Anglo-American

On February 12, at the annual conference of the National Sheriffs’ Association, Attorney General Jeff Sessions used the expression “Anglo-American,” and some people have objected. This adjective was in an off-the-cuff digression (or at least, not included in his remarks as prepared for delivery); they may be seen in a YouTube video of the event, courtesy of NBC. A transcription:

Every sheriff in America, since our founding, the independently elected sheriff has been the people’s protector, who keeps law enforcement close to and accountable to people, through the elected process. The office of sheriff is a critical part of the Anglo-American heritage of law enforcement. We must never erode this historic office. I know this, you know this, we want to be partners, we don’t want to be bosses. We want to strengthen you, and help you be more effective in your work.

What’s so wrong with this, you ask? Well, the adjective “Anglo-American” is “problematic” to some people, connoting an America founded by and for white people of British descent (cf. “Anglo-Saxon“) – the antithesis of what we want for America today. On the Facebook group Teaching the Middle Ages, one Mary Valante claimed that “Anglo-American” was “racist” and “an alt-right term,” and suggested the use of “Common Law” as a substitute. And yet, America really did inherit certain things from Britain, and law professor Sasha Volokh, our guest speaker this week, pointed out that “Anglo-American law” and its variants are perfectly legitimate terms, and used all the time (specifically, courtesy Westlaw, 1695 times in U.S. state and federal cases, and 9449 times in legal periodicals). Moreover, “Common Law” isn’t precisely the same thing, given that the Anglo-American legal tradition includes “various administrative and constitutional principles, plus a bunch of procedural rules, which are not thought of as being part of Common Law.” As for the alt-right: well, they talk about the Constitution, too, “but that’s no excuse for us not to also talk about it.” He then quoted some of his favorite alt-right authors who used the terms “Anglo-American law” or “Anglo-American legal [system, tradition, etc.],” extremists such as Justices Stevens, Ginsburg, and Brennan of the US Supreme Court, and President Barack Obama himself.

That sounds pretty convincing to me. But what if you dislike Jeff Sessions anyway, and are not prepared to give him the benefit of the doubt? Well, you can adopt the strategy of one Ken Mondschein. In an article on The Public Medievalist, published on Thursday, Mondschein conceded that Sessions was “technically correct” and “factually correct,” and that “Anglo-American” is “actually a very common legal term, [which is] is not typically racially charged.” But he then proceeded to use the same rhetoric as that of your high-maintenance ex-girlfriend: “Even if I’m wrong, I’m right.” Essentially, everyone else can use the term, but not Sessions, because everyone knows he’s a baddie. Sessions’s use of the term was “incredibly fraught” and “widely interpreted as being a racist dog whistle.” That he addressed his remarks to a group of sheriffs made it even worse: the medieval office of shire-reeve came to be dominated by the local gentry, and in America also represented the locals… who used it to keep black people down. (I’m not denying that this may have been a problem once, but whether law enforcement is centralized or decentralized is a discussion we can have independent of its racial implications – or medieval roots, for that matter.)

Whether he realized it or not, Sessions’ statement had two references to medieval history buried deep within it: the idea of the power of sheriffs, and the idea of “Anglo-American” law. In this we can read Sessions’ words as a part of a disturbing pattern, where pieces of the medieval past are used to justify white supremacy….

Sessions likely did not realize the medieval context of his words. Whether he meant it as a medievalism or not, however, Sessions’ comments are part of a frustrating pattern where parts of our culture with medieval origins are weaponized to justify racist policies. It falls to each of us to remain vigilant, and to continue to push back against the use of the past to justify racism in the present.

I am reminded again of the bone-headed stupidity of the sorts of people who go around policing the discourse in this way, claiming to know you better than you know you, because they learned how to sniff out the real meaning of your words in their trendy sociology classes.* Why focus on the alleged problems of “sheriff” or “Anglo-American,” when in another part of Sessions’s speech, we read that:

Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed. It weakens the criminals and the cartels. Civil asset forfeiture takes the material support of the criminals and makes it the material support of law enforcement. In departments across this country, funds that were once used to take lives are now being used to save lives. And there is nothing wrong with adoptive forfeitures. There can be no federal adoption if the forfeiture is not called for under federal law. In many cases, adoptive forfeitures represent great partnerships between federal and state law enforcement.

They are also deeply corrupting to law enforcement at all levels, a violation of the fourth and fifth amendments, and an unfair hobbling of the defendant (how can you mount an effective defense, if your assets have all been seized?). So much for dog whistles: here is Sessions clearly and publicly endorsing state-sanctioned corruption (and something quite outside the Anglo-American tradition, by the way**). Why can’t we pay attention to that? Alas, apparently it’s a mere bagatelle compared to what Sessions might have meant by “Anglo-American,” if you don’t like him to begin with and you squint at his remarks in just the right way.

The late great David Foster Wallace (at 55) touched on a similar issue once:

Forget Stalinization or Logic 101-level equivocations, though. There’s a grosser irony about Politically Correct English. This is that PCE purports to be the dialect of progressive reform but is in fact — in its Orwellian substitution of the euphemisms of social equality for social equality itself — of vastly more help to conservatives and the U.S. status quo than traditional [language] prescriptions ever were. Were I, for instance, a political conservative who opposed taxation as a means of redistributing national wealth, I would be delighted to watch PCE progressives spend their time and energy arguing over whether a poor person should be described as “low-income” or “economically disadvantaged” or “pre-prosperous” rather than constructing effective public arguments for redistributive legislation or higher marginal tax rates on corporations. (Not to mention that strict codes of egalitarian euphemism serve to burke the sorts of painful, unpretty, and sometimes offensive discourse that in a pluralistic democracy leads to actual political change rather than symbolic political change. In other words, PCE functions as a form of censorship, and censorship always serves the status quo.)

* Yes, I know that one of the most important tasks of an intellectual is to discern meaning that might not be immediately apparent. I continue to be amazed, however, at how this hidden meaning, as exposed by your average academic, is usually predetermined, and no more true than its opposite.

** Perhaps this is why some people are so triggered by “Anglo-American.” The Anglo-American legal tradition endorses such things as presumption of innocence, reasonable standards of evidence, and the right to cross-examine witnesses. Such quaint relics of the bourgeois past are not what we need now – we want revolutionary justice, comrade!