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Two Views Of Protection Of Rights

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The Supreme Court Has Always Been Terrible.  In Chapter 2 of How Rights Went Wrong, Jamal Greene selects three examples of terrible cases: Dred Scott v. Sanford, Plessy v. Ferguson,  and Lochner v. New York. These three cases are so blatantly horrible that no one can support their outcomes and be considered acceptable in academia. Or in polite society, if you ask me.

Greene sees Dred Scott as a case about who is entitled to rights under the Constitution.

At stake in Dred Scott were the boundaries of the political community entitled to the law’s protection and able to claim rights under it.
…
Chief Justice Roger Taney acknowledged that the Declaration of Independence had emphasized the “self-evident” truth “that all men are created equal.” But, Taney continued, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.” P. 36.

Plessy is equally horrible. Henry Brown’s opinion says that being forced to travel in separate railcars isn’t a badge of inferiority but the “colored race” chooses to feel insulted.

Greene says that the Framers saw Constitutional rights as necessary to protect the rights granted by states and local governments from federal intrusion. On that theory, state and local majorities were free to grant or deny rights to people as they saw fit. The views of the Framers failed to protect people when those local majorities trampled on the rights of Black people and others. Local majorities can be just as tyrannical as any unaccountable monarch, and frequently are.

Reconstruction Era cases repurposed the 14th Amendment to protect capitalists from regulation by state and federal governments. Lochner is the example frequently given. The bakers of New York persuaded the legislature to pass health and safety laws concerning their work hours and other matters. Lochner sued, saying that the laws interfered with his right to contract, which he alleged was guaranteed by the Constitution. The holding, that the right to contract prevails over state and federal laws, lasted  until the 1930s when Franklin Delano Roosevelt threatened to expand SCOTUS.

There were two dissents in Lochner, by Oliver Wendell Holmes and John Marshall Harlan. Holmes took the view that there are Constitutional rights, and these must be given maximum protection. But laws that do not implicate Constitutional rights are in the province of the legislature and must be respected and enforced by the courts.

For Holmes, the Constitution protected very few rights—and certainly not the right to contract—but those it protected, such as freedom of speech, it protected strongly. P. 54.

Harlan took the view that all rights, including those enumerated in the Constitution, must be respected. The question for courts is the extent to which rights are respected when they conflict with other rights or the rights of society. Harlan agrees that the Constitution protects the right to enter into contracts. But.

The right to contract “is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society.” P. 55.

The job of a court in a case like Lochner is not whether there is a Constitutional right to contract. It’s to determine whether the state is acting reasonably in regulating that right. Greene notes that it might have helped if the Courts had considered the right to labor, a right protected by political action .

Holmes’ views prevailed, for reasons we learn in Chapter 3. Greene sees this as the birth of what he calls “rightsism”, the fetish for rights that we see all the time now.

Discussion

1. I’ve skipped all the material that makes this chapter so persuasive. Greene gives detailed and clear descriptions of the cases, and of the backgrounds of Holmes and Harlan. This isn’t just a dry theoretical lecture, it’s a lively picture of important documents and the people who crafted them. It’s a good reminder that we are persuaded not just by logic but by the perceptions we have of the facts and issues in cases. I found myself persuaded that he was on the right track long before we got to the meat of the arguments.

2. I’ve tried to read Dred Scott and Plessy, but failed. The mindset of the writers is jarring even through the somewhat difficult language of that era. The bias is blatant. And yet I’m sure these judges were, in the words of William Baude about the current right-wing majority, “principled and sound”, with some blemishes.

Baude explains that all the recent controversial decisions “… rightly emphasized the importance of turning to historical understandings in deciding Constitutional cases rather than imposing modern policy views.” Of course, Dred Scott, Plessy, and Lochner are soundly reasoned and in accord with historical tradition. That’s not my idea of a good way to justify any Constitutional decision. Maybe it’s relevant that Baude is a member of the Federalist Society, the organization founded by Leonard Leo.

I discussed my view of good judging in this post.  Start at “Let’s begin with this question” for the general discussion. Needless to say, it has nothing to do with anything taught by the conservative legal movement.

