Introduction
When I discuss American Myths in this essay, I’m not interested in such harmless poppycock as the midnight ride of Paul Revere, or Betsy Ross designing the first American flag, or the young George Washington chopping down the cherry tree. Rather, I’m interested in the narratives that so many Americans believe in their heart of hearts have truly characterized our country from the moment of founding to this day: the fundamental equality of mankind; the individual natural rights of freedom, liberty, dignity and worth; the first country to build itself on the untested foundation of popular sovereignty and universal equality (Smith-Rosenberg 2010); and thus a country thought by many Americans to be characterized by “innate goodness.” Terrific sentiments indeed that the far greater majority of Americans hear, read, or even believe since they have come to see their country as unencumbered by the socio-cultural baggage that caused us to separate from our European cousins nearly two and a half centuries ago.
What interests me most in this essay is the historical record regarding beliefs that are proclaimed by their adherents as foundational to who we are as a nation and as a people. My goal is to determine if those beliefs in a country set apart, founded on the fundamental equality of mankind and the natural rights of man are grounded in day-to-day historical reality or have been largely aspirational in nature since that first Independence Day, July 4, 1776. Since actions always are better indicators of the real world than words or high flying ideals, my specific focus is on how the fundamental rights of individuals and groups enshrined so eloquently in the Declaration of Independence and the U.S. Constitution have been affected by laws, court decisions, and governmental actions. To stay grounded in objective fact and not get carried away in this essay by hyperbole or sentiment, I make every effort to supply online and other sources that provide access to such original records as acts of Congress, U.S. Supreme Court decisions, and other historical documents as well as the work of scholars in the fields of law, history, and the social sciences.
I begin this investigation by putting the Declaration's most famous and enduring sentence upfront for all to appreciate and as a not so subtle reminder of its role as a foundational element of most of our National Myths about what we are as a nation and who we are as a people:
"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness."
Although the far greater majority of Americans know that our founders established a system of government based on individual freedom and equality, not nearly as many know, or have any desire to know, the historical details involved in our progress from newly formed nation to what we are today. As a result, many Americans tend to uncritically accept the idealism expressed in our founding documents as lived fact and fail to recognize the intense effort that has been required on the journey to make those aspirations real. My goal in this essay is to use the historical record to determine how those ideals were grounded in the real world and whether they have achieved a status other than aspirational.
INSPIRING IDEALS vs. THE REAL WORLD
1. Slavery
An excellent place to start this investigation is with our primary legal documents and with slavery, a condition certainly at direct odds with every “truth” quoted above in the Declaration of Independence. Upon examination, the U.S. Constitution reveals itself as trying desperately not to declare either for or against slavery, never once using the morally laden words “slave” or “slavery” while discussing human bondage in some detail.[1] For example, four separate sections deal with the harsh realities of owning human property. The first, Article I, Section 2, codified and counted each slave as three-fifths of a person in terms of the apportionment of representation and taxation in a scheme that favored the Southern states, which is where slavery was dominant when we won independence and would become more so as time passed. Here’s the precise wording:
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three-fifths of all other Persons."
Note that the persnickety Framers nimble-footed as far away as humanly possible from the heavily laden terms “slavery” and “chattel” and instead tried to let themselves off morality’s hook, meaning the judgment they knew was coming down the pike, by using supposedly value-neutral terms that disguised brutal reality, “persons” and “those bound to Service,” as if that condition of bondage were merely a quasi-trivial, temporary impediment and not the permanent, dehumanizing reality it was. A point in the favor of the authors of our founding documents is they referred to slaves as “persons” and not as chattel, meaning that at least some of them fully recognized the inherent immorality of owning humans and tried to give themselves a future out.
At this point I simply cannot resist the temptation to quote the famous English writer, Samuel Johnson, as he in 1775 reflected on Americans and slavery:[2]
"How is it that we hear the loudest yelps for liberty among the drivers of negroes?"
Back to the Constitution. In the second section dealing with slavery, Article I, Section 9, Clause 1 specifically prohibited Congress from banning the importation of slaves before 1808, though the term “slavery” was again far too morally loaded to appear in the text.
The third element, Article IV, Section Two, Clause Three, commonly known as the Fugitive Slave Clause, was one of the most controversial sections in the Constitution because it provided that escaped slaves, genteelly referred to as “persons held to Service or Labour,” would be returned to those who claimed ownership. The critical text of the Fugitive Slave Clause is relatively short but succinct:
"No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due."
Congress passed the Fugitive Slave Act in 1793 (see Proceedings and Debates 1792) and thus created the on-the-ground legal mechanism for slave owners to recover fugitive slaves. Its details overruled state laws crafted to provide sanctuary to such fugitives, made it a federal crime for anyone to assist escaped slaves, and allowed agents of slave owners pursuing fugitives into every U.S. state and territory. As Free States in the North sought to circumvent that law, an even more draconian Fugitive Slave Act was enacted in 1850 at the insistence of the slave states through the agency of the Compromise of 1850.[3] That Act required state governments and even individual residents of Free States to cooperate in the capture and return of fugitive slaves. The enforcement of that Act inflamed Northern public opinion and greatly strengthened abolitionist sentiments and tells us why helping slaves escape from their chains became the “Underground Railway.”
The last section, Article Five of the Constitution, describes the process whereby the Constitution itself may be altered. Most significant to this essay is that Article shielded certain clauses in Article I from being amended until after 1808, specifically Article I, Section 9, Clause 1, which prohibited Congress from banning the importation of slaves before 1808.
What do all those dusty and bone dry Articles tell us? First, that the Framers were sharply divided in their views of slavery and knew the judgment of history would find them wanting. Why else would those “held to service or labour” be called persons in the Constitution and not chattel/property (Kaczorowski 1986)? Second, although the words slave or slavery never appear in the Constitution, their fingerprints and footprints are all over that document. However, as much as modern conservatives would have us believe that most of the Framers were rock solid against slavery and wanted desperately to eliminate it,[4] the undeniable fact was that slavery was the law of the land and persisted from before our country was formed until December 1865.
But, foundational documents aside, what about our greatest and most revered Revolutionary leaders? How were they disposed toward slavery? Of the first five Presidents—George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe—only John Adams never owned human beings. The other four owned slaves before, during, and after serving as President. Of those four, only Washington set his slaves free upon his death, or slightly thereafter in accordance with his will. And, contrary to claims made in certain Myth-promoting circles, Benjamin Franklin also owned slaves, though in 1789, he is much quoted as saying, "Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils."[5] Atrocious though Franklin thought slavery was, in his home state, Pennsylvania, it took until 1850 for slaves to be absent from within State boundaries.[6]
All told, twelve American presidents owned slaves at some point in their lives; eight owned slaves while serving as president. Washington, our first president, owned the most human beings, more than 300 at a given time. Jefferson, the next largest slave master, owned more than 500 throughout his life and set free none of the 150 he owned at the time of his death. Andrew Jackson was slave master to more than 150 humans. Zachary Taylor was the last president to own slaves during his presidency, at least 100 human beings, and set none of them free upon his death. Ulysses Grant was the last president to have been a slave owner at some point during his life, freeing that single slave in 1859, prior to the start of the Civil War.
But what about the far greater majority of our distinguished Southern elected leaders? U.S. Senator John C. Calhoun spoke eloquently for them on February 6, 1837:[7]
"I hold that in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding States between the two, is, instead of an evil, a good–a positive good."
A fuller understanding of the manner in which ordinary people in the Northern States, where the abolition movement was strongest and the desire to enslave humans weakest, regarded blacks and slavery is provided by state laws that regulated the ownership of human chattel. For those interested in what history tells us, it is critical to note that of the original Thirteen Colonies, only Massachusetts outright banned slavery as unconstitutional (Higginbotham 1980) through combination of its State Constitution that was approved by voters in 1780 and a complex series of litigations collectively known as the Quock Walker cases.[8] The other Northern States followed the example of Vermont and Connecticut and only issued partial and limited bans on slavery until the late 1840s or early 1850s (Menschel 2001). The legal prohibition of slavery in the Northern States was a very gradual process that took nearly 65 years to reach fulfillment rather than the abrupt transition many Americans who love their national Myths are wont to believe.
As abolitionist sentiment in the North grew during the 1840s and 1850s, so too did racial anxieties generated by the perceived actual consequences of emancipation. In the northern Democratic Party, those insecurities and prejudices culminated in the states of Indiana, Illinois, Iowa, and Oregon closing their borders to black immigration (Litwack 1961); until 1865 Illinois, adding insult to injury, also prohibited blacks from serving on juries, voting, and testifying in court (Foner 1988).
