>> JUDGE MORRIS ARNOLD: WHAT I DID AT HARVARD WAS EQUIP MYSELF AS BEST I COULD TO BE A
LEGAL HISTORIAN. MY FIRST JOB WAS WHEN I WAS 14, WAS A GO-FOR DURING
ELECTION RETURNS AT THE TV STATION. SO EARLY MEMORIES, MY EARLIEST
MEMORIES WERE ABOUT MY MOTHER'S INTEREST IN POLITICS THE IDEA OF THE EVOLUTION OF
THE LAW AND THE IDEA OF THE EVOLUTION OF HISTORY IN GENERAL ARE REALLY PART AND
PARCEL THE SAME IDEA. >> ERNIE DUMAS: YOU PROBABLY NEVER HEARD THE NAME MORRIS
ARNOLD, BUT IF YOU PAID CLOSE ATTENTION, YOU WOULD SEE HIS NAME ON NEARLY A DOZEN HISTORY
BOOKS AND HUNDREDS OF FEDERAL COURT DECISIONS. JUDGE MORRIS ARNOLD WAS BORN
AND REARED IN TEXARKANA, TEXAS, DESCENDING FROM A LONG LINE OF LAWYERS AND
POLITICIANS TO BECOME HIMSELF A PROFESSOR OF LAW, A FEDERAL JUDGE AND AN INTERNATIONALLY
RECOGNIZED HISTORIAN AND AUTHOR. IN FACT, HAD IT NOT BEEN FOR
THE EFFORTS OF JUDGE ARNOLD, MUCH OF ARKANSAS'S HISTORY MIGHT STILL BE LOST IN TIME.
I RECENTLY HAD THE OPPORTUNITY TO SIT DOWN WITH JUDGE ARNOLD AND DISCOVERED A MAN OF
DISTINCTION WHO, QUITE LITERALLY, WROTE THE BOOK ON COLONIAL ARKANSAS.
>> JUDGE MORRIS ARNOLD: I FREQUENTLY SAY I MADE THE SACRIFICE FOR SCHOLARSHIP AND
WENT TO PARIS [LAUGHS] AND WENT THROUGH THE ARCHIVES, AND I FOUND, YOU KNOW, THIS IS
INCREDIBLE, THERE ARE 10,000 PAGES OF DOCUMENTS, REPORTS, LETTERS, CENSUSES, THAT SORT
OF THING, WRITTEN TO, FROM OR ABOUT ARKANSAS POST. >> ERNIE DUMAS: WHAT WAS IT
LIKE TO DO THIS RESEARCH IN THESE FOREIGN CITIES, SEVILLE AND PARIS, AND WHAT WAS YOUR
DAY LIKE AND EXPERIENCE? >> JUDGE MORRIS ARNOLD: WELL, THE FIRST TIME THAT I WENT TO
SEVILLE, OF COURSE, I WAS MORE THAN A LITTLE NERVOUS ABOUT IT BECAUSE, FIRST OF ALL, I'D
NEVER BEEN TO SPAIN. I, UH, SIMPLY EMERGED FROM MY HOTEL ONE MORNING AND GOT IN A
CAB AND DID MY BEST TO, UH, COMMUNICATE WITH THE CABDRIVER WHERE I WANTED TO GO, AND I
GOT THERE. IT'S A VERY ORNATE ROCOCO BUILDING.
IT'S REALLY RATHER INTIMIDATING. THERE WERE NO COMPUTERS IN
THOSE DAYS IN THESE READING ROOMS, AND IT WAS JUST LIKE AN OLD-FASHIONED LIBRARY, AND
THAT'S WHAT IT WAS, IN FACT, WITH A VERY HIGH CEILING AND ARCHED WINDOWS AND WOODEN
TABLES, AND A FEW PEOPLE, ALL OF THEM OBVIOUSLY EXPERIENCED SCHOLARS, SLAVING AWAY AT OLD
DOCUMENTS. AND THEN I ENCOUNTERED THIS WOMAN WHO SPOKE FRENCH,
WHOM I COULD COMMUNICATE WHAT I WANTED TO DO, AND SHE WAS, IF I MAY SAY SO WITHOUT
OFFENSE, A TYPICAL LIBRARIAN. SHE WAS SMALL AND EFFICIENT AND HAD A LITTLE SWEATER ON
AND ACTED THE WAY LIBRARIANS ACT. I FILLED OUT A -- YOU KNOW, A
CALL SLIP THE WAY YOU DO WITH THE LITTLE PENCILS THAT DON'T HAVE ERASERS THE WAY THEY
DON'T IN ARCHIVES, AND RESEARCH LIBRARIES AND ALL OF THESE MATERIALS ARE
ORGANIZED -- IF YOU CAN USE THE WORD "ORGANIZATION" IN THIS CONTEXT -- IN WHAT ARE
CALLED BUNDLES, LEGAJO IS THE SPANISH, AND THEY REALLY ARE BUNDLES.