3. Lochner logic shows up in Project 2025’s Mandate for Leadership.

Hazard-Order Regulations. Some young adults show an interest in inherently dangerous jobs. Current rules forbid many young people, even if their family is running the business, from working in such jobs. This results in worker shortages in dangerous fields and often discourages otherwise interested young workers from trying the more dangerous job. With parental consent and proper training, certain young adults should be allowed to learn and work in more dangerous occupations. P. 595.

 

4. In The Nation That Never Was Kermit Roosevelt says that the meaning of the term “all men are created equal” changed through the efforts of Abraham Lincoln, Frederick Douglass and many others. Greene does something similar with the idea of Constitutional rights. He explains the shift in our understanding of the Bill of Rights as protecting the power of the states from the central government, to our current view that it protects individuals from all government action.

Language and grammar change, sometimes quickly. So does our knowledge and understanding of history. That’s why originalism and textualism are suspect methods. I do not think the legal academy has given this enough attention.

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Conclusion To Series on The Reconstruction Era

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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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Democracy Is Our Hope For A Better Future

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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.

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The Better Story

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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.

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The Intent Of The Declaration Of Independence

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In his book The Nation That Never Was, Kermit Roosevelt lays out the standard story we are all taught about our history. The Declaration of Independence and the Constitution are our founding documents. They lay out our principles of freedom and equality. The Declaration teaches us that All Men Are Created Equal and entitled to certain inalienable rights. P. 8 et seq. The Constitution puts that theory into practice. It’s so engrained in our minds that it’s hard to imagine contesting it.

But people have. Roosevelt gives examples from the 19th Century. White supremacists across the nation argued that these documents justified slavery, the eradication of Native Americans, and second-class citizenship for women, among other inequalities. Black people and Abolitionists said that equality and freedom were meant for everyone in the country, not just White men of property.

This dispute continued into the Civil Rights Era in the 20th Century. In his I Have A Dream speech, Martin Luther King said that the Declaration was a guarantee of freedom and equality for all.

“I have a dream,” he said, “that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’” P. 23.

Malcom X saw the Declaration as a call to action for Black people, who he said were a nation within a nation. The US had abused Black people for hundreds of years, and refused to treat them as human beings. Therefore, just as the colonists were justified in rebelling against an abusive King, Black people were justified in rebelling against White rule. For him, the Declaration was not about equality, but about the right to throw out the oppressors.

Roosevelt offers four arguments that we shouldn’t interpret the statement “all men are created equal” as a political foundation for the US government.

First, if we interpret that statement as Lincoln did in the Gettysburg Address, or King did in his I Have A Dream speech, Jefferson would have to be condemning slavery and granting the freedmen the same rights as White people. Jefferson obviously wasn’t saying that. He himself was a slaver: he enslaved his own children by Sally Hemings. This was perfectly legal in Virginia, which passed a statute in 1662 saying that citizenship of a person depends on the citizenship of the mother. This was necessary because “questions have arisen” after a Virginia court decided that the daughter of a White man with nn enslaved woman was a free woman. P. 45.

Second, the ideal of equality is irrelevant to Jefferson’s argument. There is no other mention of equality in the Declaration. There’s a long list of abuses and offenses committed by the King of England, and it’s those abuses that justify throwing off the King’s rule by force, not the equality of anyone with anyone. It wouldn’t affect Jefferson’s argument if the King were treating Englishmen equally with the Colonists by oppressing both, .

Third, Jefferson’s first draft complained that the King introduced slavery into the Colonies and then overruled the Colonist’s attempts to terminate the slave trade. That was taken out by the Signers, leaving only the complaint that the King was stirring up rebellion among the slaves. That’s the equivalent of a demand to have the king stay out of Colonial slavery.

Fourth, you wouldn’t make equality a principle and then exclude people from the definition of “all men”. That makes you look bad, especially because England had already outlawed slavery. [Adding on edit: This is an overstatement of the facts. See the comments of Michael Conforti below. I may also have overstated Roosevelt’s point. I quoted his text in a comment below.] Continuing slavery makes you look like hypocrites in the eyes of potential allies. Relatedly, freedom and equality of all citizens was not the dominant view, and calling that self-evident would look foolish.

So, what did Jefferson mean? He claims that it is self-evidently true that all men are created equal and endowed with equal rights. Then he says

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,

This is the actual principle that motivates the Declaration: government power comes from the consent of the governed, and the governed have a natural right to withdraw that consent if the government misuses its power.