A final telling and critical point concerning exactly what the Framers thought about slavery was made in
Scott v. Sandford[9] (1857), when Supreme Court Chief Justice Roger B. Taney wrote that the prevailing idea at the time of the Declaration of Independence and Constitution was that American blacks (slaves and freedmen) “had no rights which the white man was bound to respect.” His reasoning in that decision is revealing. Note that I have quoted extensively from that decision as I believe Taney’s words are shocking because they indicate the existence of a universe parallel to the one we want to believe represents what our founders thought about freedom and the rights of man.
"We think they [slaves] are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” Scott v. Sandford (1857), pp. 59-60 U.S. 405."
Justice Taney then wrote in what most legal scholars since his tenure on the Court have characterized as the single worst decision in the history of American jurisprudence:
"The general words above quoted [from the Declaration of Independence] would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
"Yet the men who framed this declaration were great men -- high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. Scott v. Sandford (1857), p. 60 U.S. 410."
But, if Chief Justice Taney was wrong in his judgment of our founders and framers regarding black Africans and slavery, we must consider the proposition that the Constitution and our initial legislation regarding race and citizenship would have been written very differently than they actually were. Which leaves us with the troubling but fascinating prospect that Taney was correct in his analysis about the founding fathers and their attitudes towards blacks and slavery, a prospect buttressed by the number of slave owning signers of the Declaration of Independence and the Constitution and those to whom I refer to as our Founding Presidents. Naturally, given that Taney has been almost universally swept into the trash bin of American history, today we automatically reject his decision and that of the other assenting six justices as overt racism and turn our backs on him. However, no less an expert on race and civil rights than Supreme Court Justice Thurgood Marshall agreed that Taney was on to something with his “doctrine of original intent” that was promulgated in his infamous Dred Scott decision when he (Justice Marshall) wrote: “. . . nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the Framers regarding the rights of Negroes in America. It took a bloody civil war before the 13th Amendment could be adopted to abolish slavery . . .”[10]
2. De Jure/De Facto Discrimination
The seeds of racial tension present at the birth of the U.S. grew into a bitter harvest: the rise of King Cotton and the rapidly expanding plantation system that tortured slaves into ever greater production, the Civil War, the short-lived Reconstruction, and the brutal Jim Crow era and its aftermath that lasted throughout the 20th Century (Baptist 2014; Derenoncourt 2014; McPherson 1988). Although the Thirteenth Amendment freed blacks from the chains of slavery, other chains held them down as they were:
•
Uneducated and illiterate
•
Completely lacking in financial assets
•
Typically unskilled except as agricultural laborers
•
Faced with a country of whites whose actions ranged from humanitarian to overt bigotry and violence
What many Americans today forget was that having been prevented from moving freely as slaves, most ex-slaves literally had no “where” to go to and no way to get “there” once they were free so largely remained in the places where they had been enslaved, meaning Southern and Border States (Foner 1988).
After Lincoln’s assassination and the end of the Civil War, President Andrew Johnson and many Congressmen, typically Democrats, fought passage of the proposed Thirteenth Amendment, arguing that it would lead to full citizenship for blacks. As Representative Chilton A. White (D-Ohio) put it bluntly before the U.S. House of Representatives:
What will be the effect of turning loose this mass of people [enslaved black Americans]? Where will they go? What do you propose to do with them? Do you propose to enfranchise them and make them, “before the law”, as the gentleman from Pennsylvania [Mr. Stevens] says, the equal of the white man and give them the rights of suffrage, the right to hold office, the right to sit on juries? Do you intend, in other words, to make this a mongrel government instead of a white man’s government?” (Blair, J.C Rives, Bailey, and F. Rives 1865, p. 216; also see Colbert 1995, p. 11).
Those sentiments were echoed, though somewhat less stridently, by Sidney George Fisher, a well-known conservative Philadelphia lawyer who, from the vantage point of the 21st Century, seemed to have been speaking for his times as well as for posterity:
"It seems our fate never to get rid of the Negro question. No sooner have we abolished slavery than a party, which seems [to] be growing in power, proposes Negro suffrage, so that the problem—What shall we do with the Negro—seems as far from being settled as ever. In fact, it is inescapable [emphasis in the original] of any solution that will satisfy both North and South posterity (quoted in Foner 1988, p. 76)."
Although the Civil War ended in 1865, the federal Reconstruction program almost immediately evolved into an extension of that conflict. It became a struggle between northern Radical Republicans and their allies who were committed to punishing both Southern states for traitorous acts and Southern white supremacists whose culture of racial dominance was the foundation of their lives.[11]
President Andrew Johnson, a conservative Southern War Democrat from Tennessee, was an open advocate of white supremacy and an opponent of extending civil and human rights to newly freed blacks. Johnson’s Reconstruction policies granted amnesty to former Southern rebel soldiers and permitted only white men to vote or to participate in the framing of the new state governments (Foner 1988; Foner and Mahoney 1997). He appointed provisional governors from the white Southern power elite and outlined steps for the creation of new state governments that would allow the election of representatives to the U.S. Congress. Johnson strongly supported state sovereignty and the right of each state to decide how to treat blacks.[12]
It is critical to view Johnson’s conduct in the context of the times. By 1865 only five New England states—Maine, Rhode Island, Massachusetts, New Hampshire, and Vermont—had granted free black American males the right to vote. More telling, between 1865 and 1868 Connecticut, Kansas, Michigan, Minnesota, Nebraska, New Jersey, Ohio, Pennsylvania, and Wisconsin voters rejected proposals to enfranchise Black American males.[13]
Many Radical Republicans became outraged that the recently defeated but unrepentant Southern rebels were determined to return their former Confederate leaders to national political power, that none of the Southern state conventions had granted freedmen the right to vote, and that every Southern state had immediately passed legislation—Black Codes, “Pig Laws” (penalizing poor African Americans for crimes such as stealing farm animals), and vagrancy statutes that made it a crime for blacks to be unemployed—tightly restricting the lives and freedoms of former slaves and their access to civil institutions to ensure the continued dominance of white culture (Franke 1999). That anger seemed more than justified when Benjamin F. Perry, South Carolina’s provisional governor, declared at the state’s constitutional convention (quoted in McKitrick 1988, p 167):
". . . this is a white man’s government and intended for white men only."
With President Johnson's support, Southerners focused on strengthening white supremacy to ensure that blacks were held in a debt peonage and a socio-political vice that was slavery in every aspect but name (McKitrick 1988). That system was enforced by threats of violence as well as by outright physical brutality by armed white vigilantes that included lynching and other forms of murder, home burning, rape, public whipping-beating-humiliation, genital mutilation, and countless acts of overt intimidation and domination that terrorized black communities in every Southern and Border State and that were encouraged and sanctioned by state and local governments and the white population (Kaczorowski 1986).[14]
After the 1866 election, angry Radical Republicans in Congress wrested control of Reconstruction from President Johnson, who had openly rejected the idea that blacks had the same rights of property and person as whites, passing the Reconstruction Acts of 1867 (Foner 1988 and 2015 “White men alone must manage the South,” was one of Johnson’s more temperate statements (Foner 1988, p. 180). Under Reconstruction’s military occupation and the oversight of the Freedmen’s Bureau, black Americans received the right to vote, own property, and to hold political offices that had formerly been restricted to white Southern Democrats, a situation that was abhorred and opposed at every turn by whites throughout the South.[15] President Johnson vetoed all the Radical Republican initiatives but those vetoes were overridden. In 1868, the Radical Republicans impeached President Johnson. Although that effort failed by a single vote, Johnson’s power to influence the direction of Reconstruction and effectively govern the country was greatly diminished.
The stakes in controlling the political infrastructure of the South were extraordinarily high. In effect, passage of the Thirteenth Amendment increased representation from Southern states in the U.S. House of Representatives because it made the infamous three-fifths slavery Compromise in the Constitution meaningless since those who had been slaves would thereafter be counted as whole persons in apportioning seats in the House. If Congress seated unrepentant Southerners, political power would immediately swing to the Democrats. To expect Republicans who had just won the Civil War to surrender national power to a region that had been defeated on the battlefield and to a population they viewed as traitors was unrealistic. With Reconstruction and passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, Radical Republicans in Congress focused their efforts on changing the balance of power in the South and on effecting a political revolution that they thought necessary to ensure black Americans would be able to achieve the full freedoms guaranteed in the U.S. Constitution (Smith 1982).