FOR INSTANCE LEGAJO 107 IS ABOUT A THOUSAND PAGES OF LETTERS WRITTEN ABOUT ARKANSAS
POST; IT'S SORT OF THE TREASURE TROVE OF COLONIAL ARKANSAS, AND SO I ORDERED IT
UP, AND HERE IT CAME, IT WAS A BUNCH OF PAPERS WRAPPED IN WRAPPING PAPER AND TWINE TIED
AROUND IT, AND THEY JUST DUMPED IT ON THE TABLE, AND I OPENED IT UP.
>> ERNIE DUMAS: WAS IT ENCASED IN PLASTIC? >> JUDGE MORRIS ARNOLD: NO,
NO, JUST WRAPPING PAPER, JUST LIKE THEY WERE. [LAUGHS] I'M REASONABLY SURE THAT I WAS
ONE OF THE FIRST PEOPLE TO LOOK IN THAT BUNDLE IN 50 OR 100 YEARS, BUT I STARTED
LEAFING THROUGH IT, YOU KNOW. I COULDN'T BELIEVE IT BECAUSE ALL OF THIS PAPER, A LOT OF IT
IS VERY WELL-PRESERVED, BECAUSE IT'S REALLY HEAVY RAG PAPER, AND I WOULD FIND THINGS
THAT WERE TOTALLY UNEXPECTED. FOR INSTANCE, I FOUND A CENSUS OF AMERICANS, AMERICAN
REFUGEES FROM THE REVOLUTIONARY WAR, WHO SOUGHT REFUGE AT ARKANSAS POST.
THEY WERE FLEEING THE AMERICAN REVOLUTION, CAME DOWN THE RIVER TO ARKANSAS POST.
IT WAS THE ONLY SETTLEMENT WITHIN THE SPACE OF A THOUSAND MILES.
ANYWAY, I FOUND THIS CENSUS OF THESE AMERICANS AND FOUND OUT SUBSEQUENTLY THAT TWO OR THREE
OF THEM HAD PLOTTED TO TAKE OVER THE SPANISH POST THERE, THE SPANISH FORT, BECAUSE
THESE AMERICANS WERE ACTUALLY LOYALISTS. THEY WERE BRITISH, BRITISH
LOYALISTS, AND THAT'S WHY THEY WERE FLEEING THE REVOLUTIONARY WAR.
SO THERE WAS A LITTLE BIT OF ARKANSAS HISTORY THAT I UNCOVERED JUST BY OPENING THIS
BUNDLE, AND YOU KNOW, TO SEE THEIR NAMES AND TO REALIZE THAT THIS WAS, YOU KNOW, FROM
MY MODEST STANDPOINT AT LEAST, A RATHER MAJOR DISCOVERY, IT WAS A BIG THRILL, YOU KNOW.
AND THERE WERE LOTS OF INSTANCES LIKE THAT THAT HAPPENED A LOT.
THOSE KINDS OF THINGS HAPPEN A LOT, ESPECIALLY IF YOU PICK AN OBSCURE SUBJECT AS I DID
[LAUGHS] FOR A LONG TIME I PRETTY MUCH HAD A MONOPOLY ON THIS AREA,
HISTORIOGRAPHY. >> ERNIE DUMAS: BUT THERE WAS NO COLONIAL -- NO REAL HISTORY
OF COLONIAL ARKANSAS. >> JUDGE MORRIS ARNOLD: VERY LITTLE.
BUT ANYWAY, UNTIL RECENTLY, I PRETTY MUCH HAD THE FIELD TO MYSELF, BUT IT'S TOO
INTERESTING TO GRADUATE STUDENTS AND OTHERS TO JUST LET ONE GUY HAVE UH, HAVE HIS
WAY AT IT, SO IN RECENT YEARS, IN THE LAST COUPLE, THREE YEARS, THERE'S BEEN A LOT MORE
WORK ON THE SUBJECT, AND THAT'S FINE. I BELIEVE IN THE VIRTUES OF
COMPETITION.
>> ERNIE DUMAS: COMPETITION OR NOT, JUDGE ARNOLD IS CONSIDERED BY MOST HISTORIANS
AS THE EXPERT ON ARKANSAS'S COLONIAL PERIOD. BUT MORRIS ARNOLD WASN'T
ALWAYS INTERESTED IN HISTORY. AS A BOY GROWING UP IN TEXARKANA, HE SPENT MOST OF
HIS TIME HANGING AROUND MOVIE THEATERS AND SODA SHOPS WITH HIS BROTHER, RICHARD.
