Past Present

31 Pages Posted: 29 Sep 2015

See all articles by Patrick Gudridge

Patrick Gudridge

University of Miami - School of Law

Date Written: Fall 2014

Abstract

This paper has turned out (I have come to realize) to be the beginnings of a much more ambitious exploration of the Holmes opinion in Moore v. Dempsey and the question of what we might make of it. Moore, I want to argue, is an under-appreciated gateway, points to a notably profound and sober passage back and forth across a longer, accumulating run of pronouncements and possibilities within American constitutional law “writ large” (borrowing Larry Tribe’s apt phrase).

Moore addressed events in Phillips County, Arkansas, beginning in 1919 -- the “Elaine Massacre,” white killings of African American tenant farmers and their families consequent to a union organizing effort, deaths (we now estimate) of maybe 243 African Americans and one to five white participants: perhaps the single bloodiest incident in “the war of race” that raged throughout the period after Reconstruction running well into the twentieth century. The Supreme Court’s ruling, as Holmes constructed it in his majority opinion in Moore, was in the end a plainly aggressive intervention in the Phillips County outrage, demanding federal district court full review of local murder prosecutions of African Americans, but as written it looks to be near to microscopically terse. Holmes of course is an uncertain, controversial, and difficult writer for us now. But the opinion taken as it is, I think, quite surprisingly opens up, travels back and forth across a wide “past” (further and wider than this draft shows), and an emphatic approach to constitutional law still available for use in what we think of as “present” (in more ways than this draft suggests).

Note: Except for some introductory comments, this essay was put together initially for purposes of participating in Michael Froomkin’s JOTWELL conference last fall. JOTWELL is a remarkable invention, well worth a visit to its overarching website.

Suggested Citation

Gudridge, Patrick, Past Present (Fall 2014). University of Miami Legal Studies Research Paper No. 2015-14, Available at SSRN: https://ssrn.com/abstract=2666717 or http://dx.doi.org/10.2139/ssrn.2666717

Patrick Gudridge (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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