In
United States v. Cruikshank (1875), the Supreme Court set aside the convictions of three men growing out of a massacre in Colfax, Louisiana, in which a white mob killed almost 300 African Americans who were defending a local courthouse; many of those deaths occurred after the freedmen had surrendered and had been disarmed.
According to historian Eric Foner, the Colfax Massacre was “the bloodiest single act of carnage in all of Reconstruction.” In its drive to eviscerate the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, in
Cruikshank the Supreme Court held that the federal government had no power to protect newly freed slaves from outright murder since that was the province of states’ rights. With
Cruikshank, the day-to-day federal enforcement of civil rights ended and the organized white terrorism of the Klan, the Knights of the White Camelia, and dozens of other extra-legal armed militias was unleashed on helpless black citizens who had no hope that any court at any level in the United States would protect them.
Radical Republicans had not only failed to secure Constitutionally-guaranteed freedoms for blacks through the Reconstruction effort but also had inadvertently insured that the political order in the South that would control the lives of four to five million black Americans for over a century would be based on long-established white bigotry/supremacy and violence. Many factors helped ensure Reconstruction’s failure, among them such national economic problems as the Panic of 1873, the rise of a national conservative consensus, a general feeling that Reconstruction had failed to achieve worthwhile goals, the national resurgence of the Democratic Party, and a growing national climate that accepted bigotry and racism as normal (Robertson et al. 2010).
As painful memories of the Civil War faded, most Northerners lost interest in maintaining what turned out to be a difficult and prolonged struggle to ensure black Americans would be granted the freedoms, dignity, and equality guaranteed by the Constitution. The insurmountable problem was that the South that emerged after Reconstruction was almost exactly like the pre-war South in terms of its foundation on white bigotry and supremacy, with the exception that overt slavery of blacks was replaced by a system of debt peonage and social controls enforced through intimidation and violence sanctioned by every level of government and by every element of Southern white society.
Major changes to Reconstruction were underway by the mid-1870s. Most moderate Republicans and Northern Democrats had begun to regard Southern blacks as simply another special interest group that they thought had to start standing on its own feet. That attitude became accepted despite slaves having been systematically denied freedom and education for more than 250 years and being totally unprepared to face hostile Southern legislatures and violent white Southern white supremacists without the continuing support of the federal government. By the early- to mid-1870s, organized white intimidation and violence against blacks was the norm in every Southern and Border State (Parsons 2005). And by the late-1870s, all three branches of the federal government had effectively turned their backs on enforcement of the constitutionally guaranteed rights of black Americans and left them to their fate at the hands of violent Southern white supremacists.
As a result of under-the-table agreements that favored Southern Democrats in the Compromise of 1877 and produced the highly controversial election of Rutherford B. Hayes as President, President Grant withdrew federal troops from the South and effectively ended Reconstruction.[16] By that time, Southern Democrats had used intimidation and violence by armed white mobs and extralegal militia to seize control of all Southern and Border State legislatures. By the early 1880s, the federal courts, guided by the U.S. Supreme Court’s decisions in the infamous
Civil Rights Cases of 1883, which have since been derided by legal scholars as examples of overt institutional racism and judicial hostility to democracy, had squashed or abrogated nearly all the civil rights protections accorded to newly freed blacks during Reconstruction and led directly to the adoption of Jim Crow laws and legalized racial discrimination in every Southern and Border state as well as in most Northern and Western states (Wycoff 1992).[17]
In 1890, Mississippi adopted a new constitution that disenfranchised nearly all black citizens through literacy tests (found to be legal by the U.S. Supreme Court in
Williams v. Mississippi, 1898), poll taxes, multiple ballot box laws, white-only primaries, grandfather clauses, and residency requirements, cutting black voter enrollment from approximately 147,000 to around 8,600 (Hench 1998; Karlan 1993). When those discriminatory provisions survived legal challenges to a U.S. Supreme Court that was blind, deaf, and dumb to civil rights violations against black Americans, nine of the other Southern states adopted similar constitutions, disenfranchising the far greater majority of their black American residents. Other specific examples include: Louisiana adopted a new constitution in 1898, dropping the number of black voters from 130,000 to 5,000; Alabama re-wrote its constitution in 1901 to establish white supremacy as the rule of law and reduced the number of eligible black voters from more than 180,000 to 3,000; and in Virginia, the number of black voters dropped from 147,000 to 21,000. Black voter disenfranchisement was so widespread in the South and Border States that “by 1910, registered voters among the freedmen dropped to 15% in Virginia, and under 2% in both Alabama and Mississippi” (Nieman 1991, p. 107; see also Hench 1998).
The Southern disfranchisement movement was so comprehensive that black people could not vote, serve on juries, or hold political offices, activities that were exclusively restricted to registered white voters. As a result, Black Americans were systematically excluded from any role in the socio-political system other than that of a lower, powerless caste (Dollard 1937/1989).
Here’s another twist on denying black vote in the South. Since after the 1870s only Democrats were elected in general elections, in Southern States the most critical election was the primary. But because official state voter registration forms intentionally did not ask a voter’s party affiliation, county and local registrars were the only officials who determined party membership. Because no Southern black Americans were acknowledged as members of the Democratic Party, they could not vote in primary elections even though they were formally registered voters. Those tactics and systemic white violence against black voters ensured the near total absence of blacks at the polls until the late-1960s (Hench 1998).
Poll taxes and literacy tests were not the only obstacles to black suffrage. Black land owners and workers throughout the South were told that they would lose their jobs or be denied access to credit if they attempted to vote. In many cases when a black farmer’s white neighbors found out he intended to vote, local merchants refused to extend credit, weigh his field crops, or deliver materials to his farm. Suppression of black vote was well-organized and systemic through the South and was specifically intended to oppress the black population and restrict their rights (Kousser 1974).
As has been noted by numerous observers, the Confederacy may have lost the Civil War on the battlefield but the South won the struggle to maintain their white supremacist way of life and to continue oppressing blacks through intimidation and violence. The result was a century-long campaign of savagery and terror waged against black citizens by armed Southern whites supported by local and state governments. An as illustration, Mississippi Governor James Vardaman famously stated (McMillen 1990, p. 43):
"There is no use to equivocate or lie about the matter . . . Mississippi’s Constitutional Convention of 1890 was held for no other purpose than to eliminate the nigger from politics; not the “ignorant or the vicious,” as some of those apologists would have you believe, but the nigger . . . Let the world know it just as it is."
And if the meaning of that statement was not sufficiently clear, Vardaman also said: "If it is necessary, every Negro in the state will be lynched; it will be done to maintain white supremacy."[18]
Many if not all Southern conservatives believed that black suffrage during Reconstruction had been an enormous political insult because blacks were inherently inferior, unqualified, and unprepared to assume the responsibilities of citizenship and, thus, the near total segregation of blacks from whites was a necessary precondition to eventual citizenship (Kousser 1974).
To circumvent contact between blacks and whites as equals, 34 of the then 40 states in the U.S. enacted Jim Crow laws that mandated white supremacy and effectively continued slavery. In the South, newly freed blacks were enticed by plantation owners into becoming tenant farmers who would receive anywhere between 33 to 75 percent of the crops they grew. But that system involved debt peonage (Ransom and Sutch 1972), a type of forced labor established and imposed by state law in which tenant farmers could not leave the property until all their debts were paid in full. Since newly freed black farmers were totally without assets, they had to borrow on credit from white land owners and merchants the cost of food, clothing, seed, farm animals, farm implements, fuel, medical care, and even rent for the shacks in which they lived to tide them over until the crops could be harvested.
The land owner typically set the cost of those items as well as the price paid for the resulting crops. As a consequence, a great many if not most black tenant farmers were in long-term debt (Winters 1988). The KKK, White Citizens’ Councils, White Brotherhood, Redeemers, Sabre and Rifle Clubs, Knights of the White Camellia, and other well-armed, extralegal, all-white paramilitary groups in Southern and Border States led the way in a physical and mental reign of violence and terror against black Americans, who they felt were responsible for their loss of political privilege and socioeconomic status, by lynching (nearly 4,750 by 1968) and other murders, firebombing-burning, beatings, public humiliation, false arrests, and other acts of atavistic violence (Guelzo 2012).
For those who hold fast to the conviction in the decency and goodness of the U.S. as a governing institution, it may be instructive that from 1882 to 1968, approximately 200 anti-lynching bills were introduced in Congress. Seven presidents and many dozen politicians fought for anti-lynching federal legislation. But no law was ever passed that made lynching illegal because conservative Democratic Congressmen who controlled the Southern and Border States opposed all federal legislation, especially through Senate filibusters, that would have made lynching a violation of federal law.
