Socially Normative Agency

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Index to posts in this series

In Chapter 6 of The Evolution Of Agency by Michael Tomasello we come to human beings. Tomasello says that we humans build on the agency of lizards, squirrels and great apes discussed in earlier posts.

Let’s start with an illustration. Occasionally a group of chimpanzees will hunt and kill monkeys. One chimpanzee will spot the opportunity and scream and start chasing it. Others join in the chase. If they kill the monkey they all try to grab as much as possible. They do not distinguish between those that hunted and free-riders. Only the strongest and wiliest eat.

On the other hand, children as young as three years old act differently. Confronted with a task that requires two actors, they will form an agreement to work together. If they succeed at the task, they split the reward evenly almost always. If one defects from the work or tries to grab the whole reward, the other complains and that is usually enough to bring the offender into compliance. Children who don’t participate in the work are rarely given a share of the reward.

Tomasello says this is a form of agency in humans not present in other species. He calls it socially normative agency.

Evolution of socially normative agency

Tomasello says that hominids, the predecessors of our species, split off from the great apes about six million years ago. They began hunting collaboratively about one million years ago. He suggests that collaboration might have begun with scavenging meat off carcasses. Hominids were smaller and weaker than other species competing for the carcass. They would have had a better chance of success if they worked together, some keeping other scavengers away and some gathering the spoils, then splitting it up among all of the group.

Later, two of our ancestors might agree to work together to hunt large game, agreement would be established, and the two would work together and share the rewards. Over time, collaborative hunting became necessary to meet the demands for food. By about 400,000 years ago collaborative hunting was an established practice. Our ancestors became interdependent, unable to survive on their own.

Psychological processes and feedback control mechanisms

Tomasello says the central mechanism of control in all species is the feedback loop. In the simple form, a lizard uses its perceptionto look for prey, moving on if there is none. In small mammals like squirrels, there is an additional level of psychological control, an executive tier, that enables the individual to keep track of its goals (foraging, burying nuts for the winter, staying ahead of predators etc. They can chanage their behavior if needed for safety or for a better chance of successful foraging. They can choose among alternative actions for reaching those goals.

In great apes, there is third tier, the reflective tier, that monitors the executive tier, and can interrupt the action of the individual to solve problems preventing the individual from reaching its goal, Doing this requires mental processes Tomasello calls rational because they are logically structured.

In the example of three-year olds cooperating in a task, the two reach agreement on joint action. That agreement creates a a new entity, the joint agency. There feedback control mechanism runs  each child to the other. Both are entitled to enforce the requirements of the joint agency. If one child stops working, leaves, or refuses to share, for example, the other remonstrates in normative terms. The other will say something like: we don’t do that, or you have to share, or that’s not fair. The offender recognizes that this is a legitimate complaint, and most ofteb changes behavior. Tomasello says this is because each child recognizes and accepts the demands of the joint agency and the right of each to enforce it.

In great apes, the feedback control mechanisms are internal to the individual. In socially normative agency, the feedback loop is in the “we” created by the agreement, and is exercised by both parties as the project proceeds. The feedback control also covers the efforts of the two to collaborate in the task.

Evolutionary changes

The evolution of agency in humans requires greatly increased complexity in the brain: more and better neurons with more and better connections, and a large increase in the pre-frontal cortex, which we think is the location of executive action.

These physical changes were needed for collaboration. Control by agreed normative rules required three new kinds of psychological processes: a) creation of the joint goal: b) allocation of roles; and c) collaboration in self-regulation during the action. Each of these in turn require a chunk of mental processing, This is something humans do automatically, and other creatures don’t.

Those who didn’t cooperate, who didn’t communicate, and who didn’t share were left behind, without mates, and without offspring. The mental processes that enable collaboration, including collaboration, became targets of natural selection, probably in a form of co-evolution.

Cultural groups differentiated by their norms

Collaborative hunting and reward sharing was very successful for our ancestors. By about 150,000 years ago, human population had grown to the point that we began to live in larger and larger groups. Successful hunting of larger game was just one part of survival. Others in the group foraged for plants and small game, some became adept at creating tools snd weapons, others at weaving and making clothes, others learned about curative herbs and healing and so on.

