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Background For A New Book

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Index to posts in this series

This series about rights began with the observation that there is a lot of talk about rights, but not a lot of clarity about their nature and origin. I think the readings so far provide a bit of clarity. Earlier series add additional background.

Several commenters recommended Jamal Greene’s How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. I’ve read the introduction which summarizes some of Professor Greene’s ideas, and I think it will be a good next step.

This post sets out ideas that form the background of my approach to Greene’s book. In the next post I’ll examine Roe v. Wade, which is at the center of a contest about rights in the US.

The nature of us humans

The Evolution Of Agency by Michael Tomasello leads me to think that we humans invented ourselves by a slow process involving observation, learning, teaching, memory and luck. Many species can learn behaviors by trial and error coupled with varying degrees of observation and reasoning. Many of those species can teach learned behaviors to others of their species by example. Humans are especially good at that. Humans add the layer of verbal communication which speeds things up. We can also pay attention to our own words and reason with and about them in a kind of iterative learning. This gradually gave us a tremendous capacity for abstraction which is a valuable asset in problem-solving.

Early humans taught their young their knowledge of what works and what doesn’t, giving them tools for survival. Natural curiosity brought change. This view of evolution is supported by Cat Bohannon’s book Eve: How the Female Body Drove 200 Million Years of Human Evolution. Bohannon says  most likely females taught basic language skills to the young, on the ground that females spent most of their time tending to helpless infants.

Philosophical insights

“Of all things the measure is man: of those that are, that they are; and of those that are not, that they are not.”

That, of course, is Protagoras, quoted in §2.1 here He meant that individual observation of the world is the best anyone can do in determining facts about things in the world. The example he uses is weather. If it seems cold to me then it’s cold and if at the same time it seems hot to you then it’s hot.

But when a group of people compares notes on such observations, and generates and tests explanations, something else happens: we start to approach truth, at least truth in the sense of the Pragmatists.

This kind of truth is the goal of participants in the Epistemic Regime described by Jonathan Rauch in The Constitution Of Knowledge, which I discuss here (Side note, the earlier posts in that series took Brooks’ false definition of the term as a starting point. I wrote the linked post after I read what Rauch actually wrote.)

William James, one of the founders of Pragmatism, says that everything we think and know came from our human ancestors. Everything they taught us, including language, the meaning of words, and the rules of reasoning, all came from the actions and thoughts of our forebears.

We socialize each other. We learn how to act, think, and be human from other humans. We aren’t the individual atoms described by neoliberal economists, and we aren’t the husks created by totalitarianism. The social human is a better view than most philosophers offer. Descartes with his cogito ergo sum tries to reason his way into understanding the self, as do other philosophers, but it doesn’t work like that.

We can’t understand anything useful by starting with individuals. We only have meaningful existence in the context of our social groups. If I come up with what I think is a new idea, it only becomes useful if I share it with others who check it, and perhaps find some use for it.

Basic principles of rights

In Chapter 9 of The Origins Of Totalitarianism, Hannah Arendt demonstrates three relevant points. First, rights are guarantees given by citizens to each other. Here’s how Arendt puts it:

Equality, in contrast to all that is involved in mere existence, is not given us, but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. P. 301.

I read this to say that equality is an element of citizenship in a well-organized state. Each of us as a citizen participates in the public life of the group on an equal footing. Equality only exists in societies guided by a principle of justice. Arendt doesn’t say which principle of justice. To my mind this is a valuable insight, as different societies can have vastly different ideas about justice based on their own cultures. I’d guess Arendt would approve of the notion of justice laid out by John Rawls in A Theory Of Justice.

Arendt rejects Jefferson’s pious formulation that the Creator endows us with certain rights. She says, correctly I think, that we endow each other with rights and by doing so we hold those rights reciprocally. We create our own rights by consent. Over time we reach for the rights we think are most conducive to our flourishing as a group. Again, this doesn’t tell us which society is best, or what “flourishing” might mean, simply that it is acceptable to the majority.

