Sincronía Fall 2003


Omar Swartz, J.D., Ph.D.

University of Colorado at Denver


This essay considers some of the salient dimensions of American ideological culture and explores important legal limitations interfering with the United States becoming a truly multi-ethnic society. Specifically, this essay historicizes the serious shortcoming of the U.S. commitment toward democratic self-rule and freedom and introduces readers to a discernible cycle in U.S. history, one of repeated breakdown and reassertion of elite control. Once this dialectic is acknowledged, we can learn that resistance to elite control is not only possible but very much in the American tradition and in the best interests of the American people.


As a nation, the United States evokes different experiences for different people. Nearly all nations on Earth and hundreds of millions of people have been affected in some way by the United States and its policies. Some nations, such as Japan, Israel, and others in Western Europe, have benefited greatly from the United States and owe much of their current prosperity and security to American aid. Others, such as those in Latin America, Southeast Asia, and throughout most of the Middle East, suffer greatly because of the United States and owe their poverty and insecurity in large part to our actions. In this view, the "United States has had a large negative impact on human rights in the Third World and should be regarded as a primary source of human rights violations, rather than as a world leader devoted to their elimination." Given the size and world-historic power of the U.S., however, it is not possible to reduce the experience of the nation to a set of propositions or static categories. Not everything the United States does is cruel. The interests and practices of nations change. The job of the critic is to trace these changes as they occur and to nudge society when needed changes are not forthcoming.

As a critic of American culture, the critic’s target is amorphous and fluid—that as soon as parts of it are captured other parts—perhaps equally representative—escape. The danger of any representation is the illusion of totalization, as Edward Said articulated:

[I]n writing and speaking, one’s aim is not to show everyone how right one is but rather to try to induce a change in the moral climate whereby aggression is seen as such, the unjust punishment of peoples or individuals is either prevented or given up, the recognition of rights and democratic freedoms is established as a norm for everyone, not invidiously for a select few.

What is considered dangerous about the United States can be used to construct a narrative of resistance or a healing power, one that comes from a structural understanding of our common disease—the efforts of the United States to stymie social justice at home and throughout much of the world. As Said explains, the goal is to move beyond the easy verbal commitments to equality and harmony and "to bring these notions to bear on actual situations where the gap between the profession of equality and justice, on the one hand, and the rather less edifying reality, on the other, is very great."

Exploration of the systemic features of American society that contribute to our immoral actions as a nation requires selection from among the different narratives of the U.S. that exist, discounting some, concentrating on others. This is an altogether different type of selection and emphasis from what we frequently find expressed by our leaders and many citizens when they attribute to the United States divine sanction or universal beneficence. Such reductions are not healthy. Rather than have the power to heal, they announce a retrenchment of the agencies of disease. Such attributions limit the moral imagination and reduce all of us to historical passivity. A rejection of such passivity seeks to raise the consciousness of the American people to view normative wealth and power in the United States as fundamentally corrupt and generative of much of the pain and suffering experienced by more than 80% of the people on the planet. This number includes the 32.9 million people within our own nation who live below the poverty level.

When the United States acts honorably, unselfishly, and for the good of the world, then it deserves our admiration and respect. Yet, to do so, it must demonstrate through conduct "the efficacy of plural, partial, and experimental methods in securing and maintaining an ever-increasing release of the powers of human nature, in service of a freedom which is cooperative and a cooperation which is voluntary." This sort of action, however, is rare, yet Americans are led to believe that their government, in fact, acts this way a majority of the time. To be fair, perhaps most governments perpetuate a similar illusion and demand an uncritical acceptance of that illusion. Government itself may be an imperfect institution, one which we are better off to reject; classical anarchists such as Peter Kropotkin, Pierre-Joseph Proudhon, and Michel Bakunin certainly argued this claim. But rejecting government would be a mistake. Government is necessary and can be moral and beneficial. The absence of government presents significant problems for social justice, but its existence is only as good as its commitment to all of its citizens and not merely to a favored few. In the political and economic environments of today, only governments can create conditions necessary to allow for social justice, although most, especially the United States, appear unwilling to do this. Whatever arguments can be said against government, the movement for progressive change must be institutionalized so that the hope of today becomes the backdrop upon which a future enlightened society can be situated.

