Back in the day, Fairfax County Circuit Court had discernible terms, each of which were scheduled out on Term Day. That day saw most of the area’s litigation firms represented by a partner or associate, all of whom crowded into the building’s largest courtroom, presided over by the chief judge. We all sat in for the long haul.
Term Day was simple. The popularly elected Clerk of the Court himself would call out a case name. The chief judge would then ask the case’s lawyers how long they expected a trial to take, whether a certain date was acceptable to start the trial, and (if I remember this right) whether the litigants could settle the case. Those rather straightforward questions gave the lawyers a stage to show off their wit, and sometimes their invective, as they sparred to provide the court and a sizeable number of their peers with some essence, and maybe even a theory, of each case.
As a young lawyer, I had the sense of watching a kind of preening and camaraderie that computers and other pressures toward efficiency would soon dismiss from our local practice. But the repartee of some of the quickest and wittiest lawyers on Term Day got retold in conference rooms before depositions and in the courthouse cafeteria at lunch.
By the time I left off lawyering seventeen years ago, Term Day and its odd bonhomie were greatly diminished, thanks in part to our “differentiated case tracking program” and the telephone. Around that time, compiled results from surveys canvassing local lawyers bemoaned a fresh lack of collegiality. The friction was traced in most legal minds to around the time most trials had begun to be scheduled without a lawyer’s trip to the courthouse. The end of Term Day as we had known it wasn’t everything, but it was indicative of everything.
I remember reading about the riveting, and boring, but always well-attended Senate debates in Merrill D. Peterson’s book The Great Triumvirate: Webster, Clay, and Calhoun and comparing those debates with my visits years ago to the House and Senate chambers. When I was there, a handful of lawmakers were milling around almost empty seats while one congressman was reading some remarks into the Congressional Record. The scenes reminded me of times when a lawyer, having lost an important evidentiary motion at trial, was left to spend his lunch hour alone in the courtroom with the court reporter, proffering into the record the evidence he would have presented had the judge ruled in his favor. In many cases, his words were never read by anyone save that lone reporter.
I wonder if the lack of real back-and-forth in Congress has lead to a permanently shallow public debate about most important issues and to an exceptional distrust between the two major parties’ congressmen. (I can’t say that it has contributed much to the pervasive gridlock because congressmen sat dutifully through seemingly interminable speeches in, say, John Quincy Adams’s day, and the Republican Congress then denied the Federalist president every thing he asked for.)
Back in the day, John Randolph of Roanoke could exchange pistol shots in a duel with Henry Clay, one of his archrivals, and still seek him out to wish him well when he (Randolph) knew that he (Randolph) had but days to live. Randolph could also say, “Clay’s eye is on the Presidency, and my eye is on him,” and then years later direct that his (Randolph’s) body be buried at Roanoke facing west so that he could still keep his eye on Clay.
Do we allow our adversaries – those whose stances block our progress as completely as a childhood brother’s – to work their way into us to this extent? Do we fight enough or even care enough to distinguish a special vintage of respect our souls pour only for an adversary?
° ° °
Virginia’s Deputy Attorney General has introduced me, as if at Term Day, to John Randolph. David Johnson’s 2012 biography (John Randolph of Roanoke) celebrates the force and wit of Randolph’s remarks from the outset of his long career in the House of Representatives. Randolph, when he wasn’t picking fights, or when his mental and physical illnesses or his distain for preparation lead him into hours of nonsense, made the House as lively as a good party.
