On corrective justice and the powers that shape historical narratives

Matthew Crow
Associate Professor of History

Legal history has a way of bringing the past directly and sharply into the present. In both of my classes this fall, we are looking at the legal, political and intellectual history of British North America and the early United States, and so in both classes, the fundamental importance of slavery and resistance to the emergent modern world is front and center. Certainly, there are some classic readings that lend themselves to those issues, like the poetry of Phyllis Wheatley, David Walker’s Appeal to the Coloured Citizens of the World, which was a call for a revolution of enslaved people in the antebellum United States and across the African Diaspora, and of course Fredrick Douglass’ speech, “What to the Slave is Fourth of July?” I think the power of these writings is that they kind of recast our own perspectives of the intellectual terrain, reshaping how we usually think of history. You have to go out of your way to read Douglass and not think you are reading a political, historical, ethical thinker who should be canonical in the history of thought, both in the United States and more globally. So, it’s not just oh we need to read Douglass too, just to check the box, it’s that you are reading one of the keenest political minds ever to put pen to paper and the heroism of his own life is part of the fire that forges him, to be sure. When you read Thomas Jefferson dismissing Wheatley’s work as “beneath of the dignity of criticism,” and you read Wheatley, you realize she’s not just writing poetry too and giving herself agency, she’s got this guy who is going to be President scared out of his mind by what she can do with words. Her very presence, both in her time and in a different sense in ours, recasts the traditional narrative of whose lives and whose words and thinking count. That’s a kind of power that I think any student of history, myself included, needs to spend time with.

One of the things I think about in my research as well as in my teaching is the idea of discretionary or corrective justice, and the many philosophical issues it poses for constitutional cultures that purport to value democracy and the rule of law. So, one of the things I like to highlight for students are cases where judicial discretion and power can be a more secure route to justice than what seems like the nominally democratic or popular option. So, we might think of freedom suits in British and American courts on the eve of the American Revolution, and here, legally speaking, you have the property rights of settlers potentially being checked by what they view as judicial fiat. A good deal of the American anti-government tradition and the idea of opposition to judicial activism comes from this history of so-called activist judges hearing claims from parties that had been historically disenfranchised. One very recent example of this is the Supreme Court case of McGirt v. Oklahoma, 2020, where much to many conservatives’ dismay, Justice Gorsuch quite rightfully wrote for the majority that the federal government’s treaty obligations to Creek Indians dating back to 1832 still had the force of law and that no part of the intervening years of state and local officials ignoring or minimizing the historical reality of those obligations changes that.

People talk about the corruption of the presidential pardon power, understandably, but in the hands of another president that power could be used for a whole lot of good, especially given what we know about racial disparities in our criminal justice system. Again, the anxieties about this and other forms of lawmade power are baked into the foundations of the United States and now is as good a time as any to think through those ideas and dilemmas. There is a saying, fiat justitia ruat caelum, let justice be done though the heavens fall. That’s a thought we owe it to ourselves to spend time thinking with and about today. It’s a very radical, one might even say dangerous thought, but as Hannah Arendt (another writer we will read this fall) argues, “There are no dangerous thoughts; thinking itself is dangerous.”

If there is a better argument for the liberal arts, for thinking about thinking, I am not sure I know what it is.