Rights Without Reason

Posts in this series.

Free Will, Agency, And Evolution
Goal Directed Agency And Intentional Agency
Great Apes AS Rational Agents 
Socially Normative Agency
Socially Normative Agency And Rights
Coming To Grips With Free Will


Social media is full of right-wingers bleating about the infringement of their rights. Sometimes it’s gun nuts blathering about their rights to own every gun. Sometimes it’s some dude whining about being slammed for exercising his free speech right to spew his racist opinions. These blowhards say that no limitation on their rights is permitted, whether it’s criminal penalties, civil damages, or public insults.

Perhaps these oppressed people get their idea about rights from the Declaration of Independence,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….

But, of course, the Declaration doesn’t confer any rights. Maybe they think the right to mouth off and the right to strut around with guns are God-given. That would explain why they are offended when they encounter consequences for their behavior.

Perhaps they believe these rights spring from the first two Constitutional amendments. But SCOTUS says otherwise in US v. Cruikshank (1875).

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized man throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.


The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.

The Supreme Court says that neither the right of free association nor the right to keep and bear arms are granted by the Constitution. By that logic, neither is the right of free speech. The cases applying these amendments to the states under the 14th Amendment do not reject this reasoning.

It seems that our rights depend on the interpretation by five members of SCOTUS of a word like “republicerad”, or of whatever they think they know about our tangled history. If so, there is no way to explain anything about our rights. That’s especially true of this version of SCOTUS, which doesn’t even pretend to care about precedent, and invents rules to suit its preferred policy outcomes.

Preliminary Ideas

I’m going to read and write more about our rights. For starters, here are some thoughts. It will be interesting to see how these thoughts hold up against other people’s ideas.

1. Every idea people have about everything was invented by a human being. This is a point made by the early Pragmatist William James; see the last part of this post. This is the second in a three part series on Pragmatism, the other two are here and here. They lay out the basic ideas that help me to understand our world. For those interested in how this philosophy works in our time, take a look at Philosophy And Social Hope by Richard Rorty, a collection of essays by the late Pragmatist.

2. One problem with our Bill of Rights is that the language is unhelpful. Many of them are couched in the negative, leaving open the nature of the positive right. Others use imprecise language, such as “cruel and unusual”. From the beginning these amendments were seen as limits on the national government. When the Supreme Court began to implement the Reconstruction Amendments, it imposed the language in the Bill of Rights limiting the national government on the states. The result was the eradication of the power of the states to participate in the regulation of these rights. This was a major change in our federalism. And we were left with the vague language, now subject only to the interpretation of SCOTUS. Constitutionalizing these ill-defined rights leads to inflexibility in thinking about their content.

3. What exactly do we mean by “rights”? As a starting place, and in keeping with what I take to be the position of First Amendment absolutists and the gun nuts, we mean that no one is allowed to interfere with some action taken by another. For example, the right to own a gun means no one can interfere with anyone else’s right to buy and own a gun, including violent criminals and domestic abusers. The right to free speech means no one can interfere with the right of anti-abortion fanatics to scream outside my neighborhood abortion clinic.

4. Rights are inherently social, not individual. Every right requires a concomitant imposition on everyone else. The existence of rights limits the way our society can regulate itself. For example, anti-vaxxers may make religious liberty claims, while others point out that refusal to get vaccines threatens their children. If the anti-vaxxers prevail, we are all exposed to greater risk of illness and death.

This implies that rights should have a political aspect. Our current system is heavily biased towards a legalistic approach, empowering courts, especially SCOTUS, with undue power. It also focuses on the claims of individuals and ignores the impact on society and the claims of people not in the litigation. Dobbs is a good example: the plaintiff was the state government, and the defendant was an abortion clinic. What about pregnant women? What about their families? What about he impact on society? Alito and four other self-righteous rulers don’t care.

New Series

My next book will be The Evolution Of Agency by Michael Tomasello. I think it indirectly supplies a more useful approach to thinking about social relations, and thus rights. It’s short, and easy reading (mostly).

In this post I discuss the Epistemic Regime as described by Jonathan Rauch, in his book The Constitution Of Knowledge. The Epistemic Regime is the way we arrive at truth in the Pragmatic sense. I think it’s good background for some of Tomasello’s ideas about our species.

I’d like to follow that with books or papers about the theory of rights in the US. I don’t know what that will be yet, and if anyone has a suggestion, please put it in comments; also I’m still on Xitter @MasaccioEW, and slowly moving to BlueSky. @[email protected].

Conclusion To Series on The Reconstruction Era

Index to posts in this series

This series was motivated by recent scholarship arguing that the Reconstruction Amendments, the 13th, 14th, and 15th Amendments, gave our nation a new beginning, one centered on equality of citizens. I discussed The Nation That Never Was by Kermit Roosevelt; The Second Founding by Eric Foner, and Beloved by Toni Morrison, I also discussed several Supreme Court cases from that era, The Slaughterhouse Cases, US v. Cruikshank, and The Civil Rights Cases; and several recent SCOTUS cases continuing their foul legacy. Enough. Here are some final thoughts.

1. Once again I’m reminded of the astonishing amount I don’t know. I think my education as a young person was reasonably solid. But I have no memory of any of the history I’ve discussed in this series. As I recall, I was taught that we passed the Reconstruction Amendments after the Civil War, that Johnson was impeached, and that Grant was corrupt. Then we learned about a the civil service laws, a little early labor history, the financial collapses caused by speculators and frauds, and the reforms of the Progressive Era. I didn’t learn about Plessy v. Ferguson until my first mandatory history course in college. It’s worse today, of course.

Much of what I’ve written about here is posted under Left Theory, because I’ve tried to focus on abstract ideas that might provide a framework for thinking about a left version of the future. It’s hard to get worked up about ideas, which suited me as I didn’t want to write rage posts. But there’s nothing abstract about this series.

I was enraged from the beginning by the insistence of the Founding Fathers on enabling a brutal slave system while yammering about Enlightenment Ideals. Thomas Jefferson enslaved his own children with Sally Hemings even as he claimed that all men are created equal. Maybe Roosevelt is right to say Jefferson was talking about the state of nature but the contrast between ideas and practice is grotesque and disgusting. How are we supposed to accommodate it in our veneration of the Founding Fathers?

