Panel on Deportation, Refugees and Exile Reply

This past week I participated in the Association for the Study of Law, Culture and the Humanities annual meeting.  Warren gave a great wrap up here, and Mai-Linh described the panel that we both participated on here. Below, I am posting the abstracts from my fellow panelists.  I will post a separate piece outlying my presentation.

The panel was chaired by Frank Snyder of Texas Wesleyan, who did a yeoman’s job of coordinating the panel.  It included myself presenting Re-Entering the Loneliness: Robert Penn Warren and the Exile;  Beth Caldwell of Thomas Jefferson Law School, presenting Clinging to Precedent in a Changing World: The Fiction that Deportation is not a Punishment;  and Quyen Vo, a very impressive student at UC Berkeley, presenting National Interest and International Legal Obligations in British Refugee Asylum.  Here are the abstracts in the order presented.

Beth Caldwell, Clinging to Precedent in a Changing World: The Fiction that Deportation is Not a Punishment

The Supreme Court decided that deportation is not a punishment in 1893. The decision was influenced by overt racism that characterized American society at the time. Since then, our societal norms have changed. However, the decision that deportation is not a punishment has remained the same. Although this core holding has not evolved over time, the Supreme Court reasoned in Trop v. Dulles that this characterization may be “highly fictional.” In 2010, the Court acknowledged that deportation may in fact be the most severe penalty resulting from a criminal conviction. The language the Court employs to discuss deportation seems to characterize deportation as a punishment. However, the Court has not explicitly reversed its 1893 decision that deportation is non-punitive. This paper explores the evolution of the case law and attempts to reconcile the Court’s evolving reasoning with its decision not to reverse or reconsider the ultimate question of whether deportation is a punishment. This inquiry is particularly important because deportation would be subject to review under the Eighth Amendment if it were defined as a punishment.

Quyen Vo, National interest and International Legal obligations in British Refugee Asylum, 1933-1951

 This paper considers how the British state’s refusal to acknowledge formally an asylum seeker’s refugee status affected the scope of British refugee asylum between 1933 and 1951; in the former year the first international refugee treaty emerged under the League of Nations, and in the latter a more comprehensive refugee convention was established under the United Nations. This paper argues that the British state sought to determine the entry of asylum seekers and rights of ‘refugees’ territorially present using primarily the national immigration law, which sought above all to protect and promote the national interests. By examining shifting boundaries between national immigration law and international refugee law, this paper highlights distinctions between citizen and alien, legal and illegal, and inclusion and exclusion that lie at the heart of British refugee asylum. More broadly, the analysis offers a richer historical understanding of the British state’s attitudes toward international refugee law.

Marc L. RoarkRe-entering the Loneliness: Robert Penn Warren and the Exile

How do exiles return to community? As Randy Hendricks has demonstrated, Robert Penn Warren uses as a principal literary figure the wanderer to describe his theories of racial relations, his concept of language, and his own place in the southern narrative. This paper explores Robert Penn Warren’s conceptions of the exile as tragic hero in the context of the law. Importantly, Warren’s wanderer’s always return home, a process that requires legal acceptance of the wanderer’s place in society

Treasures in the Attic: Robert Penn Warren and the Conference on the Status of Soviet Jews Reply

I was cleaning up my office last week when I stumbled upon a set of letters that Robert Penn Warren helped draft for the Conference on the Status of Soviet Jews.  I had sought these letters out back in the Fall because of an obscure reference in the Collected Writings of Robert Penn Warren to his participation on this group.  Fortunately, Randy Hendricks of the University of West Georgia had copies.   The Conference on the Status of Soviet Jews was the first American Conference to consider the status of Soviet Jews and included amongst its congregants: Robert Penn Warren, Martin Luther King, and Justice William O. Douglas to name a few.  The conference met in New York’s Carnegie Center in October 1963.   The conference was largely the result of work by Moshe Dechter (pictured on the right), who earlier that year highlighted the plight of Soviet Jews in a Journal of Journal of Foreign Affairs Article titled The Status of Jews in the Soviet Union. There Dechter described the Jewish plight as: 

Soviet policy places Jews in an inextricable vise. They are allowed neither to assimilate, or live a full Jewish life, nor to emigrate (as many would wish) to Israel or any other place where they might live freely as Jews…Soviet policy as a whole, then, amounts to spiritual strangulation—the deprivation of Soviet Jewry’s natural right to know the Jewish past and to participate in the Jewish present. And without a past and present, the future is precarious indeed.