Americans have a particular responsibility to criticize the policies of our own government. Unlike many other nations, the United States has the power, ideology, and capability to be, in reality, what it claims—a force for good. Therefore, the imperfections and contradictions of our political and legal institutions demand particular attention. Americans should be comfortable with critical public activism because, in theory, the United States is a government we can affect through our moral condemnations and critical activities. Why criticize foreign nations that we cannot hope to influence when, perhaps, our voices can engage the political machinery of our own community? This is especially important because the United States is the sole superpower on the planet, one whose leaders are seizing nearly unfettered and unaccountable power. This fact adds urgency to our criticism and should strengthen our determination.

Even though totalizing narratives describing the U.S. are suspect, some principles or themes can be isolated that broadly describe the character of the United States. These themes are particularly salient because they have greatly influenced the development of American self-perception and have important legal and historical implications.


From the start of British colonization in what is now the United States until the 1730s, there was little that could be considered a coherent American ideology. What existed were three general rhetorical visions of community that, with variations, constituted local normative political practice. These rhetorical visions refer to the ways communities articulate their identity and use that identification to define the larger social reality of not only their immediate community but also of the communities they are able to dominate.

Rhetorical visions emerge when group members engage in community-defining discourse, inventing the group's past, defining and explaining events in the present, and aiding group members to forecast the community’s future aspirations. These visions find expression in jokes, stories, analogies, and metaphors and constitute a roadmap for the interpretation of social events and the reinforcement of member self-identification. As group synergy increases, the visions tend to "chain out" in a process that Ernest G. Bormann identified as symbolic convergence, by which a group of people is transformed into a community. As the community grows, a new view of social reality evolves into a rhetorical vision. Such shared visions, highly structured and ideologically situated, become the currency by which group members negotiate their interpersonal and larger social relationships. Over time, these narratives totalize, and the culture they create becomes increasingly reified. Thus, these symbols do more than merely bond; they direct people toward specific meanings and behaviors. Such narratives include the perception of social order—how and why certain things are accomplished—in a process that becomes subconscious and structured. As the historical or literal context of the vision fades, logological residues remain to influence contemporary society.



Over time, three visions—the Puritan religious vision, the Virginia vision of wealth, and the Pennsylvania vision of democracy—chained out and occupied prominent roles in the official ideology of our nation. The remnants of each of these remain today as a productive cultural force and by understanding them, we can discern insights into contemporary American motivations. Much of what is wrong with the United States can be traced back to the historical expression of these narratives, while much that is good has arisen in reaction to their influence. In simplified form, these narratives are familiar to every child who attends primary school in the United States.

The Godly People

The first vision is associated with the Puritans and Pilgrims of the New England colonies who sought a new life in North America. The version of this narrative that school children learn is that the Pilgrims came to the New World to escape religious persecution and to tame the wilderness. These initial settlers were underdogs who exemplify the American commitment to providing the downtrodden with a second chance. With hard, self-sacrificing work, religious and political outcasts could remake themselves in the land of opportunity. With faith in God and limited government, freedom could find its most complete expression.

This narrative is an incomplete representation of what happened. The Puritan vision was one of religious intolerance and manifest destiny (although the term was not articulated until much later), in which these Europeans claimed for themselves the vast lands of North America to perfect a strictly defined Christian civilization. At the time, different Christian sects throughout Europe had been fighting each other for centuries, undermining the dream of a heavenly Christian society on Earth. The Puritans, in particular, were zealots who were politically active in trying to refashion English society along lines of their austere religious views. When they proved unable to do this, they left, claiming that they were escaping an imminent Armageddon in Europe. In the New World, they sought to construct their utopia—what they proclaimed to be the "Kingdom of God" under the "rule of saints." These societies were guided by the "errand in the wilderness" vision, and the colonists believed that they were building a "new Jerusalem" and a godly commonwealth.

In considering themselves the "Chosen Elect," these early settlers strove to purify first themselves and then others of everything that did not fit within their narrow interpretation of scripture. To achieve purity on behalf of the state, they engaged in deception, torture, and war. They saw themselves as fighting a holy battle against the devil, and anyone who disagreed with them was considered the enemy. On religious matters (which, in effect, were coterminous with daily life), tolerance was seen as the enemy of truth and a violence against God. For example, in 1647, the Reverend Nathaniel Ward published a book entitled Against Toleration, in which he argued that "God doth no where in his word tolerate Christian States, to give Tolerations to such adversaries of his Truth, if they have power in their hands to suppresse them . . . ."