Johnson pursues Randolph’s bon mots in debate, and if Johnson’s account is to be accepted, no opponent got the best of Randolph from the time he first entered the House in 1799 until he was recalled by the Virginia legislature from his U.S. Senate seat after just a single year in 1827. Here’s one of my favorite exchanges:
Tiring of these skirmishes [over the 1824 tariff bill], Louis McLane of Delaware, “appearing to be much irritated,” barked that Randolph had displayed a good head, but he would not accept that gentleman’s head, to be obligated to have his heart along with it.” McLane sat mute as Randolph replied that he “would not, in return, take that gentleman’s heart, good it may be, if obliged to take such a head in the bargain.” (199)
I knew that Randolph had been a thorn in Jefferson’s right side since early in his presidency, but I had forgotten what Dumas Malone, that greatest of Jeffersonian biographers, had written about Randolph’s motives. Johnson reminded me: he quotes Malone as describing Randolph as “’willful, capricious, [and] neurotic,’ displaying ‘excesses of arrogant belligerency . . . explained, in terms of modern psychology, as over-compensation for his lack of virility.’” Johnson, though, favors historian Russell Kirk’s conclusions. Kirk practically rediscovered Randolph in his 1941 graduate student paper, calling him “a genius, the prophet of Southern nationalism and the architect of Southern conservatism” (230). Kirk turned the paper into a book, John Randolph of Roanoke: A Study in American Politics, and included him prominently in his influential 1953 book, The Conservative Mind.
Two quotes from Randolph’s contemporaries, I think, might better sum up the chief strength and weakness Randolph presented on the House and Senate floors. Lewis Machen, secretary of the Senate, observed that “for cool, yet cutting sarcasm, severity of retort, quickness of reply, the play of fancy, and coruscations of wit, he has scarcely a superior” (171). James Monroe, an early Randolph friend and ally who became, in Randolph’s view, like most men of his party, a Republican In Name Only, found Randolph “a capital hand to pull down, but I am not aware that he has ever exhibited much skill as a builder” (193).
Three things, it seems, combined to give Randolph this Jeremiah-like calling Monroe attributes to him: his love of conflict, his strict conservative principles, and his constant willingness, at least after his support of Jefferson’s Louisiana Purchase, to choose those principles over expediency. Johnson twice quotes Randolph’s own summary of principles: “I am an aristocrat. I love liberty, I hate equality” (6 and 231). Randolph expanded on them a bit more during his loud and steady – and quite unpopular – criticism of the War of 1812. The Republican party’s principles are, he said:
Love of peace, hatred of offensive war; jealousy of the State Governments towards the General Government, and of the influence of the Executive Government over the co-ordinate branches of that Government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizens; jealousy, Argus-eyed jealousy, of the patronage of the President. (152 – 53)
Randolph’s stand against what he felt were the pernicious effects of equality was clearest in his opposition to the Virginia constitution proposed at the 1829 Richmond convention, which would have eliminated the property requirement for suffrage. The then-current constitution required free white males to own “a hundred acres of improved land, or twenty-five acres of land with a house, or an improved lot in town” (216 – 17). The land requirements disfranchised around 27 percent of the men in the eastern part of the state otherwise qualified to vote, but it did the same for nearly half of the men in the western part. Our state’s Deputy Attorney General believes that Randolph correctly foresaw that eliminating the property requirement would lead to two evils: universal, public education and the welfare state:
He had seen this tactic at the federal level and could not believe that the assembled wisdom in the room was “seriously and soberly” considering “[divorcing] property from power.” Again displaying the prescience that marked so many of his speeches, Randolph predicted the result of unchecked will and appetite, something he could describe but not yet name: the welfare state. (219)
Indeed, Johnson’s book seems fairly shaped by Randolph’s prescience. Anticipating supply-side economics, Randolph suggests that Congress roll back taxes in order to increase revenue (171). “In words that could be drawn from twenty-first-century headlines,” as Johnson puts it, Randolph warns Congress not to edge toward war against “the Moslems” in Turkey, calling it a “crusade” against a foe we hardly understand (194). Giving up, for once, an opportunity to spell out the connection with current politics, Johnson quotes Randolph’s 47% moment almost two centuries before Mitt Romney’s: “We shall be divided into two great but very unequal classes,” he wrote, “those who pay taxes and those who receive the proceeds of them” (165). Johnson seems to have updated Kirk’s biography of Randolph in part to draw lessons for a new generation of conservatives.
I was impressed with one of Randolph’s prescient statements: Randolph feared that the Missouri Compromise’s division of the Louisiana Purchase into slave and free territory “would spark a fanaticism toward slavery, with northerners fixated on abolition and southerners determined to protect the institution.” (Jefferson also predicted that it would be “the knell of the union” (184).)