BY 14 HE DEVELOPED AN INTEREST IN TELEVISION AND STARTED SPENDING HIS SUMMERS WORKING
FOR KCMC TV IN TEXARKANA. AT THE AGE OF 16, HE GOT HIS ENGINEERING LICENSE FROM THE
FCC, AND WHEN IT WAS TIME TO GO TO COLLEGE, HE ATTENDED YALE AND THE UNIVERSITY OF
ARKANSAS, WHERE HE PURSUED A DEGREE IN ELECTRICAL ENGINEERING.
DESPITE HIS INTEREST IN TELEVISION, ARNOLD SOON FOUND HIMSELF BACK IN SCHOOL
PURSUING A LAW DEGREE.
>> ERNIE DUMAS: AND YOU FINISHED AT THE TOP OF THE CLASS?
>> JUDGE MORRIS ARNOLD: YEAH, I WAS LUCKY ENOUGH TO BE FIRST IN MY CLASS, BUT I'M NOT SURE
ANYONE WOULD HAVE PREDICTED IT FROM MY START. IT WAS A DIFFICULT TIME
BECAUSE IT WAS SO DIFFERENT FROM WHAT I HAD DONE BEFORE. IN THOSE DAYS, THOUGH, THE LAW
SCHOOL WAS SO INFORMAL. YOU KNOW, YOU DIDN'T HAVE TO HAVE A -- YOU DIDN'T HAVE TO
TAKE THE LSAT TO GET IN. YOU DIDN'T HAVE TO HAVE A DEGREE TO GET IN.
YOU HAD 90 HOURS OF COLLEGE WORK. IT DIDN'T MATTER WHAT IT WAS.
90 HOURS OF PHYSICAL EDUCATION WAS GOOD ENOUGH. AND I STARTED AS A PART-TIME
STUDENT IN THE SECOND SEMESTER OF THE YEAR, AND I SOMEHOW STRUGGLED THROUGH.
>> ERNIE DUMAS: AND THEN YOU WENT TO HARVARD, I GUESS. >> JUDGE MORRIS ARNOLD:
CORRECT. >> ERNIE DUMAS: TO GET YOUR -- I GUESS THE EQUIVALENT
OF WHAT IS A MASTER'S DEGREE -- I DON'T KNOW THE TERMINOLOGY -- THE MASTER'S
DEGREE, AND THEN I GUESS WHAT WOULD BE A DOCTORATE IN LAW. >> JUDGE MORRIS ARNOLD:
CORRECT. >> ERNIE DUMAS: AND THEN YOU STARTED THE TEACHING.
>> JUDGE MORRIS ARNOLD: YEAH. WHAT I DID AT HARVARD WAS --
WAS EQUIP MYSELF AS BEST I COULD TO BE A LEGAL HISTORIAN. AND I GOT INTERESTED IN
MEDIEVAL ENGLISH LAW AND HAD A LOT OF LATIN AND GREEK WHEN I WAS IN PREP SCHOOL.
AND SO, WHEN I GOT TO HARVARD, I HAD ALWAYS HAD A KIND OF ANTIQUARIAN BENT AND
ESPECIALLY AN INTEREST IN ENGLISH HISTORY. I THOUGHT, WELL, MAYBE I CAN
OUTFIT MYSELF AS AN ENGLISH LEGAL HISTORIAN AND GET A JOB DOING THAT, AND I DID.
AND IT -- I DID GET A JOB, AND I -- I SOMEHOW MANAGED TO MAKE A LIVING TEACHING, OR AT LEAST
WHAT HAD PLEASED ME TO THINK OF AS A LIVING AT TEACHING MEDIEVAL ENGLISH LEGAL HISTORY
FOR 15 YEARS.
>> ERNIE DUMAS: BETWEEN 1970 AND 1980, ARNOLD TAUGHT IN LAW SCHOOLS AROUND THE COUNTRY,
INCLUDING HARVARD, INDIANA UNIVERSITY, MICHIGAN AND THE UNIVERSITY OF PENNSYLVANIA,
WHERE HE WAS ALSO THE ASSOCIATE DEAN OF THE LAW SCHOOL AND VICE PRESIDENT OF
THE UNIVERSITY. AFTER TEN YEARS AWAY, ARNOLD RETURNED HOME TO ARKANSAS,
WHERE HE ACCEPTED THE POSITION OF DISTINGUISHED PROFESSOR OF LAW AT THE UNIVERSITY OF
ARKANSAS AT LITTLE ROCK. BUT NEW OPPORTUNITIES WOULD SOON CHANGE THE PATH OF
ARNOLD'S CAREER. IN 1985 HE WAS APPOINTED US DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF ARKANSAS BY PRESIDENT RONALD REAGAN. THEN IN 1992, PRESIDENT GEORGE
HERBERT WALKER BUSH APPOINTED ARNOLD TO THE 8TH CIRCUIT COURT
OF APPEALS, WHERE HE JOINED HIS BROTHER, RICHARD, ALSO A JUDGE, WHO HAD BEEN SITTING ON
THE SAME COURT SINCE 1979. THIS WAS THE FIRST TIME IN US HISTORY THAT TWO BROTHERS SAT
ON THE SAME COURT TOGETHER.