Ward equates religious tolerance with theological insincerity, a sin under any ideological system based on a doctrine of faith: "He that is willing to tolerate any Religion, or discrepant way of Religion, besides his own, unless it be in matters meerly indifferent, either doubts of his own, or is not sincere in it." In other words:

The Scripture saith, there is nothing makes free but Truth, and Truth faith, there is no Truth but one: If the States of the World would make it their summ-operous Care to preserve this One Truth in its purity and Authority it would case you of all other Politicall cares. I am sure Satan makes it his grand, if not only task, to adulterate Truth; Falsehood is his sole Scepter, whereby he first ruffled, and ever since ruined the World . . . .

Echoes of Ward’s intolerant view can be seen expressed later when U.S. Supreme Court Justice Joseph Story wrote in an influential commentary that "it is impossible for those who believe in the truth of Christianity as a divine revelation to doubt that it is the especial duty of government to foster and encourage it among all the citizens and subjects." For Story, the purpose of the religious clause of the First Amendment was not, in his words, to "prostrate Christianity" but to exclude competition and hostility among Christian sects. The drafters of the First Amendment were cognizant that, for centuries, Europe had been mired in religious warfare among different forms of Christianity. Story specifically condemned Islam, Judaism, and infidelity as unworthy of protection and argued that the goal of the First Amendment was to effectuate a united Christian front. The role of government was to ensure that such a "front" was nurtured. This rigid fundamentalism, not unlike that of the Taliban movement at the end of the twentieth-century, infused in our national fabric a messianic fanaticism that can be discerned in both the Cold War and in the current war on terrorism. In short, Americans often view the world in terms of a black/white dichotomy in which the forces of good battle the forces of evil, with good always winning because the good are aligned with the wishes of God. Wander terms this phenomenon "prophetic dualism," a view of the United States grounded in the belief that the U.S. occupies the moral or spiritual high ground:

Religious faith, moral insight, a respect for the laws of God formed a set of virtues attributed to the nation which . . . could be called upon not only to explain why those in power deserved to be there, but also why the United States should engage in certain kinds of action abroad . . . .[P]rophetic dualism divides the world into two camps. Between them there is conflict. One side acts in accord with all that is good, decent, and at one with God’s will. The other acts in direct opposition. Conflict between them is resolved only through the total victory of one side over the other. Since no guarantee exists that good will triumph, there is no middle ground. Hence neutrality may be treated as a delusion, comprise appeasement, and negotiation a call for surrender.

Prophetic dualism is a powerful ideology that transports its adherents far beyond mere patriotism. The citizens of most nations feel positively toward their nationality, but few invest their national identity with such stark and antagonistic transcendental values as does the United States. While the cosmology of most national or ethnic communities is usually couched in terms of God or divine creation and postulate a special connection between the deity and that group, few communities at the present time view themselves with such messianic drama (what James Chace calls "American Messianism"). This paradigm was particularly evident in the discourse of Ronald Reagan: "Let us be frank. Evil still stalks the planet. Its ideology may be nothing more than bloodlust; no program more complex than economic plunder or military aggrandizement. But it is evil all the same."

The parallels between Reagan’s anti-communism and George W. Bush’s war on terrorism are many—both stem from the same narrative source in dogmatic Puritan ideology. President Bush has repositioned the drama surrounding American Messianism in terms of what he calls "a distinctly American internationalism." A cornerstone of this internationalism is the readiness of the United States to wage preemptive nuclear war against real or imagined enemies (what Bush calls "proactive counterproliferation"). The implication of this messianic and proactive national self-identity is troubling, for it invites crusader thinking and is rapidly pitting the United States against the rest of the world and Islamic nations, in particular.

While the appeal to prophetic dualism strikes many as insincere and a manipulation of public sentiment for private political gain, such reasoning permeates public discourse and is accepted and unquestioned by a significant portion of the U.S. population. Regardless of the motivations of the prophetic dualist, the pragmatic function of the argument form is obvious: it "stifles debate" and "encourages a heightened dependence on the established order."