Tomassello says that our ancestors were living in bands loosely connected to each other by cultural norms related to diet, stone knapping, languages, foraging techniques and more. Membership in a cultural group became necessary for survival as these cultural groups competed for resources. Again, those who couldn’t manage the psychological processes necessary for participation in the cultural group were shunned and didn’t reproduce. Compliance with cultural norms became a target of natural selection.

Cultural groups survived by teaching their offspring proper, that is normative, behaviors and techniques. Long childhoods and adolescence were periods of training and learning the social norms of the cultural group. In operation, these cultural groups made cpllective decisions, and enforced them. Tomasello calls this cultural agency. The feedback control is operated by the entire group.

Here’s how Tomasello describes the evolutionary process up to about 100,000 years ago:

… modern human brains are three times larger than those of other great apes, with an expanded prefrontal cortex (the main seat of executive functioning) and insula (the main seat of social emotions), and are structured by unique types of neurons with more complex dendritic structures Consistent with this analysis, González-Forero and Gardner … find that much of the brain growth characteristic of modern humans during this period was concerned with adaptations for cooperative interactions and cultural learning. P. 106-7; cites omitted.

Discussion

Regardless of your view of Tomasello’s model, one thing is clear from the evidence he cites. Human evolution runs side-by-side with increasing levels of cooperation. Our ancestors taught each other; we literally dragged ourselves up by our bootstraps. Social learning and cooperation are an integral part of our evolution.

In The Dawn Of Everything David Graeber and David Wengrow discuss the Thomas Hobbes theory that early humans fought each other for resources, the war of all against all. That didn’t happen. We should stop talking like it did.

In the same way, the bizarre neoliberal idea that we humans are atomistic utility-maximizers struggling against each other to get all we can is madness. Any academic who takes this view should be laughed out of their profession.

I’ll have more to say about this in the next post.

 

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Great Apes As Rational Agents

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Index to posts in this series

In Chapter 5 of The Evolution Of Agency, Michael Tomasello discusses the nature of the agency displayed by the great apes. This group consists of five species, chimpanzees, bonoboes, orangutans, gorillas and humans. The first four of these are the subject of this chapter. African great apes seem to have emerged about 14 million years ago following millions of years of evolution of mammals. The changes were far-reaching.

There are three relevant threads in this chapter:

  1. evidence of the rationality of great apes
  2. evidence that they recognize that others of their species act intentionally, possibly including humans
  3. the evolutionary pressures that might have contributed to the development of these two mental capacities

Tomasello offers an explanation of this rationality as dependent on a second tier of executive control.

Rationality of Great Apes

Tomasello gives a number of examples of evidence from field observations and experiments that shows the great apes are capable of observing their environment and acting on it it rational ways. One is their understanding of tools. For example, they use sticks to fish for ants and termites to eat. If there is no stick nearby they will tear off a twig from a tree, and strip the leaves if there are too many. They will drop stones on above-ground termite nests to flush out the bugs. Here’s how Tomasello ascribes rationality to this practice:

… [W]hen faced with a novel physical problem, great apes can also take control of the causal process and make new tools that will work in the new context. In this case, they are first imagining an effect that is needed to solve the problem, and then going back to create a cause. For example, in the wild, chimpanzees routinely modify too-leafy branches by stripping leaves from them so that they will fit into termite holes. P. 72, cite omitted.

Here’s another example. The experimenter shows a piece of food to a chimpanzee and then puts it into one of two cups. The experimenter shakes the empty cup. The chimpanzee is allowed to pick a cup, and chooses the unshaken cup. This shows a reasoning chain: no noise means no food; therefore the food is in the other cup. Tomasello says that these are forms of logical organization that we should consider as rational.

Great apes understand some cause and effects created by others

Great apes understand cause and effects created by their own actions, as do other mammals. Unlike other mammals, they also understand indirect causes of results, as with the use of tools. They also recognize that other creatures can themselves cause effects through their actions. Tomasello cites a paper reporting

… that three human-raised chimpanzees selectively reproduced actions that a human demonstrator intended to perform over actions she performed only accidentally; the chimpanzees also performed actions that a human intended to perform but did not actually succeed in performing. P. 75.

