Grad - Wells

Abstract

Oliver Wendell Holmes' 1881 The Common Law marks the founding of American legal pragmatism.  A series of lectures on the history of law and contract, it describes the laws evolution from an ancient model rooted in kinship and blood sacrifice to a contemporary model of common law jurisprudence. Within this gradual process, argues Holmes, the formal structures of law become progressively abstract so as to remain relevant to each generation. Particular communities turn to the law's inherited forms to challenge those very forms. Characterizing the pragmatism inherent in this model, Holmes wrote to his friend Harold Laski: "You respect the rights of man--I don't, except those things a given crowd will fight for."   On the one hand, then, Holmes's history of the law is one of increasing idealization, epitomized by abstractions like "the rights of man." On the other hand, it works to cleanse the law of such abstractions, making way for a more immanent will of the people as it is manifest in the felt needs of particular communities. Why, then, did pragmatism arise at the height of Jim Crow legislation?

In this paper I place the formative logic of pragmatism within an historical frame that included both Jim Crow racial violence and a white academic left that sought to distinguish itself from such violence.  To do so is to expose pragmatism's own construction of a civic identity that lingers as the product of a Jim Crow nationalism.  I read Oliver Wendell Holmes, Jr.'s The Common Law alongside the contemporaneous construction of citizenship that occurred through Supreme Court rulings on the Fourteenth Amendment from the end of Reconstruction to the 1896 Plessy v. Ferguson case.  In the language of these cases I isolate a post-Reconstruction legal distinction between subject and citizen that not only mirrors that of the first pragmatist philosophers but also presents race as the formative grounds for this distinction. In the late-nineteenth century, I argue, pragmatism worked reciprocally with a newly static discourse of rights to reconfigure the category of US citizen in response to a post-Reconstruction racial order.