Second, Arendt says that as a practical matter rights only have meaning if they are the creation of a state or a nation capable of and willing to enforce them against all comers, foreign and domestic. The first nine chapters of the book can be read as supporting this view, if you think of them from the point of view of people acted on by the dominant class. It is especially obvious in her discussion of the vast migrations set off by World War I. Modern examples abound, including the formation of Pakistan and Bangladesh, the attack on the Rohingya people of Myanmar, and the contemporary attack on Gaza.

Third, Arendt agrees with Jefferson that the governed must participate in social decisions as a matter of the equality of all citizens. I take that to be one of the principles of justice.

Freedom and Equality

When we say that all people are created equal we mean equality in civic life. This is the way Elizabeth Anderson talks about it as I discuss here.  Here’s the index to the series, which also takes up her discussion of the dimensions of freedom in civic life. Equality is closely tied to her concept of freedom, which includes freedom from domination by others.

Supreme Court Cases

I have discussed a number of Reconstruction Era Supreme Court cases (here, here here, and here). These show the dangers of letting a group of unaccountable lawyers make decisions about rights.

Conclusion

I hope this summary helps explain how I am approaching the ideas in Greene’s book. I will use these ideas and definitions as starting points for understanding his book.

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Front page picture: By Sailko – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=57477584

 

Citizenship

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In the last part of Chapter 9 of The Origins Of Totalitarianism, Hannah Arendt explains her ideas about citizenship as a crucial part of human nature. Arendt was a scholar of the ancient Greeks, and it shows in this section.

A place in the world

In prior posts I looked at statelessness arising from the enormous European migrations during and after WWI. Millions of people were deprived of citizenship in their own nations, or worse, their nations disappeared, leaving them not even subject to deportation. Having no state to protect their rights, they were in effect deprived of all human rights.

The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective. Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when … one is placed in a situation where, unless he commits a crime, his treatment by others does not depend on what he does or does not do. P. 296.

In Arendt’s view, this is the nub of the disaster facing stateless people. They continue to exist, but it doesn’t matter what they say or think or do. They are alive, but they are useless, superfluous. Their treatment by others, the way they are dealt with by the state, has nothing to do with their opinions or actions.

This right, the right to participate in the life of a community, was thought to inhere in people. It has roots deep in human history and far back into pre-history. In earlier times, groups of people driven out of a community might be taken in by another group, or they might be able to live on their own, as shown in the delightful story of the Kimmeri as told by Herodotus in the Histories, Vol. 1, Book IV, ¶ 11 (set out below).

Arendt says that at least since Aristotle, the ability to speak and act was defined as the nature of human beings, and it was Aristotle who called humans “political animals”. Aristotle saw that these were not characteristics of slaves, and therefore slaves were not human. Arendt notes that even slaves had a place in society, and their labor was a valuable asset that remained in their control to some extent. But that wasn’t true of the stateless people. They had no place in society other than whatever charity might hand them.

In the Declaration of Independence, Jefferson says that the Colonies are entitled to “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. In a passage based on the writings of Edmond Burke about the French Revolution, Arendt asks how we could possibly think a universe which showed no sign of either laws or rights implied anything for us humans.

A return to nationalism

Beginning at page 299, lay out Arendt offers her thought on the best way forward. The argument is multi-layered and not quite clear to me. As I read it, she thinks the solution can’t come from outside us, in history, nature, or from a common humanity. She thinks the solution lies in the laws of each nation. She thinks we are capable of creating laws that define and protect the rights we are willing to extend to each other, nation by nation.

She points to Burke’s rejection of the French Rights of Man And The Citizen. Burke calls these rights “abstractions”, and they are, just as Jefferson’s “life, liberty, and the pursuit of happiness” are abstractions. We can’t govern ourselves with abstractions, we can’t protect abstractions, and we can’t even agree on the meaning of these abstractions because in the end, the meaning is dependent on the context.

