Bound by History

Most of us objected to The New York Times’ notorious “1619 Project” because it trashes the great achievements of Americans (creating free institutions and conquering a continental wilderness), substituting a story of supposed victimization as the core of our history. Alas, Professor Hall, in his speculations in the March issue (“Slavery and the American Founding”) has fallen into the same pit—making the marginal history of Africans in America the center of history. (By the way, 1619 is a good place to start American history. The first elected representative body of the colonies met in Virginia in that year.)

Only rarely does Prof. Hall’s article touch solid American earth. It is true that American Founders disliked the idea of slavery, but nobody had any idea what to do about the reality. Lincoln himself on the eve of his elevation remarked that Northerners would be just like Southerners if they were in the same situation, and that he would not know what to do about slavery even if he had the power. Calhoun did not say slavery in the abstract was a positive good—he said that the South’s domestic servitude had made the best of the situation it had inherited for both races. Hall blames Southerners for “colonization” but it was primarily a Northern movement, more than once endorsed by Lincoln. The Declaration complains that the King had fostered slave insurrection. John Hancock had some of his Boston bondsmen with him in Philadelphia when he wrote his flourishing signature on the Declaration.

above: March 2021 issue of Chronicles

True, Jefferson favored the Northwest Ordinance. Remember that the foreign slave trade was still wide open at that time and no Northerners wanted any more blacks, especially since the black population was proliferating amazingly by natural increase. In Jefferson’s cited letter of 1820, in which he said the existence of slavery was like holding “a wolf by the ears,” he was speaking for Southern society not as an individual slaveholder, as Hall suggests, because Jefferson, like most slaveholders was neither unusually greedy nor fearful. In that letter during the Missouri controversy Jefferson was complaining about Northern antislavery action as illbegotten and counterproductive. Barring slavery from the territories did not free a single person. In fact, contrary to the Northwest Ordinance, he suggested that opposition to the “so-called” extension of slavery that later brought Lincoln to power retarded emancipation, which would be helped by spreading out the black population. In the same period, John Adams wrote Jefferson that the controversy was over words only and that much of the laboring population was in just as an “abject” condition as Southern slaves. In 1833 the Illinois legislature seriously debated the legalization of black bondage in that part of the Northwest.

There are two major, decisive, historical factors that Prof. Hall omits from his discussion. First, never did anybody, including abolitionists, propose a reasonable plan for integrating the freed people into regular American society. They were all white supremacists, including abolitionists. A major drive of the North before, during, and after emancipation was to keep the black people confined in the South and out of the North.

Secondly, Prof. Hall omits the devastating effect on American society of the rise in the 1830s of a new form of abolitionism, which took on the character of a holy crusade, preaching that all Southerners were “deplorables” and that slavery must be immediately abolished without any reference to reason. Daniel Webster said that this abolitionist movement had naturally destroyed the earlier antislavery sentiment in the South. That movement resembles in every way the regime we suffer under today.

—Clyde N. Wilson
Professor Emeritus of History at the University of South Carolina
Dutch Fork, S.C.

Prof. Hall Replies:

Facts are stubborn things. Professor Wilson suggests that I engage in “speculations” and rarely “touch solid American earth.” The focus of my essay, “Slavery and the American Founding,” is on the founders’ opposition to slavery and their adoption of numerous laws (organic and otherwise) that they thought would put this abominable institution on the road to extinction. Does Prof. Wilson think I am wrong? If so, let him engage my essay’s main arguments and the evidence I present.

Were some (many?) 19th century abolitionists racist or imprudent? Certainly. But they were correct to oppose slavery, as were America’s founders.

Matrimony Monomania

Rhetorical excess can mar otherwise trenchant discussion of important topics. Professor Baskerville’s essay, “The Coming Counter-Coup Against the GOP” (April/May 2021 Chronicles) is a prime example. He highlights three critical problems (radical sexual ideology, judicial tyranny, and politicized education), but analyzes them through a lens colored by his strong—I am tempted to say unhinged—feelings about America’s no-fault divorce laws, which he claims are “uncontestably the most repressive government machinery ever created in the United States.”

above: April/May 2021 issue of Chronicles

To Prof. Baskerville, apparently divorce laws, enacted democratically at the state level over the past 60 years, are worse than judicially-authorized abortion, slavery, racial segregation, eugenic sterilization, the internment of Japanese-Americans in World War II, the progressive income tax, eminent domain, asset forfeiture, class action litigation, environmental regulation, the doctrine of judicial review, and the federal leviathan created by the New Deal and Great Society programs (to cite a few examples of repressive government policies).

Prof. Baskerville’s hyperbole destroys his credibility. He goes on to say that conservative lawyers “ignore the vast miscarriages of justice that go on in state and local courts.” I would invite Prof. Baskerville to consider the work being done by the Federalist Society and its practice groups; litigation organizations such as the Goldwater Institute, Pacific Legal Foundation, Institute for Justice, Hamilton Lincoln Law Institute, and many others; and conservative think tanks such as the Manhattan Institute. Civil justice reform is a banner carried by many GOP and center- right figures. Prof. Baskerville’s real beef is that conservative lawyers, by and large, don’t share his monomaniacal obsession with divorce law.

On the subject of criminal law, Prof. Baskerville abruptly changes tack and begins to spout clichés from the American Civil Liberties Union, absolving criminals of blame because—you guessed it—“the crimes being punished are committed, virtually 100 percent, by youths rendered fatherless by the same court system.” Inner city criminality is caused by America’s divorce laws! If one looks at the rate of illegitimacy among the most crime-prone minorities, it becomes clear that the tragic phenomenon of single-parent households is not primarily the result of divorce, but promiscuity outside of wedlock. I would venture that most young urban criminals are the offspring of parents who were never married to begin with. Blame the welfare system, not the divorce laws.