A two-part experiment tests whether chimpanzees can “use self-experience to infer what another sees”. (Abstract here). Great apes will took at what another is looking at, which is referred to as gaze-following. The subjects are taught the visual properties of two screens, one opaque, one see-through. The first experiment tests gaze-following when the experimenter is using each screen. The subjects don’t seem to distinguish between the two types of mask in the gaze-following experiment.

The second experiment uses a competition model, where the chimpanzee and the experimenter are dealing with food in two boxes. One has an opaque lid and the other a screen or a transparent lid. The subject is taught the effects of the three lids. Then food is placed in both boxes. If the chimpanzee tries to get food when the experimenter can see it (transparent or screen lid), the experimenter takes it away. To get the food, the chimpanzee must know from its own experience whether the experimenter can see the food. In this setting the chimpanzees get the food significantly more often, leading the experimenters to “conclude that chimpanzees successfully used their self-experience to infer what the competitor sees.”

Tomasello also cites some evidence of social learning in great apes. He says they can learn by noticing the results of the actions of other great apes, and then doing the same thing or something similar.

Evolutionary pressures

Tomasello suggests two types of environmental pressures that might have led to the evolution of these skills. First, fruit is an important part of the diet of chimpanzeees. Fruit trees grow in small clumps, and don’t put out fruit at the same time. Chimpanzees tend to sleep in large groups at night, and split into small groups for foraging. The smaller groups somewhat reduce the competition for food.

Great apes do not usually share these finds. The dominant member of the small group takes all it wants. Even so, predicting the behavior of competitors makes it more likely that subordinate individuals will obtain sufficient food.

Another factor might be that the great apes depend on social learning to maintain their groups, and to understand whether a specific behavior is or is not tolerated. Great apes have longer juvenile periods than other mammals, and much of their time is spent in groups where they learn to align their behavior with that of others. This requires them to be able to attribute their own experience to others of their groups.

This attribution seems to extend to their own mental states. As an example, juvenile chimpanzees use a specific arm gesture to indicate a desire to play with another. The juveniles know that the other must be looking at them in order to see the signal just as they do, and they wait until the other is looking at them to make it.

The psychological processes of great apes

Recall that Tomasello proposes a modes in which small mammals have an executive tier that supervises and controls the operational tier of mental processes. He suggests that great apes have a second level of control which he calls the reflective tier. Its function is to “… to monitor, troubleshoot, and intervene in processes of executive decision-making and cognitive control….” P. 82. In effect, Tomasello says it gives the great apes access to their own mental processes. This fits with the evidence he cites. For example, it explains how great apes can attribute their mental processes to other.

It also explains the results of this experiment cited by Tomasello. The subjects were rewarded for setting a group of blocks on end. Then a block was added that wouldn’t stand on end because of an internal weight. The subjects frequently inspected that block carefully trying to figure out why it wouldn’t stand up. The subjects are trying to reach a goal but failing. Tomasello says in this case the reflective tier in intervening in the intentional action to try to figure out why what works for most blocks doesn’t work for this specific block.

Discussion

1. Of course great apes can’t explain why they make these choices, so perhaps we humans don’t immediately think of them as rational. But think of the number of decisions we make without using strict logical constructions. In many of these cases rationality is buried so deep in our brains that we don’t really need to use language to work out the solution. This is similar to what Kahneman describes in Thinking Fast And Slow, which Tomasello cites in an earlier chapter for a similar proposition.

2. So far we’ve looked at three categories of agency, goal-directed agency as in lizards, intentional agency as in squirrels and cats, and rational agency as in the great apes. Tomasello’s thesis is that the psychological processes of human agency evolved through these groups.

Next he takes up humans. And so will I.

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Goal-Directed Agency and Intentional Agency

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Index to posts in this series

Lizards

Lizards are a representative of the first category of agency according to Michael Tomasello in his book The Evolution Of Agency. As with the other categories, Tomasello focuses on the way lizards forage for prey. C. elegant, the nematode we looked at in the last post, moves and food either does or doesn’t go into its mouth. That obviously won’t work for lizards. Most species survive largely on a diet of insects, small creatures that move and flit about unpredictably.