>> JUDGE MORRIS ARNOLD: I HAVE A PICTURE OVER HERE SOMEWHERE, BUT WE SAT TOGETHER
IN 1986 OR '87 ON THE COURT OF APPEALS BECAUSE I WAS -- AS A DISTRICT JUDGE, I WAS ASKED TO
COME UP AND DO WHAT THEY CALL "SIT BY DESIGNATION." SO WE ACTUALLY SAT ON SOME
CASES TOGETHER EARLIER, BUT THIS -- AND THAT WAS THE FIRST TIME TWO BROTHERS HAD EVER SAT
TOGETHER ON A COURT OF APPEALS. AND WHEN I WAS APPOINTED IN
1992, WE WERE THE FIRST TWO BROTHERS EVER TO BE ACTUAL MEMBERS OF THE SAME COURT OF
APPEALS. >> ERNIE DUMAS: THIS IS A HARD QUESTION, YOU MAY NOT
WANT TO ANSWER IT, BUT CAN YOU DISTINGUISH BETWEEN YOUR PHILOSOPHY AND YOUR BROTHER'S?
>> JUDGE MORRIS ARNOLD: I THINK, IN MANY WAYS, HE WAS A GOOD DEAL MORE PRAGMATIC THAN
I AM. I TEND TO -- I DON'T WANT TO USE THE WORD IDEOLOGICAL
BECAUSE I CERTAINLY DON'T THINK OF MYSELF AS AN IDEOLOGUE, BUT I THINK RICHARD
UNDERSTOOD THE POSITION OF THE COURTS IN THE POLITICAL SYSTEM IN A WAY THAT -- A SLIGHTLY
DIFFERENT WAY FROM THE WAY I UNDERSTAND IT. SO, I THINK MAYBE HE HAD A
LITTLE MORE PRAGMATIC VIEW OF THE JUDGE'S ROLE AND LESS -- HE MIGHT HAVE BEEN LESS
TECHNICAL IN SOME WAYS, BUT I'M NOT SURE. >> ERNIE DUMAS: THERE WAS A
LITTLE ROCK CASE - LITTLE ROCK SCHOOL CASE IN WHICH I THINK THE LITTLE ROCK SCHOOLS WERE
CONDUCTING RANDOM AND SUSPICION-LESS SEARCHES OF SEVENTH GRADERS AND FOR DRUGS
AND CONTRABAND OR WHATEVER. AND YOU RULED THAT -- THAT THAT WAS ILLEGAL, THAT
VIOLATED THE FIRST AMENDMENT. THAT WAS NOT A FIRST AMENDMENT CASE.
THAT WOULD HAVE BEEN A FOURTH AMENDMENT CASE OF SEARCH AND SEIZURE.
DO YOU RECALL THAT CASE? >> JUDGE MORRIS ARNOLD: YES, I DO.
I REMEMBER IT WELL. YEAH, A LOT OF PEOPLE GOT PRETTY UPSET ABOUT IT.
>> ERNIE DUMAS: TALK A LITTLE BIT ABOUT THAT CASE AND YOUR REASONING.
>> JUDGE MORRIS ARNOLD: YEAH, I THINK THAT WHAT MOST PEOPLE DIDN'T REALIZE ABOUT THE CASE
WAS THAT THE SCHOOL BOARD NEVER PUT ON ANY EVIDENCE TENDING TO SHOW WHAT KINDS OF
PROBLEMS THEY HAD WITH RESPECT TO DRUGS OR GUNS OR WHATEVER THE CONTRABAND WAS THAT THEY
WERE SEARCHING FOR. SO, WE GOT THIS PRIVACY INTEREST, AS THE SUPREME COURT
WANTS TO CALL IT, IT'S SLIGHT -- IT'S SOMEWHAT REDUCED BECAUSE YOU ARE
DEALING WITH SCHOOL STUDENTS --O N THE ONE HAND, BUT YOU DON'T HAVE ANY
EVIDENCE IN THE RECORD OF WHAT KIND OF DIFFICULTY STUDENTS MIGHT BE CAUSING THAT COULD BE
RELIEVED BY DISCOVERING CERTAIN CONTRABAND IN THEIR --IN THEIR KNAPSACKS OR
THEIR LOCKERS OR WHEREVER IT WAS. SO, ESSENTIALLY, THIS WAS AN
EASY CASE FOR ME BECAUSE IT'S JUST A SIMPLE PRINCIPLE THAT YOU CAN'T BEAT SOMETHING WITH
NOTHING [LAUGHS]. IT'S JUST NOT HARD. THEY HAD A PRIVACY RIGHT ON
THE ONE HAND, AND, OKAY, IT CAN BE TRUMPED BY SOME COMPELLING STATE INTEREST OR
WHATEVER YOU WANT TO CALL IT. ON THE OTHER HAND, WHERE IS IT?
