From “A City on a Hill” to “The Hill We Climb”

the hill we climb.
If only we dare.
It’s because being American is more than a pride we inherit,
it’s the past we step into
and how we repair it.

–Amanda Gorman, “The Hill We Climb”

 

“We are where we are, with the huge bloody problem delicately referred to as ‘race relations,’ because of a history.”

–Charles R Lawrence III and Mari J. Matsuda, “We Won’t Go Back: Making the Case for Affirmative Action”

If you need some light in these dark and unsheltered times, go watch or re-watch Amanda Gorman’s performance of “The Hill We Climb” at the recent Presidential Inauguration. If the poem itself does not inspire, maybe the poet will. Watching that virtuosity and vision in a 22-year old gives me hope that we may be able to find a path forward.

But as we begin Black History Month, I am reflecting on how we understand the path forward in light of the past. That was a central theme of Gorman’s verse. It is also a perpetual site of conflict in our politics and culture. This tension is apparent even in Gorman’s words. Her poem is yet another entry in a long rhetorical tradition of American jeremiads.

The jeremiad is named for the Prophet Jeremiah, who warned the people of Israel of the consequences of failure to fulfill their covenant with God. From that scriptural origin, “jeremiad” has come to refer to a rhetorical denunciation of sin and the related call to reform.

The first American jeremiads originated in the Puritan sermons of early New England colonies. John Winthrop—in language that echoes in the title of Gorman’s poem—exhorted his Puritan congregants to consider, “that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world.”

Within a generation, the Puritans were confronting the failure of their divine experiment. The jeremiad became a ritual means of purification, a coping mechanism for a religious community faced with its own moral failure and depravity. It consisted of three parts: 1) a scriptural precedent that established communal norms; 2) a condemnation of the current state of the community; and 3) a prophetic vision of salvation from moral failure that reconciles the discrepancy between ideal and reality. The jeremiad instantiated the American capacity for delusion and self-deception. It became an exhortation of low expectations:

“Even as the preacher exhorted, they knew enough about their listeners not to expect much from them…Theirs was a peculiar mission, they explained, for they were a ‘peculiar people,’ a company of Christianity not only called but chosen, and chosen not only for heaven but as instruments of a sacred historical design…In their case, they believed, God’s punishments were corrective, not destructive…In short, their punishments confirmed their promise.”[i]

The mutuality of sin and salvation purged the community of its guilt and implicitly encouraged its misconduct. The American jeremiad became a kind of rhetorical group therapy.  It required nothing more from its audience than faith in its narrative. Belief, not action, was the prerequisite for salvation.

An example? Lincoln’s Second Inaugural Address. Consider this passage in which he absolves Americans of their moral responsibility by abdicating their agency to God:

The Almighty has His own purposes. If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope — fervently do we pray — that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”

Lincoln’s address satisfied a deep national yearning for a conciliatory moral narrative. His formulation followed the classic jeremiadic tradition by sublimating the country’s vice into virtue. God’s very engagement with American history was proof of its unique status. The horrors of both slavery and war proved the national march towards salvation. 

But this is just one kind of American jeremiad. Another, the African-American or Black jeremiad, grew out of enslaved Black peoples’ fiery denunciations of white oppression. This jeremiad was not blind to American injustice and depravity. It bore prophetic witness to it.

For Black people in America, obvious parallels with the biblical story of Exodus countered white supremacist arguments that Black suffering proved their inferiority before God. Slavery was instead proof that the African-American community was God’s chosen people. Their suffering and hardship heralded God’s greater plan for the future.[ii] Reformulating the Exodus narrative, the African-American jeremiad provided assurance of the Lord’s salvation and nurtured a communal identity as a divinely favored people.

The early form of this African-American tradition was similar to that of its Anglo-American counterpart. But the tone and content were entirely different. The White Protestant jeremiad was a ritual of purification, an unfailingly optimistic prophecy of redemption. The (white) orator always addressed a “we,” his partners in a failing community. By contrast, the African-American jeremiad was a warning to the white, oppressive other. It served ritual purposes for the Black community, but its intended effect on white audiences was to persuade and admonish, not to comfort. An example? Think of Dr. King’s adaptation of the negro spiritual, “Go Down Moses,” in which he exhorted President Kennedy to “Go down Kennedy, way down to Georgia land. Tell old [Sheriff] Pritchett to let my people go!”[iii]

For much of our country’s history, these two rhetorical traditions existed in opposition to each other. They offered mutually exclusive views of America. But if you watch or read Gorman’s “The Hill We Climb,” you will see elements of both. It is not wrong to find comfort and hope in the midst of suffering and failure. But we cannot ignore history or evade its call to action. Belief in a brighter day to come is no substitute for acting to bring it about. As Gorman said,

the new dawn blooms as we free it.
For there is always light,
if only we’re brave enough to see it.
If only we’re brave enough to be it.