According to Burke, the rights which we enjoy spring “from within the nation,” so that neither natural law, nor divine command, nor any concept of mankind such as Robespierre’s “human race,” “the sovereign of the earth,” are needed as a source of law. P. 299, fn. omitted.

She says:

We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. P. 301.

She offers a pragmatic justification: the abstractions failed the stateless, but the protection of rights by the state worked.

She offers more abstract justifications, based on the notion that we as humans deeply want to be part of societies, and to contribute our ideas and our labor to the general good. She notes that the ancient Greeks,distinguished between the public and private spaces in communal life. Private space is based on individuality and difference. Public life is based on equality of participation and recognition, and this is the sphere of life in which we all want to participate.

Discussion

1. The strength of our rights is based on our ability to work together to achieve a good life. Successful nation-states work to diminish or eliminate the kinds of differences, arising from the private space, that make working together difficult or impossible. Religion is often one of those intractable problems. In the US, the idea was to keep religion our of the public sphere to the maximum extent possible. We put it in the Constitution. In the 14th Amendment we said we wouldn’t deny rights to people on acount of race. Today we see how eroding that principles divides us, and makes solutions to common problems impossible.

2. I started this series saying that we humans create the rights of Man. Our ideas about how to live together have evolved over millennia as our human ancestors worked out ways of living together. Arendt says that the universe does not seem to recognize the categories of rights and laws (p. 298) so that we, who are part of nature, can’t deduce rights and laws about ourselves.

I don’t agree with that. We can and do deduce the actual laws governing nature, even laws we don’t understand, like quantum theory and dark matter. In a similar way, we can deduce laws that will give us the best chance of flourishing. This has already happened in the past when civilizations moved away from animism and paganism.

This transformation occurred independently in four different regions during the Axial Age, a pivotal period lasting from 900 B.C. to 200 B.C., producing Taoism and Confucianism in China, Buddhism and Hinduism in India, Judaism in the Middle East and philosophic rationalism in Greece.

This quote is from a review of a book by Karen Armstrong, The Great Transformation: The Beginning Of Our Religious Traditions, in the New York Times. As I recall this book, Armstrong sees a common strain in these religious traditions that can be summarized as forms of the Golden Rule.

Perhaps it was this common strain that led Enlightenment thinkers like Jefferson to the idea of natural rights, or universal rights recognized by everyone. Those universal rights were, of course, never actually universal: autocratic leaders found multiple reasons to deny them to groups of people.

Each of these great religions co-evolved with a different social structure. Those different structures have lasted several thousand years of material and intellectual changes. Are there signs that those structures are morphing towards greater commonality, at least among the wealthier citizens with access to the world-wide communications platforms? How would rights work in nations with a large number of people who have moved away from traditional structures while another large number remain committed to an older structure? Is there enough commonality among citizens to hold nations together?

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The story of the Kimmerians, as told by Herodotus:

There is however also another story, which is as follows, and to this I am most inclined myself. It is to the effect that the nomad Scythians dwelling in Asia, being hard pressed in war by the Massagetai, left their abode and crossing the river Araxes came towards the Kimmerian land (for the land which now is occupied by the Scythians is said to have been in former times the land of the Kimmerians); and the Kimmerians, when the Scythians were coming against them, took counsel together, seeing that a great host was coming to fight against them; and it proved that their opinions were divided, both opinions being vehemently maintained, but the better being that of their kings: for the opinion of the people was that it was necessary to depart and that they ought not to run the risk of fighting against so many, 14 but that of the kings was to fight for their land with those who came against them: and as neither the people were willing by means to agree to the counsel of the kings nor the kings to that of the people, the people planned to depart without fighting and to deliver up the land to the invaders, while the kings resolved to die and to be laid in their own land, and not to flee with the mass of the people, considering the many goods of fortune which they had enjoyed, and the many evils which it might be supposed would come upon them, if they fled from their native land. Having resolved upon this, they parted into two bodies, and making their numbers equal they fought with one another: and when these had all been killed by one another’s hands, then the people of the Kimmerians buried them by the bank of the river Tyras (where their burial-place is still to be seen), and having buried them, then they made their way out from the land, and the Scythians when they came upon it found the land deserted of its inhabitants

 

The Thirteenth Amendment

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Index to posts in this series

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussion

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

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

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

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

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

SCOTUS Is Changing The Definition Of American Citizenship

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In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.