The Reconstruction Amendments were drafted by men who had waged and survived the Civil War, knew that the slavers started it, and wanted to stamp out slavery as part of the crushing victory they achieved. Voters elected Senators and Representatives who knew that the slavers had never accepted defeat; that they intended to enforce White Supremacy by force and by legalized resistance, the KKK or state legislatures. Between 1865 and 1875 Congress enacted numerous laws to enforce equal rights for all citizens, regardless of race.

The Supreme Court refused to recognize the Reconstruction Amendments or laws passed pursuant to those amendments. They read the Privileges and Immunities Clause out of the 14th Amendment. They narrowed all three amendments, and ignored the part giving Congress the power to legislate to enforce ir known purpose. Congress passed more laws, and the Supreme Court swatted them away. The Court intentionally substituted its policy preferences for those of the elected branches of government.

I’ve never claimed to be an expert in any of the areas I’ve written about here at Emptywheel. I only claim to be willing to engage with the text and to try to give it a fair reading. But this was simply too emotionally charged. Maybe someone else could read this material as if it were an essay by John Locke, but not me. And to think that a vast majority of moraly and intellectually deficient Red State politicians want to walk away from it — no. Just no.

2. Much of the material in the last part of the series revolves around the role of the Supreme Court and its centuries of rejection of majority rule. But that’s not the whole story. If a majority of White voters thought the Freedmen and their own Black neighbors were their equals they could have forced change one way or another. But while many, perhaps most, white people were sympathetic, that didn’t mean they were ready to accept Black people as equals.

This point is illustrated by a scene in Beloved. Long after the end of the Civil War Denver, a Black woman, desperately needs a job. She goes to the home of the Bodwin’s, the people who helped her grandmother and mother afterthey escaped from slavery. She knocks on the front door, and Janey Wagon, the Bodwin’s maid, opens it.

“May I come in?”
“What you want?”
“I’m looking for work. I was thinking they might know of some.”
“You Baby Suggs’ kin, ain’t you?”
“Yes, ma’am.”
“Come on in. You letting in flies.” She led Denver toward the kitchen, saying, “First thing you have to know is what door to knock on.” P. 297-8.

Even the Bodwin’s, who were aggressively anti-slavery, didn’t let Black people enter at the front door. I’d guess this was the dominant attitude in that era. Citizenship was one thing. But there was little, if any, support for social equality.

One piece of evidence supporting the view that the national consensus was that social equality was impossible can be found in a 1910 editorial in the New York Times, supporting a Jim Crow law requiring separation of Black and White people on railroad cars in interstate commerce. The Times says the case, Chiles v. Chesapeake & Ohio RR, reverses an earlier decision barring such discrimination.

The present decision reveals the influence of the change in public opinion since the reconstruction era: it justifies both the law and compliance with it by the carrier, and permits the rest of the Southern States to amend their “Jim Crow” laws after the example of Kentucky.

The Southern Legislatures, thwarted during the first years following the civil war in their efforts to separate negroes from whites in public conveyances, have gradually passed laws to this effect in every State save Missouri, and the courts have sustained them.

Without public opinion on their side, Black people were left to their own devices, treated as second-class citizens by state and federal governments. Over time the national mood turned into indifference to violent White Supremacist attacks on Black People. This mood was reflected in Supreme Court decisions in cases like Plessy v. Ferguson. That indifference didn’t even begin to change until the 1950s. White Supremacists, closet racists, and pandering politicians continue to fight a rear-guard action with plenty of wins.

That thought takes the edge off the fury and exposes a deeper layer of emotions: sadness that just like the Founding Fathers we do not live up to our professed ideals.

Beloved By Toni Morrison

Index to posts in this series

My book club chose Beloved by Toni Morrison for our last meeting, so I was reading it along with the cases I’ve been discussing in this series. It’s a marvelous book, beautifully writtent. One piece of that craftsmanship is that although the events are not in chronological order we don’t have a problem following along because she gives a a few key words that place things in time.

This book can take different shapes for different people. I read it as stories about the people who endured the physical and psychological horrors of enslavement.

Kermit Roosevelt and Eric Foner describe the efforts of Black people to end slavery, by participating in abolition movements, by writing for themselves and for White people, and by the dangerous work of helping escapees. Some of these people appear in Beloved: John and Ella, for example, and Stamp Paid. The entire community helps newly freed people come to grips with their new status.

We know something about the cruelty of slavers from oral histories compiled by writers during the Depression and other sources. We have some first person accounts of slavery and escape. There’s some of that in the book. But for me, the power of Beloved lies in Morrison’s imagining of the reaction of newly freed people to freedom, and her instantiation of the psychic injuries inflicted by the slavers on her characters.

None of the psychological damage was discussed at the time as far as I know. And it’s certain that the voices of former slaves, their children, and their communities were never heard by the Supreme Court, which couldn’t even be bothered discussing the Colfax Massacre in US v. Cruikshank. I’ll discuss just two aspects of this powerful work.

1. Baby Suggs and Sethe react to being freed.

Baby Suggs was purchased by Mr. Garner from a slaver in North Carolina and taken with her children to Garner’s farm in Kentucky, Sweet Home. He was a decent slaver, who didn’t beat or mistreat his property. Years later he allowed Halle, Baby Suggs’ son, to buy her freedom. Garner takes her to Cincinnati. Morrison writes:

Of the two hard things—standing on her feet till she dropped or leaving her last and probably only living child—she chose the hard thing that made him happy, and never put to him the question she put to herself: What for? What does a sixty-odd-year-old slavewoman who walks like a three-legged dog need freedom for? And when she stepped foot on free ground she could not believe that Halle knew what she didn’t; that Halle, who had never drawn one free breath, knew that there was nothing like it in this world. It scared her.

Something’s the matter. What’s the matter? What’s the matter? she asked herself. She didn’t know what she looked like and was not curious. But suddenly she saw her hands and thought with a clarity as simple as it was dazzling, “These hands belong to me. These my hands.” Next she felt a knocking in her chest and discovered something else new: her own heartbeat. Had it been there all along? This pounding thing? She felt like a fool and began to laugh out loud. P. 166.