The main piece of the Warren letters is a plenary letter addressed to the Fourth All-Union Congress of Soviet Writers by various American writers.  Amongst the signatories include: Robert Penn Warren, Ralph Ellison, Irving Howe, Norman Mailer, Author Miller and John Updike to name a few.  Warren begins the letter by calling the Soviet writers to remember distinctive role that Russian authors have played as social critics as a call to action on behalf of an impressed people:

As you can perhaps sense, we are aware that, however honorable the craft of the writer may be, yours is a mission beyond that of writers.  For in your country, probably more than in any other country’s literary tradition, the role of the writer has always transcended art.   The writer has been uniquely, social critic, intellectual goad, moral guide, tribune of the people’s conscience.

You, Soviet writers, are the heirs of Pushkin and Belinsky, of Tolstoy and Herzen, of Dostoevsky and Chekhov of Gorky and Mayakovsky.  But in a sense, all of us, all writers everywhere, stand in that tradition and are its children.  And it is indeed in its spirit and as bearers of a moral burden, that we turn to you now and ask you to consider the painful situation of Jewish literature and culture in the Soviet Union today.

Warren’s letter, signed by other writers, and approved of by the Conference on the Status of Soviet Jews calls on the Soviet writers to stand with Jewish persons to preserve their culture through schools, research, theaters and the like.

Warren’s interest in the conference likely stems from his fascination with the idea of exile, and the role that exiles play in defining the society they are exiled against.  For Warren, the exile (particularly the American Southern Exile) presented the ideal being to confront the self against the past, the self as defined by the past, and the self as trying to be free from the past.  No matter who you were as an American southerner, the past was unhappy.  As a segregationist, the past reminded you that those days were passing. As an integrationist, the past was an exemplar of inescapable human violations.  As Jonathan Cullick writes in Making History: The Biographical Narratives of Robert Penn Warren (LSU 2000): “Warren’s protaganists and narrators struggle between a desire to liberate themselves from the past and a need to shape their identities in the context of the past.”  In doing so, Cullick writes, Warren “demonstrates the knowledge gained through return and reconciliation redeems us from the concept of the past as a burden, permitting one to be connected to the past rather than haunted by it.”  Warren’s work on the Jewish Exile committee seems well placed for his desire to create space for humans to confront their past as a precursor to understand both their present and the future.

There is more to say here. I am planning to post the letters as soon as I have permission from the Literary Executor.  I will update the post in full with links to pdf’s at that time.  For now, I still have more treasures to unlock.   For example I just found my lost volume by George Marsden The Soul of the American University.  Some day soon I’ll talk about that, particularly with all of the U.S. news discussion lately.

Image of Moshe Dechter taken from New York Times Obituary.

Don’t take that Name off the Building 4

This week, the University of Texas began to wonder whether to remove the name of William S. Simkins from one of its dormitories. Simkins was a confederate soldier, a professor in UT’s School of Law (from 1899-1929, and most problematic for UT today, a member of the Klu Klux Klan. The building was named for Simkins in 1955 in recognition of his work for the University — and perhaps symbolically to identify Texas’s desire not to integrate.

The controversy came to light when Professor Tom Russell, formerly as faculty member at UT published on SSRN the paper Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls’: The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999 . In the abstract, Russell writes: “During the 1950s, the memory and history of Professor Simkins supported the university’s resistance to integration. As the university faced pressure to admit African-American students, the university’s faculty council voted to name a dormitory after the Klansman and law professor.” Later, in an interview with Texas Lawyer, Russell says: “I think it’s inappropriate for the University of Texas administration to continue to honor Professor Simkins by keeping his name on the dormitory.”

I am quite sympathetic to Professor Russell’s feeling that Simkins name is inappropriate on a building dedicated to equality and enlightened education. I am afraid, though, that through efforts like these, we will look back on our history and wonder why we felt the need to purge it so. History is made up of the good and the bad, of good people making bad decisions, of bad people making thoughtfully astute and beneficial decisions, and everyone else caught in the milieu of time and happenstance. On the one hand, we cannot and must not belittle the real offense that African Americans must suffer by the presence of a name connected with a vile racist past. But on the other hand, does removing the name really bring us comfort that the University has disassociated itself with its racist past. For as long as there have been people that have crossed the University of Texas campus since 1955, the building will forever be called Simkins Hall; I imagine that for some generations that will continue. Indeed, short of imploding the building from the grounds and eradicating its memory from the space it occupies, Simkins will forever be known as a part of the UT campus, both the prejudicial Simkins and the University contributor.