–Amanda Gorman, “The Hill We Climb”


[i] See Sacvan Bercovitch. The American Jeremiad. Madison: University of Wisconsin (1978).

[ii] See Albert J. Raboteau. A Fire in the Bones: Reflections on African-American Religious History. Boston: Beacon Press (1995).

[iii] See Keith D. Miller “Alabama as Egypt: Martin Luther King, Jr. and the Religion of Slaves” in Martin Luther King, Jr. and the Sermonic Power of Public Discourse.

Looking Past OCI

OCI was last week. How is everyone doing?

For the uninitiated, the On-Campus Interview Program is one of the principal ways BC Law students line up 2L summer internships at big law firms. These internships hopefully (and usually) lead to post-graduation job offers. There are, of course, other ways to get jobs in these firms. But OCI is a unique chance to get on that career trajectory early. So for those who aspire to work in these firms, OCI is a hugely important event. It is another one of those choke points in legal education that can feel all-important and all-consuming. And like those other gatekeeping moments, students are assessed and judged based on partial information. Resumes, cover letters, GPAs. And then the interviews, now conducted virtually, further diminishing that sliver of human connection that interviews used to allow.

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BC Law Student Groups Call for Impeachment of President Trump

Many BC Law students were outraged by the violent takeover of the U.S. Capitol. A number of student groups joined together to issue the following call to action to our elected representatives. It is presented here as a guest post.


On behalf of the Boston College Law Democrats, we respectfully ask Congress to bring articles of impeachment against President Trump at the next meeting of the House of Representatives. President Trump’s continuous undermining of the democratic process culminated today in acts of violence and a seditious occupation of the United States Capitol. The President’s inaction and implicit encouragement amount to high crimes against the Constitution. The evidence is clear that the President is not capable of upholding his oath of office, and thus should be impeached and removed from office.

Over the past four years, President Trump has repeatedly and clearly demonstrated that he is incapable of leading our nation. He has threatened our national security, the stability of our democracy and the fundamental principles of our Constitution. Instead of uniting this country, he has fanned the flames of discord. The violent insurrection on the sixth of January, 2021 was a direct result of his actions and he must be held accountable. While protesters stormed the steps of the Capitol building to prevent the peaceful transition of power, the President did not act. Instead, he incited chaos and relished in an attempt to undermine the institutions of our democratic process. As a direct result of President Trump’s incitement, the lives of duly elected members of Congress and hundreds of civilians were unnecessarily put at risk. The United States of America should no longer be forced to endure this existential threat to our democracy.

The President must not be allowed to subvert democracy with impunity. Congress must act to protect our institutions of government and ensure that President Trump will not be able to undermine them again. The President has violated his oath of office and continues to pose a threat to our democracy.

For the reasons above, we respectfully urge Congress to act.

– Boston College Law School Democrats

Cosigned by:

The Boston College Law School American Constitution Society

The Boston College Law School Latin American Law Students Association

The Boston College Undergraduate Democrats

The Boston College Law National Lawyers Guild

The Boston College Law School If/When/How Chapter

The Boston College Lambda Chapter

The Boston College Public Interest Law Foundation

Related content: BC Law professor and American Constitution Society chapter advisor Kent Greenfield drafts a letter calling for Trump’s removal from office. The letter was signed by more than 1,000 legal and constitutional scholars.

What Do Conservatives Believe?

In the early days of the pandemic, I read a tweet suggesting that public health authorities seeking to overcome conservative skepticism about the virus should heed the lessons of Cultural Cognition. Cultural cognition is a theory, coming out of Yale Law School, that perception of factual issues is shaped by normative commitments. In other words, our moral beliefs shape how we understand facts.

Around the same time I read that tweet, a conservative friend warned me about various Governors’ lock down orders and local officials’ enforcement of social distancing measures. He said that once government assumes a new power, it is unlikely to give it up. It seemed absurd to me to imagine governors and state health officials as crypto-fascists eager to control citizen’s lives. I have, however, ranted at and to my friends and family about federal government surveillance powers using the exact same argument.

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Black Art Matters

About five years ago, I stumbled onto some Afrofuturist art in a market in northern Uganda. I was moving through a maze of kitenge stalls when I came to a makeshift gallery that a young artist had set up in a forgotten corner of the market. One of his pieces was of a dramatic skyline, with arched spires climbing into the sky, draped in tropical vegetation. In the foreground, people in stylized, angular kitenge clothes were walking through a bustling public square. I asked him what it was and he said, “It’s the Kampala of the future.”