Sethe is Halle’s wife. A few years after Baby Suggs is freed, Sweet Home has been taken over by a vicious overseer, Schoolteacher. Sethe is pregnant, and is sexually assaulted and whipped senseless by Schoolteacher’s nephews. Sethe escapes. Just before crossing the river into Ohio, she gives birth to a daughter, Denver, and the last part of the trip is terrible. Then she reaches the safety of the home of Baby Suggs.

Sethe had had twenty-eight days—the travel of one whole moon—of unslaved life. … Days of healing, ease and real-talk. Days of company: knowing the names of forty, fifty other Negroes, their views, habits; where they had been and what done; of feeling their fun and sorrow along with her own, which made it better. One taught her the alphabet; another a stitch. All taught her how it felt to wake up at dawn and decide what to do with the day. … Bit by bit … she had claimed herself. Freeing yourself was one thing; claiming ownership of that freed self was another. P. 111-2.

The freedom Baby Suggs and Sethe share is touching in its smallness and fragility. I write about the abstract idea of freedom, as here, but this is so much more meaningful. In the long run, it’s not enough, but for these people in these moments it’s everything they can imagine.

2. Beloved.

Sethe’s 28 days of freedom end when Schoolteacher and other slavecatchers and the local sheriff find her. Sethe kills her two-year old daughter and tries to kill her two boys rather than let them suffer under slavery. Schoolteacher realizes she’s of no use as a slave, and leaves her in the hands of the sheriff. It’s unclear why, perhaps because of the intervention of anti-slavery advocates, but she only serves three months in jail and then is freed. This aspect of the story is loosely based on the life of Margaret Garner.

Sethe’s house is haunted. Everybody thinks it’s the murdered child. The community thinks it’s frightening, and cuts off Baby Suggs, Sethe, the two boys and Denver. Years later a strange woman appears, calling herself Beloved, the name engraved on the headstone Sethe purhased for her dead child. Beloved seems to exist as a separate, physical entity, but she has no history. The introduction of this character suggests she’s come back from the dead.

This is from the Wikipedia discussion of this part of the book:

Because of the suffering under slavery, most people who had been enslaved tried to repress these memories in an attempt to forget the past. This repression and dissociation from the past causes a fragmentation of the self and a loss of true identity. Sethe, Paul D., and Denver all suffered a loss of self, which could only be remedied when they were able to reconcile their pasts and memories of earlier identities. Beloved serves to remind these characters of their repressed memories, eventually leading to the reintegration of their selves. Fn. omitted.

I wonder about that first sentence. Morrison seems to confirm this reading in the forward to the Kindle edition.

In trying to make the slave experience intimate, I hoped the sense of things being both under control and out of control would be persuasive throughout; that the order and quietude of everyday life would be violently disrupted by the chaos of the needy dead; that the herculean effort to forget would be threatened by memory desperate to stay alive. To render enslavement as a personal experience, language must get out of the way. P. xvii.

The community of free Black people share the experience of haunting and sense the danger around Beloved. I assume they share some of the same psychic fragmentation. The community is there for the denoument, when the fragmentation seems to heal for all of them.

Now recall the offhand comment of Joseph Bradley in The Civil Rights Cases:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

Just shake it off, like a hard hit in a soccer match. And Black people are expected to call Bradley “Mr. Justice”.
Featured image credit.

The Colfax Massacre And US v. Cruikshank

The Colfax Massacre took place on Easter Sunday, April 13, 1873, in Colfax Louisiana. The 1872 Louisiana election was hotly contested by the Democrats who favored a return to antebellum conditions as fully as possible, and Republicans who worked to bring Freedmen to full citizenship. Wikipedia has a long entry on the Colfax Massacre, including a history of the build-up to that bloody Sunday.

The Louisiana militia, many of whom were Black, a mob of former Confederates and KKK members showed up with cannon and guns, and attacked. The militia surrendered or escaped. The mob caught and killed them, including those who surrendered, between 62 and 153 men; the exact number is unknown. There was only one survivor.

Eventually a few of the attackers were tried and convicted in federal court in New Orleans under the Enforcement Act of 1870. They appealed to the Supreme Court, which overturned the verdict in US v. Cruikshank. On appeal, the Circuit Court was divided on the question of whether the indictments charged a crime, or as we would say today, the constitutionality of the Enforcement Act.

The opinion is by Morrison Waite, the chief. The syllabus describes the indictment. It was based on §6 of the Enforcement Act of 1870:

‘That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony….

The Court says that this provision applies only to rights that arise under the Constitution or laws of the United States. It cites the Slaughterhouse Cases for the proposition that people are citizens of the US and of a state, and that one’s rights as a citizen of the US are different from ones rights as a citizen of each of the several states.

Next the Court gives us a short version of the theory we’ve seen before, that people form governments to promote their general welfare and protect their rights. The role of every government is the protection of the inhabitants, but they may only do so to the extent of their powers.

This, I think, is the key argument, given without explanation:

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not.

Waite knows this isn’t exactly true. The same act may offend the laws of both the state and the US. He gives examples: counterfeit coins, and assaults on a federal officer. Each may be an offense against both the laws of the state and the US.

He notes that the US government only has the powers in the Constitution. He sats his job is to find out whether the rights the defendants allegedly interfered with are granted by the Constitution or the laws of the US.

Counts 1 and 9 relate to the right of peaceable assembly. These are not granted by the Constitution, says Morrison Waite. They are the natural rights of any free government.

The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains … subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The 1st Amendment is couched in the negative, prohibiting US government from interfering with the right to assemble, while leaving the states free to regulate it as they saw fit. The right to assemble to petition Congress or the federal government is a federal right, and if the indictment alleged that that was the purpose of the assembly, this would be a crime. But it didn’t.

Counts 2 and 10 concern the right to keep and bear arms. This also is not given by the Constitution. The 2nd Amendment merely “… is one of the amendments that has no other effect than to restrict the powers of the national government…” leaving citizens to seek the protection of the states under their police powers.

Counts 3 and 11 assert the right not to be deprived of life or liberty without due process. The Court is offended by this charge, which it says is nothing more than a standard murder charge. The right to life is a natural right, obviously not granted by the Constitution. Waite says that the 14th Amendment doesn’t add to the powers of the US government. It’s merely an additional guarantee of the right every citizen has under state protection.