But perhaps more problematic than the persistence of memory, is the loss of memory. Maybe we don’t feel comfortable talking openly about a person’s indiscretions, particularly once they have died. I imagine that there might be some hesitancy in leaving Simkins name on the building in order to have a frank honest discussion of race and our past. We choose to remove rather than discuss, and in doing so, deprive our children of the mistakes we have made. Robert Penn Warren wrote beautifully on this point in talking of the role of purge tendencies in the anti-slavery context. Warren writes:

“Man [can be described] as a total abstraction, in the pure blinding light of total isolation, alone with the Alone, narcissism raised to the infinite power….But social problems are rarely to be solved by men totally outside of society — certainly not by men not merely outside of a particular society but outside of the very concept of society. For if all institutions are “dirty” why really bother to amend them? Destruction is simpler, purer, more logical, and certainly more exciting. Conscience without responsibility — this is truly the last infirmity of the noble mind.”

Yes. Destruction feels cleaner. But if it feels cleaner its because we have grown uncomfortable with the dirt we can see. There is more dirt around — we have not yet had time to notice (or maybe never will notice) its impact, or to yet be uncomfortable with its role in our own development.

So instead of renaming the building or taking Simkin’s name down, do something enlightened. Build a prominent display in the building that speaks openly and honestly about the struggles the UT campus has had with race; maybe add a name to the building of a person that fought for civil rights in the State of Texas to pair along side Simkins – perhaps Marshall and Simkins Hall. Take the opportunity to recognize our vile past, and talk openly about it. Our future generations will be better for it. In each of these things, the University will be responsible with its past, which includes honoring for a time a person whom the University is not proud of in every respect and recognizing that the University can mature beyond the narrow ideas of a few.

Update:  There is a nice write up on the controversy at the faculty lounge here, along with a set of links to the controversy. Tom Russell in comments provides more information on the controversy as well as a call for responses to the Texas Board of Regents planning to meet on the issue soon.

Update 2: Al Brophy at the Faculty Lounge talks about the role of historical memory in decisions to take down emblems from our racist past here.  In the comments, Tom Russell provides some thoughtful responses, to which i will respond soon.  This is a great discussion!

Quote from Robert Penn Warren, The Legacy of the Civil War

Can Law and Literature Function without Historical Narrative? 3

When I took law and literature in law school, it was frankly the best class experience of my education (sorry unnamed property prof — the rule against perpetuities still haunts).

But one thing that was missing when I took law and literature was the connection of the literature to any emerging cultural narrative or norm. We read lots of great books, many of which I have incorporated into my own law and literature course. But they were all disconnected from one another, except for the shared discussions of authorship, irony, the task of writing, etc… The course essentially became a course in the Great books of the world… with legal narratives behind them. Don’t get me wrong. That’s is a wonderful course, and I suspect for most law and literature profs it functions as an ethics alternative to the universe of professionalism that has engrafted legal education for the last hundred years — retrenching liberal education in the law school halls if you will.

In my own law and literature course (this is the third time that I have taught the class) I have attempted to incorporate a greater sense of historical connection between literature and the law. Perhaps my view of literature and the law is best summed up by Robert Penn Warren reflecting on Cass Mastern in All the King’s Men:

Cass Mastern lived for a few years and in that time he learned that the world is all of one piece. He learned that the world is like an enormous spider web and if you touch it, however lightly, at any point, the vibration ripples to the remotest perimeter and the drowsy spider feels the tingle and is drowsy no more but springs out to fling the gossamer coils about you who have touched the web and then inject the black, numbing poison under your hide.
Each time that I have taught the course, it has been a reflection of the culture of American law — so only literature by Americans or about America (my students read Margaret Atwood’s Handmaid’s Tale which is set in Gideon or Evangelically reformed America). So out are Antigone, or even Jean Anouilh’s version of Antigone (set against a German occupied France in World War II). We don’t read Charles Dickens’ Bleak House, or Fydor Dostoyevsky’s Crime and Punishment or Brother’s Karamozov. And we don’t read Kazuo Ishiguro’s Remain’s of the Day, one of my favorites. And of course, no Shakespeare.

Looking back over the list of works that my students miss out on, started me thinking about what other ways I could incorporate the historical narrative against the backdrop of literature and the law. Perhaps a study of 19th century literature would reveal a growing consciousness between wealth and poverty. That would be fun — Dickens’ Oliver Twist and Doystoveski’s Poor Folk anyone? Perhaps an obvious catalyst would be a course “Literature in the Age of Revolution.” William Wirt’s Letters of the British Spy , Victor Hugo’s Les Miserable, and Dickens’ Tale of Two Cities would be great. Perhaps even some twentieth century memoirs/ biographies around revolutions –, maybe Reading Lolita in Tehran for the Iranian Revolution and Che Guevara, A Revolutionary Life for the South American/ Cuban Revolution? (At the very least, we could educate our students about who the guy on their t-shirt is).

