on how you'd evaluate, I don't know, a Czarist Russian employing serfs at the same time, or a Chinese person's.

Third, I do actually exclude slaves' assessment of the morality of their enslavement for purposes of assessing what people like Lee thought about slavery at the time. If we're going to consider what victims think of some atrocity for these purposes, we can't do this relativist inquiry in any meaningful sense; the victims at least will always (correctly) believe that what's happening to them is wrong.

Posted by: Asher Steinberg | Sep 1, 2017 1:44:19 PM

"First. I'm genuinely ignorant on the point I said I was ignorant on. Feigning ignorance on things I should know about isn't one of my argumentative strategies." My first point was about your use of the word "people" as shorthand for "white people," because obviously you DID know that many slaves and other non-white Southern people thought slavery was wrong. I was hopeful that your usage was not intentional but was just lazy. Now I know, I guess, that it was intentional?

Posted by: Sam | Sep 1, 2017 1:56:23 PM

In connection with the "curve," it is notable that George Washington freed his slaves in his will. This comes up grossly short of what we should demand in the face of an injustice of the magnitude of slavery, but measured against the norms typical of Washington's race, class, and era, he did better than most.

Larry Rosenthal

Posted by: Larry Rosenthal | Sep 1, 2017 4:29:51 PM

I think people are reading too much into the hypothetical asked. No, we cannot with any certainty know what we would do were we transported back to the time of slavery. I like to think that I'd have been a fierce abolitionist willing to lay my life on the line for those principles. I'm not so sure that is the case. Nor can we know what beliefs we hold today that will be considered anathema in the future. The point of the post, I believe, was to have us take another look at our prior assumptions about who should be honored by statue. I think that trying to understand all sides (those who wish to keep those statues, as well as those offended by the statues and the history they represent) is always a better idea than simply shouting slogans.

Posted by: Jason | Sep 1, 2017 5:09:02 PM

Rick – My guess is you're asking too much of those inclined to clamor the loudest of the evils of these figures past and demand the loudest that any remembrances of such figures be torn down. The exercise you are proposing requires a certain imagination, humility, and charity. Imagination to apprehend the varying circumstances of people of people with life experiences distinct form ones own. Humility to temper your self-righteousness as as to recognize your relative privileges and the limits of your experience and thus model of self. Charity to disclaim the baseness of motivations other than your own and to recognize that people are morally complex.

Without these qualities, you'll get exactly what you see in several of the comments here: Refusing to engage the premise, or imagining that given a different historical and social environment but an equivalent level of privilege, the commenter would remain exactly the same creature.

Posted by: Rigelsen | Sep 2, 2017 5:04:35 AM

Just to not let a strawman pass, few want to tear down "any remembrances" -- such as in a museum, not solitary monuments put up to glorify often in the promotion of white supremacy but broad displays covering the diversity of the Civil War and so on. For instance, not removing Taney from the Supreme Court, if it is a display of chief justices.

Rieglsen's is polite enough to name check the people allegedly lacking "imagination, humility, and charity." I can break down the problems I have with the rest of the reply, but perhaps glasshouses, my friend.

Posted by: Joe | Sep 2, 2017 10:01:59 AM

Just to not let a strawman pass, few want to tear down "any remembrances" -- such as in a museum, not solitary monuments put up to glorify often in the promotion of white supremacy but broad displays covering the diversity of the Civil War and so on. For instance, not removing Taney from the Supreme Court, if it is a display of chief justices.

Rieglsen's is polite enough to not name check the people allegedly lacking "imagination, humility, and charity." I can break down the problems I have with the rest of the reply, but will just say, glasshouses, my friend.

[sorry for duplicate; have a nice weekend all]

Posted by: Joe | Sep 2, 2017 10:03:29 AM

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