State laws throughout the U.S. required schools to be racially separate; schools for Black Americans were very inadequately funded and staffed and were overwhelmingly located in high-poverty areas. Unbeknownst to most Americans, in
Plessy v. Ferguson (1896) the Supreme Court upheld the legality of Jim Crow laws and other forms of racial discrimination, a ruling that stood for the next 70 years. State laws prohibited inter-racial marriage and co-habitation and required segregation in education, housing, hospitals, commercial transactions, employment, transportation, hotels and restaurants, and public places like parks, swimming pools, and beaches. Publicly funded universities across the country rejected black American applicants solely because of their race; as examples, the first blacks were admitted to the Universities of South Carolina and Alabama in 1963, despite the Supreme Court’s 1954
Brown v. Board of Education decision.
The first wave of black American migration to northern industrial cities occurred from 1910 and 1930, when between 1.5 million to two million fled the violence of the rural South. When that first wave of migrants arrived in northern cities they found already in place a system of legally and socially enforced segregation and mostly low-wage, low-skill jobs. Municipalities had enacted racially restrictive zoning ordinances and property covenants that required segregation (Jackson 1985; Seitles 1998). The use of threats and physical violence, such as firebombing residential and office buildings owned by black Americans to force them from white neighborhoods, was commonplace and culminated in widespread race riots that killed hundreds of blacks and dispossessed many thousands more of their homes.[19]
State and local laws restricted black American’s right to own and lease property, conduct business, and move freely through public spaces in cities. Banks, savings and loan companies, mortgage firms, realtors, and insurance companies engaged in redlining [
Author’s Note: in redlining, no loans or policies were provided for individuals living within undesirable areas outlined in red] to ensure black Americans lived separate lives from whites in areas characterized by dilapidated and deteriorated housing typically without indoor plumbing and with minimal urban services, such as police, fire, street lighting, street repair, and trash pick-up.[20]
By the time the second and much larger wave of approximately five million black Americans migrated in 1940 to 1970 from the South to the urban Northeast, Midwest, West Coast, and Southwest, white America had fine-tuned its de jure and de facto systems of racial discrimination and segregation. In cities throughout the U.S., racially restrictive covenants had become private and were thus legal according to the Supreme Court. Redlining by banks, savings and loans, mortgage firms, realtors represented by the National Association of Real Estate Boards, and insurance companies was the rule. Violence and threats of violence served to maintain all-white residential neighborhoods through the 1970s (Abrams 1955; Brown Jr. 1972). Federal programs like those run by the Federal Home Loan Bank Board, the U.S.-sponsored Home Owners Loan Corporation (HOLC), Federal Housing Authority (FHA), and Federal National Mortgage Association (FNMA) systematically promoted racial segregation by refusing, via federal regulations, to lend money to black people for home purchase or improvements unless they lived in all-black neighborhoods, or to whites who lived in racially integrated areas, and also promoted racially restrictive housing covenants (Brown Jr. 1972; Hayden 2004; Jackson 1985; Massey and Denton 1998). In the post-war suburban expansion period, the HOLC, FHA, FNMA, and private banks required new suburbs to be uniformly white before investments would be made or insured (Mahoney 1995, pp. 1671-1672) and used redlining to exclude homeowners in black neighborhoods from securing federally-backed mortgages and home improvement loans (Seitles 1998).
Perhaps readers can imagine this real-world situation: black Americans seeking to buy homes could only get mortgages if they lived in all-black neighborhoods. But since all-black neighborhoods were redlined by the HOLC, FHA, VA, FNMA, and private banks as undesirable areas no federally-insured or conventional mortgages could be obtained by black applicants. And hundreds of local laws/ordinances also prevented low and moderate income housing from being built for minorities (
Southern Burlington County NAACP v. Mount Laurel, 1972).
On May 24, 1926, the U.S. Supreme Court unanimously refused to hear
Corrigan v. Buckley (1926), thus upholding private racially restrictive residential covenants and ensuring more than four decades of legal, racially motivated housing discrimination throughout the U.S. As examples of the widespread nature of racially restrictive covenants, by the 1940s about 85 percent of the housing in Detroit and between 75 to 80 percent of Chicago housing was subject to such covenants (Sugrue 1996). Effectively, that meant until the Supreme Court’s 1968
Jones v. Alfred H. Mayer decision, FHA and HOLC regulations stipulated that if housing developers sold to blacks, they would not be able to sell houses in the same neighborhood to whites who needed home loans. Home loan programs administered by the U.S. Veterans Administration had similar if not completely identical racially discriminatory regulations. In many hundreds of thousand cases, black families unable to obtain a standard conventional or U.S. Government-insured bank mortgage had no other option but to buy houses in black-only neighborhoods using a financially punitive housing “contract” system that preyed on poor, option-less black buyers (Satter 2010). That situation still exists in heavily racially segregated cities like Milwaukee (Eligon and Gebeloffaug 2016).
As a result, those practices created a system in which buyers, sellers, realtors, bankers, insurers, and housing developers worked in concert with the federal government to maintain existing all-white neighborhoods and all-black ghettos and to build all-white suburbs that were largely financed through FHA and VA programs (Jackson 1985; Mahoney 1995). In the context of VA loans, I must mention that the one million black Americans who served in the U.S. military during WWII were as racially segregated as they were in the Deep South (until July 26, 1948, when President Harry Truman issued Executive Order 9981 that integrated the armed forces). They could fight and die for democracy against totalitarian enemies overseas but were nearly powerless against the overt racism and bigotry that typified white America. Here’s an example that is both telling and chilling: in 1942 the American Red Cross refused to accept the blood of black American volunteer donors (Gates 2013).
Following WWII and the resulting release of the long pent up demand for new housing, the federal government initiated a housing program in the 1940s and 1950s that included urban renewal to revitalize aging and decaying inner cities, which was largely to be accomplished by clearing out rapidly deteriorating and blighted neighborhoods.
The Housing Act of 1949 (Title V of Public Law 81-171) was a landmark, sweeping expansion of the federal role in mortgage insurance and issuance and the construction of public housing. What typically happened under that program was existing residential blocks of largely single-family and small multi-family homes were razed and replaced with high-rise multi-family for moderate- to higher-income families. That “renewal” effectively displaced blacks and replaced them with white families.
Urban renewal in that historical context frequently meant, as the well-known writer James Baldwin noted, “Negro removal.” In Chicago alone between 1948 and 1963, some 50,000 families (averaging 3.3 members) and 18,000 individuals were displaced; the far greater majority of those people were poor, black Americans.
Suburban sprawl, which was encouraged by federal highway construction and FHA/VA loan programs that established segregated neighborhoods, hastened white out-migration and depopulation of many city cores. That depopulation was hastened by the Supreme Court's 1954 decision in Berman v. Parker (1954), a landmark decision that interpreted the Fifth Amendment's Takings Clause: “nor shall private property be taken for public use, without just compensation” in the Fifth Amendment of the United States Constitution. The Court voted 8–0, holding private property could be taken for a public purpose with just compensation as an exercise in eminent domain. Basically, that decision meant that a public use can be almost anything the government says it is, thereby upholding an urban renewal project that used eminent domain to forcibly displace thousands of poor African-Americans
Hundreds of cities tried to contain the expansion of African American living space, in part, by using densely packed, centrally located high-rise public housing. Segregation became public policy, as the courts acknowledged in deciding the 1966 suit brought by Chicago Housing Authority (CHA) resident Dorothy Gautreaux. In 1969, Federal District Court Judge Richard Austin found that 99 percent of the residents of CHA family housing were black, and that 99.5 percent of such units were confined to black or racially changing areas. Rather than solve the urban crisis, urban renewal had set the stage for its next phase.
In many if not most large central cities, the local housing authorities deliberately segregated African American families through its tenant selection and site selection policies while HUD continued to fund such civil rights violations. Urban renewal projects were typically sold to the general public as being in the best interests of both the affected working class African American neighborhoods and the larger community. But, at least during the first nearly 20 years of urban renewal, people who lived in the “blighted and deteriorated” neighborhoods slated to “renewal” were given little to no choice and frequently were forced out of homes they had owned for many years with no provision as to where they were going or how they were going to afford to live.
As a result, many thriving neighborhoods with single-family homes, bars, restaurants, commercial enterprises including medical and dental offices, drugstores, barber and beauty shops, tailors, music shops, law and insurance offices, and even schools were destroyed. It wasn’t until 1961 that influential voices began crying out against the devastation federal and state urban renewal caused. Jane Jacobs's justly influential book,
The Death and Life of Great American Cities (1961), argued that urban renewal did not respect the needs of most city-dwellers.