Ending American Erasure

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[NB: Byline check, thanks. /~Rayne]

In my personal library I have a copy of my textbook from American Government, a mandatory class when I was in high school in Michigan from 1974-1978. Most students took this class in their senior year as it was understood they needed familiarity with government before they voted for the first time, usually within a year of becoming seniors.

Covered about week three of the school year, the subjects of immigration and citizenship followed an overview of basic forms of government, the American republican system of democracy, and the Constitution.

It was the first time in my life that coursework directly addressed any topic related to my family’s origins – specifically my father’s Chinese heritage.

This is it, all of it from that class, in three paragraphs, one of which is a footnote.

The text, Page 83:

Oriental and Personal Exclusion Policies. Congress placed the first major restrictions on immigration with the passage of the Chines Exclusion Act in 1882.[3] At the same time it barred the entry of convicts, lunatics, paupers, and others likely to become public charges. Over the next several years a long list of “undesirables” was composed; for example, contract laborers were excluded in 1885, immoral persons and anarchists in 1903, and illiterates in 1917.[4] By 1920 more than thirty groups were listed as ineligible on grounds of personal characteristics.

Footnote:

[3] The law was intended to stem the flow of “coolie labor” to the Pacific Coast; the Chinese could and did work for far less than white laborers, especially in the mines and on the railroads. By 1924 all Orientals had been excluded except for temporary visits. The policy was relaxed somewhat during World War II when provision was made for the admission of limited numbers of Chinese, Filipinos, and natives of India. Since 1952, immigration from each independent country in the Far East has been regulated by the quota system.

Page 89:

Just how broad the 14th Amendment’s statement of jus soli is can be seen from one of the leading cases in the law of citizenship, United States v. Wong Kim Ark (1898). Wong Kim Ark had been born in the United States to parents who were citizens of China. After an extended visit to China, he was refused entry to the United States by immigration officials at San Francisco. They insisted the 14th Amendment should not be applied so literally as to mean that he was a citizen. They held that as an alien he was prohibited from entry by the Chinese Exclusion Act of 1882. The Supreme Court, however, ruled that under the clear words of the 14th Amendment Wong Kim Ark was, indeed, a native-born citizen and that the Chinese Exclusion Act could not be applied to him.

Because he and his immediate family members left no documents like journals, a total of 318 words in Magruder’s American Government, fifth edition circa 1971, are all I have to understand why my great-grandfather ended up staying in Hawaii rather than coming to the U.S. mainland.

There was nothing in the textbook about other laws affecting immigration and citizenship of Chinese coming to the U.S. – nothing about:

Anti-Coolie Act of 1862
Naturalization Act of 1870
Page Act of 1875
In re Ah Yup 1878
Angell Treaty of 1880 and 1892
Geary Act 1902
In re Hong Yen Chang 1890
In re Knight 1909
Immigration Act of 1924, which included the Asian Exclusion Act
Lum v. Rice 1927

Nothing at all about state and local restrictions affecting Chinese immigrants like:

CA Foreign Miner’s Tax Law 1852
CA law barring “Chinese or Mongolian races” 1858
Pigtail Ordinance of San Francisco
Alien land laws across multiple states

And while there was a generalized discussion of the Naturalization Act of 1790 affecting naturalization of “free white person[s] … of good character,” there’s nothing about its affect on Chinese who weren’t considered white.

As recently as 2018 (!) an alien land law remained in effect in the state of Florida which denied Asian farmers the right of land ownership; the law was finally overturned by voters that year though they had rejected its repeal in 2008.

