Lit and Law and Romanticism

by Chris Suggs

I want to pass along to you some amplification of an issuethat JoEllen raised, in the light of some conversation I have had since our Sept 5 meeting.

JoEllen was disturbed at my appropriation of "romanticism" to describea shaping force in American law because the term is so closely tied inour practice to a) English literary romanticism, which it does notresemble very much at all; and b) American literary romanticism which it also does not seem to resemble but which itself is not the same as English literary romanticism. Bettina helpfully teased out of me thedeclaration that I meant nothing literary by the term but was arguing for something I should call "American legal romanticism."

This matter came up again this past weekend at Yale where I am amember of an interdisciplinary (well, law, legal history, and a littlebit of lit--me and Veronica)working group in law and slavery. There Iargued that certain Enlightenment principles, when translated into anemergent American legal context, became something "other than" Enlightenment and more Romantic, which I described more or less as ihad done in our seminar. The responses were surprising to me. One was that the historians didn't care one way or the other what it was called. That was a relief. But the other was that no one there could call up a single study that examined the effects of Enlightenment thought on American law, and certainly not whether there weresubstantive differences between the American product and the European original. At first I thought I had heard them incorrectly, but the point was made again. And finally there was some agreement that something may well have happened like that which I described but that no one had looked into it and that it should be done.

So, when JoEllen asked me on September 5 whose idea that was and I said I made it up, I was more correct than I knew, as far as I know. But I write to you now about it to claim once again that certain Enlightenment principles about individuality, will, liberty, and property we transmuted in America into a legal metadoctrine of romantic national identity from which blacks were systematically excluded through the normative power of positive law.