Monday, November 25, 2019

Legal History through a Rear View Mirror 4

One aspect of having been in the legal history business for a longish while is having to confront all that I have not done, or not completed. As well as all the mistakes I have made. Sometimes these are long past.  Sometimes not.

Having my “biography” from the Princeton history department website reproduced as part of a “welcome” message for the Legal History Blog provides an occasion for regret. Also for correction, since one way or another, the “biography” made Marshall’s canonical opinion in Gibbons v. Ogden, which it said I was working on, into one about the Contract Clause of the Constitution, rather than about the Commerce Clause (although there is a part of me that wants to think about the possible relationships between Gibbons, the case, and the Contracts Clause opinions, like that in Dartmouth College v. Woodward, that Marshall was drafting at around the same time). But more important: it has now been 4-5 years since I made any progress on the Gibbons project. Since then I ended up writing a book about gradual emancipation in New Jersey that was, in some regards, a spinoff from the Gibbons project. But I wrote the emancipation book as well as a way to get away from the Gibbons project, about which, then and now, I could not figure out what my “takeaway” was.

I’m not sure if I will ever return to the book I once planned about Gibbons. I have an immense number of jpgs on my computer. Some of that “archive” may form the basis for several different stories (about the language of monopoly in legal discourse and about the significance of family feuds within early New Jersey and New York) that sit within the larger narrative. I have several outlines. And I can imagine articles that will make use of those jpgs.  But I also confront a kind of fear of my archive, an uncertainty with how to use or to manage it, combined with a deep anxiety about how to make analytic claims within the well-trodden constitutional ground of John Marshall’s opinion in the case of Gibbons v. Ogden. Even if nearly everyone I have read on Gibbons, even if much of the vast legal and historical and political science literature that deals with Marshall’s opinion, is “wrong” in some ways, I’m not at all sure that I can find a way to say something that is “right” or that will satisfy my historical and legal and literary ambitions.

Once upon a time, all that would have been an occasion for silent shame and embarrassment, and possibly for a renewed determination to figure it all out. But today, while not immune to shame and embarrassment, I can go public with my failure. I think of that as progress of a sort, even it will probably (possibly) not lead to the book that I once hoped for.

--Dirk Hartog