Speaking of what Johnson calls only, without explanation or irony, “The War Between the States,” I was glad that Randolph lived long enough to weigh in on the nullification crisis. I shouldn’t have been surprised that he condemned both Calhoun’s nullification doctrine and Jackson’s strong response to it. Like his great enemy Madison (another RINO), Randolph drew a thick line between the Kentucky and Virginia Resolutions of 1798, on the one hand, which declared a federal law unconstitutional but didn’t claim that a single state could overturn it, and Calhoun’s doctrine, on the other hand, which purported to nullify certain federal laws insofar as they impacted a state.
But Johnson believes that Randolph was also right to condemn Jackson for stating that “states had no rights to secede. Thus Jackson trampled not only nullification, but also state sovereignty, federalism, and states’ rights” (225). How sad that Calhoun’s doctrine of secession, inimical to majority rule as well as to our inalienable rights, is championed by one of my state’s deputy attorney generals.
Ironically, however, Johnson is wrong in one of the rare instances in which he criticizes Randolph – for using states’ rights to defend an aspect of slavery policy. During the Missouri Compromise debates, Johnson writes, Randolph “had resurrected the states’ rights argument but had linked it irreparably to the slavery issue. Thus he forever tainted states’ rights and virtually eliminated it as a future protection against centralization” (186 – 187). Johnson doesn’t argue that Randolph’s linkage is wrong – I say he can’t – he argues instead that the linkage was impolitic. I’ve come to believe that states’ rights and slavery were irrevocably mixed in the Constitution since that document gave slaveholding states specific powers free states didn’t possess. It only remained for Calhoun, who late in Randolph’s career switched from being his enemy to his unrequited admirer, to transform “the question of individual and minority rights into the question of state rights,” as Professor Harry V. Jaffa puts it (Jaffa, A New Birth of Freedom, 278). What John Locke and James Madison had written in the Second Treatise of Government and in the Federalist Papers, respectively, about the possibility of majority tyranny against the individual, Calhoun had transferred to an inherent majority tyranny in the form of the federal government against the minority of an individual state or group of states. In the process, of course, Calhoun denies the rights inherent in individuals asserted by Locke and Madison. Calhoun made clear in his famous Senate speech on June 27, 1848 that individuals qua individuals have no rights. Rights attach to individuals only as members of a race, and then only when that race earns those rights over the course of generations.
“I am an aristocrat. I love liberty, I hate equality” (6 and 231). What is the source of Randolph’s liberty? Not his standing before God as a son, as it is for Locke. Here’s a riff from a rather disjointed speech Randolph gave on March 2, 1826:
“Sir, my only objection is that these principles, pushed to their extreme consequences – that all men are born free and equal – I can never assent to, for the best of reasons, because it is not true . . . even though I find it in the Declaration of Independence . . . [I]f there is an animal on earth to which it does not apply – that is not born free, it is man. He is born in a state of the most abject want, and a state of perfect helplessness and ignorance, which is the foundation of his connubial tie.” (208)
Calhoun probably used Randolph’s remarks here, or similar ones Randolph may have made on another occasion, as an outline for his 1848 speech. (Johnson says only that “Calhoun listened hard” to Randolph’s March 2, 1826 remarks.) The two Congressmen’s speeches are strikingly similar. Of course, Randolph, like Calhoun after him, mistakenly conflates the metaphysical and foundational equality of Aquinas, Locke, and Jefferson with the economic equality he accused his political foes of fostering. One does not lead to the other.
Randolph’s claim to liberty, then, is not based on the proposition that all men are created equal, which Jaffa points out is nothing less than the premise for the laws of nature and of nature’s God (439). In this most succinct statement of his beliefs, Randolph prefaces his love for liberty with his identity as an aristocrat, or, more precisely, with his standing as a slaveholding member of Virginia’s landed aristocracy. As laudatory as many of Randolph’s political stances were, one can understand almost all of them as attempts to maintain this false identity by challenging every change.
And this is the problem I have with the foundation of what usually passes for American conservatism. It is historicism. It relegates eternity to death and religion. Lockean liberalism, on the other hand, is founded on an individual’s identity as God’s child. History, for Locke, is the story of how that eternal relationship plays out in societies and governments.