Genocide, Slavery, and the Pursuit of Wealth

The second rhetorical vision, rooted in colonial Virginia, concerns a social order grounded in unrestrained economic freedom and the possibility of creating vast, unregulated wealth for a small brutal oligarchy. As Warren M. Billings notes, "Virginia drew freewheeling Britons who wished to exchange the intricate legalities of home for a perceived opportunity to chase private gain in Virginia in nearly perfect freedom." This freedom "gave such colonists competitive advantages, enabling them shamelessly to exploit any opportunities that fell in their way." This vision of economic freedom is grounded in the genocide of the Native Americans, indentured servitude, and slavery and is exemplified by what Richard Drinnon calls "the metaphysics of Indian hating" and empire building.

Drawing on an observation by American novelist Herman Melville, Drinnon views the metaphysics of Indian hating as part of early exterminationist policies. According to Drinnon, racism and the duality that the Europeans brought to the New World between civilization and nature played an important role in the formation of U.S. empire building and consequent overseas expansion. The European settlers perceived Native Americans as less than human and thus found justification for the subjugation and usurpation of Indian lands. As the European settlers moved farther west, they recreated the frontier, turning it into a political justification for the accumulation of wealth and power. Drinnon argues that as the frontier receded and, along with it the Native Americans, Anglo-Americans looked elsewhere for empire—the Spanish-American War, the colonization of the Philippians, and the Vietnam War are noteworthy examples. Filipinos and the Vietnamese became the new Indians, and their countries the "new frontier," waiting to be tamed and civilized by North American ideals of civilization and progress.

This metaphysics of Indian hating and its graphing onto the national consciousness has its origins in Jamestown, Virginia. From the very beginning, the settlers were in direct conflict with the Native Americans. The Virginia model of race relations was one of apartheid and genocide. Some of the earliest European laws on this continent featured repeated calls for the isolation and then extermination of the Native Americans. For example, in a series of laws from 1609 through 1629 known as Lawes Divine, Morall and Martiall, interaction with the Native Americans was carefully proscribed. Article 1.15 of this legal code reads, "No man of what condition soever shall barter, trucke, or trade with the Indians, except he be thereunto appointed by lawful authority, upon paine of death." Even talking privately with Native Americans without permission from the colonial authority was an act punishable by death (Article II, 39).

By 1629, the laws in Virginia called for total war against the Native Americans and placed colonial society on a war-time economy and prepared for total war. Everyone in the community was recruited to be a part of the war effort and was required to give complete aid to the community in the extermination effort. The colony, in short, organized for genocidal war. Later, the violent conquest of North America by the Europeans was condoned by the United States Supreme Court in Johnson v. M'Intosh, a case that grounds land rights in the United States on the doctrine of conquest.

M'Intosh presents conflicting claims to large tracts of land in southern Illinois and Indiana. The plaintiffs claimed title by virtue of deeds through a third party that had originally had been bought directly from Native Americans. The defendant grounded his claim through a United States patent (now known as a deed). In ruling for the defendant, the Court conclusively established the principle that the federal government would not recognize the title of any land sold directly to individuals by Native Americans. In other words, at the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of the government’s title, in turn, rests on M’Intosh, which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by government purchase or what the Court called "just war."

The Court reasoned that the treaty that ended the American Revolution gave the powers of government and the rights of the soil, which previously had belonged to England, to the United States. The doctrine of discovery gave the British an exclusive right to extinguish the Indians’ title of occupancy through purchase or conquest. As the Court explained:

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.

In other words, the judiciary is precluded from judging executive action. More substantially, it is precluded from contextualizing the assumptions that ground the social controversies that the Court is asked to mediate. In this sense, justice is blind. Rather than being a moral system in the sense that most people think of morality, the law is a closed system. Unless moral concerns are intentionally introduced into the legal calculus, the judiciary will go to great lengths to exclude them from its reasoning. Such issues are usually dismissed by the judiciary as "political questions" not susceptible to legal analysis. As expressed by Chief Justice Marshall, the ''province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.''

While M'Intosh is not usually evoked when legal scholars discuss the political question doctrine, M’Intosh is a paradigmatic example of that doctrine, highlighting the large gap between law and morality in the U.S. legal system. Contrary to what the Court characterizes as its responsibility to abstain from political controversy, the separation of powers and a system of checks and balances is supposed to keep the U.S. system just. The judiciary has a constitutional role to play in being more than a sycophant to power. Why cloak in law the politics of the sword unless the law is but an extension of the sword? Indeed, this may be the case:

Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions [sic], and united by force to strangers.