Counts 4 and 12 claim that the defendants conspired to deprive black citizens of their right to equal treatment with white citizens as respects their various rights. Waite says this is merely one group of citizens killing another. The 14th Amendment doesn’t add to the powers of the US to protect one group of citizens from another.

Counts 6 and 14 allege violation of rights connected with voting. The Court says that suffrage is a right granted by the states. All the 15th Amendment does is to prohibit discriminate in granting the right to vote on account of race. Thus the right to vote is not a right granted by the US.

Counts 7 and 15 concern voting. Waite says that elections were state elections, and so the US isn’t involved.

Counts 5, 12, 8 and 16 all involve direct allegations that the defendants acted together to deprive the dead of their rights as citizens on account of their race. Waite asserts that the pleading of these counts is defective because it doesn’t specify the facts sufficiently. It merely recites the statutory language. In order to be adequate, it must describe the facts in sufficient detail for the defendants to protect themselves, and to insure that they are not tried twice for the same offense.


1. The attitude of the Court is summed up by this quote: “The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State.” The New York Times noted this in its headline. That’s bullshit. This was a race riot, the exact thing Congress was aiming at.

2. Like The Slaughterhouse Cases, this case takes up issues unnecessary for the decision, as the dissent points out, and as Waite does with several counts. The case can and should be decided on the limited ground that the indictment is insufficient. There was no need to reach constitutional questions.

3. The Court doesn’t look at whether the Reconstruction Amendments changed the powers of the states and the US as regards race, why they don’t give the federal government the power to protect at least Black citizens, as an additional safeguard of their rights as citizens. This would be an example of the powers of the two governments do deal with the same events on different grounds.

4. The Court thinks the important thing about this case is the line between the powers of the states and the US. It protects the power of the states to control the lives of their citizens, regardless of the consequences for Black citizens.

There is no indication that Louisiana took any interest in the murder of 150 Black people. As best I can tell, the locals didn’t even investigate the murders. Everyone knows this, including the members of the Supreme Court. Waite offers some worthless words about the responsibility of the states, but he doesn’t care whether they do or not.

This case sets the Court on the road to allowing both both federal and state governments to ignore mob violence against Black citizens, and outright denial of their rights, the result the Reconstruction Amendments were intended to prevent.

The Slaughterhouse Cases

Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.


It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.


1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

The Fifteenth Amendment

Index to posts in this series

After the 14th Amendment and the Reconstruction Act of 1867 were adopted the Freedmen in the former slave states had the vote. That left all the Black men in the Union and Border States and Tennessee, and that eventually was seen to be untenable. The Democrats, then the right-wing party, made universal Black suffrage an issue in the election of 1868. In The Second Founding, Eric Foner says this campaign “… witnessed some of the most overt appeals to racism in American political history.” P. 97. Grant won, but the popular vote was close, and Democrats made gains across the Union. That gave impetus to passage of an amendment to ensure the vote to all Black men.

Several amendments were introduced. The main choice was whether to support universal suffrage or only for Black men. The Radical Republicans wanted a bill setting national standards for voting, a position consonant with Art. 1 § 4 of the Constitution.

But here the true level of US bigotry revealed itself. Several Union states made it clear they wouldn’t support suffrage for Germans and/or Irish Catholics (and as one of the latter, I’d say we’re pretty harmless). In the West, prejudice against Chinese immigrants was a powerful force, evoking racist comments akin to those directed at Black people. As time expired, we got the Fifteenth Amendment in its most limited form:

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2 authorizes Congress to make laws enforcing Section 1.

Section 1 is not a positive grant of suffrage to Black people. Instead, it authorizes the states to control suffrage as they see fit as long as they don’t use race as a condition. Thus it authorized Ohio to deny suffrage to German immigrants, and Rhode Island to grant suffrage only to Irish Catholic property owners; and it enabled the states to use non-racial laws to exclude Black men from the polls.

The Republicans worried that Northern states wouldn’t ratify a positive version, granting suffrage to all adult males, let alone a broader version, barring discrimination on the basis of, for example, religion. There was no question of enfranchising women or Native Americans. The final draft of the bill in each house included the right to hold office, but that was eliminated in conference, and the House version of a positive enfranchisement was dropped in favor of the Senate’s negative version.

Foner points out that legislators knew that the negative version could be gamed by the states, but assumed, or perhaps hoped, that the 14th Amendment would make that poisonous to the slave states, because discriminatory requirements would affect White people too. But that turned out to be a false hope, thanks in large part to the efforts of the Supreme Court. Also, it turns out that rich white Southerners weren’t opposed to blocking poor whites from the ballot box, or shielding them from the laws with other techniques.

The first few years after the Civil War saw the creation of a number of White vigilante groups, including the Ku Klux Klan. These groups wreaked terror on Black people across the former Confederacy, murdering and raping, pillaging and burning. The slave states did nothing to stop this hideous violence, and they did nothing for decades, leaving their Black populations to die, leave, or suffer in silence.

In the early 1870s Congress began consideration of laws to enforce the Reconstruction Amendments. Three bills, the Enforcement Acts, gave the federal government the power to punish violence against Black people, using federal courts and marshals. But they were inadequate to force the slave states to protect their Black citizens. Eventually Congress enacted the Civil Rights Act of 1875, which was a comprehensive effort to protect Black people from all kinds of private violence intended to deny Black people the rights guaranteed by the Reconstruction Amendments.

In the debates over all these laws, a substantial number of federal legislators called these laws violations of the principles of federalism. As we will see, the Supreme Court agreed, and struck down the new laws. Eventually because of the intransigence of the Court, the 13th Amendment was ignored, the 14th Amendment was gutted, and the 15th Amendment was barely useful.


1. Foner integrates into his text excerpts from the debates in Congress over the Amendments, and from newspaper articles, giving a flavor of the rhetoric and feelings of the speakers and perhaps those of the elites. Here’s a nice example:

“Tell me nothing of a constitution,” declared Joseph H. Rainey, a black congressman from South Carolina whose father, a successful barber, had purchased the family’s freedom in the 1840s, “which fails to shelter beneath its rightful power the people of a country.” By the people who needed protection, Rainey made clear, he meant not only blacks but also white Republicans in the South. If the Constitution, he added, was unable to “afford security to life, liberty, and property,” it should be “set aside.” P. 119. Fn omitted.