Prof. Baskerville’s most outlandish claim, in an essay chock full of howlers, is to vilify two fine organizations—the Family Research Council (FRC) and Alliance Defending Freedom (ADF)—as “ineffectual” advocates “whose first priority is their own funding, power, and growth, and who dance a delicate pas-de-deux with their leftist counterparts.” The radical-left Southern Poverty Law Center has branded both FRC and ADF as “hate groups” for their principled opposition to the LGBTQ agenda—hardly evidence that they are cozy with their “dance partners.” At great expense, the ADF defended the Christian cake baker from Colorado, Jack Phillips, from persecution by LGBTQ zealots who sought to pauperize him for refusing to bake a cake celebrating a homosexual marriage. The ADF took the case all the way to the U.S. Supreme Court, and won. Without evidence, Prof. Baskerville smears the ADF as grifters. This is a despicable calumny unbecoming of Chronicles, and for which FRC and ADF are owed an apology.

Prof. Baskerville concludes his bitter tirade with the risible contention that conservatives “show scant interest in reforming higher education, or anything else for that matter.” Seriously? Based on my reading, higher education is a top priority among conservative activists, and has been for some time. To paraphrase Prof. Baskerville, any conservative who cannot suspend his bile, grudge-settling, petty feuds, and personal issues with divorce laws needs to step aside.

—Mark Pulliam
Lawyer and legal blogger
Maryville, Tenn.

Prof. Baskerville Replies:

Evidently I touched a nerve. But Mr. Pulliam’s defense of the indefensible is itself long on vitriol and short on specifics, unlike my documentation in referenced books and peer-reviewed articles.

Enacted democratically? Divorce laws are enacted by bar associations, which control judicial committees in state legislatures that appoint and promote judges and block reform. The recent charade in the Texas state legislature illustrates this perfectly. Hundreds wanted to testify for divorce reform, filling overflow rooms, but the Juvenile Justice and Family Issues Committee (chaired and dominated by divorce lawyers) rigged the schedule and delayed reform bills to death.

Of the standard counter-horrors Mr. Pulliam names, none involves a repressive government machinery except the Japanese-American internment, and there the scale of incarcerations was much smaller. The welfare machinery has indeed become repressive, as I show in my current article in this issue of Chronicles, but that is the same machinery that was vastly expanded by the divorce system. Readers can judge whether class action litigation or environmental regulations are remotely as serious as having one’s children confiscated and being incarcerated without trial. None of the conservative law firms Mr. Pulliam mentions (nor any others) have ever confronted the family destruction and constitutional violations of the divorce regime. None showed up in Texas to argue for reforms. So conspicuous is avoidance of this subject by the conservative legal establishment that political scientist Mark A. Smith expressed astonishment at their evasion, which he documented extensively in his 2010 Political Science Quarterly article, “Religion, Divorce, and the Missing Culture War in America.”

I and others have frequently approached these organizations, asking them to weigh in on divorce reform. The Manhattan Institute’s avoidance of the topic has been documented, by me in the July 2020 New English Review, and videotaped by podcaster Greg Ellis in his August 2020 interview with the Institute’s Heather Mac Donald.

The exceptions prove the rule. Brad Dacus at Pacific Legal Foundation started investigating divorce reform but backed off—probably because of resistance from lawyers in his firm. Phyllis Schlafly was the courageous exception, publicizing the abuses scathingly in multiple weekly reports and in her book Who Killed the American Family? (2014), but she, too, faced resistance from her own organization, as she told me in frustration many times.

Vague “civil justice reform” hardly constitutes confronting the mass incarcerations by divorce laws I (like others) have documented in my book Taken Into Custody: The War Against Fathers, Marriage, and the Family (2007), as well as in magazines including Chronicles, The Independent Review, Crisis, The American Conservative, The Salisbury Review, Women’s Quarterly, Catholic World Report, and many others.

Far from challenging the divorce industry, the FRC promoted David Blankenhorn, a leftist community organizer and divorce apologist who endorses same-sex marriage, and whose federally-funded organization attacks divorce critics, through articles in neoconservative magazines, using the same mockery as Mr. Pulliam.

As for the ADF, I work frequently with their lawyers, for whom I have the highest regard. I quote their publications and assign them to my students. But the ADF’s leadership prevents any criticism of the divorce industry.

My criticisms of mass criminalization by divorce laws have no relation to ACLU positions, which never involve any such argument and steadfastly refuse to confront serious and routine civil-liberties violations in family courts. Here, too, exceptions prove the rule. When Malia Brink of the Pennsylvania ACLU managed to free some 150 parents incarcerated without due process, she received no support from her organization, and no litigation was undertaken elsewhere. Nothing was atypical about the three Pennsylvania counties she freed those parents from, and no one denies that incarcerations without trial or record are the norm. That there could be 50 such prisoners in each of America’s 3,500 counties is not unlikely.

Conservative complaints about higher education are likewise bark without bite. They accommodate leftist ideology rather than confronting it, and now they imitate the worst of “cancel culture,” as I recently documented in articles in The College Fix, Academic Questions, American Thinker, New English Review, on the Academics for Academic Freedom website, plus an article and study published in January by the James G. Martin Center for Academic Renewal, which was featured in National Review and The College Fix.

Mr. Pulliam’s complaint establishes my point precisely: complacent conservatives ignore or apologize for leftist power grabs, refuse to acknowledge documented facts while providing none of their own, and plug their ears to public outrage. They are unwilling to learn from researchers who know things they do not, and attack critics who bear unwelcome news.