As the urban sociologist Herbert Gans (1965a) wrote about the federal urban renewal programs, by March 1961 126,000 dwelling units had been demolished nationwide and slightly less than 30,000 new ones were constructed. Note the glaring loss of residences for poor people. Very few of those who had lived in the “slums” that had been cleared could afford to move into new living quarters. Local housing and renewal agencies were tasked to relocate the dispossessed tenants in “standard” housing within their means before demolition of their homes began. The problem was such “standard” vacant housing units are not abundant in most cities, and totally absent in any numbers in some. Since the local agencies were under pressure to clear the land and get moving on renewal projects, tenant relocation was never a priority and was often far down the “To Do” list.
A 1961 study of renewal projects in 41 cities found that 60 percent of dispossessed tenants were relocated in other slums instead of to “standard” housing. In larger cities, that proportion was even higher (over 70 per cent in Philadelphia). Renewal programs sometimes created new slums by pushing black relocatees into inadequate receiving neighborhoods that quickly became overcrowded and suffered rapid deterioration (Gans 1965a, 1965b; Hartman 1975, 2001).
The ultimate irony was that since public (state and federal) funds were used for urban renewal/slum clearance and to write down the cost of land that local agencies made available to private redevelopers, low-income black Americans were actually subsidizing their own ejection for the benefit of more wealthy white residents, businesses, and institutions.
Readers should not assume housing discrimination is a thing of the past, in 2009 the U.S. Department of Justice (DOJ) filed a lawsuit against leading mortgage lender Wells Fargo, alleging the company steered black and Latino homebuyers into riskier subprime loans and charged them more than it did white customers. Wells Fargo settled the suit in 2012 by agreeing to pay $175 million in damages. In December 2012, the DOJ settled a similar lawsuit with Bank of America for $335 million over loan discrimination by its Countrywide Financial unit. In June 2014, the city of Miami sued JPMorgan Chase, accusing the bank of engaging in discriminatory lending practices in minority neighborhoods since at least 2004 in violation of the U.S. Fair Housing Act. In November 2014, the City of Los Angeles filed similar claims of predatory mortgage lending in minority neighborhoods against JPMorgan Chase for allegedly steering minority buyers into high risk loans they could not afford. In mid-January 2017, the U.S. Justice Department accused JPMorgan Chase & Co of violating the U.S. Fair Housing Act and the Equal Credit Opportunity Act between 2006 and 2009. The lawsuit stipulated that JPMorgan Chase showed "reckless disregard" for the rights of at least 53,000 African American and Hispanic borrowers by allowing mortgage brokers to charge them more for home loans than they did for other borrowers. On the same day the DOJ suit was filed, the bank agreed to pay $55 million to settle the suit while maintaining it had not discriminated against minority borrowers.
American Government at every level has failed to address the multitude of adverse effects of federal, state, and local laws and majority white culture that intentionally discriminated against and oppressed Black Americans for well more than 100 years. The inequity resulting from that discrimination is highlighted in research by sociologists and economists at numerous universities (Shapiro et al. 2013) and more recently by Kochhar and Fry (2014) of the Pew Research Center who reported the median household wealth for whites in 2013 was $141,900 and $11,000 for blacks, a wealth gap of nearly 1,300 percent. Their research found that from 2010 to 2013 “the median wealth of non-Hispanic white households increased from $138,600 to $141,900, or by 2.4 percent” while during the same period the median wealth of non-Hispanic black households fell 33.7 percent, from $16,600 to $11,000. Unless broad public policy and institutional changes are initiated at the federal level to address racial disparities in homeownership, education, employment, income, wealth, and inheritance, closing the black-white inequity gap will be an unfulfilled dream (Shapiro 2004, 2006; Johnson 2014; also see
Hamilton 2015; Hamilton
and Darity 2009; Hamilton and Darity 2010; Hamilton and Chiteji 2013; Hamilton
and Darity 2016; Hamilton et al 2015a; Hamilton et al 2015b).
The socioeconomic playing field was not designed from the birth of this country to be level for Black or Native Americans. That discrimination resulted in the inequities that are present today and has denied them opportunities other Americans enjoy. Because federal and state laws and regulations produced this situation, it is obvious those governments have the ability to undo the results of that creation. But, absent political will, that is impossible.
3. U.S. Naturalization Law: Who Got to Be Citizens?
Putting aside the divisive issues of slavery and legalized racial discrimination, who did this new nation of “Americans” think they were, besides being created equal and bestowed by God with the unalienable rights of life, liberty, and the pursuit of happiness? One way to answer that question is by determining who the new Americans thought were eligible to admit to their club. And that takes us to the Naturalization Act of 1790 and other federal legislation that determined who was allowed to become a naturalized citizen. An important point to keep in mind is that the U.S. only became formally acknowledged by the European powers as an independent country by the Treaty of Paris, which was signed in September 1783. Thus, only seven years had passed between the end of the War of Independence and the signing of the Naturalization Act, which reads in part:
"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character . . ." (Naturalization Act of 1790)
My guess is many if not most Americans are unaware that the Naturalization Act of 1790 limited citizenship to immigrants who were “free white persons” (male and female) of good character, thus intentionally excluding Native Americans, indentured servants, slaves, free blacks, and Asians. That Act was superseded in 1795 by similar legislation that, with certain minor changes, had the same effect as the original, meaning only free white persons of good character could become citizens (Naturalization Act of 1795).
Those Acts, and later amendments, meant that until 1870 only aliens who were free white persons were eligible for American citizenship. In that year, aliens of African nativity and persons of African descent were recognized as eligible but not Native Americans, Asians, or Latinos. During the extensive debates in Congress over removing the word “white” from provisions establishing eligibility for naturalization in 1870, many representatives vociferously objected on the grounds that such a change would allow thousands of Chinese immigrants living in the U.S. West to become citizens. The measure was handily defeated (Maltz 1994).
When the Naturalization Law was modified as the Revised Statutes of 1875, Section 2169 stipulated: "The provisions of this title shall apply to aliens being free white persons and to aliens of African nativity and to persons of African descent." The Revised Statues thus intentionally continued to exclude persons of Asian extraction as well as American Indians and most New World Hispanics. That provision remained law until the mid-20th Century.
But none of those laws stopped numerous determined resident Asians from pursuing their dream of becoming American citizens. In a famous case titled,
In re Ah Yup (1878), four Chinese men went to court and filed naturalization petitions. Unsurprisingly, the court ruled against them as they were non-whites.
Anti-Chinese sentiment was so high that in 1882 Congress enacted the Chinese Exclusion Act, which sharply restricted Chinese immigration to the U.S., classified all resident Chinese as permanent aliens, and excluded them from U.S. citizenship. That law required a ten-year moratorium on the immigration of all Chinese labor, skilled and unskilled, and also established that no court of any jurisdiction, state or federal, could legally grant citizenship to Chinese resident aliens. When the Exclusion Act expired in 1892, Congress extended it in the Geary Act for an additional ten years, which, when made permanent in 1902, further required each Chinese resident in the U.S. to register and obtain a certificate of residence. Without that legal document, Chinese residents were subject to deportation.[21]
The first successful assault on America’s effective prohibition of citizenship for people of color (other than persons of African descent) was brought in the famous case of
Wong Kim Ark (1898), who was born in the U. S. of Chinese citizens with permanent U.S. domicile and residence status. After a visit to China, when Ark attempted to re-enter the U.S. he was denied admission because Customs officials claimed he was neither a citizen nor had the requisite permanent resident status. After several trials, the case wound up in the Supreme Court, which ruled that the Fourteenth Amendment’s citizenship language covered the specific circumstances of Ark’s birth and affirmed his citizenship (
United States v. Wong Kim Ark, 1898).
In case readers might think that women were treated equally under federal law, the Expatriation Act of 1907 (34 Stat. 1228), Congress provided that female U.S. citizens who married citizens of any foreign country would have their citizenship held “in abeyance” while they remained wedded but were entitled to reclaim it when the marriage was dissolved or when the husband became a naturalized citizen or died. In 1922, Congress passed the Cable Act, which in effect amended the Expatriation Act by stipulating: “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States” (McClain 1995). Typically, that meant any American woman marrying a racially ineligible male would automatically lose her U.S. citizenship.
The Japanese fared no better than the Chinese in taking their citizenship challenges to court. In
Takao Ozawa v. United States (1922), the Supreme Court ruled that under the Naturalization Act of 1906, which limited naturalization to “free white persons,” only persons of what was popularly known as the Caucasian race were eligible, not Asians, and, in that specific case, certainly not Japanese.