All of this is particularly galling knowing that over the course of the project, the Transcontinental Railroad was built with the labor of as many as 20,000 Chinese immigrants – enough men to populate a small city. In my American History class the achievement in which the west and east railroads were joined was covered with little more than a passing nod.

Just look at this famous photo taken at the celebration of the railroad’s completion:

Chinese immigrants made up as much as 90% of Central Pacific Railroad’s workforce. How many Chinese faces do you see in that photo? The Chinese paid dearly, hundreds having died from the dangerous work and conditions, paid far less than whites on the same job, only to be literally erased.

It’s also particular painful over the last couple of weeks observing the anniversary of the Tulsa race massacre in which Black Wall Street residents were murdered, knowing that there have been multiple massacres in American history of Chinese Americans which have gone unobserved. Granted, there have been more massacres of Black Americans throughout American history like the 1920 Ocoee massacre, but like the thousands of railroad workers the Chinese victims of white rage since the 1800s received a dearth of recognition.

How many U.S. textbooks contained references to these violent assaults on Chinese American communities during which whites drove out residents after attacking and sometimes killing Chinese Americans:

Los Angeles Chinese Massacre 1871
33 California attacks 1880s
Rock Springs Massacre 1885
Attack on Squak Valley 1885
Tacoma riot 1885
Miscellaneous mob violence in Colorado, Nevada, Oregon 1885-1886
Seattle riot 1886
Hells Canyon massacre 1887
Pacific Coast Race Riots 1907
Bellingham riots 1907

Likely none. Perhaps it’s just as well my great-grandfather never made it to the mainland, becoming an American citizen after the U.S. annexed Hawaii in 1898 and granted Hawaii’s citizens U.S. citizenship in the process of establishing the Hawaii as a territory.

It’s funny Donald Trump forgot this bit of history each time he denied Barack Obama’s U.S. citizenship, yet more deliberate erasure. Each time I heard about Trump’s birtherism I wondered if my family’s citizenship was likewise being called into question for being both brown and born in Hawaii.

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All of this is to say that the rabid state-level attempts to excise teaching the truth of America’s history is another racist effort to police brown people and erase them while continuing to siphon their value (i.e., keep working and contributing to Social Security and taxes, but die early from the same kind of racist neglect extended to Americans of color through the nation’s history.)

Hello again, colonialism, this time occupying not only brown bodies but the public’s mind, whitewashing the past.

I won’t use the phrase which was honestly and earnestly applied to the body of knowledge which teaches all of America’s history, including its pre-nation origins. I respect the persons behind it, but the phrase or label has become toxic, deliberately made so by a counter movement intended to invoke a reflexive negative reaction in a particular audience.

That I will call out for what it is: it’s white supremacy and nationalism with oligarchic sponsors, attempting to sanitize its wretchedness and avoid disclosure of its ongoing toxic effect on this country by insisting the history of Black Americans is removed from classrooms.

It’s naked racism, fighting against a near-term future in which half or more of the U.S. is not white, in which people like me and my family are a part of a new majority.

It’s a raw struggle for continued domination over the narrative through which they cling to power – the falsehood that America is ever-innocent and eternally white, that its emergence over the last 402 years didn’t depend on the physical, economic, and political subjugation of non-white humans and their nations, even now on a rolling basis.

It’s desperate denialism which cannot accept this country began as multiple layers of theft, constructing an illusion of a vast and empty space waiting for European whites to fill it, suppressing the truth that forced labor by brown people helped turn this space once occupied by indigenous brown people into the precursor entity which became the largest economy in the world.

Fuck all of that. Fuck the erasure which denies people of color have been an intrinsic part of this country’s emergence and too often under violence.

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No country is perfect. Absolutely none; it’s the story of humanity. A good many countries are now or have been occupiers or occupied over the history of mankind. Changes in boundaries and country names through human history often came with atrocities. There are some truly awful histories like that of the former Belgian Congo and the more recent Cambodia under Khmer Rouge, South Africa’s apartheid past, and now the horrors of the Israel-Palestine conflict and China’s carceral Xinjiang province.