The other side was equally direct and eloquent:

In the debate over the Ku Klux Klan Act, Carl Schurz, representing Missouri in the Senate, said that preserving intact the tradition of local self-government was even more important than “the high duty to protect the citizens of the republic in their rights.” Lyman Trumbull complained that the Ku Klux Klan Act would “change the character of the government.” P. 120.

These anecdotes make this book a real pleasure to read. They remind us that our ancestors were thoughtful and forthright, or even bombastic, whether or not we agree with their sentiments today. I do not think the same of the former members of the Supreme Court, whose opinions are very difficult to read, and reek of unwillingness to deal with the Reconstruction Amendments and the facts of the cases they decided.

2. These quotes illustrate the issues around federalism. Both of the books in this series claim that the Reconstruction Amendments changed the nature of the US governing structure, by giving the federal government the power to protect the Constitutionally guaranteed rights of its citizens from private parties and from the states themselves. As we know, this hasn’t exactly worked out in practice. Even today and even in the supposedly less-racist cities and states, police and private citizens violate the civil rights of citizens, use all sorts of tricks to strip the power of minority voters, and treat citizens differently. SCOTUS is fine with that, as we saw in the ridiculous advisory opinion in 303 Creative.

We need a discussion of the purposes of federalism in this country, and we need to discuss publicly what it means to be an American citizen as opposed to a citizen of Mississippi or Minnesota. Why is it that our fundamental rights arise from citizenship in Mississippi or Minnesota, instead of from our national document, the Constitution? I’m pretty sure most uses of federalism are to discriminate against or punish people the benighted legislature doesn’t like.

3. Constitutional amendments and laws don’t change people’s minds. The Civil War didn’t really change any minds. Is it possible that elites, including supreme courts can’t get out of their own privileged pasts?

The Fourteenth Amendment

Index to posts in this series

Eric Foner opens the chapter on the 14th Amendment in The Second Foundation by providing context for its adoption. The 39th Session of Congress began in December 1865. President Andrew Johnson had set up governments in those states under rules that enabled them to elect a large number of former high-ranking Confederate political and military leaders. The rebel states had enacted the Black Codes, and allowed horrifying attacks on Freedmen to go unpunished. The Republicans and the people who elected them were outraged, and refused to seat their senators and representatives. That gave the Republicans a 2/3 majority, enough to override vetos.

The Republicans were divided into two groups, the Radicals and the moderates. The Radicals wanted full political and civil rights for the Freedmen and for all men. The moderates initially thought they could work with Johnson, but that failed because of Johnson’s deep racism which he put into practice throughout his Presidency. The moderates were worried about giving suffrage to the freedmen, in part because voters in the North were opposed; in part because they thought the freedmen were not prepared to participate in politics; and perhaps because at least some of them beld racist views about the mental capacity of the Freedmen. They were also concerned about granting rights that suggested social equality.

The two groups were united in trying to increase their presence in the slave states, and in insuring full political rights short of suffrage. They all agreed further amendments to the Constitution were needed. This fragile unity was the basis for the adoption of the 14th Amendment.

Congress established the Joint Committee on Reconstruction to consider some 70 amendments. The 15 members of the Committee and the entire Congress debated the amendments for several months. These debates not only covered the precise wording of the amendment but also the nature of freedom, what it means to be a citizen of the United States, which powers should be exercised by the federal snd state governments, and the nature of proper governance.

The first bill that emerged from the debates was an effort to deal with the electoral problem created by the 13th Amendment. The end of slavery meant that the ⅗ compromise in the Constitution was no longer effective, so that all Black people in the South were counted towards representatives and electoral college votes. That gave the White Supremacists too much power. The obvious solution was to require the states to enfranchise Black voters. An alternative solution determined representation by the number of voters. If the slave states disenfranchised Black voters they would lose the edge the ⅗ clause gave them, reducing the number of their Representatives by as much as ⅓.

The compromise was to count inhabitants but exclude people disqualified from voting by race or color. This proposal got the necessary ⅔ vote in the House, but stalled in the Senate in large part because of fear that the slave states would disqualify Black voters with non-racial rules, like literacy tests and property ownership requirements.

Gradually things slowed to a halt as the Republicans found it difficult to bridge the gaps between the moderates and the Radicals. Congress began tp focus on the Civil Rights Act of 1866.

This law established birthright citizenship and provided that all citizens of the US would enjoy basic economic rights and natural rights to the same extent as white citizens. That would mean an end to the Black Codes. The law was not intended to deal with political rights, which include suffrage, the right to sue and be sued, to serve on juries, and to attend public schools, among others. It was also unclear whether the law applied to private conspiracies to deprive Black citizens of their rights by violence or intimidation, or by conspiring to reduce employment opportunities or otherwise. This law allowed private citizens to enforce it in federal court. Andrew Johnson vetoed the bill, but Congress overrode that veto.

It was the Supreme Court that ultimately protected the racists in the Civil Rights Cases (1883).

During and after passage of the Civil Rights law, debate continued over amendments. The breakthrough was the decision to compile the proposed amendments into a single amendment containing those most likely to garner enough support to pass. There was a lot of wrangling over language but eventually the text was ratified. The text of the amendment is set out below.

Foner discusses the contents of the 14th Amendment at length, pointing out what they did and didn’t do, and focusing on the intent of the framers. It was enacted in June 1866 and sent to the states for ratification. Tennessee was the only rebel state to ratify the amendment. The others, under governments appointed by Johnson and encouraged by him, refused. The Radical Republicans were infuriated, and so were many moderate Republicans. Foner explains the stated reasons:

If Radical Republicans saw the amendment as disappointingly weak, white southerners deemed it an unwarranted, indeed outrageous, interference in their states’ internal affairs. Southern objections focused both on practical political matters—loss of representation because of denying blacks the right to vote, the bar to officeholding by “the best portion of our citizens”—and on broader fears for the future of white supremacy. Opponents charged that Congress might well feel authorized to use the amendment to give “Negroes political and social equality with the whites.” To accept such a fate by agreeing to ratify, a southern newspaper wrote, would be a form of “self-degradation.”P. 88-9, fn omitted.