A similar, unfavorable Supreme Court ruling on Asian naturalization claims (
United States v. Bhagat Singh Thind, 1923) concerned the petition for naturalization of a Sikh immigrant from India, who proudly identified himself in court documents as "a high caste Hindu of full Indian blood." The Court ruled that even "high-caste Hindus of full Indian blood" were not Caucasians as was commonly understood and thus were not "free white persons" and were racially ineligible for naturalization.
The Immigration Law of 1924, also known as the Johnson-Reed Act, stated that aliens ineligible for U.S. citizenship were not permitted to enter the United States, which of course included Chinese and other Asians (with the exception of a very small number of Filipinos who were eligible to immigrate to the U.S. since the Philippines was a U.S. colony).
Japanese native Hidemitsu Toyota immigrated to the U.S. in 1913 and served in the military from 1913 to and after World War I. Based on that extensive military service, his request to be naturalized was granted in 1921 but was later rescinded. In
Toyota v. United States (1925), the Supreme Court ruled that laws allowing Filipino servicemen to naturalize were inapplicable in Toyota's case because his military service did not outweigh the legal limitations imposed on his race. The Court’s words in that ruling are of particular significance to this essay:
"It had long been the firm policy of the nation to maintain distinctions of color and race in its naturalization policy, and an intention to make radical changes in that policy should not lightly be imputed to the Congress."
With that ruling, the Court directly acknowledged that overt white supremacy had been and remained the law of the land.
The Immigration Law of 1924 stood until it was repealed, at least in part, on December 17, 1943,[22] when Chinese aliens were no longer outright barred from U.S. citizenship, a political concession made to keep the Chinese Army fighting the Japanese in WWII and to counter correct Japanese statements that revealed to the world that the U.S. had been racially discriminating against the Chinese by legally keeping them from becoming citizens for over 150 years. Although that legislation established that Chinese were finally eligible to immigrate to the U.S., it also ensured only a very limited number could enter the country legally, actually about 105 persons annually.[23]
In 1946, Filipinos and persons of Indian descent were granted eligibility for naturalization.[24] It was not, however, until 1952 that all persons of Japanese and Korean ancestry were granted the privilege of becoming naturalized American citizens,[25] though that law followed the pattern of the Chinese exclusion and assigned racial, not national, quotas to all Asian immigrants. That system ended when Congress eliminated the National Origins quota system entirely in the Immigration Law of 1965,[26] which was also known as the Hart-Celler Act.
4. Native Americans and the U.S. Legal System
The question that must be asked of American history is: Who were the only people that decided what rights, if any, Native Americans had to the land they had occupied for many centuries? The answer history provides should not surprise: white Americans.
When Europeans began colonizing the New World, they found it populated with indigenous peoples engaged in hunting, fishing, gathering, complex social interactions with neighboring peoples that included trade and cooperation as well as conflict, and a wide variety of agricultural activities. Many of those native peoples, especially on the Eastern Seaboard and Piedmont, inhabited permanent, self-sufficient settlements that were substantial in size and complexity in which agriculture played a key role. The typical English reaction to discovering native peoples in the New World, after their failures with the Popham and Roanoke Colonies, was to make clear their intent through words and deeds: We seek land and resources. Because we are Christian, white, civilized, and better armed, we are superior to you in every way. Resistance will cause us to attack you. Your only viable option is to accept our dominion and sell your land to us at prices and conditions we determine to be fair (see Jennings 1975).
And so adventurous and profit-seeking Englishmen proceeded to slowly but surely subjugate the indigenous peoples they found in the New World, taking what they wanted through varying combinations of voluntary trade mixed with threats of violence, coercion, and duplicity (Allen 1991), exploiting the land for their benefit, and establishing colonial outposts that mimicked the places from which they had come.
From the first days of colonization, English/colonial governments treated the process of obtaining land from native tribes in several different ways. Some colonies refused to recognize the native inhabitants as holders of true title to their lands. Even during the first years of colonization, when the European invaders were no military match for the local tribes and indeed depended on their charity to survive, Virginia's earliest settlers began to articulate a theoretical basis to deny Indian title and thus expropriate tribal lands, which was the “right of discovery” that became so beloved by U.S. Supreme Court Chief Justice Marshal (Kades 2000 and 2001). However, other colonies recognized the near parity between themselves and the tribes and negotiated for land in peaceful, consensual trade (Banner 2005; Kades 2008; Watson 2006).
But not all colonies treated Native Americans even as legitimate inhabitants of the land they occupied. A chilling chapter in North American history that was largely under-researched until the last several decades concerns the enslavement of Native Americans by European colonists. Today, most Americans have at least passing familiarity with the displacement of Native Americans by whites but little awareness of the specific ways in which displacement and enslavement overlapped in early North American history. What a number of contemporary historians have discovered is that the seeds of the African enslavement system were sown in early European efforts to exploit Native American labor. That white colonial determination to force Native Americans into slavery intensified the turmoil of contact between the two groups, disrupting what had been fairly well-established inter-tribal relationships and creating volatility among native communities that were struggling to determine their place in a radically new socio-political reality forced on them by waves of white invaders (Onion 2016). A sampling of recently published research into this topic, includes the works of Gallay (2003 and 2015), Krauthamer (2013), Newell (2015), Reséndez (2016), Rushforth (2012), Saunt (2005), and Snyder (2010).
The newly minted U.S. Government took its lead directly from England and continued in that imperialistic-colonializing mode despite the sacred promises of freedom/individual liberty, equality, and justice for all enshrined so prominently in the Declaration of Independence and Bill of Rights (see Fierst 2000; Loesch 1993).
The question should arise as to why New World tribes were willing, at least in part, to sell their lands to Europeans and then the Americans? The answers were varied and included:
- Native Americans recognized their inferior military technology and typically took American threats of violence seriously.
- Superiority and availability of highly desired American manufactured goods.
- Widespread and large-scale depopulation by European-borne disease epidemics—including smallpox, mumps, influenza, measles, and alcoholism—whether intentional or not, weakened all the tribes in the New World.
- Illegal Americans trespassing on tribal lands brought widespread agricultural settlement that removed forest cover, destroyed habitats, and effectively drove off or killed indigenous game on which tribal existence depended.
A similar evaluation was provided by Kades (2000, p. 121) when he described the process by which the federal government managed to expropriate tribal lands very cheaply.
- Step (1): exploiting its more united front, its military superiority, its negotiating advantages, its superior ability to rein in troublemakers, and the trade dependency of the tribes, the United States buys Indian borderlands for pennies on the dollar;
- Step (2): the nation then moves settlements into the lands purchased from the Indians, and spurs migration with subsidized land transfers;
- Step (3): these settlers kill Indians by spreading diseases and thin game by clearing land and hunting-both making land less valuable to the Indians;
- Step (4): go to Step (1) and repeat the process.
As an example, as early as 1789 the Mohegan Indians were forced to petition the Connecticut legislature for charity because “all our fishing, hunting and fowling is entirely gone” (as quoted in Kades 2000, p. 1148). No less experts than George Washington (1931) and General Philip Schuyler (1783) commented in the late 1700s that game-thinning by white settlers rendered lands less valuable to the natives and thus made them simultaneously less willing to fight for the land and more willing to sell it cheaply.
Two early U.S. Supreme Court decisions—
Johnson v. M’Intosh (1823) and
Cherokee Nation v. Georgia (1831)—sealed the fate of Native Americans long before most tribes across the continent knew much about white people in general, or about the law-less American frontiersmen/pioneers/settlers massing at their borders, boiling with lust for free land to homestead. Several principles established in those famous decisions are relevant today:
- The British right of discovery (meaning legal ownership) with respect to all land in the area comprising the U.S. passed directly to the federal Government when the former colonies became an independent country.
- The right of the U.S. to property it claimed in North America was ownership in fee simple and the Native American right to the land they had occupied for hundreds of years was comparable to a lease [Author’s Note: occupancy, even "rightful occupancy," is a condition clearly subordinate to and dependent on the will of the legal owner, which, naturally, Justice Marshall declared was the federal government].
- Native American rights to property could only be sold to the U.S. Government [Author’s Note: creating a monopsony of one buyer and one seller with the more powerful agent, the buyer, able to “fix” the price to its advantage].
- Native Americans tribes were not independent nations but were “domestic dependent nations.” And “wards” of the U.S. Government “in a state of pupilage”; nor had the Framers of the Constitution considered them citizens with legal standing in court (Cherokee Nation; see also Naturalization Act of 1790).