I MEAN, IT WAS JUST A GENERALIZED STATEMENT ABOUT, YOU KNOW, WE'VE GOT A LOT OF
GUNS AND DRUGS, BUT THERE WAS NO -- THERE WERE NO WITNESSES THAT SAID SO.
I WASN'T GOING TO TAKE JUDICIAL NOTICE THAT CENTRAL HIGH SCHOOL WAS A PLACE THAT
WAS FULL OF CONTRABAND. AND I -- I READ THE PAPER. I KNOW THAT MANY SCHOOLS, IN
FACT, HAVE DIFFICULTIES OF THIS KIND. BUT AS A JUDGE, YOU'VE GOT TO
PROVE IT TO ME IN THIS CASE BECAUSE THIS IS A CASE WE'VE GOTTEN.
THESE STUDENTS' RIGHTS ARE AT STAKE. WHY ARE YOU DOING THIS TO
THEM? AND THEY DIDN'T SAY. I MEAN, THEY DIDN'T -- THEY
NEVER PUT A CASE ON. I DON'T THINK IT WAS -- I DON'T THINK IT WAS ALL THAT
RADICAL OF A DECISION, FRANKLY. I THOUGHT IT WAS PRETTY EASY.
>> ERNIE DUMAS: WELL, THE DRUG HYSTERIA AT THAT -- AT THAT TIME, AND, WELL, NOT JUST
THAT TIME, STILL, CREATES WIDE ACCEPTANCE OF THAT -- THOSE KINDS OF SEARCHES.
>> JUDGE MORRIS ARNOLD: YEAH, I AGREE WITH THAT. AND THAT MAY BE THAT I NOTICED
THAT, YOU KNOW, THAT THEY HAVEN'T BEEN BACK UP HERE. I DON'T KNOW THAT -- WHAT
SORTS OF THINGS THEY HAD DONE BY WAY OF RESPONDING TO THAT OPINION I WROTE.
BUT, AGAIN, I WANT TO EMPHASIZE THAT I DON'T WANT TO SEEM TO BE TAKING CREDIT FOR
IT BECAUSE, AGAIN, I THINK I WAS JUST BEING THE INSTRUMENT OF THE FOURTH AMENDMENT.
I THOUGHT IT WAS AN EASY CASE. >> ERNIE DUMAS: WELL, HERE IS
ANOTHER CASE, INVOLVING DRUGS IN WHICH YOU WROTE THE -- THE DECIDING OPINION AT THE EIGHTH
CIRCUIT. THERE WAS AN ARKANSAS MAN WHO HAD BEEN SENTENCED TO A -- I
THINK A LIFE SENTENCE FOR A FIRST OFFENSE. >> JUDGE MORRIS ARNOLD:
HENDERSON. >> ERNIE DUMAS: FOR DISTRIBUTING -- FOR
DISTRIBUTING, I THINK, TWO TENTHS OF AN OUNCE OF COCAINE. AND YOU OVERTURNED, OR YOU
WROTE THE OPINION OVERTURNING THAT -- THAT CONVICTION AND SENTENCE BECAUSE YOU THOUGHT
IT WAS TOO SEVERE, IT VIOLATED THE EIGHTH AMENDMENT GUARANTEE AGAINST CRUEL AND UNUSUAL
PUNISHMENT. >> JUDGE MORRIS ARNOLD: EXACTLY, YEAH.
HE WAS GIVEN LIFE WITHOUT PAROLE FOR A FIRST OFFENSE FOR SELLING AN AMOUNT OF COCAINE
THAT WEIGHED LESS THAN A PAPERCLIP. THAT'S TOO MUCH.
THE SUPREME COURT OF ARKANSAS HAD UPHELD HIS SENTENCE FOUR TO THREE.
>> ERNIE DUMAS: AND IT WAS A UNANIMOUS OPINION ON THE THREE-JUDGE PANEL.
