Palimpsestic on On the Commons

This song always makes me think of Johnson v M’Intosh, https://carsieblanton.bandcamp.com/track/american-kid. The first time I read this case, in law school, of course the whole thing was just breathtakingly terrible, realizing that the foundations of property ownership in the United States came down to this. Thus cruddy, self-contradictory, illogical, inaccurate and unconvincing fiat of a decision. But I couldn’t stop rereading these passages, and they are what still play over and over in my mind: “We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.” and “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.” He could have just left it at the unconvincing argument of the defense, but he stops to note, that he isn’t really convinced himself, either, but, so be it, his job is to just say this is how it is and who is he to do otherwise. Did he say this because he wanted readers to know that he wasn’t so stupid as to be convinced that this decision was actually just? Or just as a sort of flex? So anyway although legally probably what matters most about the decision is how it adopts the even more extravagant pretension of “discovery” of lands that other human beings were already living on, the part that sticks with me is how he took time to note, to make sure the reader knew: ‘We are staring the injustice of this in the face, we grasp how wrong this is under the general abstract morality we otherwise claim to believe in, but we are deciding it anyway, and we just want to make sure everyone knows that for all time.” Which going back to the song, I think the weird threads he left there in his words are still dangling, and waiting to be picked up.