The results most relevant to the concerns of this Article are of course the effects upon how we judge the judges-for almost always we are sufficiently Whiggish to attempt such a judgment, either explicitly or implicitly. At times the consequence of so summing can be to imagine that one catches the judicial conscience by asking questions phrased as Sentence D's query, whether the judges"collaborated" in a system of racial oppression. When we put the question this way, two unfortunate things happen. First, we create a verbal and historical muddle, for if anything ought to be clear by now it is that "collaborating" is a word whose adverse effects upon dispassionate understanding of the past on its own terms are enormous. Where we should, as historians, be going back and asking whether the judges thought they were doing justice or not, and if so, why, and if not, why not, instead we are imposing a retrospective Whiggish verdict of guilty as presumed--a verdict whose Whiggery is not less for its being done up in radical verbiage. As I have remarked earlier, when we engage in this sort of practice (or equally,and to expand the point now, when we assume that those who,analyzing the judicial past, do not fling around such verbal epithets are engaged in mere apologetics on behalf of an unjust past), when we project our contemporary moral righteousness back upon a complex past incapable of response, then we forget our prime duty of understanding the past on its own terms.Second, and to conclude this Article, we are setting up a moral double-standard whereby we hold the past, for which we have no culpability, to a stiffer standard than we hold the present in which we live, and for which in varying measure we have some culpability.
A. E. Keir Nash,
Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution,
32 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol32/iss1/2