So lizards have a different strategy. They have a goal, finding food, but they have to do several things to reach that goal. They have leave their hiding places and move to a place where there are insects. They have to spot a specific insect and then catch it and eat it. At the same time, they have to make sure they don’t become prey for other creature.

Here’s a video of a guy feeding crickets to his pet crested lizard. The lizard is in a special feeding cage. The crickets must be alive or the lizard won’t eat them. Bonus: you learn a new term: gut-loading crickets.

Following Tomasello here’s how I read this video. The lizard stands still orienting itself to its surroundings. The guy throws a cricket into the cage. The lizard sees the cricket. It takes a few steps forward. It pauses. It charges and grabs it and eats it. The guy throws another cricket into the cage. The lizard sees it, turns to chase it, misses, and pursues it in short bursts. It catches and eats the cricket. The guy throws a bunch of crickets into the cage. The lizard singles out one, chases, catches and eats it. The other crickets run around. The lizard spots one, chases, catches and eats it. This is repeated.

In this video we see a frilled lizard, a native of Northern Australia and southern New Guinea. It’s about a meter in length, and weighs over a pound. This video is heavily edited but again following Tomasello, here’s how it can be read. The lizard descends from it’s hiding place in a tree. It forages for prey, meaning any insect it might find on the ground. It sees one, approaches, catches and eats it. While chewing it looks around. It spots a predator, a black-headed python. It’s frill blows up. The snake approaches. The lizard runs really fast (also amusing). It eventually runs up a tree, making a full escape.

Tomasello says that the lizard has hard-wired goals: including eating and avoiding predators. Both it’s prey and its predators are quick and unpredictable. It has evolved to deal with that unpredictability by paying attention to the crucial aspects of the situation it perceives at any moment. It then acts to achieve a goal applicable to that situation. In both videos, the lizard eats while checking the situation. In the second it detects danger. It freezes its eating, then flares its frill, then runs. It achieves its goals by a series of go-no go decisions. That’s a clear step up from C. Elegans.

Squirrels

Squirrels are Tomasello’s example of intentional agents. He gives an example of a squirrel on a tree branch spotting a nut on a lower branch. The problem is whether to jump to the lower limb or retreat to the trunk and run down to the lower branch. He says the squirrel looks at the nut then at the tree trunk and then back at the nut. He interprets this as the squirrel cognitively considering two alternatives, then forming an intention to act, then acting. This two step process is evidence of an executive tier of mental control of behavior.

I have a young cat who does something similar. Winston knows there is interesting stuff happening on the counter when I’m making coffee. I see him looking at me, then at the counter as if contemplating jumping up. Am I paying attention to him? If I say No in a loud voice, he won’t jump. Maybe. But if I do nothing or am not paying attention, he works out an answer and acts.

Winston also knows how to open a door. Here’s a video of cats opening doors. Note that in several of the scenes the cat stares at the handle before acting. Tomasello interprets this as the cat forming an intention and then acting on the intention. Again, that implies an executive tier of mental activity.

Here’s a video of squirrels hiding nuts. Nut-hiding is a hard-wired activity, but it’s a complex problem. The squirrel has to decide where to bury the nut, and it has to be able to find it in winter. There are other squirrels waiting to steal the nuts, and predators. There are obstacles, including roots and hard soil. The squirrels stop and look around several times. In each case it looks like the squirrel makes a choice.

This is a 20 minute video of a guy operating a squirrel maze in his back yard. It’s not exactly relevant, but it looks like the squirrels are playing, something we don’t see lizards do. Also I enjoyed it.

The difference

Tomasello says that when lizards perceive a change in the situation, they freeze their current behavior and then respond to the new situation. He contrasts this chain of go/no go decisions with

… an either-or process of decision-making in which the individual simultaneously considers more than one behavioral option simultaneously (which mammals arguably do….) Pp. 33-4.

Tomasello says squirrels and other small mammals have an executive tier in their psychological processes that controls their operating behaviors, like running and burying nuts. This is a function of their larger brains, especially a larger pre-frontal cortex, more complex neurons and neural connections, and increased memory. Larger brains and longer time spent as juveniles increase the possibility of learning about the environment and experimenting, including play, which we might see as rehearsal. Mammals seem to have whet we would call emotions that also provide input to the executive tier.