In the election of 1866 Johnson campaigned for opponents of the 14th Amendment. This breach of norms, coupled with the intransigence of the rebel states and their appalling treatment of the Freedmen changed the minds of the moderate Republicans. In the new session Congress threw out Johnson’s plan for reconstruction and enacted their own form of reconstruction, now called Radical Reconstruction.

The Reconstruction Act of 1867 placed the ex-Confederate states, other than Tennessee, under temporary military rule. It required that new governments be elected by black and white male voters (with the exception of Confederate leaders barred from officeholding by the Fourteenth Amendment). The southern states were obligated to adopt new constitutions incorporating the right to vote regardless of race. And they were required to ratify the Fourteenth Amendment. P 90, fn omitted.

The new governments rapidly complied, and the Amendment was ratified in July 1868.


1. In the simplified histories we get in school, it all seems so neat: after the Union crushed the slaver rebellion, Congress passed the Reconstruction Amendments which gave the Freedmen the same rights as other citizens. It’s never that simple. This post is a tiny slice of that history, but it’s way more than I learned in school.

2. The debates over the 14th Amendment included complaints about federal interference in the internal affairs of states, an issue I raised here. It’s obvious that what they meant was the right of states to oppress people state legislators despised, as with Black Codes, exclusion from legal rights, exclusion from suffrage, and worse.

This kind of federalism, dual sovereignty, continues today. Florida passes laws blocking the teaching of the history of Black people and the existence of LGBT people. States deny women medical treatment and medicines they need. Alabama claims the right to gerrymander congressional districts to reduce the voices of Black voters.

Are there any non-oppressive hallowed state principles that today’s federal government could conceivably trample?

Fourteenth Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The Thirteenth Amendment

Index to posts in this series

I’m moving on to Eric Foner’s book The Second Founding: How the Civil War and Reconstruction Remade the Constitution. It’s a detailed description of the history of the adoption of the 13th, 14th, and 15th Amendments, and their aftermath.

The Emancipation Proclamation did not end slavery. A large number of enslaved people lived in areas not controlled by the Union and thus unprotected. Many more lived in the Border States and Tennessee which were exempt. Abraham Lincoln and his Republican Party were concerned that the Supreme Court, led by the odious Roger Taney, would declare it unconstitutional, or rule that it terminated when the Civil War ended. By this time there was a strong belief that slavery sullied the nation’s principle of equality of all people before the law. Foner doesn’t say it, but by this point it must have been obvious that, as Lincoln puts it in his Second Inaugural Address:

These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war.

These and other considerations led to the introduction of several versions of the Thirteenth Amendment in December 1863.

The opposition party, the Democrats, offered a number of objections. One was the slippery slope argument. Give freedom to enslaved people and they’ll demand the vote, the right to own property, the right to testify in court, and and even “racial amalgamation” P. 33. This sometimes took the form of outright racism bellowed on the floor of the House and Senate.

Fernando Wood, the former mayor of New York City now a member of the House of Representatives, painted a lurid picture of the amendment’s consequences: “It involves the extermination of the white men of the southern States, and the forfeiture of all the land and other property belonging to them.” P. 33.

Others took a states rights position, that each state should make its own decision. Still others warned against the intrusion of the federal government into property rights. If the government could free slaves without compensation, what prevented it from taking the factories of the north? Some opposition Democrats even thought slavery should be permitted after the war.

The debates went on throughout 1864. The bill received fewer than the required ⅔ in the House. It was brought back in the lame duck session after the election of 1864, and passed January 12 with Lincoln in full support. The story of his change of mind is fascinating: here’s a review of a book Foner wrote about it.

The 13th Amendment does more than abolish slavery. Section 2 gives Congress unprecedented power to enforce it. Foner says this provision changed the relationship between the federal and state governments in our dual sovereignty system. For the first time, Congress was specifically empowered to legislate in the area of the rights of citizens of the states.

Ratification required the votes of ¾ of the states. That took the rest of the year, and the 13th Amendment became part of the Constitution on December 19, 1865. Foner points out that Mississippi abolished slavery in in its post-war constitution, but refused to ratify the 13th Amendment until 1995.

… [I]ts legislative Committee on Federal and State Relations explained why: the second section might in the future be interpreted to authorize Congress “to legislate in respect to freedmen in this state. [We] can hardly conceive of a more dangerous grant of power.” P. 39.

The 13th Amendment didn’t answer a basic question: what does it mean to be free. As one Democratic congressman put it, “mere exemption from servitude is a miserable idea of freedom”. P. 41. The matter was debated extensively throughout the Reconstruction Era, and the debate continues today. There was general agreement that freedom included a man’s right to control his own person, to earn his living by his labor, and to keep the proceeds of his labor to support himself and his family. But the entire agricultural system of the slave states was based on unfree labor, on slavery, and to change to a system of free labor was an enormous undertaking.

Slavers and White Supremacists seized on the punishment clause of the 13th Amendment: slavery was abolished “except as a punishment for crime whereof the party shall have been duly convicted”. Foner notes that this clause was added without much attention, simply because it was part of a similar provision in the Northwest Ordnance.

Starting with Mississippi the slave states enacted Black Codes. These made it a crime for Black men not to have jobs, and the punishment was to be leased out by the State to plantation owners where they would be forced to work for free. They also grabbed Black children and forced them into unpaid apprenticeships on the ground that their parents couldn’t afford to take care of them.

Foner points out that very few people thought the 13th Amendment changed the common law of coverture: men were entitled to their wives’ unpaid home services and sexual relations. Black women probably didn’t think coverture was much af an improvement for themselves, but at least they could marry and keep their children.

It was apparent that much more would be necessary if Black people were to be truly free.


1. This material is infuriating. It’s horrifying that I didn’t know much of this history. Surely somewhere I heard about the Black Codes? But I’m sure it wasn’t in any history class I took in my 19 years of schooling. And in the slave states (sorry, I mean Red States), politicians are trying to stamp out this history altogether, supported by slabs of money from people afraid to put their names on the checks.