>> JUDGE MORRIS ARNOLD: IT WAS, YEAH. AND THAT WAS -- THAT OPINION
REQUIRED A LOT OF WORK. NOW, YOU KNOW, I'M NOT NAIVE ENOUGH TO BELIEVE THAT THE MAN
GOT CAUGHT THE FIRST TIME HE EVER SOLD ANY COCAINE. HE MIGHT HAVE [LAUGHS], BUT
THAT IS NOT THE POINT. THE POINT IS THAT HE HAD NEVER BEEN CONVICTED BEFORE, SO
THERE WAS NO RECIDIVISM ELEMENT THAT COULD PUT A THUMB ON THE SCALE TO CAUSE, YOU
KNOW, THE SENTENCE PERHAPS TO BE REGARDED AS -- AS LESS DRACONIAN.
>> ERNIE DUMAS: YOU MADE A COMMENCEMENT SPEECH SOMEWHERE, SOMETIME THAT I'VE READ, IN
WHICH YOU TALKED ABOUT THE SEEMING POPULARITY -- UNPOPULARITY OF RIGHTS, AS IF
PEOPLE CLAIMING THEIR RIGHTS WERE WHINERS. >> JUDGE MORRIS ARNOLD: YEAH,
THAT'S -- THAT'S TOO BAD. I MEAN, I THINK, YOU KNOW, THE TRADITION THAT I GREW UP IN
TOOK INDIVIDUAL RIGHTS VERY SERIOUSLY. BUT, YOU KNOW, CONGRESS HAS
SEEN FIT TO REDUCE THE ROLE OF FEDERAL COURTS IN -- IN WHAT WE CALL HABEAS CORPUS
PROCEEDINGS, WHERE PRISONERS SEEK A REMEDY FOR DENIAL OF THEIR CONSTITUTIONAL RIGHTS.
THE SUPREME COURT HAS ALSO NOT BEEN FRIENDLY TO CLAIMS MADE BY PRISONERS FOR THE LAST 30
YEARS. AND THE JUDGES TEND TO BE A LOT MORE CONSERVATIVE IN THEIR
EVALUATION OF THE FACTS AND OF THE LAW IN MANY CRIMINAL CASES.
AND SO A COMBINATION OF ALL THESE THINGS IS THAT I THINK WE HAVE A KIND OF SHRINKING
APPRECIATION FOR THE BILL OF RIGHTS, WHICH -- WHICH I FIND DISTURBING.
I'M -- I THINK IT'S -- I THINK IT'S SOMETHING THAT THE CITIZENS OF THIS COUNTRY NEED
TO BE VERY CONCERNED ABOUT. WE HAVE 2.2 MILLION PEOPLE IN JAIL IN THIS COUNTRY, WHICH IS
MORE PER CAPITA THAN FOR ANY OTHER COUNTRY FOR WHOM WE HAVE RELIABLE NUMBERS.
AND ONE OF THE REASONS IS THAT THE DRUG LAWS ARE DRACONIAN. WE NEED TO TAKE A VERY CAREFUL
LOOK AT OUR DRUG SENTENCES. WHEN YOU GET MORE TIME FOR MARIJUANA THAN YOU DO FOR
ESPIONAGE, SOMETHING IS SERIOUSLY WRONG.
>> ERNIE DUMAS: AS A FEDERAL JUDGE AND A WRITER OF HISTORY, IT MIGHT SEEM ARNOLD INHABITS
TWO VERY DIFFERENT WORLDS, BUT FOR ARNOLD, THE TWO ARE MORE SIMILAR THAN IT MIGHT APPEAR.
AS ARNOLD PUTS IT, BOTH INVOLVE A RESPECT AND CURIOSITY FOR THE PAST.
JUDGES RELY ON HISTORICAL PRECEDENTS TO MAKE THEIR DECISIONS.
HISTORIANS RELY ON HISTORICAL DOCUMENTS TO REBUILD THE PAST. IN BOTH CASES, THEIR WORK IN
THE PRESENT RELIES ON THEIR RESEARCH INTO THE PAST. TO ARNOLD, THE HISTORY OF
PEOPLE IS IMPLICITLY TIED TO THE HISTORY OF LAW.