The executive tier of the squirrel brain coordinates all these inputs. It considers alternative courses of action, “weighs” the costs and anticipated benefits of each and chooses one. That choice is communicated to the operant systems. The executive tier monitors the outcomes. It can inhibit one choice in favor of another if the situation changes or if the initial choice meets an obstacle or fails. Small mammals don’t use words, so it does this with some from of remembered perception.

Here’s Tomasello’s version of an executive tier:

The executive tier oversees the operational tier, as it were, and attempts to facilitate behavioral decisions via action planning and cognitive control. … It requires individuals to cognitively simulate in an organized way their own potential actions, the potential obstacles and opportunities for those actions, and the probable outcomes of those actions. They do this by perceptually imagining all these action elements in the common cognitive workspace and representational format provided by an executive tier of operation. P. 49.

It is this executive tier that gives mammals a wider range of choices of action, which presumably increases the chances of survival of individuals.

Discussion

1. Tomasello says that there isn’t any way to find mental processes in brains, so scientists infer the mental processes from the overt behavior of the creature. I think this raises the potential of anthropomorphism, leading people to ascribe human characteristics to other kinds of creatures. The executive function in humans is a defining feature of our species, so this is a real possibility.Of course, here we’re talking about a simple form of executive control.

The videos seem to provide at least some reason to think Tomasello is on the right track in ascribing an executive tier to small mammals. The empirical studies he cites may also be persuasive evidence.

2. I have described only a small part of Chapters 3 and 4 for this post. It’s allfascinating, especially the discussion of the executive tier, but it’s not relevant to my purposes in reading this book. As a reminder, this series is aimed at thinking about the origins and roles of rights in our society. I’ll get there, I promise.

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Free Will, Agency, And Evolution

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Most of us think we have free will, and we certainly act as if we do. We expect ourselves to do certain things and not do other things, and we feel responsible for those choices. We have the feeling, the sense, that we control those behaviors, or at least that we have the ability to control decisions about which things we do and which we don’t. We attribute to other people their own agency, which we take to be just like ours, even if they may have different ideas about proper behavior.

There’s a school of thought that says we don’t control those things. Here’s a recent article about Robert Sapolsky, a Stanford University neurobiologist, who doesn’t agree. He’s not the only one. Perhaps recognizing that this is an intractable problem, many scientists use the term agency instead of free will.

One is Michael Tomasello, whose book, The Evolution of Agency, I’ll be examining in the next few posts. Agency carries less moral baggage, and it’s something that can be described and studied neutrally; at least more neutrally. Tomasello doesn’t give a precise definition of agency. This is from the introduction:

…[I]n the current case, we may say that agentive beings are distinguished from non-agentive beings … by a special type of behavioral organization. That behavioral organization is feedback control organization in which the individual directs its behavior toward goals—many or most of which are biologically evolved—controlling or even self-regulating the process through informed decision-making and behavioral self-monitoring. Species biology is supplemented by individual psychology. P. 2.

The book rests on two assumptions. The first is that the basis of agency is a feedback control activity, a psychological mechanism, seated in the brain. The second is that agency is an outcome of evolution.

Feedback control organization

Tomasello’s feedback control organization works like a thermostat. The idea is that a goal is set for the thermostat: keeping the temperature at a certain level. It has a sensor that measures the ambient temperature and compares it to the goal. It then turns on another device that brings the temperature closer to the goal. It continues to test the ambient temperature and when it reaches the goal, it turns off the device.

Tomasello claims that this is the only model that can work to enable things to control themselves. He points out that all efforts to get machines to operate autonomously work in accordance with this model.

Evolution and agency

Tomasello doesn’t think there’s a goal for evolution. He thinks that as brains become more complex, the feedback control activity takes on a different shape, a shape that takes advantage of the bigger brain. I’ll just toss in the observation that mutations happen all the time, and some become established in subpopulations whether or not they have any survival value. That might include hair color or a larger brain. If circumstances change, the mutation may suddenly have survival value, and the subpopulation thrives while the rest of the population suffers.