Jefferson explains that the Colonists aspire “to the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. He’s basing his entire argument on Natural Law, not laws created by humans. He’s saying that there is no Divine Right of Kings, that the King is just a man, not a person born to rule, or ordained by the Almighty with the right to rule. This was mostly accepted by this point even in England. But it moves the argument onto solid ground, the grounds of consent. Roosevelt says that the Declaration is a document of political philosophy, not of human rights.

And how does slavery, the antithesis of freedom and equality, fit in?. Roosevelt says that Jefferson is referring to the generally accepted idea of government at that time. It comes from the likes of Jean-jacques Rousseau, as we saw in The Dawn Of Everything. It begins by imagining a society in a state of nature. Everyone is free and equal, and has certain natural rights. But they have no way to protect those rights other than their own strength, leading to a war of all against all in which life is brutish, nasty, etc., following Hobbes.

So men formed governments to protect those rights. The men who formed the government agree to defend each other against the outsiders, who have no protection from that government. The Declaration doesn’t say anything about the rights of outsiders like slaves and Indigenous Americans. It only addresses the rights of insiders, the White English colonists, as against their rulers.

Slavery is perfectly consistent with this view of nationhood. The slaves, Native Americans, and others are outsiders, beyond the protection of government and not entitled to equality or freedom, except as the government is willing to provide.

Discussion

1. Many of the books I”ve discussed here have changed my understanding of something I was taught in school. I think one reason I don’t have trouble changing my mind is that so few things seem critical to my self-understanding. For example, I was taught that there was a fixed external truth, and that our human truths are mere approximations of that truth. Now I think differently about truth. But that doesn’t change anything about my self-perception or my day-to-day interactions with other people. On the other hand, when I am accused of bad behavior towards others I feel an assault on my self-perception, and I try to change my behavior.

The standard story seems critically important to lots of right-wing partisans, as we saw in the right-wing reaction to the 1619 Project, and the hissy-fit about Critical Race Theory. It’s one thing to say: my principles include the belief that all men are crated equal and have the right to life, liberty and the pursuit of happiness. It’s another to say one of my principles is that Thomas Jefferson and the other Founders believed that and said so in the Declaration and the Constitution. The latter strikes me as akin to a religious belief, analoguous to the early Egyptians believing that the dead require leavened bread and wheat beer and changing their entire agriculture to fit that belief.

2. The Declaration may not have originally stood for the proposition that all men are created equal, but now it absolutely does. The history of that change of perception is important, because it tells us that we as a nation can change. Slavery was once widely accepted. Now it’s not. Our ancestors reversed that consensus, and we can and should be proud of that. It is as inspiration to work for a better country.

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Introduction And Index To Series On The Second Founding

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Posts in this series
The Intent Of The Declaration Of Independence
Problems With The Standard Story Of The Revolutionary War And The Constitution
States Rights
The Better Story
Democracy Is Our Hope For A Better Future
The Thirteenth Amendmeent
The fourteenth Amendment
The Fifteenth Amendment
The Slaughterhouse Cases
Cruikshank, Gun Control, And Bad Rulings
The Major Questions Metadoctrine and The Slaughterhouse Cases
The Supreme Court Has Always Been Terrible

The term “second founding” refers to the fundamental changes made to the US Constitution and in our society by the 13th, 14th, and 15th Amendments. I had not heard this term before did some reading for this this post praising Justice Ketanji Brown Jackson’s questions at oral argument on the recent Alabama redistricting case. Justice Jackson actually knows her history, unlike the Fox News members of SCOTUS, and, well, me.

Shortly after writing that post I heard a podcast featuring Kermit Roosevelt discussing his book, The Nation That Never Was: Reconstructing America’s Story. I read it and was discussing it with a friend who recommended I look into the work of Eric Foner. That led me to his recent book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution.

In this series I’ll take up these two books. They’re short and very readable, and they complement each other. Foner focuses on the events of the period, while Roosevelt focuses on the legal/theoretical side.

The Nation That Never Was

Roosevelt teaches law at Penn, and yes, he’s the great-grandson of Teddy Roosevelt. The premise of his book is that we are telling the wrong story about our constitutional history. The conventional story starts by describing the Declaration Of Independence and the Constitution as our founding documents, incorporating our national values of freedom and equality for all, but hmmm, slavery was bad so we had a Civil War and Reconstruction and cured that problem, but then we found out about racism, and then Martin Luther King solved that problem and now things are great. It’s a story that the right-wing fetishizes.

