There’s a problem. Judge Kopf tried to show it with his post about Chief Judge John Marshall, and some of the comments, in return, made it hard to ignore. With the utmost earnestness, some struggled to find a principled distinction between the “good” old Americans and the bad ones. Others just condemned them all, because they failed miserably to meet the moment’s vision of a Great American.

Whom are we allowed to honor? Whom should we remember? How do we distinguish the good from the evil?

At Prawfsblawg, Rick Hills took his life in his hands by positing a metric that might satisfy the scholars with torches and pitchforks, as well as the little children who would gather the firewood so they can be burned at the stake.

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. [Broken into readable paragraph form.]

Nobody’s perfect? Rick got blindsided by his “privilege.”

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.

And with this perfectly reasonable point, Rick exposed his flank, which was immediately assaulted.

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

Accepting the anonprof’s representations, the paradox becomes patent. She’s not wrong to say she doesn’t “feel humbled by the exercise at all,” but she deliberately avoids the point of the exercise to assert her place as victim. Her contention is unchangeable, she would have been a slave woman. Ironically, she tosses in “our framers did great things,” but she will not “blindly honor” them. Why would she? There is no reason she should.

While Rick’s “humbling exercise” may work for white guys, like the allies who prostrate themselves to prove they admit their sins and dedicate their twitter account to the downtrodden and marginalized, it doesn’t work for some others. Not all others, mind you, as not every black in America today came from slave stock, but that adds nothing to the mix of the flawed experiment.

Rick’s attempt came in response to lawprof Mike Dorf’s effort:

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.

The paradox is glaring as Dorf tries to wind his way between one president and another. And let’s not even go near 45. While the “historical relativism” may work for some, based on the “woke relativism” of the kids stacking firewood, the arguments are largely morally bankrupt. As with the cries for eliminating protection for hate speech, it’s all a matter of who gets to make the morality call. The deeply passionate are certain that they know good from evil, and that they don’t suffer at all from Dunning-Kruger Syndrome, and that whatever their feelings, they are the feelings of most Americans and certainly all good, just and moral people.

But do we purge the people who held the positions of president, chief justice (heck, even notorious associate justice), senator and representative, because they don’t pass the moment’s morality test? Is Dorf right that it’s not good enough to rely on the platitudinous, “we honor them for the good they did, not the evil”?

There doesn’t appear to be any argument, sophist or otherwise, that can accommodate the demands of social justice. They were all horrible people based upon the moment’s demands for purity. Much as Rick’s sliding scale of goodness might seem appealing, it was blown up within moments by the moral claims of victimhood. Which leaves America with a bit of a problem: is everyone our society honored, or at least respected,* literally too awful today?

Or perhaps the only principled solution is to accept the premise that, for better or worse, these are the people who held positions of significance in the United States, and they are honored for that alone regardless of how horrifying they would be today to the woke.

*There may be the occasional president, say Lincoln, who gets a pass, but that doesn’t do much to answer the larger question. Plus, it’s hardly clear that Lincoln cared as much about slavery as he did about preserving the Union.