Citing from what was rational, given centuries of European infighting, the Court recognizes that this policy of conquest is really nothing more than the law of foreign relations within the European nations. Such was the Rule of Law as practiced in Europe during centuries of internal conquest as well as competition for overseas colonies. The people of Europe had to live and trade with one another and they shared a common heritage. Thus, the Court explains, "When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power."

Such a ruling, claimed the Court, was "indispensable" for the order and system of the colonizers. With the Native Americans, however, things were different for the Court. Native Americans were not the type of people about whom humanity makes demands on the Anglos:

[T]he tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

As a result of the Court’s reasoning, Native Americans were to be considered merely as occupants in the possession of their lands and deemed incapable of transferring the absolute title to others. Practically, this meant that only the United States had the legal authority to convey title of Indian lands to third parties. Therefore, the conveyance of lands by chiefs of a tribe to an individual was invalid. Through an act of law, Native Americans were alienated from their land.

The Democracy of Distance

A third important vision in American culture concerns the commitment toward increased levels of democratic self-rule and freedom. Most Americans do not realize that when we look back at the notion of democracy, particularly among the settlements, we are speaking of a democracy of distance from England. Two months were needed to send a message by ship across the Atlantic Ocean. This distance necessitated self-rule in the colonies. Thus, much of the so-called "democracy" we find in the early experience of this country was simply that of the white, wealthy, colonial community members working to fill in the gaps between the needs of their local communities and villages and the utter neglect and ineffective colonial administration and the indifference of the English Crown and Parliament—what Robert A. Friedlander calls the "benign neglect" of the English leadership. As Friedlander notes further, "As the seventeenth century wore on, it became increasingly difficult to distinguish between self-regulation and self-government."

To the extent that the democratic vision our nation celebrates today existed in the early years of the Republic, it most clearly could be seen in Pennsylvania. This society was set up as self-consciously tolerant and as widely inclusive as any that existed at the time. As a result of this tolerance, Pennsylvanian society was at times so chaotic that the other colonies accused it of being troublesome and anarchistic. This became a recurring theme in U.S. geopolitical labeling, particularly as applied to Central and South America. The more democratic a society (defined here as being evenhanded toward its citizens), the more it is labeled a troublemaker (what would become "communist" in the twentieth century and "terrorist" in the twenty-first century) and the stronger the pressure to return power to an oligarchy or a neo-fascist police state. As Robert Kennedy notes, there is no consensus on the definition of "terrorism," and many, even most, countries tend to label their political opponents "terrorists," making the label overly inclusive and draining the term of categorical meaning. According to Kennedy, "Failure to focus on such difficult but vital issues is likely to undermine efforts to deal effectively with a kind of violence that forges and reinforces deep seated animosities between communities of different persuasions." Following the September 11 attacks in the U.S., Israel, Russia, and China latched on to the "terrorist" label and used it to suppress their own dissident minority populations.

The United States, of course, is milking the term to justify its imperialistic ambitions. This point is seen clearly in the words of George W. Bush when he argues that in "this world, there are good causes and bad causes, and we may disagree on where that line is drawn. Yet, there is no such thing as a good terrorist. No national aspiration, no remembered wrong can ever justify the deliberate murder of the innocent." In a limited sense, Bush is correct. "Terrorist" is a negative label. By definition, there can be no good "terrorist" (instead, we use the term "freedom fighter" to describe the person whose political violence advances a cause that we support). But Bush is wrong when he asserts that nothing justifies the "murder" of innocent people ("murder" is also a negative label). Bush’s actions in invading Iraq, for example, contradict his own words, as many "innocent" people (soldiers and civilians) have died—such deaths resulted from Bush’s deliberative action. In a more general sense, U.S. foreign relations, as well as international intercourse, occur in a realm far removed from the judicial sense of "guilty" or "innocent." Where state action is concerned, there are only degrees of state interests, strategic calculations, and expressions of power. The motivations for war vary among different states in different settings, each requiring evaluation before the decision to support or condemn a military campaign can be made. Thus to declare, as Bush has done, that the "enemy is terrorism—premeditated, politically motivated violence perpetrated against innocents" is to obscure public comprehension of the issues for which the United States is fighting.

Pennsylvania alone in what would become the United States made an effort to include different people and different ideas. Its state constitution of 1776 was the most radical document to come out of the American war for independence. This occurred because, unlike the other colonies, the state government actually changed as a result of the war. In Pennsylvania, the local elites were considered too conservative and lost power. The continuity of leadership in the other colonies provided a natural break from revolutionary or democratic thinking because the reins of real power did not change hands. All that was different was the absence of a British imperial presence, which was never strong.