In contrast to a lot of antiseptic and tech-centric futurism, his mix of sci-fi architecture, verdant ecology, traditional culture, and civic harmony suggested that the ideal future would incorporate a healthy dose of the past. It reminded me of an aphorism from the other side of the African continent, embodied in the adinkra symbol, Sankofa, which depicts a bird with its head turned backward, retrieving an egg. The Sankofa symbol and word convey the idea that in moving forward, it is important to bring along what is essential from the past.

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Going Beyond Doctrine: Critical Perspectives at BC Law

When this year’s 1Ls sit down for their first Property Law class they are likely to discuss Pierson v. Post. The case concerns a dispute over who owned a wild fox killed during a hunt. Lodowick Post and his pack of hunting dogs were in pursuit of the fox, having chased it through a stretch of the town commons when Jesse Pierson suddenly intervened to kill and claim it. Post insisted that the fox was rightly his, as he and his pack of hounds had been in pursuit and were on the verge of capturing it. Pierson countered that a wild animal is no one’s property until it is definitively captured or killed.

Pierson is a 1L classic because it dramatizes the legal construction of ownership. The dividing line between the fox’s state of nature and its state as property is whatever the majority opinion says it is. More subtly, the case also dramatizes a key assumption driving much of Anglo-American property law: settling the question of ownership clarifies many of the rights and responsibilities that shape our relations as political subjects. Pierson can feel anachronistic, with the majority discussing obscure legal treatises and the minority perseverating on the noxiousness of foxes. But the case was not really about a fox.[1]

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It’s been 146 Days Since Breonna Taylor Was Killed

It’s been 146 days since Breonna Taylor was killed. Kentucky’s Attorney General, Daniel Cameron, still has not filed any charges against the Louisville Police Department officers who killed her. Here are some statutes that deserve attention:

Murder (Ky. Rev. Stat. § 507.020):

A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third person.

Reckless Homicide (Ky. Rev. Stat. § 507.050):

A person is guilty of reckless homicide when, with recklessness he causes the death of another person.

First Degree Manslaughter (Ky. Rev. Stat. § 507.030):

A person is guilty of manslaughter in the first degree when: (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020; or

In Criminal Law, we were taught to break down and work through each element of a criminal statute. Essentially every class was devoted to identifying the elements of a crime, gathering the facts of the case, and analyzing the case by connecting elements to facts. Our professor was a practicing defense attorney so she kept us on our toes and we learned to take nothing for granted. For the sake of brevity, and at the risk of incurring her wrath, I am just going to say that the uncontested facts of this case easily satisfy the actus reus (guilty act) element of these statutes.[1] No one is denying that these police officers caused Breonna Taylor’s death.

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Abortion, Metaphor, and the Legal Mind

With abortion rights before the Supreme Court this term, I’ve been thinking about the metaphor that brought privacy—and by extension, reproductive health rights—under Constitutional protection. In Griswold v. Connecticut, Justice Douglas reasoned that enumerated individual rights “have penumbras, formed by emanations from those guarantees that help give them life and substance.”[1] Douglas analyzed these penumbras to extend the zones of individual rights, frustrating dedicated textualists who saw no justification for them in the language of the Constitution.

It might be helpful to pause here and clarify exactly what a penumbra is. Hold an object up in front of a light source so that it casts a shadow on a nearby surface: at the center of the shadow will be its most focused darkness, its umbra; move your gaze out to the border of the shadow, to where it meets the light, and you will see a zone of unfocused shadow, a kind of half-light called the penumbra. In Douglas’s metaphor, a certain set of enumerated rights are the umbra and the unenumerated right to privacy is their penumbra, giving them life and substance.

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A Jubilee Year: What Leviticus Can Teach Us Today

“Go home. Be with your family. Live simply and with integrity. Consume only what you need. Be generous with each other.”

That is the gist of much of Leviticus 25, where God issues instructions for the Jubilee. The jubilee is a kind of year-long Sabbath, occurring after “seven weeks of years, seven times seven years”—i.e., every 50th year. But in addition to the typical Sabbath’s rest and worship, the Jubilee is also a time of mercy and compassion: enslaved people are freed, debts are forgiven, and economic relations are subordinated to fundamental human needs. God assures Moses that the land will be capable of feeding and sheltering the people and so they must, “observe my statutes and faithfully keep my ordinances, so that you may live on the land securely.”[1]

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On Being a Parent in Law School–Covid-19 Edition

In the first days of social distancing, my daughter kept asking about school. She had a vague understanding of how weekends typically broke up her daycare routine but eventually it became clear that this one had stretched on to an absurd degree. Every morning for the first couple of weeks of lockdown she asked, “Baby go to school?” Then she rattled off the names of her teachers and classmates. Those early days were tough. She’s very social. School is thrilling for her. I was not an adequate replacement for ten friends and two loving teachers.

All work spaces and readings are shared.

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