In this the U.S. is not alone. It’s simply a younger country than the United Kingdom whose English forebears injected their brand of slavery into this nation’s history by bringing enslaved people of Ndongo ashore into what is now the state of Virginia.

The same nation later “discovered” Hawaii, encouraging the first wave of colonists and their European diseases which over the next hundred-plus years would wipe out roughly 80-85% of Hawaiians.

This is in part why Hawaii became a territory and is now our fiftieth state. There were too few Hawaiians left to mount a vigorous rejection of colonialism, to defend against the seizure of its monarch. Magruder’s American Government gave even less text to the process by which Hawaiians’ sovereign was deposed and its government replaced as American sugar plantation owners desired, in order to reduce taxes on their products.

I can’t recall exactly how much my American History text expended on Hawaii but I doubt it was little more than a page.

In spite of the wrongs done by Britain and then the U.S. to the small sovereign Pacific nation, it is a bulwark of islands guarding the remote mainland, its residents ready to defend their nation as they were in 1941.

The women in this U.S. Navy photo who were training to fight fires in Pearl Harbor naval shipyard aren’t all white. They are like me and my family – mixed race, some Hawaiian, some Chinese. There were more who were Filipino and Japanese. Let’s not forget war hero and former senator Daniel Inouye of Hawaii, also of Japanese heritage who served his country in WWII with distinction along with other tens of thousands of other Japanese Americans even as 120,000 more civilian Japanese Americans were interned.

These Americans didn’t withdraw and withhold their efforts because the nation which claimed their island as territory was at that time majority white. They signed up to serve the military as did many other local residents who likewise weren’t all white.

Like so many other non-white Americans — Black American descendants of slaves and later immigrants from African nations, Vietnamese and Latin American immigrants, Native Americans who were here all along, so many more — they are part of our complete history and are entitled to be remembered and taught in classrooms.

Any and all of these groups are worth more than three paragraphs. All America deserves a richer, more complete picture of itself. Their story is our story; it shouldn’t be muted, silenced, erased.

Accept the truth: this is what America looks like at its best, warts and all.

Democracy Against Capitalism: Democracy

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The second half of Ellen Meiksins Wood’s book, Democracy Against Capitalism, is devoted to a discussion of the current state of democracy in the UK and the US. She begins with a discussion of ancient Athenian democracy, which she regards as a real democracy, and a good model for comparison. In Athens, there was a class of peasant farmers and artisans who were juridically free citizens. They owed no duties to tyrants or aristocrats. They possessed their own means of production, lands and tools, and worked as they saw fit with out any regard to the demands of any other class, or tyrant or government. There were slaves, to be sure.

But the free labourer enjoying the status of citizenship in a stratified society, specifically the peasant citizen, with the juridical/ political freedom this implied and the liberation from various forms of exploitation through direct coercion by landlords or states, was certainly a distinctive formation and one that signaled a unique relationship between appropriating and producing classes. Kindle Loc. 3586.

In other pre-capitalist societies, either the state or a group of aristocrats appropriated some or all of the production of the peasant class “… through various mechanisms of juridical and political dependence, by direct coercion – forced labour in the form of debt bondage, serfdom, tributary relations, taxation, corvée and so on.” Kindle Loc. 3700.

In classical Athens, all citizens, including the peasant farmers and artisans, had the right to participate in decision making on all issues. Of course, people generally deferred to experts on technical matters, such as warship design, but all were entitled to hear the presentations of the experts and to choose the one they thought best. In the same way, all participated in other political decisions. It goes without saying that this “all” didn’t include slaves and women. Even so, this is a remarkable advance for the peasant class.