>> JUDGE MORRIS ARNOLD: WELL, I THINK MY INTEREST IN HISTORY, AND MY INTEREST IN
THE ENGLISH ESPECIALLY IS TIED TO MY INTEREST IN THE BILL OF RIGHTS AND MY INTEREST IN THE
ORIGINS OF OUR LEGAL SYSTEM. IN OTHER WORDS, I THINK THAT LAW AND HISTORY ARE A NATURAL
COMBINATION BECAUSE LAW IS ABOUT TRADITION, LAW IS ABOUT, ESPECIALLY IN OUR COUNTRY, OUR
18TH CENTURY CONSTITUTION, AND THE -- OR THE ORDINARY WORK THAT A LAWYER DOES INVOLVES
HISTORY BECAUSE IN ORDER TO, TO MAKE AN ARGUMENT, YOU HAVE TO GO BACK THROUGH THE CASES,
AND TO SEE HOW A LEGAL PRINCIPAL EVOLVE. AND SO THE IDEA OF THE
EVOLUTION OF THE LAW AND THE IDEA OF THE EVOLUTION OF HISTORY IN GENERAL ARE REALLY
PART AND PARCEL OF THE SAME IDEA, SO I THINK HISTORY AND LAW GO TOGETHER.
AND MY OWN INTEREST IN POLITICS, I THINK, FITS WITH MY INTEREST IN WHERE OUR LEGAL
SYSTEM CAME FROM BECAUSE THAT'S ESSENTIALLY THE SAME PLACE OUR POLITICAL SYSTEM
CAME FROM, AND I ALWAYS LIKED LANGUAGES, AND SO I -- WHEN I WENT TO HARVARD, I DISCOVERED
THAT I COULD READ ALL THIS MEDIEVAL STUFF BECAUSE I KNEW LATIN AND I KNEW FRENCH.
YOU DON'T HAVE TO KNOW ANY ENGLISH TO DO ENGLISH LEGAL HISTORY IN THE 14TH CENTURY
BECAUSE ENGLISH WAS NOT THE LANGUAGE OF THE EDUCATED CLASSES.
THERE'S NO ENGLISH LITERATURE TO SPEAK OF UNTIL THE LATE 1300S, LATE 14TH CENTURY, BUT
EVEN UNTIL THE 18TH CENTURY, FRENCH WAS THE OFFICIAL LANGUAGE FOR THE LAW COURTS IN
ENGLAND, AND ALL THE ENROLLMENTS CASES WERE DONE IN LATIN.
SO ANYWAY, I FOUND THAT I WAS REASONABLY WELL-EQUIPPED TO DO THIS WORK, AND IT WAS
FASCINATING TO ME, AND I LIKED THE RECONSTRUCTIVE ASPECTS OF HISTORY, I LIKE TO TRY TO PUT
THINGS BACK TOGETHER THE WAY THEY WERE TO RE-IMAGINE A WORLD THAT'S GONE AND TO
RECONSTRUCT IT FOR PEOPLE TO SEE AGAIN. IT'S ALMOST LIKE ARCHAEOLOGY.
SOMETIMES THERE'S A HUGE AMOUNT OF IMAGINATION THAT GOES INTO THIS, OBVIOUSLY, AND
PEOPLE CAN READ THE SAME SET OF DOCUMENTS AND COME TO DIFFERENT CONCLUSIONS, BUT
THAT'S, THOSE ARE THE KINDS OF THINGS THAT LED ME TO WONDER ABOUT WHAT THE WORLD WAS LIKE
SIX OR SEVEN HUNDRED YEARS AGO. >> ERNIE DUMAS: AND THAT
INTEREST IN LEGAL HISTORY, PARTICULARLY ENGLISH LEGAL HISTORY, WAS THE GENESIS, I
SUPPOSE, OF YOUR GETTING INTO COLONIAL ARKANSAS, BECAUSE YOUR FIRST BOOK, I GUESS, ON
THE ARKANSAS HISTORY WAS "UNEQUAL LAWS UNTO A SAVAGE RACE."
>> JUDGE MORRIS ARNOLD: RIGHT. >> ERNIE DUMAS: WHICH WAS
ABOUT THE FRENCH AND SPANISH COLONIALS AND THEIR RELATIONSHIP WITH COLONIAL
ARKANSAS. >> JUDGE MORRIS ARNOLD: YEAH, THAT'S RIGHT, THE FIRST BOOK
WAS A LEGAL HISTORY, FIRST BOOK ABOUT COLONIAL ARKANSAS WAS A LEGAL HISTORY, AND
YOU'RE QUITE RIGHT, JUST LED -- MY PREVIOUS WORK AS A MEDIEVALIST LED ME DIRECTLY
INTO THIS WORK AS ON COLONIAL ARKANSAS. WHEN I STARTED THIS WORK, I
REMEMBER WHEN I FIRST HEARD THE PHRASE "COLONIAL ARKANSAS," IT HAD A REALLY ODD
RING IN MY EARS BECAUSE WHO HAD EVER HEARD OF THAT? COLONIAL MASSACHUSETTS, YEAH,
VIRGINIA, SOUTH CAROLINA, GEORGIA MAYBE, BUT NOT ARKANSAS.