2. The historical links between the Black Codes and the carceral state, are, I trust, obvious.

3. Dual sovereignty has proven itself to be a disaster for many of us. US citizenship confers few meaningful political rights. Your political rights depend almost entirely on the state you live in. Your right to vote, your right to medical treatment, your right to a decent education, your right to walk the streets without being terrorized by gun freaks, and most other rights we think of as basic to our liberty, all come from state law. If you live in a Red State you have the right to shorter life, poorer working conditions, lower wages, an indifferent education, restricted voting rights, and whatever health care you can buy. If you live in a Blue State, you live better.

That’s not true in other countries. Germany doesn’t let Bavaria decide to provide a different health care system than Saxony. Japan doesn’t let the kids in Osaka use vastly different textbooks than kids in Hiroshima. India doesn’t let Uttar Pradesh decide who can vote; in fact there are no countries that let political subdivisions create voting restrictions. That’s because being German or Indian or Japanese means you are a citizen of a nation, not of a province.

What does it mean to be a citizen of the US? We’re still arguing about that after 250 years. And SCOTUS says you are not an American, you’re a Georgian or a Californian when it comes to the important parts of your daily life. SCOTUS, of course, stands firmly on the side the the successors to the slavers.

Democracy Is Our Hope For A Better Future

Index to posts in this series

In The Nation That Never Was, after telling us his version of a better story of America, Kermit Rosevelt writes:

We Americans are not perfect, either. Some of us are bad. Some are indifferent and unwilling to sacrifice for others. Some are easily distracted, misled, manipulated. We go forward and we go back. We elect Reagan, we elect Obama, we elect Trump. But what makes us American—our deepest ideal—is that we keep trying. America is born in an attempt to find a new and better way, to escape the stale and oppressive monarchies of Europe. We don’t get it right immediately. Yet we keep going. We’re looking for America, and we know that the America we’re looking for isn’t something that’s given to us by Founding Fathers. It’s something we make, something we find inside ourselves. The true America is not handed down from the past but created anew by each generation, created a little better, and what we can give the future is the opportunity to get just a little closer than we did ourselves. That’s the promise that makes us American. That’s the promise we have to keep. P. 205.

It’s not exactly a reason his better story is better, but Roosevelt thinks the better story supports his theory of democracy. Compare that passage with this from one of my favorite books, Philosophy and Social Hope, by Richard Rorty:

Pragmatists … do not believe that there is a way things really are. So they want to replace the appearance–reality distinction by that between descriptions of the world and of ourselves which are less useful and those which are more useful. When the question ‘useful for what?’ is pressed, they have nothing to say except ‘useful to create a better future’. When they are asked, ‘Better by what criterion?’, they have no detailed answer, any more than the first mammals could specify in what respects they were better than the dying dinosaurs. Pragmatists can only say something as vague as: Better in the sense of containing more of what we consider good and less of what we consider bad. When asked, ‘And what exactly do you consider good?’, pragmatists can only say, with Whitman, ‘variety and freedom’, or, with Dewey, ‘growth’. ‘Growth itself,’ Dewey said, ‘is the only moral end.’

They are limited to such fuzzy and unhelpful answers because what they hope is not that the future will conform to a plan, will fulfil an immanent teleology, but rather that the future will astonish and exhilarate.… Pp. 27-8, fn omitted.

The connection is obvious. Roosevelt says democracy is about the future. He says the better story fits with his view of democracy. Rorty says that Pragmatism is about the future. Later on he says that Pragmatism is well-suited to democracy, because the growth of freedom leads naturally to a democratic form of government. Both think we can have a better future.

The relation between philosophy and forms of government

Rorty calls himself a Pragmatist, after the only truly American philosophy, founded by the Americans C.S. Peirce, John Dewey, and William James. Here’s a short series discussing some of the basic elements of Pragmatism: Method, Truth, and Applications.

In Rorty’s first sentence, “a way things really are” is a reference to the traditional philosophical problem called the appearance-reality dualism. It’s based on the fact that we only have the evidence of our senses. Therefore we cannot know the reality of the thing we perceive as it truly is. Pragmatism teaches that all we know is what our senses tell us, and there’s nothing beyond that, no Platonic forms, no hidden reality. For a fuller discussion, see the post on Truth linked above.

The older forms of philosophy searched for universal truths, unchanging verities, the way things really are. The results of that search establish a static universe based on the theory of everything created by one or more human beings. There is one answer to any problem, and it can be found by consulting the fixed principles — or the ruler’s command. As Roosevelt puts it, universal verities lead to “… the stale and oppressive monarchies of Europe.”

Pragmatism and democracy are not necessarily connected. As Rorty points out, a Nazi could agree with and apply Pragmatic thinking. But there is a decisive difference between a society living with eternal verities, and one open to change.

A Problem

After reading Roosevelt’s book, I’ve begun to think the the real contest is between Americans dedicated to democracy in the Rorty/Dewey sense, and those committed to the unchanging verities they find in history or their sacred books or handed to them by authoritarian demagogues. The futurists want to make the future better for everyone. The traditionalists think everything is just fine as it is, or as it was at some date in the past, or as it would be in a new society built to effectuate their theory of everything. The futurists, as Rorty says, want the future to be amazing. The traditionalists can’t even handle the latest scientific achievements, like mRNA vaccines. The futurists think the economic status quo must be improved to benefit everyone. The traditionalists think the status quo is the best we can do.

And, not to put too fine a point on this, the people who really want things to remain as they are are the filthy rich; and the people who really want to return to the past are the religious fundamentalists. Both groups are apparently willing to sacrifice democracy to get what they want.

Left Theory

Perhaps you have noted that posts at Emptywheel are categorized. Most of mine are in the category Left Theory. I think the left needs a set of ideas about society and government that can be persuasively explained to non-lefties, and that link all our policy positions into a reasonably coherent whole. I offered a tentative economic theory here. In that post I say that a useful economic theory should be based on observation and experience, not on some grand theory of humanity, or, for that matter any other grand theory. It would serve as a tool for reaching our goals. It would change as we learned more new things. In this sense it would be Pragmatic.

Democracy is a broad theory about how governments should work. It’s a system that works for all people of good faith, giving everyone the opportunity to participate in the process of building the future. In that sense it is Pragmatic.