This arrangement was the subject of debate among the Athenians; though it’s fair to say that pretty much everything was a subject of debate there. Wood offers a fascinating discussion of Plato’s dialog Protagoras as an example. Protagoras was perhaps the most famous of the Sophists, a group of teachers of wisdom and virtue. We only have fragments of his work directly (as opposed to the words Plato puts in his mouth), but I especially like this:

Man is the measure of all things; of things that are, that they are; of things that are not, that they are not. P. 239, The Pre-Socratics, ed. John Wainwright.

In the dialog, Socrates defines the issue as whether virtue can be taught. Roughly, Wood claims Plato argues through Socrates that virtue is philosophical form of knowledge available only to those with a privileged access to a higher truth. Obviously to Plato man is not the measure of all things; rather there is some other sphere of understanding and universal truth that eludes most people, but is available to a special few.

In the Dialog, Protagoras argues that virtue is taught from the beginning of life.

Education and admonition commence in the first years of childhood, and last to the very end of life. Mother and nurse and father and tutor are vying with one another about the improvement of the child as soon as ever he is able to understand what is being said to him: he cannot say or do anything without their setting forth to him that this is just and that is unjust; this is honourable, that is dishonourable; this is holy, that is unholy; do this and abstain from that. And if he obeys, well and good; if not, he is straightened by threats and blows, like a piece of bent or warped wood. At a later stage they send him to teachers, and enjoin them to see to his manners even more than to his reading and music; and the teachers do as they are desired. And when the boy has learned his letters and is beginning to understand what is written, as before he understood only what was spoken, they put into his hands the works of great poets, which he reads sitting on a bench at school; in these are contained many admonitions, and many tales, and praises, and encomia of ancient famous men, which he is required to learn by heart, in order that he may imitate or emulate them and desire to become like them.

That sounds like something Pierre Bourdieu might have written. We teach our young how to be virtuous in our own societies, using the social understandings we learned in the same way, and through our own experience of our culture, including our own study of the texts available to us. This argument leads to the conclusion that every citizen partakes in virtue, and that this civic virtue is the indispensable tool of democracy. Socrates takes the view that only some have access to the higher, universal virtue, and those ought to rule. Wood adds that the producers should be required to enrich and feed the chosen few.

Wainwright says that the Sophists primarily taught people how to win arguments. Those arguments might or might not be best for the community, or even virtuous or moral. Wainwright seems to favor Plato’s position. This argument is ongoing; for example, it’s a big part of Zen and the Art of Motorcycle Maintenance by Robert Pirsig.

Two thoughts.

1. Philosophy. Plato draws a distinction between appearance and reality, a dualism that survives today. Appearance is the aspect of reality that comes to the human mind mediated through our senses. Reality is something else, a deeper unchanging universal existence which only some precious few of us can grasp. One analogy is Plato’s cave, where we humans can perceive only the shadows that real things cast on the wall, not the things themselves. It’s as St. Paul says, 1 Corinthians 12.

For now we see only a reflection as in a mirror; then we shall see face to face. Now I know in part; then I shall know fully, even as I am fully known.

Reading this, it’s easy to see how St. Thomas Aquinas might have been influenced by Plato, if he had those texts, and at least by the Neo-Platonists, which he did have.

Protagoras’ view that man is the measure of all things rings true to me. I will resist the temptation to write about this in depth, but I more or less agree with the ideas Richard Rorty, the American pragmatist, discusses in his accessible collection of essays, Philosophy And Social Hope. It’s worth noting that Rorty really despises Marxism, at least dogmatic Marxism, for reasons that are baffling after reading Democracy Against Capitalism, and which are hard to square with his appreciation of E.P. Thompson’s The Making of the English Working Class, a book praised by Wood.

2. Democracy. I think Protagoras has the better argument on this point. Decisions about how society ought to operate should be made with the participation of as large a number of citizens, the people most affected, as possible. Wood agrees. She thinks that socialism comes from decisions made by a large majority of us or not at all. In our current system, we assume that it’s enough that we are represented in those decisions through our elected officials. But what does that even mean in our current version of democracy?