Jeff Sessions and Anglo-Americanism

Jeff Sessions and Anglo-Americanism

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On Monday, Attorney General Jeff Sessions appeared before a gathering of
the National Sheriffs’ Association and thanked the participants for
their service. It was, he told them, of a special kind. “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,” Sessions said. He continued, “The office
of sheriff is a critical part of the Anglo-American heritage of law
enforcement. We must never erode this historic office.”

Since then, there has been a small storm about what he meant by that
phrase. It didn’t help that, in Sessions’s prepared remarks, the line
was “The sheriff is a critical part of our legal heritage.” A Justice
Department spokesman argued that it should be obvious that Sessions was
not using “Anglo-American” as a synonym for white people but for a legal
tradition, noting that the term, followed by words like “law” or “legal
doctrine,” was one that most law students learn “in the first week of
their first year.” He urged Googling, which, indeed, turns up the use of
the term by everyone from Justice Anthony Kennedy to President Barack
Obama. And the general point is correct: there is such a thing called
Anglo-American jurisprudence, which dates from the period when the
Founders drew on British common law to write the Constitution and has
been enriched by deliberations and fights in and out of the courts ever
since—previously, the term has come up in Supreme Court arguments about
prisoners held at Guantánamo Bay. It encompasses such basic ideas as
habeas corpus. In that sense, “Anglo-American” is not a racial or an
ethnic modifier, it is a deliberately national one—or, at least, it
should be.

Not everyone has had a week in law school, though, and Sessions’s
remarks, which stung many who heard them (the N.A.A.C.P. called them
“racially tinged”), were clearly clumsy. He is the Attorney General, and
when he speaks it is to the public generally; he is supposed to make our
system of justice more transparent, not less so. He has an obligation
not to speak as if he were in a courtroom, where everyone would know the
background of legal terms—let alone, say, as if he were addressing a jury
in his native Alabama, circa 1953, or deputies serving under Bull
Connor, in Birmingham. As Sessions had ample opportunity during his
Senate confirmation hearings to revisit racially charged remarks that he
had made as a prosecutor in Alabama, one wishes that he were more aware
of how he sounds. That is particularly so given the remarks of the
President he serves, especially those about, say, denying basic rights,
such as the freedom to worship, to people whose families’ ancestries
extend to every part of the globe. And there is an added obligation to
communicate the accessibility of the law because the national legal
heritage has not always been fairly shared in this country; the battle
to extend it to all Americans has taken place not only in legal settings
but on the battlefield and, during the civil-rights era, in the streets.

That legal heritage has also been cited in cases involving more ordinary
crimes and everyday protections. For example, at 3:45 A.M. on March 25,
1955, police officers in Washington, D.C., looking for a heroin dealer,
knocked on an apartment door, saying, “Police.” William Miller opened his door a crack, leaving a security chain
on, and started to ask what they wanted. Instead of answering, they
broke the security chain and forced their way in. They did not have a
warrant. Miller was convicted on narcotics charges, and appealed.
Eventually, the case reached the Supreme Court, and Miller won, in a 7–2
ruling. “From earliest days, the common law drastically limited the
authority of law officers to break the door of a house to effect an
arrest,” Justice William Brennan wrote for the majority. Brennan cited
holdings in the thirteenth-century yearbook of Edward IV on when “it was
unlawful for the sheriff to break the doors of a man’s house to arrest
him” and added, “Congress, codifying a tradition embedded in
Anglo-American law, has declared in § 3109 the reverence of the law for
the individual’s right of privacy in his house.” Perhaps Sessions would
consider that a move to “erode” the office of sheriff. But, with that
ruling, Miller v. United States became part of the Anglo-American legal
heritage.

There are other Supreme Court cases using the term—hundreds of them, in
fact—even if not all of them are as edifying. But, even if Sessions had
omitted the modifier “Anglo-American,” by referring to “the heritage of
law enforcement” rather than to “our legal heritage,” he seemed to
narrow the circle of beneficiaries of that legacy. Sessions may have
diminished his prepared text, above all, by omitting the word “our.” The
Anglo-American legal heritage belongs to the enforced upon more than to
the enforcers. It is all of ours, and it comes in handy.

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February 13, 2018 at 10:39PM

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