In the absence of eternal verities, we have to justify all of our beliefs. Why then do I believe democracy is the way forward? First, I believe that the Golden Rule, “do unto others as you would have others do unto you”, is the best guiding principle humans have ever developed. I firmly believe that application of this principle would massively reduce the amount of pain and misery in the world, and that that would be a good thing. To do that, we need to get as many different ideas as we can about our future, both for deciding what we should be as a nation, and for solving problems. Democracy does that.

Also, I want to be part of the decision-making, so I should insure that others can and do participate if they want to.

Second, I agree with Jefferson that government derives its just powers from the consent of the governed. That desire, that insistence, that we give consent to the government is effectuated by majority rule in a democracy.

And that’s where the conflict lies. In the US the minority party holds power despite the will of the majority. The current system of government makes that easy, especially with the rogue majority on SCOTUS.

Our current challenge is to make our democracy work.

The Better Story

Index to posts in this series

In the first chapters of The Nation That Never Was, Kermit Roosevelt explains the many problems with the standard story of the US. In the last chapter he offers us a better story. What follows is mostly Roosevelt’s version, but I’ve added more history. Roosevelt’s is at pp. 202-4.

A Version Of The Better Story

During the Revolutionary War, the colonists established a federation of the 13 original colonies. They wanted to keep their existing governments, and feared a strong central government. Their first try, the Articles of Confederation, failed because the central government was too weak and the states frequently ignored it. Then they tore up the Articles and replaced them with the Founders Constitution. In order to gain support for a stronger central government, they put in provisions supporting the continuation of slavery and gave states with smaller white populations greater power in the national government.

From the very beginning Black people resisted slavery by escaping and rebelling in the face of murder and torture. That continued under the Founders Constitution. They and the Abolitionists set up escape routes, and tried every legal route to saving escapees. They rallied, protested, spoke, wrote, appealed to Congress, and demanded freedom and equality. Gradually the movement for freedom became an powerful political force, driven by the principle that all men are created equal. They meant equality in a actual society, not in a hypothetical natural law sense as in the Declaration of Independence, Leaders included Frederick Douglass and William Lloyd Garrison.

Urged on by the Black people and the Abolitionists, the United States government resisted the expansion of slavery into the territories, which the Supreme Court supported in Dred Scott. That led to a war with the Slave States which was won by the United States. A major factor in the victory was the 200,000 Black soldiers who fought and died to end slavery. The victorious United States threw out the governments of the seceding states, forced the enactment of the Reconstruction Amendments, and passed laws to enforce them. This is called the Second Founding.

The Second Founding recreated the United States under the principles laid out by its Leader, Abraham Lincoln. His most famous statement of these principles is in his Gettysburg Address: the United States is “… conceived in liberty, and dedicated to the proposition that all men are created equal….”

This became our guiding principle. Lincoln told us that we must dedicate ourselves to the principle of equality that the brave men of the United States had died for. He told us we were starting anew with this principle foremost in our minds:

… that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people shall not perish from the earth.

But not everybody agreed that we were starting over. The secessionists never quit. Their first step was to murder Abraham Lincoln. Then they took power in the former slave states. The Supreme Court gutted the Reconstruction Amendments. That enabled the secessionists and White Supremacists to establish legalized segregation, blessed by the Supreme Court in cases like Plessy v. Ferguson.

Black people never quit either. Despite participating in more wars on behalf of a segregated nation and being treated like dirt on their return, through decades of lynching and white race riots, they continued to fight for equality. After the Second World War, they began to achieve success and for once the Supreme Court didn’t block them.

The, beginning in the 1980s, the White Supremacists pushed back against equality, and achieved partial victories, especially in the revanchist Supreme Court. But Black people persevere, and with them all people of conscience, and this time other marginalized groups join the march towards equality, Black, Brown, Asian, LGBT, young people, all of us together.

That’s our nation: always striving for equality, always striving for fairness and equality, always fighting the darkness.

Addendum on Abraham Lincoln

When the Civil War started, Lincoln was willing to accept slavery as the price of unifying the states. That changed during the war. Roosevelt says the Fort Pillow Massacre played a big role in that change. Lincoln had established units of Black Soldiers. They were among the defenders of Fort Pillow, near Memphis in April, 1864. The secessionist troops under the command of Nathan Bedford Forrest, later the first head of the KKK, captured a group of US troops trying to surrender, including approximately 300 Black soldiers and their White officers. The Southerners murdered the Black soldiers in cold blood. A few days later Abraham Lincoln gave a speech called the Address At The Sanitary Fair. Here’s a short section.

A painful rumor, true I fear, has reached us of the massacre, by the rebel forces, at Fort Pillow, … of some three hundred colored soldiers and white officers, who had just been overpowered by their assailants. There seems to be some anxiety in the public mind whether the government is doing its duty to the colored soldier, and to the service, at this point. At the beginning of the war, and for some time, the use of colored troops was not contemplated; and how the change of purpose was wrought, I will not now take time to explain. Upon a clear conviction of duty I resolved to turn that element of strength to account; and I am responsible for it to the American people, to the christian world, to history, and on my final account to God. Having determined to use the negro as a soldier, there is no way but to give him all the protection given to any other soldier.

Why This Is A Better Story

Roosevelt offers several reasons why this is a better story. It has the advantage of being accurate, of course. The standard story ignores the role of Black People in our history. The better story includes Black people and tells us of their valor and perseverance, and the contributions they made to the story of America. In doing so it makes room for the contributions of other groups ignored by the standard story. The better story opens the way to real unity of all of us regardless of all the many ways in which we are different.

The better story gives us a new set of heroes. It valorizes the soldiers who personified the words of Julia Ward Howe’s Battle Hymn Of The Republic: “… As He died to make men holy let us die to make men free ….” These regular people, Black and White, are worthy of emulation. That’s not entirely true of the Founders, who fought for their own freedom, and were morally compromised by the denial of freedom to their slaves, their enslaved concubines, and enslaved children.

We can respect the leaders of the Second Founding, Lincoln and the Senators and Representatives who enacted the Reconstruction Amendments and related legislation. We do not have to consider their personal lives, because the better story is about contributions to the future, not an unhealthy fixation on the always problematic past.

Similarly, the better story tells us about the wrong way to be an American. People who oppose these heroes and the values they lived out, and their contributions to our democracy, are not good citizens.

The better story shows us how we can be better citizens: by trying to make America a better place.