Sherally Munshi laughs as she tells us she was expecting an audience of undergraduates, not tenured professors, before she begins to present her paper, “The Courts of the Conqueror: Law, Infamy,and the Time of Redemption.”
Instead, she saw six law jurisprudence and social thought (LJST) professors, a curious faculty member from another department and myself, perched in a corner typing on my laptop. LJST chair Austin Sarat declared the whole audience “Just overgrown undergraduates!” in response. And so Munshi began.
The chandeliers of the Clark House seminar room glowed warmly in the late afternoon light. The professors began annotating their copies of Munshi’s paper, scribbling until the margins filled up completely.
The minute Munshi ended her presentation, a fierce game of intellectual tennis between Munshi and the Amherst professors broke out. Each volley was marked by beautiful verbal topspin, and returned at the same high velocity with which it had been delivered.
Munshi’s presentation marks the first of a series of seminars to be hosted by Amherst this year on “Law’s Infamy.” As an associate professor of law at Georgetown Law, Munshi’s areas of expertise center around property law, immigration law and legal theory in the United States.
“The Courts of the Conqueror: Law, Infamy and the Time of Redemption” focuses on the 1823 U.S. Supreme Court case Johnson v. M’Intosh, which held that private citizens could not legally purchase land from Native Americans.
She explained how the case has receded from popular memory, and with it the extraordinary violence captured in the property conflict. She described how the federal government’s power to assert itself over conquered people is not subject to judicial review, and how “that power is not just rhetorically projected, but beyond the scope of legal redress and constitutional reevaluation.”
Through her research, Munshi traced the evolution of this exorbitant power to the Plenary Power Doctrine, which dictates that the legislative and executive branches of the U.S. government hold the power to regulate indigenous peoples, immigrants and people living in unincorporated territory. Munshi articulated the unique relationship defined in this case between the U.S. government and the conquered.
Justice John Marshall wrote the opinion for the unanimous court decision of Johnson v. M’Intosh. While he is most praised for his belief in the power of judicial review, in this case, Marshall remarkably argued that the Court is powerless to intervene.
Munshi described how the real power of Congress is to divide the world into insiders and outsiders: those who are protected by the Constitution and those who are not. She quoted Italian philosopher Giorgio Agamben to illustrate this point: “The paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order.”
After Johnson v. M’Intosh reached the Supreme Court, Munshi said, it became clearer than ever that the United States would not engage or exchange with Native Americans as individuals, but rather as dependents of the state — despite how the Constitution’s stated protection of personal property and individual liberty.
She critiqued the government’s infringement on the rights of Native Americans to sell their own land as a “crisis of constitutional legitimacy, durability and desirability.”
Munshi spoke for about 20 minutes, quoting recognized legal and philosophical thinkers and showing maps to display the disputed land and statues of the relevant justices. She then invited questions and conversation.
Professors jumped at the chance to question Munshi about her paper.
The professors seemed to be demonstrating precisely the kind of critical analysis they hope to see in their own classrooms, asking about the specific language Munshi used.
At a certain point, I had to close my laptop and watch this verbal sparring to fully internalize the nuances of the professors’ questions and counterpoints.
Although they interrupted each other continuously, they still came across as respectful of Munshi and of each other.
The excitement was palpable as the professors began smiling, clearly in their element.
And then suddenly, about an hour and a half in, everyone realized they had gone overtime in their excitement and stopped themselves short, thanking Munshi for her time and thought-provoking paper.