Studying psychological processes

Tomasello says agency is a psychological process, one that occurs in the brain of an individual creature. It cannot be studied directly. Instead scientists infer the existence of psychological processes from the overt behavior of subjects.

Scientists infer psychological agency when the organism acts flexibly toward its goal even in novel contexts. To behave in this flexible manner, the individual must go beyond a stimulus-driven, one-to-one mapping between perception and action. The individual must be capable of choosing to act or not to act, or among multiple possible actions, according to its continuous perceptual assessment of the situation as it unfolds over time (sometimes employing executive processes such as inhibition, as a further control process, during action execution). P. 27.

The layout of the book

Evolution has been at work on this planet for hundreds of millions of years. We say that different species split off from lines of evolution, as humans split off from the great apes; and as homo sapiens eventually split off from the first hominids, and then evolved into modern humans. The lines go back to the beginnings of life on the planet, to the earliest living creatures.

Tomasello thinks certain existing species have no agency, and the rest fall into four categories. He selects five of them to represent his five categories of agency.

1. No agency: C. elegans, a tiny worm-like creature (the image on the home page is a bunch of these creatures)
2. Goal-directed agency: lizards as representative of reptiles
3. Intentional agency: squirrels as representative of small mammals
4. Rational agency: great apes as representative of great apes
5. Socially normative agency, which has two subcategories
a) young human children as representative of hominids with a simple form of socially normative agency
B) adults humans who exhibit a more comprehensive socially normative agency

Tomasello treats each category of agency in its own chapter. The last chapter is mostly for his fellow scientists, discussing gaps in the research and proposals for future work on this model. In each chapter Tomasello explains how the agency works, the evolutionary pressures that might have led to it, and the nature of the world as perceived by the example creatures. These issues are supported by a empirical evidence from academic and field studies.

I’ll take a quick look at the first three levels of agency, and discuss socially normative agency in more detail.

Creatures without agency

Let’s start with C. elegans. This is a worm-like creature about 1 mm in length. We know a great deal about it: we have sequenced its genome; and identified its 302 neurons, their connections, and the role each plays. It has no sensory apparatus beyond the ability to sense nutritious and certain noxious substances. It lives in organic material, where it eats bacteria. It has rudimentary powers of movement. They are mostly hermaphrodites. For more, see this dense Wikipedia entry.

Basically it moves around in organic muck eating bacteria. If it isn’t finding any, it moves. If it detects a noxious substance it moves. That’s about it. Tomasello says that with the tiny number of neurons, it’s hard to imagine the creature could have a goal, let alone behave flexibly to achieve it. It is purely stimulus driven. It’s sensory apparatus is very simple, so it only recognizes a few stimuli, and it responds to them mechanically.

In Tomasello’s terms, this creature is non-agentive. He calls it an animate actor. There’s not much else to say about it.

Discussion

I’m not fond of the word “agentive”, which strikes me as an ugly neologism, but it points to somehting about human behavior. Not all of our behavior is agentive. Take breathing. We can control it, but mostly we don’t. It’s an interesting exercise to think about what parts of our actions are agentive.

Another way to put that is to ask how much we resemble C. elegans.

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Rights Without Reason

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Posts in this series.

On The Evolution Of Agency by Michael and related

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

On Chapter 9 of The Origins OF Totalitarianism by Hannah Arendt
The Mass Migrations Caused By WWI
Denaturalization and Asylum in Interwar Eruope
Stateless In Palestine
Citizenship

On How Rights Went Wrong by jamal Greene

Background For A New Book
How Courts Came To Control Our Rights
Two Views Of Protection Of Rights
Strict Scrutiny And Rational Basis Scrutiny
The Injustice Of Our Rights Regime

Introduction

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].

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Conclusion To Series on The Reconstruction Era

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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.

“Yes?”
“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.

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Beloved By Toni Morrison

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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”.
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The Colfax Massacre And US v. Cruikshank

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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.

Discussion

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.

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The Slaughterhouse Cases

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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.

Discussion

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.

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The Fifteenth Amendment

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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.

Discussion

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?

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