Of considerable interest is that the Supreme Court’s decision in
Johnson v. M’Intosh was reached without Native American tribes being present or represented by counsel and that Chief Justice Marshall and his relatives/friends were heavily involved in land speculation in the “Indian Territories.” Thus, Marshall was free to craft a “story” of Native American savagery that gave substance to his “new rule” of discovery and conquest that was at considerable variance with historical facts widely known at the time (Engle 2004; Kades 2000; Robertson 2005; Williams Jr. 1990). Even more interesting is that Marshall tried desperately to reverse his
Johnson v. M’Intosh ruling in
Cherokee Nation (Krupat 1992; Robertson 2005) and failed.
Here’s how the system of buying and selling tribal property was supposed to work. When the federal government wanted to buy tribal land, the Executive Branch negotiated a treaty that would be ratified by the Senate if judged appropriate. Those treaties were acknowledged by the government as “contracts between nations” and as statutory obligations. In most treaties, a tribe would agree to give up (cede) its rights to part of its land while reserving the remaining portions for their use (reservation). In exchange, the U.S. government would purchase land from the tribe and promise to protect them from white encroachment and allow them to live permanently on treaty-authorized reservations. That was how it was supposed to work. The reality of governmental purchases of tribal land was considerably different.
What happened to the Cherokee Nation is illustrative of the harsh reality that every tribe in the U.S. would eventually face. Article VII of the federal government’s Holston Treaty (1791)[27] with the Cherokee specifically stated: “The United States solemnly guarantee to the Cherokee nation, all their lands not hereby ceded.” However, due to intense pressure by white settlers to appropriate Cherokee land guaranteed by Congress as legally in tribal possession, the State of Georgia commenced an organized program to eject all members of the tribe from the State (Guttmann and Halsey 1965; Mintz and McNeil 2013). When gold was discovered in Georgia in the mid-1820s on land owned and occupied by the Cherokee Nation, the pressure by whites on the national and state governments to seize the land from the Cherokees grew exponentially (Engle 2004) and neither the State nor federal governments had the political will to stop white trespass. To solve that problem, President Andrew Jackson, via the Indian Removal Act of 1830, simply forced the Cherokee and the other Five Civilized Tribes from their lands despite the Tribes’ refusal to sign treaties acceding to Washington’s demands and in flagrant violation of previous treaties as well as the U.S. Supreme Court ruling in favor of the Cherokees (in
Worcester v. Georgia, 1831). Those tribes and over two dozen Northeastern, Midwestern, and Southeastern tribes were forcibly removed by the U.S. military, typically without their consent, to what was called Indian Territory.
In 1825, the Government had specified Indian Territory as all the land lying west of the Mississippi River (excluding what would become the states of Missouri and Arkansas) and constituting parts of the present day states of Oklahoma, Kansas, and Nebraska, though that land had been occupied for many decades by other indigenous tribes. Forced removal of members of the Five Civilized Tribes alone opened approximately 25 million acres in the Southeast for white settlement, cotton plantations, and slavery. By 1850, over 100,000 Native Americans had been forcibly evicted from their ancestral homelands in the Midwest and Southeast to Indian Territory; approximately 15,000 Native Americans died along those brutal journeys from disease, exposure, or malnutrition directly due to federal Government indifference and mismanagement (Perdue and Green 1995).
A statement from the U.S. Department of State, Office of the Historian, reveals the reality of Government relations with Native American tribes.
"The U.S. Government used treaties as one means to displace Indians from their tribal lands, a mechanism that was strengthened with the Removal Act of 1830. In cases where this failed, the Government sometimes violated both treaties and Supreme Court rulings to facilitate the spread of European Americans westward across the continent."[28]
That revealing statement of federal policy is affirmed in the famous
Tee-Hit-Ton decision (1955), when Supreme Court Justice Stanley Forman Reed wrote in his decision:
"Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that even when the Indians ceded millions of acres by treaty . . . it was not a sale but the conquerors' will that deprived them of their land."
According to Horsman (1992, p. 126), "The pressure [on Indians to cede lands] was such that it [overt and implied threats of violence] made a farce of the oft-repeated assertion that the Indians were equally free to sell or refuse to sell" (see also Sosin 1967).
Another instructive example of U.S. Government’s use of legalized fraud and duplicity with Native Americans involves the 1851 and 1868 Fort Laramie Treaties that established the Great Sioux Reservation. One of the main provisions of both Treaties was the Government’s obligation to prevent non-Native American settlement or intrusion on treaty lands. The Treaties also guaranteed that all changes to the official documents had to be approved by three-fourths of adult Dakota/Lakota males. The federal Government immediately violated the Treaties by failing to provide the stipulated food rations, clothing, medical care, and schools and by unilaterally reducing from fifty years to ten years the $50,000 that the government had guaranteed it would pay the tribes annually.
Early in the 1870s, the federal government again violated its Fort Laramie Treaty obligations by allowing Northern Pacific Railroad survey crews on Treaty land without tribal permission and in the face of vociferous tribal opposition. But the final straw for the tribes came in 1874 when gold was discovered in the Black Hills, land that was sacred to the Dakota/Lakota, and thousands of white miners invaded the Reservation. The Government’s immediate reaction was to demand the 1868 Treaty be renegotiated to allow purchase of the area, a demand the tribes overwhelmingly rejected and refused to relinquish their Treaty rights. Despite the supposed legally binding nature of the Treaty and the Dakota/Lakota refusal to sign a new treaty, the federal government unilaterally seized the Black Hills, extinguished tribal hunting rights on adjacent land that had been set aside in the Treaty for exclusive Dakota/Lakota use, and opened the area to settlement by gold-crazed whites. The Sioux War commenced and the rest is history as the U.S. Government rejected justice and morality and imposed its will on the tribes by military force.
The Dakota/Lakota Tribes eventually sued over seizure of the Black Hills, losing repeatedly until in 1980 the Supreme Court heard the case and agreed with the Indian Claims Commission’s finding that the U.S. Government had “acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages.” That Commission also “remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills” (
United States v. Sioux Nation of Indians 1980, pp. 387-388). Not surprisingly, the Court ruled, in effect, that the U.S. Government got a pass on its illegal behavior in abrogating its treaty obligations with the Dakota/Lakota Tribes but was obligated to pay for the Black Hills land it had seized illegally.
Author’s Note: The Dakota/Lakota Tribes refused to deposit or cash the Government’s $107 million check that was awarded as a result of winning its suit, insisting that the Black Hills are theirs and a monetary award is irrelevant to that ownership.
A final example shines a spotlight on federal government intentions and actions regarding its statutory treaty obligations with Native Americans. Because many people reading this essay likely have little training in legal matters, it is important to provide background by calling attention to
United States v. Kagama (1886) and
Lone Wolf v. Hitchcock (1903). The Supreme Court’s unanimous decisions in both cases determined that since Native Americans were “wards of the nation” (affirming the decision established in
Cherokee Nation) and matters involving Indian lands were the sole jurisdiction of Congress, therefore Congress had the power to violate and abrogate the terms of ratified treaties without the consent of the affected tribes, no matter what the government had agreed to or promised in the treaties (the plenary powers doctrine that is clearly extra-Constitutional and remains controversial). With its
Kagama ruling the Supreme Court handed Congress a legal license to steal and Congress immediately put that power to use by passing the General Allotment Act. [29]
The General Allotment Law of 1887[30] (also known as the Dawes Severalty Law after its main sponsor, Senator Henry Dawes of Massachusetts) was one of the first efforts of Congress to deal with nearly all tribes in the U.S. as a single entity, rather than individually, and to alter across the board, without tribal participation or consent, rights previously guaranteed in perpetuity in several hundred treaties ratified by the Senate. That Law marked a major policy change since the government had previously dealt with individual tribes through individual treaties, a practice Congress ended in 1871.
The General Allotment Law split almost all treaty-authorized reservations in the U.S. (with certain exceptions subject to later allotment) into numerous smaller units typically ranging from 40 to 160 acres and then allotted that acreage to the head of each family and other individuals within the tribe. The stated objectives of the Law were to assimilate Native Americans into mainstream culture by forcing them to become farmers/grazers and to free land for white settlement (Washburn 1975). The primary unstated but well-known objectives of the Law were to destroy tribal culture through the forced removal of Native American children from their families to distant, off-reservation boarding schools and to restrict the practice of indigenous religions, languages, and traditions. The Law stipulated that the government would classify reservation lands remaining after the allotment process as “excess” and acquire them at minimal cost, frequently at a dollar per acre or less, and convey those lands to states or white Americans for homesteading. Even at the time, that scheme was understood as a brazen ploy to appease land hungry white settlers rather than as a legitimate effort to aid Native Americans.