Pennsylvania was the exception to the stabilizing continuity of the other state governments and was in the position of creating an entirely new government, one that was decidedly amateur in that politicians were paid very little and expected to serve out of duty while they took short breaks from their professional lives. What they created had only a very limited property requirement to vote or to serve in government. Pennsylvania was tolerant of the Jews and did not exclude them from the civic community, as most of the other states did. The government in Pennsylvania encouraged public works and universal education: "A school or schools shall be established in each country by the legislature, for the convenient instruction of youth, with such salaries to the masters paid by the public, as may enable them to instruct youth at low prices: And all useful learning shall be duly encouraged and promoted In one or more universities." The state constitution also encouraged a free press to serve as a check on the legislature and to contribute to the general openness of society.

Commitments toward such historical ideals are often expressed in our official discourse as moral principles and conditions. These commitments, however, held true only to an extent. Certainly, the American experience is marked by an unfolding of political and social freedom, a gradual movement toward greater political (but not economic) inclusion. To talk about American "democracy," we have to keep in mind this condition of imperfect expression and gradual unfolding. Prior to the 1960s, this "becoming" was so incomplete that democracy in the United States could be defined by its absence. The movement toward civil rights for African-Americans, women, and the poor during this period was followed by a movement toward inclusive civil liberties in general, like freedom of speech and the right to criticize the government.

In retrospect, the 1960s, with all of its accomplishments and promises, was the high-water mark in America’s moral development. The next few decades very well may be remembered as the time in which the United States gave up on the pretension of democracy and equality as civil society dissolves under an increasingly intolerant police and military state and as hereditary social classes calcify. These trends are already pronounced, and they are disturbing.





A theme related to these three visions characterizing American culture is that of repeated breakdown and re-assertion of elite control. Elites never have been able to maintain complete control over the American population. The last major contest on this issue came about during the political and social turmoil of the 1960s. The crucial social movements of the 1960s—the civil rights moment, the anti-war movement, the feminist movement, the ecological movement, the poor people’s movement, the homosexual movement, the Native American movement, the Chicano Movement, and others—received a great deal of criticism by modern elites in our country. Yet, each of these movements was crucial for Americans of all colors and cultural identities in asserting a popular democracy that challenged norms of elite control in our country. As Rorty notes, "America will always owe an enormous amount to the rage which rumbled throughout the country between 1964 and 1972. We do not know what our country would be like today, had that rage not been felt. But we can be pretty certain that it would be a much worse place than it is." Many of these domestic movements were also connected with international counterparts that reflected a rethinking of the relationship between the elite class and the rest of us. France, in particular, experienced a great deal of growing pains as the May Student Movement of 1968 galvanized the French working classes and came close to reinventing the French government and society.

Throughout much the history of the United States, "the people" were often considered a dangerous enemy. Elites used the phrase "the excesses of democracy" to counter popular expressions of the demand for political, social, and economic inclusion and argued that the common people had to be controlled for their own good. We are, as a mass, too fickle, whimsical, and passionate, and, left to our own devices, we may act in our own interest (which is often antithetical to that of the elites, particularly in terms of property and the control of the economy). For example, during the drafting of the Constitution, James Madison expressed the following concern:

An increase of population will of necessity increase the proportion of those who labor under all the hardships of life and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this country, but symptoms of a leveling spirit, as we have understood have sufficiently appeared in a certain quarter, to give notice of the future danger.

Because of concerns such as this, a major purpose of the judiciary was to ensure that the poor majority of this country do not unify politically and interfere with what are called the rights of property. In the words of Charles A. Beard, the drafters "were anxious above all else to safeguard the rights of private property against any leveling tendencies on the part of the propertyless masses." Long before most Americans enjoyed political rights, the elite held well-established property rights in this country. This is an expression of what Beard identifies as the conflict between business and populism that occurred during the drafting and ratification of the Constitution. In the United States and increasingly throughout the world, the rights of property are considered more important than human rights.