What other historical narratives could you see using in Law and Literature. Also, then, how is law and literature different from Legal History?

Weekend Poet Reply

Prairie Harvest
by Robert Penn Warren

Look westward over forever miles of wheat stubble
The road of the red machines is gone, they are gone.
Their roar has left the heartbeat of silence. The bubble,
Enormous, red, molten, of sun, above the horizon.

Apparently motionless, hangs. Meanwhile, blue mist
For uncountable miles of the shaven earth’s rondure arises,
And in last high light, the bullbats gyre and twist,
Though in the world’s emptiness the sound of their cries is

Nothing. Your heart is the only sound. The sun,
It is gone. Can it be that you, for an instant, forget
And blink your eyes as it goes? Another day done,
And the star the Kiowa once stared at will requite

Man’s effort by lust, and lust by the lead-weighted eyes.
So you stand in the infinite circle, star after star,
And standing alone in starlight, can you devise
An adequate definition of self, whatever you are?

Published in the Collected Poems of Robert Penn Warren (Ed. John Burt).

The City 2

Robert park wrote in the 1920’s:
the city and the urban environment represent man’s most consistent and, on the whole, his most successful attempt to remake the world he lives in more to his heart’s desire. But if the city is the world which man created, it is the world in which he is henceforth condemned to live. Thus, indirectly, and without any clear sense of the nature of his task, in making the city man has remade himself. The City as Social Laboratory.

Cities force humanity into conversation with one another. Forced conversation. Unintentional conversation. Rubbing elbows on the subway conversation, brushing shoulders walking down the stairway conversation. Which is why cities define humanity’s greatest attempt to remake itself as a non-intentional social creature.

It seems that early twentieth century authors understood this. Paul West, writing a short pamphlet on Robert Penn Warren noted that Warren’s “overview is of the incalculable, unpredictable repercussions our least endeavors provoke. Identity, in particular, is not a fixity, but a studiously maintained transaction with other people. The means of self-establishment is also the prime agency of confusion, especially for those who want perfection and utter consistency.” Pamphlet printed by University of Minnesota Press.

Its the story of Jay Gatz and Tom Buchanan and George Wilson. Thrusted unintentionally, almost haplessly into a narrative of ambition, jealousy and manipulation. Fitzgerald ends his great work on Jay Gatsby (or Gatz if you prefer his true identity) with these words: “[Gatsby] has come a long way to this blue lawn and his dream must have seemed so close that he could hardly fail to grasp it. He did not know it was already behind him, somewhere back in that vast obscurity beyond the city, where the dark fields of the republic rolled on under the night. Gatsby believed in the green light, the orgastic future that year by year recedes before us. It eluded us then, but that’s no matter — tomorrow we will run faster, stretch out our arms farther…And one fine morning….”

Perhaps man’s city is doomed by the lack of intentioned interaction, a collection of vacant defunct houses, like the prostitute in Whitman’s The City Dead-House.

By the city dead-house by the gate,
As idly sauntering wending my way from the clangor,
I curious pause, for lo, an outcast form, a poor dead prostitute brought,
Her corpse they deposit unclaim’d, it lies on the damp brick pavement,
The divine woman, her body, I see the body, I look on it alone,
That house once full of passion and beauty, all else I notice not,
Nor stillness so cold, nor running water from faucet, nor odors morbific impress me,
But the house alone – that wondrous house – that delicate fair house – that ruin!
That immortal house more than all the rows of dwellings ever built!
Or white-domed capital with majestic figure surmounted or all the old high-spired cathedrals,
That little house alone more than them all – poor, desperate house!
Fair, fearful wreck – tenement of a soul – itself a soul,
Unclaim’d, avoided house – take one breath from my tremulous lips,
Take one tear dropt aside as I go for thought of you,
Dead house of love — house of madness and sin, crumbled and crush’d,
House of life, erewhile talking and laughing – but ah, poor house, dead even then,
Months, years, an echoing, garnish’d house – but dead,dead, dead.

Perhaps. But perhaps, the city is just the place where man exemplifies his greatest humanity. Where mankind constantly remakes himself in the image of god — intentionally caring for the poor, intentionally nursing the sick, and intentionally fighting for the oppressed.

The City Dead-house, published in Leaves of Grass (the Death Bed Edition).