BUT WE DID HAVE A COLONIAL PERIOD, AND SO BECAUSE I DEVELOPED THIS SORT OF HABIT
OF LOOKING AT AND TRYING TO TEASE OUT THE MEANING OF THESE OLD MEDIEVAL DOCUMENTS, WHEN I
CAME BACK TO ARKANSAS IN 1980, I STARTED LOOKING AROUND FOR OLD STUFF TO READ AROUND HERE,
AND I FOUND OUT THAT THERE IS A HUGE AMOUNT OF MATERIAL THAT HAD BEEN LEFT BEHIND BY THIS
LITTLE TOWN DOWN ON THE ARKANSAS RIVER CALLED ARKANSAS POST, ALL OF IT WRITTEN IN
SPANISH OR FRENCH, BOTH OF WHICH I COULD READ.
>> ERNIE DUMAS: WHILE ARNOLD'S RESEARCH INTO COLONIAL ARKANSAS LEAD HIM
AROUND THE WORLD TO FRANCE, SPAIN, LONDON, WASHINGTON AND NEW ORLEANS, IT ALSO LEAD HIM
TO HIDDEN CORNERS AND NEARLY LOST LANDMARKS HERE IN ARKANSAS, LIKE THE ARKANSAS
POST NATIONAL MEMORIAL ALONG THE ARKANSAS RIVER. IT WAS HERE THAT ARNOLD COULD
PIECE TOGETHER INFORMATION THAT HE GATHERED FROM DUSTY OLD LIBRARIES HALF A WORLD
AWAY AND FINALLY SEE WHAT THIS PLACE ONCE WAS BACK IN ITS HEYDAY.
>> ERNIE DUMAS: WELL, JUDGE, YOU'VE PAID MANY VISITS TO THIS PLACE OVER THE YEARS
WHILE YOU ARE DOING RESEARCH. WAS IT PURE RESEARCH OR INSPIRATION OR BOTH?
>> JUDGE MORRIS ARNOLD: WELL, IT WAS MOSTLY INSPIRATION, OF COURSE, BECAUSE THE RESEARCH
HAD TO BE DONE IN ARCHIVES AND LIBRARIES WHERE SURVIVING DOCUMENTS WERE, BUT I CAME
DOWN HERE A LOT JUST TO WALK AROUND THE LAKE AND VISIT THE TOWN SITE AND LOOK OFF THE
POINT HERE, WHERE I THINK THE SPANISH FORT WAS LOCATED. AND THE MAIN THING WAS THAT IT
WAS FUN TO TRY TO IMAGINE WHAT KIND OF PLACE THIS WAS LIKE, BECAUSE, YOU KNOW, ALTHOUGH
THE POPULATION WAS SMALL AND, IN MANY WAYS, UNSOPHISTICATED, IT WAS VERY COSMOPOLITAN, TOO.
SEEING THE RIVER AND SEEING THE WOODS THAT GAVE LIFE TO THE ANIMALS AND IMAGINING THE
BOATS COMING UP AND DOWN THE RIVER AND THE INDIAN VILLAGE NEARBY AND THE HUNTERS COMING
IN WITH THEIR CATCH AND THE MERCHANTS WAITING FOR THE SKINS TO BE DELIVERED ALL
HELPED ME PUT TOGETHER THE KIND OF PLACE THAT ARKANSAS POST WAS AND, I THINK,
PROBABLY IMPROVED MY WRITING ABOUT IT BECAUSE IT GAVE IT SOME REALITY.
>> ERNIE DUMAS: WHAT DO YOU FIND SO INTERESTING ABOUT HISTORY?
>> JUDGE MORRIS ARNOLD: WELL, IT'S THE OPPORTUNITY TO RECONSTRUCT THE PAST AND TO
SHOW PEOPLE SOMETHING THAT THEY NEVER HAVE SEEN BEFORE. I THINK IT'S A CREATIVE
EFFORT. IT'S THE SAME THING THAT I THINK DRIVES PEOPLE TO WANT TO
PAINT OR WANT TO WRITE PLAYS. BUT I FIND IT SATISFYING TO REBUILD SOMETHING.
IT'S ALMOST LIKE REDISCOVERING A MOSAIC THAT WAS SHATTERED 2,000 YEARS AGO, SCATTERED
AROUND THE COUNTRYSIDE GOING AROUND, PICKING IT UP, AND REALIZING WHERE THE PIECES GO
AND PUTTING THE PICTURE BACK TOGETHER AND SAY, "WOW, LOOK AT THIS, THIS IS WHAT PEOPLE
DID 2,000 YEARS AGO, AND I PUT IT BACK TOGETHER."