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Receiving Criticism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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15 Responses

  1. Personally, I’ve never had a problem with **constructive** criticism. The problem is that some ppl are just incapable of providing it and prefer, instead, to attack the messenger instead of the message.

  2. Dan Cole says:

    Jefferson’s first draft was much better than the one ultimately adopted. That wasn’t a case of editing to improve a thesis or argument, but a case of finding the lowest common denominator for a politically acceptable resolution.

  3. Gerard Magliocca says:

    Dan,

    I actually don’t think Jefferson’s first draft was better.

  4. Shag from Brookline says:

    Didn’t an earlier draft of Jefferson’s include negative references to slavery?

  5. Joe says:

    His negative references left something to be desired, including the actual particulars. One edit, btw, was the addition of “self-evident.” Carl Becker notes the handwriting seems to be Franklin’s.

  6. Shag from Brookline says:

    Joe, is this what you referred to?

    http://www.pbs.org/wgbh/aia/part2/2h33.html

    What was left to be desired? Was the final version without such references preferable?

  7. Joe says:

    First, blaming “he” the king for the slave trade is hard to take seriously.

    The reference to “prostituted his negative” to stop its trade is overblown in what actually appears to be the matter in dispute.

    The reference to “this assemblage of horrors might want no fact of distinguished die” to oppose moves by Brits to free slaves if they fought for the Brits sounds like something the Confederacy would use against Lincoln.

    The whole original paragraph has overheated rhetoric, particularly given his actual opposition to doing something concrete to stop the “horrors” he might philosophically oppose but was loathe to directly address. Actual abolitionists and some of his less pie in the sky fellow slave-owners realized this.

  8. Shag from Brookline says:

    Joe, count the number of times in the final version that reference was made to the King (“He”). Should we not take seriously the many, many matters blamed on the King? Here’s the omitted provision I have located:

    “He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another… ”

    Why was this more overheated rhetoric than other paragraphs? I have been unable to locate details of discussions that led to the removal of this paragraph. Maybe Jefferson was prepared to directly address issues of slavery if he had support.

    Over the years, even before the Civil War Amendments, many Americans, many slaves, felt that the Declaration’s reference to all men/equality supported anti-slavery efforts by abolitionists and others; that the Declaration was to be read in conjunction with the Constitution which did not specifically reference slaves or slavery. For many the Declaration was hope for the slaves. If the paragraph had not been omitted, surely the Declaration would have been a stronger voice against slavery and just might have been reflected directly in the Constitution during the Convention.

  9. Joe says:

    The abuses listed were correctly put in the hands of the central government. The people themselves were the one who continued the slave trade. South Carolina, Georgia etc. blaming “the king” for the slave trade is rank hypocrisy.

    The list of abuses tend to be brief and generally low key. This paragraph is not. The rhetoric is striking given the rest of the document. It sticks out like a sore thumb.

    Jefferson much later said those involved in the commerce didn’t want the provision in there, so it was removed to obtain unanimity. The states that supported the slave trade or had a large business in delivering the slaves (like Rhode Island) also probably realized how hypocritical it all sounded.

    The DOI w/o this provision still was a document in support of freedom. Equal justice, inalienable rights and self-government in measured eloquent tones all made slavery — w/o blaming the king for something the people did etc. — a violation of its terms. This w/o blaming the “king” for “a market where MEN should be bought & sold” that the colonists supported.

    The reference to “the CHRISTIAN king” acting worse than an “infidel” etc. btw underlines the rhetoric. This religion laden statement in a document otherwise deistic in tone is curious. Those who aided and abetted the slave trade in the colonies also would be loathe to in effect sign a document saying they were worse than infidels.

  10. Shag from Brookline says:

    Focus on the powerful statement that begins the omitted paragraph:

    “He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither.”

    Specificity. To the point. Embarrassing to the rebelling colonists for their participation. All the words of a slaveowner. A missing link of “most sacred rights of life & liberty.” A flawed Declaration led to a flawed Constitution.

  11. Shag from Brookline says:

    Keep in mind that Jefferson was not at the Convention, although some of his thoughts on it have been documented. Perhaps if he had been, there might have been more discussion of slavery.

  12. Shag from Brookline says:

    I had to replace my printer earlier this week and finally got around to downloading articles to read, including Jack Balkin’s “The Distribution of Political Faith” available at:

    http://ssrn.com/abstract=2083246

    I’ve just started to read it and its first sentence:

    “The original title of “Constitutional Redemption – which my publisher prevailed on me not to use – was ‘Agreements with Hell.’” Of course Jack is referring to slavery and the Constitution. I’ll find out shortly whether he includes references to the Declaration and in particular the omitted paragraph.

  13. Joe says:

    Printer? You actually print out the reams of articles you read? Must use a lot of ink.

  14. Shag from Brookline says:

    And I’m a hoarder!

  15. Shag from Brookline says:

    I finished Jack’s article, which was basically responses to constitutional roasters of his book Constitutional Redemption. Jack makes no references to the Declaration and/or Jefferson in his article. I’ll check out the book if my library has it.

    I enjoy just about everything Jack writes. In this article I particularly enjoyed his responses to Jamal Greene and discussions on interpretation of the 14th Amendment by libertarian originalists and conservative originalists, pages 1154-1158. (I have suggested that Jamal be appointed to the Supreme Court as a counter to Justice Thomas.)

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