Friday, April 3, 2020

Reparations

I am interested in history--more for its utility than its veracity. I'm not so dull witted as Mr. Ford who (might have) said, "History is bunk," by which I suppose he (might have) meant there is nothing truly reliable, or even interesting, in the (presumably) settled past.

Dead wrong, Henry. It's back there, all right, and it's interesting--a toxic compost of facts, myths, lies, opinions, triumphs, failures, and serial catastrophes--and that's only the visible portion of the iceberg. But a tenth is more than enough, so long as we can mine this detritus in support of our current opinions. So, history remains a 'work in progress'. It's never settled as long as somebody can dig up some truffles of  'relevance.'

Historical research has an uncomfortable parallel in 'legal research.' Real people imagine that the law is inscribed on granite pillars at the state capital, but anyone who has contemplated the millions of legal opinions shelved at The University of Michigan Law Library (a great temple of legality) will understand what we Pharisees pretend to ignore, i.e., that a lot of what is called 'Law' is nothing more than what some other lawyer found  plausible under supposedly similar circumstances.

Unlike scientific research, which begins with an observation and gropes forward toward a theory, legal research begins with a theory and scratches around in the chicken litter, (i.e., the opinions of other lawyers) for a favorable precedent, based, in turn, on favorable precedents in other (possibly) similar cases (the more citations, the better.) It is a bit like the lady who couldn't believe that the earth floated in space. She thought it rested on the back of a giant turtle, who rested on the back of another turtle, and when asked the inevitable question, replied: "Turtles all the way down!'

The object of most legal research is to find what Alfred Hitchcock called 'the MacGuffin'--(the lost fortune, the missing girl, or whatever it is that everyone imagines the movie is about) whereas the real point of the show is to sell tickets. Just so with legal research--precedents are not 'law' so much as plausible examples supporting the judgment you desire. 'Putting a face on it' as an elderly judge once told me. It's what the civil courts are about, a brokerage wherein past distress can be sold for present dollars.

There are limits, the statute of limitations, the rules governing admissibility of evidence, and even some lingering rules about what constitutes a legally cognizable claim. (Fifty years ago we filed 'demurrers' in every case, on the off chance that the judge might conclude that what was alleged in the complaint was not something that the law could remedy.) These barriers to recovery are meant to keep people from abusing the courts with implausible arguments and shaky evidence. 

Much the same applies to 'repairing the past'--it can't be done (that's why it's 'the past') but there's always hope that a present benefit can be picked from the pocket of history.

The justification for the present discussion of 'reparations' is essentially similar to a class action lawsuit. There is a clientele, many of whom are undoubtedly injured, seeking a remedy, which is not to be found in the ordinary courts. Perhaps it is recoverable in the higher forum of White Liberal Guilt--the modern successor to Abolitionism which sacrificed 400,000 men serving its writ.

A noble effort--but insufficient. It is, perhaps, regrettable that General Sherman's rash (and unauthorized) promise of forty acres and a mule (approximately the entire tidewater region) was never carried into effect, but can we project that broken promise forward to the present day, and translate it into dollars. Probably not. Nor should we forget the prior claim of the Native Americans who, by the same logic, are entitled to be reimbursed for the entire continent.

The past cannot be repaired. It is there. A great lump of pain and dismay, an unresolved cancer of bitterness--biting at our surviving organs.  

The moving finger writes and having writ 
Moves on. Nor all thy piety nor wit 
Shall lure it back to cancel half a line, 
Nor all thy tears wash out a line of it.