These issues go back centuries to the earliest experience of the North American colonies and provided much of the ideological impetus for the American Revolution. Much of the population in the colonies did not want to be ruled by either the King of England or by Parliament. The colonists were highly suspicious of the colonial administration, whom they correctly saw as gorging themselves at the expense of the colonists. In their pamphlets, circulated when tensions with England grew, many colonists expressed that they wanted to be governed "by countrymen like ourselves, that know our wants" and not by "kings and gentlemen [that] make us laws, that are chosen for fear and oppress us, and do not know the people’s sores."

These were some of the ideas that stirred the rebellious farmers of the colonies, and much of the ideology behind the Constitution reflected them as well. By and large, however, these were not the people who wrote the Constitution, as that job was assigned to the moneyed class of the American colonies, resulting in a constitutional system quite different from what many of the common people would have liked. The Constitution was designed as a block—a check to keep the revolutionary impulses of the independence movement from going too far. As such, the American Revolution was not a "positive" revolution, not the result of a bottom-up, well-considered, or even popular social movement that was attempting to enact a social agenda. Rather, it was a reactionary movement to specific English provocation that created a unified colonial response.

The British sought to deny the colonists their British rights of representation and treat the colonists as second-class British citizens, which the colonists resisted. Few people thought of actual independence. Economically and culturally, the various colonies were too different and had too little in common for a theory of independence to develop. The Declaration of Independence offers no positive theory of why that document was created and consists largely of vague references to something called "Natural Law." In fact, the document is overwhelmingly a series of complaints against England for its heavy-handed control of the colonies, mostly to collect taxes for the Seven Years War against France. This war had devastated the English economy, and England needed its colonies to contribute funds to the Crown (the colonists, after all, benefited from British trade and naval supremacy). In other words, after the Seven Years War, "the new King George III, along with the Ministry of George Grenville and its successors, determined that the Americans should be made to pay their share of the costs of empire." Without the extreme actions of the English, which prompted colonial resistance, there would have been little reason or opportunity for the common people of the colonies to become engaged politically with the constructing of their society or the running of their economies. In what Howard Zinn describes as "a forecast of the long history of American politics," these lower-class people were used by the colonial elite for their own selfish interest.

In sum, the goal of the new federal Constitution was to "protect the minority of the opulent from the majority" and to ensure that "the country is governed by those who own it." These are the words of James Madison, a leading Framer of the Constitution and president of the Continental Congress, and of the first Chief Justice of the United States Supreme Court, John Jay. Their conception of society prevailed, to an extent, but the conflicts between the elite and the common people continued. These conflicts have been expressed in many different ways and continually take on new forms and enjoy periodic resurgence, especially after the Reagan Revolution of the 1980s and the ascent of the far Right in the 1990s and again after the 2002 Congressional mid-term elections.

Today, many Americans are dissatisfied with the status quo. We are, in Rorty’s words, "in a situation in which resentment and frustration have taken the place of hope among politically concerned intellectuals." Many progressive people recognize that this is so but have lost their political will and regressed into self-indulgence. Indeed, as Roderick P. Hart notes, "We now place little faith in hope and we decry the hopeful among us as simple-minded, manipulated, or worse." In response to these sentiments, this book is an attempt to understand this discontent by critiquing the systemic inadequacies of our legal order, particularly in the conflict between property rights and human rights and between elite control and resistance to that control.


1. Edward S. Herman, "The United States Versus Human Rights in the Third World," Harvard Human Rights Journal 4 (1991), 85. Critics of the U.S. point to the infamous "School of the Americas" to substantiate Herman’s point. See Jack Nelson-Pallmeyer, School of Assassins: The Case for Closing the School of the Americas and for Fundamentally Changing U.S. Foreign Policy (Maryknoll, N.Y.: Orbis Books 1997).

2. Representations of the Intellectual (New York: Vintage, 1994), 100.

3. Ibid., 94.

4.Catholic Campaign For Human Development website, United States Conference of Catholic Bishops (March 2003),

5. John Dewey, The Political Writings (Indianapolis: Hackett, 1993), 206.

6. "Fantasy and Rhetorical Vision: The Rhetorical Criticism of Social Reality," Quarterly Journal of Speech 58 (1972), 394-407.

7. See John Cotton, The Divine Right to Occupy the Land (London,1630). Cotton, an influential New England minister, argued that the European confiscation of Native American lands was justified by God’s authority. Relevant parts of this text appear at American/Supp135/CottonLand.html?