The rest of us have a more adult view of our history. It doesn’t question starting point of the standard story, the part about the Declaration and the Constitution. But it adds all the horrors of the Jim Crow Era, the abuses of a perverted capitalism against workers of every description, and the horrifying treatment of Native Americans. It’s grim and unsatisfying, but at least it’s more accurate.

Roosevelt thinks we need a story that gives us real heroes, people who give us hope and inspiration for the future. He also thinks we need to look very closely at the founding documents, and the decisions of the First Founders as well as their omissions.

Roosevelt suggests a new story. First we had a system that was OK with the most brutal forms of slavery. Then we fought a war to wipe it out. We won that war at huge cost in blood and treasure. We changed the very nature of our society and we can take pride in that effort and the people who did it. We aren’t perfect. But the Civil Rights Amendments gave us the tools we need to reach for freedom and equality for all, and it’s a task for which we as citizens are all responsible.

Roosevelt discusses reparations, but I’m not going to address that, except to say this. I urge readers to take the time to read this article by Ta’Nehisi Coates. It’s a tough read. I certainly know I have benefited from the current structure of society, almost certainly at the expense of others who have suffered unfairly. I don’t know what to do about that, but it is unjust.

The Second Founding

Foner teaches history at Columbia. I haven’t finished the book yet, but so far there’s a lot of detail about our history I didn’t know or ever think about. Much of that has to do with the sausage-making behind the Civil Rights Amendments, and the arguments made by opponents of those Amendments. I read Heather Cox Richardson’s Letters From An American substack every day, in large part because she is attuned to the parallels between the politics of the Civil War Era and those of today. Here’s an example. In the same way, Ibram X. Kendi shows that arguments by racists never die, and Hannah Arendt shows that anti-Semitism is an endemic hate virus. White supremacy and Christian Nationalism seem to be ineradicable.

Plan

My current plan is to do a fairly short series. I’ll start with the Roosevelt book. There is a conventional view of the Declaration of Independence and the Constitution, but that story is utterly inadequate. Then I’ll turn to Foner’s book to look at the politics of the Reconstruction Amendments, and the way they were weakened by centrists and subverted by White Supremacists and the Supreme Court.

We’ll see what else pops up.

Taken together, I think these two books give us a good introduction to a different way of thinking about our history, one in which we can take pride, one that gives us heroes we can respect, one that sets our aspirations and hopes for our future and our descendants. The history is suitable for grown-ups, and therefore is probably illegal in Florida and Texas.

We can’t fix the past, but we can do better for the future, just as the Second Founders did. That’s what it means to be a citizen.

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Resistance To Power

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Index to posts in this series

Related posts

Posts on The Dawn Of Everything: Link
Posts on Pierre Bourdieu and Symbolic Violence: link
Posts trying to cope with the absurd state of political discourse: link
Posts on Freedom and Equality. link

As we saw in the first post in this series, Foucault’s method is to think about power by considering the forms of resistance to power. He chooses three examples, the power of men over women, the power of parents over children, and the power of psychiatrists over mental illness. He identifies six things these struggles have in common.

  1. They are universal; they’re happening around the world. As an example, New Zealand is going to give 16-year olds the right to vote. Across the globe, the very young are leading the charge for climate action.
  2. The struggles are over power itself. His example is that the medical profession is attacked because of its domination of the bodies of others, not because it is a bunch of money-grubbers empowered by the State to suck up all the money.
  3. These are current struggles against an immediate power demanding an immediate solution. Women refuse to be controlled by any man in their lives. Foucault thinks this struggle is not against some distant enemy male, but that seems wrong to me. Male power is entrenched at all levels of society. He adds that women want action now.
  4. These struggles are about each specific individual. They assert the right to be different, At the same time, they rebel against institutional conditions set by the dominant class, conditions which separate individuals from their chosen communities. They resist the power of the government, and of society acting through the government, to tie individuals to an identity in a constraining way. I think this means, for example, that people are not to be identified solely as mentally ill, or children as dependents, when in both cases they can participate in the broader scope of social interactions.
  5. These struggles are against power generated by knowledge, whether that knowledge is arcane, as in the case of psychiatry, or secret and traditional, as in the case of the patriarchy. “What is questioned is the way in which knowledge circulates and functions, its relations to power.”
  6. In each case, individuals assert their right to determine their own identities, free from the claims of other people, either as individuals or collectively in the form of the government or a profession.