An Earth Day Poem Reply

Tomorrow Morning
By Robert Penn Warren

In the morning, the rivers will blaze up blue like sulphur.
Even the maps will shrivel back in their own heat,
And metaphors will scream in the shared glory of their referents.
Truth will embrace you with tentacles like an octopus. It
Will suck your blood through a thousand suction-cups, and
The sun utter the intolerable trill of a flame-martyred canary.

Does this suggest the beginning of a new life for us all?

Or is it only, as I have heard an eminent physician remark,
A characteristic phase at the threshold of the final narcosis?

Published in The Collected Poems of Robert Penn Warren (ed. John Burt).

Truth and Loneliness Reply

Robert Penn Warren, as a writer viewed the world through two lenses: one was the lens of the perceptive — the wanderer in time who encounters phenomena and tends to make conclusions about their significance.   The other was the lens of the stationary — the constant.   Thus, RPW tended to gravitate towards hisorical narrative as a means of developing his characters.  The following two poems exemplify RPW’s lens of the world:


Truth is what you cannot tell.                                                                                                                                                                                                                                                                                                                                                                  Truth is for the grave                                                                                                                                                                                                                                                                                                                                                                                  Truth is only the flowing shadow cast                                                                                                                                                                                                                                                                                                                                                           By the wind-tossed elm                                                                                                                                                                                                                                                                                                                                                                               When sun is bright and grass well groomed.

Truth is the downy feather                                                                                                                                                                                                                                                                                                                                                                           You blow from your lips to shine in sunlight

Truth is the trick that history,                                                                                                                                                                                                                                                                                                                                                                        Over and over again, plays on us.                                                                                                                                                                                                                                                                                                                                                                  Its shape is unclear in shadow or brightness,                                                                                                                                                                                                                                                                                                                                             And its utterance the whisper we strive to catch,                                                                                                                                                                                                                                                                                                                                                                                                                     Or the scream of a locomotive desperately                                                                                                                                                                                                                                                                                                                                          Blowing for the tragic crossing. Truth                                                                                                                                                                                                                                                                                                                                                                                                                    Is the curse laid upon us in the garden.

Truth is the serpent’s joke,

And is the sun-stung dust-devil that swirls                                                                                                                                                                                                                                                                                                                                                On the lee side of God when he drowses.

Truth is the long soliloquy                                                                                                                                                                                                                                                                                                                                                                                                               Of the dead all their long night.                                                                                                                                                                                                                                                                                                                                                                    Truth is what would be told by the dead                                                                                                                                                                                                                                                                                                                                                                                                                                  If they could hold a conversation                                                                                                                                                                                                                                                                                                                                                                 With the living and thus fulfill obligation to us.

Their accumulated wisdom must be immense.

The serpent’s joke that man can know truth.  In the end we just tell narratives — stories of our perceptions.  And perhaps the Dead might correct us if they could — oh how wise they would be.   How history taunts us, tempting us that we might be immortal, or at least our presence immortal.

Timeless, Twinned

Angelic, lonely, autochthuonous, one white                                                                                                                                                                                                                                                                                                                                                Cloud lolls, unmoving, on an azure which                                                                                                                                                                                                                                                                                                                                                                                                                          Is called the sky, and in gold drench of light,                                                                                                                                                                                                                                                                                                                                             No leaf , However gold, may stir, nor a single blade twitch,

Though autumn-honed, of the cattail by the pond.  No voice                                                                                                                                                                                                                                                                                                                                                                                                             Speaks, since here no voice knows                                                                                                                                                                                                                                                                                                                                                                                                               The language in which a tongue might now rejoice.                                                                                                                                                                                                                                                                                                                                  So silence, a transparent flood, thus overflows.

In it, I drown, and from my depth my gaze                                                                                                                                                                                                                                                                                                                                               Yearns, faithful, toward that cloud’s integrity,                                                                                                                                                                                                                                                                                                                                           As though I’ve now forgotten all other nights and days,                                                                                                                                                                                                                                                                                                                           Anxiety born of the future’s snare, or the nag of history.

What if, to my back, thin-shirted, brown grasses yet bring                                                                                                                                                                                                                                                                                                                  The heat of the summer, or beyond the perimeter northward, wind,                                                                                                                                                                                                                                                                                    Snow-bellied lurks? I stare at the cloud, white, motionless.  I cling.                                                                                                                                                                                                                                                                                                    To our single existence, timeless twinned.

Poems by Robert Penn Warren, published in The Collected Poems of Robert Penn Warren (Ed. John Burt).