8. Reprinted in Albert Bushnell Hart, ed., American History Told by Contemporaries, vol. 1 (New York, 1898), 393-396 and can be found online at http//

9. Ibid.

10. Ibid.

11. Commentaries on the Constitution of the United States 5th ed. (1891), 627-634. Originally published in 1833.

12. See Ahmed Rashid, Taliban (New Haven: Yale University Press, 2000).

13. "The Rhetoric of American Foreign Policy," Quarterly Journal of Speech 70 (1984), 342.

14. "Imperial America and the Common Interest," World Policy Journal 19 (2002), 7.

15. Ronald Reagan, The Great Communicator, ed., Frederick J. Ryan (New York: HarperCollins, 1995), 42.

16. The National Security Strategy of the United States of America (September 2002), 1.

17. Ibid., 14.

18. Recall George W. Bush’s initial call-to-arms after the September 11attacks, in which he described America’s response as a "crusade." See Peter Ford, "Europe Cringes at President Bush’s ‘Crusade’ Against Terrorists," Christian Science Monitor (September 19, 2001), 12.

19. "The Rhetoric of American Foreign Policy," 345.

20. "Justices, Books, Laws, and Courts in Seventeenth-Century Virginia," Law Library Journal 85 (1993), 281.

21. Ibid.

22. Facing West : The Metaphysics of Indian-Hating and Empire-Building (New York : Schocken Books, 1990).

23. Lawes Divine, Morall and Martiall, ed., David H. Flaherty (Charlottesville, Virginia: The University Press of Virginia, 1969), 15. See David Thomas Konig, "’Dale’s Laws’ and the Non-Common Law Origins of Criminal Justice in Virginia," American Journal of Legal History 26 (1982), 354-375 (arguing that the Laws Divine, Moral and Martial were not an aberration but part of the larger Virginian legal tradition, that they were unexceptional, and that the slavery of Africans—which I will discuss below in relation to the Virginia vision—was the "logical continuation" of the tradition established by these early laws).

24. Lawes Divine, Morall and Martiall, 35.

25. 21 U.S. (8 Wheat.) 543 (1823).

26. See Eric Kades, "History and Interpretation of the Great Case of Johnson v. M'Intosh," Law and History Review 19 (2001), 67-116.

27. 21 U.S. (8 Wheat.), 588.

28. Marbury v. Madison 5 U.S. 137(1803), 170.

29. 21 U.S. (8 Wheat.), 589.

30. Ibid., 590.

31. Ibid.

32. A similar rationale was used to cloak African slavery with the mantle of law. The judiciary reasoned that it was an expression of natural law that conquered people suffer the consequences of their subjection.

33. "Autonomy and the Thirteen Colonies: Was the American Revolution Really Necessary?" Duquesne Law Review 18 (1980), 513.

34. Ibid., 512.

35. "Is One Person’s Terrorist Another’s Freedom Fighter? Western and Islamic Approaches to ‘Just War’ Compared," Terrorism and Political Violence 11 (1999), 1-21.

36. Ibid., 3.

37. Address to the General Assembly of the United Nations, New York City, November 10, 2001.

38. National Security Strategy of the United States of America, 5.

39. Kenneth M. Dolbeare, Democracy at Risk: The Politics of Ecnomic Renewal (Chatham, N.J: Chatham House Publishers, 1984), 24.

40. Section 44,

41. I date the beginning of free speech in the United States with the Court’s decision in Brandenburg v. Ohio 395 U.S. 444 (1969) (holding that only speech urging imminent danger can be punished).

42. Achieving Our Country (Cambridge, MA: Harvard University Press, 1998), 68.

43. Cited in Charles A. Beard, The Economic Basis of Politics and Related Writings by Charles A. Beard (New York: Vintage Books, 1957), 142.

44. Ibid., 141.

45. Cited in Noam Chomsky, Necessary Illusions: Thought Control in Democratic Societies (Boston: South End Press, 1989), 23.

46. Friedlander, "Autonomy and the Thirteen Colonies," 515.

47. A People’s History of the United States (New York: Harper Perennial, 1990), 60.

48. Cited in Chomsky, "’Consent Without Consent,’" 431-432.

49. Philosophy and Social Hope (New York: Penguin, 1999), 232.

50. "Rhetoric, Hope, and American Politics," in Judith S. Trent, ed., Communication: Views From the Helm for the 21st Century (Boston: Allyn Bacon, 1998), 119.

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