Summarizing, he explains that each of these struggles is against one form of power relation.

This form of power applies itself to immediate everyday life which categorizes the individual, marks him by his own individuality, attaches him to his own identity, imposes a law of truth on him which he must recognize and which others have to recognize in him. It is a form of power which makes individuals subjects.

Foucault describes three poles of these struggles.

  1. Struggles against domination, through ethnicity, social class, or religion.
  2. Struggles against exploitation, which means economic domination.
  3. Struggles against being shoved into niches and forced into being submissive.

Most historic struggles can be seen as combinations of these three strains of resistance. For example, Foucault says that the main focus of current struggles is the pressure of the state forcing certain people into subjectification. An example might be the power claimed by the government to prohibit abortion. The state identifies a pregnant adult or child as less than an autonomous person, and forces them to subject themselves to unwanted or dangerous childbirth.

The problem is that the modern state holds both individualizing and totalizing power. It has the power to tie people to specific identities, and to treat them differently based on those identities. It is everywhere, and its power reaches everywhere, a “totalizing” power, as he calls it. He says this developed out of the pastoral power, and we’ll take this up next.

Discussion

1. Once again, I note the relation of Foucault’s ideas to those of Pierre Bourdieu and Elizabeth Anderson. Both identify domination as a central issue. Anderson sees it as a violation of human freedom rightly understood. Bourdieu describes the ways people internalize and justify domination. Links above.

2. Foucault is writing in the 1980s, and things have changed. For one thing, rapid communication makes it possible to speed up and broaden the scope of resistance to power, and to organize it more effectively. Thus, young people have used this technology to force the dangers of climate change into public discourse.

3. On first reading, this paper seems highly abstract. I’m trying to add specific examples to make these ideas more concrete, but it’s not easy. As commenters said in the Introduction to this series, Foucault is writing about the last two centuries. But the lessons seem relevant to what we read in The Dawn Of Everything by Graeber and Wengrow.

For example, they talk about rituals of adulthood, the rites by which young men are incorporated into the group through esoteric knowledge such as the powers of totem animals. This gives young men status in the community. Over time this status may have morphed into male domination of women and children through the possession of esoteric knowledge. This process requires women and children to accept the idea that in fact the special knowledge claimed by men is real. Once that happens, it becomes difficult to throw off male domination.

It’s impossible to use Foucault’s method of considering the history of our ancestors as a way of understanding their cultures. We don’t have nearly enough information. But I remain hopeful we can analogize the formation of recent Western cultures to the formation of earlier cultures. That hope is based on the idea that our ancestors were fully human, doing human things, as Graeber and Wengrow think.

4. Republicans oppose all changes to all social structures, Democrats tend to be more supportive. This is a big difference between the parties. I think it’s ane that has deep roots in individual personalities, an issue neither Foucault nor Graeber and Wengrow discuss. I also think it’s really important. It’s not on topic, but here’s a sketch of one explanation.

I think conservatives operate from a fundamentalist view of the world. Fundamentalists think that there is a single truth, and that they know what it is. Thus, fundamentalist Christians believe that the Bible is the sole source of truth. In exactly the same way Sam Alito and several of his SCOTUS colleagues think the Constitution is the sole source of truth about our rights as citizens, and that their Constitutional role includes stating that truth and correcting the errors made by prior versions of SCOTUS. In the political sphere we can describe the fundamentalist view as the idea that there is only one acceptable form of social structure, that that form existed in the past, and it must be recovered.

I think social structures are created by human beings. They should serve human need. As societies change, and as our understanding of the consequences of existing social structures evolves, we should change social structures to match our values. Following Foucault, the first step would be to examine our social structures from an historical perspective: how did we get the social structures we have now?

I think that will be my next step. One important text is Stamped From The Beginning by Ibram X. Kendi. One possible book is The Nation That Never Was: Reconstructing America’s Story, by Kermit Roosevelt. Here’s an interview of Roosevelt in which he discusses the book.

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