The Act was proposed, debated, and adopted as law by Congress with minimal consultation with Native American tribes whose treaty-authorized lands were then taken without their consent (Gunn 2004). Before the Law was repealed in 1934, the U.S. Government had unilaterally but legally seized more than 90 million acres out of the nearly 140 million in tribal possession as reservations, or close to two-thirds of the land that had been granted by the federal government to Native American tribes in perpetuity via more than 350 Senate-ratified treaties.
Author's Note: It is critical for readers to know that a 1928 study ordered by the Calvin Coolidge Administration from the private Institute for Government Research (which would soon afterwards change its name to the Brookings Institution) known as the Meriam Report determined that the Dawes Act had been used to illegally deprive Native Americans of their land rights and that in general the U.S. federal government had failed to protect Native Americans, their land and resources, both personal and cultural.
Senator Dawes openly and without remorse acknowledged the illegal, unethical, and immoral techniques the federal government employed to deprive tribes of their treaty-guaranteed land:
"We may cry out against the violation of treaties, denounce flagrant disregard of inalienable rights and the inhumanity of our treatment of the defenseless . . . but the fact remains. . . . Without doubt these Indians are going to be absorbed into and become a part of the 50,000,000 of our people" (quoted in Nichols 2003, p. 211; also see Prucha 1984).
The adverse effects of the General Allotment Law not only continue today but also have worsened over time. Those adverse effects include increasingly fractionated ownership of Indian land (parcels whose title is splintered into multiple undivided interests, leaving allotment heirs with tiny, unusable ownership fractions) that renders the land almost incapable of productive use, checkerboard ownership patterns where Native American land is typically surrounded by land in white ownership, and loss of access to sacred sites.
Reflections
Actions by the U.S. Government over the last 200 plus years have demonstrated that land that had been granted to Native American tribes via bilaterally negotiated treaties ratified by the Senate and held in “trust” for their use remained in trust only until demand for that land by white American settlers rose to a fever pitch. Whereupon Congress unilaterally abrogated the treaties it had signed, seized the land in question, and conveyed it to whites. One wonders how Native Americans are to this day able to muster an iota of trust for a government whose behavior has ranged from superficially benevolent to exploitative to unjust-unethical-immoral and to what in other contexts could only be labeled felonious.
When the U.S. Government wanted ancestral Native American land and resources they expropriated them through a combination of coercion, military action, questionable court decisions, duplicitous negotiation-acquisition strategies (Schuyler 1783; Washington 1931; Kades 2008), and the legalized frauds that were treaties (Engle 2004; Kades 2000; Williams Jr. 1990). Although Wilcomb E. Washburn (1976, 23), the well-known historian of Native American relations with the U.S. Government, has claimed that “American Indian policy has, therefore, been an amalgam of insight and greed, implicit bias and practical concern,” on-the-ground results of application of that amalgam demonstrate beyond question the critical roles played by unbridled greed and bias on the part of white Americans. Native American tribal lands held in trust by the federal Government today comprise 56 million acres, or slightly less than 2.3 percent of the U.S. land mass, an area totaling 2.436 billion acres. Thus, the area held by indigenous people prior to the arrival of the Spanish and English in the 16th Century declined from 100 percent to the 2.3 percent now held, a significant portion of which ranges from economically marginal land to that with few to no productive uses.
At this point we should reflect on what President George Washington said to the Seneca Nation in 1790 after passage of the original Indian Trade and Intercourse Act:[31]
"The general government will never consent to your being defrauded. But it will protect you in all your just rights.”
History proved Washington wrong because he failed to take into account the land lust/greed that drove white settlers (Banner 2005; Kades 2000 and 2008; Washburn 1972) and the open and unapologetic duplicity of the U.S. Government in unilaterally expropriating lands and resources that had been officially granted to indigenous tribes in perpetuity through treaties ratified by the Senate. Washington could not wrap his mind around the idea that the federal government itself would defraud the tribes through legalized chicanery of its own invention.
Imagine your reaction of someone flipped a coin 550 times and it always came up heads. Every single time. You would know immediately the process was fraudulent. Apply that same logic to the property-based interactions of the U.S. Government with Native American tribes. To summarize those relationships, Native Americans lost land resources while white Americans gained those same resources with such absolute uniformity as to defy characterization as accident, chance, or the unfortunate effects of unintended consequences (Washburn 1976).
Concluding Thoughts
It should come as no surprise that American history, like the history of all nations, is laden with ambiguity, equivocation, and acts of unenlightened self-interest. What is surprising is that many millions of conservative-leaning Americans deny that ambiguity, equivocation, and self-interest have had anything to do with the kind of country America was and is. In their heart of hearts they believe that they live in a country defined by its divine mandate as an agent of good whose citizens were endowed with purity of heart, a country uniquely free among all nations, characterized by inalienable natural rights for all individuals that included equality, dignity, and self-worth. Or as Stella Morabito, senior contributor to
The Federalist, put it succinctly in August 2016:[32]
"America is exceptional because it is the first nation to codify and embrace the understanding that every human being—no matter one’s nationality—is endowed with something unique to offer and is therefore exceptional. No exceptions."
If you take Morabito seriously, you have one very substantial problem: the country that Morabito is fantasizing about never existed. Here’s a dose of on-the-ground reality. From the get-go, America’s Constitution permitted the enslavement of black Africans; American laws excluded all but whites as citizens; the federal government systematically drove Native Americans from their lands and took great advantage of them when land sales occurred, only allowing them as a people to become citizens in the mid-20th Century; the federal government and federal courts permitted Southern and Border States to terrorize millions of black Americans through Jim Crow laws, thousands of lynchings, other forms of atavistic violence, and overt racial bigotry for well over 100 years. Now, go back and re-read what Morabito wrote and see if her idealized conception of America corresponds with our history as lived.
In previous essays, I have written about my deep-seated dislike of the conservative concept widely known as American Exceptionalism. Among other things, I discussed Max Weber’s famous analogy to a country’s beginning that revolved around a game played with dice that were honest at the onset but assumed a directional bias that became stronger with passing time, meaning the dice were no longer honest but had, over time, become “loaded” or biased. I proposed turning Weber’s analogy on its head so that the nation-building game starts with loaded dice, moving a country’s socio-political system in a pre-determined direction from the get-go. According to my revised version of Weber’s analogy, the American dice had been loaded from the beginning with powerful doses of Eurocentrism that resulted in people of color—Native Americans, blacks, Hispanics, and Asians—being treated harshly and inequitably throughout our history to and including the present.
Although I believe that interpretation remains valid, recent events have led me to re-examine American history. I now believe that to classify American history only as Eurocentric is simplistic and inadequate. I have no doubt that Eurocentrism was and remains a significant worldview that directly and indirectly influenced the Thirteen Colonies and the newly formed United States during the nearly 250 years following our independence. But, after connections with the former European source countries, especially England, had lost at least a certain immediacy, it seems very likely that influences other than a time-weakened Eurocentrism continue to dominate mainstream American culture, especially since we claim to have thrown off so much of Europe’s excess baggage on our way to the New World.
After reflection, it occurred to me that the dynamic I sought to identify was closely related to Eurocentrism and was so powerful that the two intertwined forces have constituted America’s national identity throughout our history. That other dynamic is the white privilege/white supremacy that has informed our country’s actions throughout history.
Author’s Note: As used in this essay, the term “white privilege/white supremacy” is not meant in the Jim Crow South sense that the white race is inherently superior to all other races and that white people should control and dominate non-whites but that being born white in America affords people unearned privileges that non-whites do not have. A good way to think of white privilege is to reflect on what you have that you didn’t strictly earn on your own, as in the great job you got through networking the good old white boys club. Another way is to reflect on whites who think it normal and unremarkable to find themselves in the company of other whites the far greater majority of the time, as in schools, churches, neighborhoods, bars and restaurants, fraternities and sororities, professional organizations, etc.
Skeptics might ask as to what specific evidence documents the white privilege/white supremacy that supposedly afflicts our country? The answer should be obvious and starts with our enslaving Native Americans and then black Africans, and continues with the Naturalization Acts that denied citizenship to anyone but whites, with the removal of Native Americans from their ancestral lands that violated their Congressionally-guaranteed treaty rights in ethnic cleansing that provided American settlers with basically free land, with Jim Crow terrorism and racial discrimination and segregation, with the Chinese Exclusion Law (1882) that prevented Chinese from immigrating to the U.S. and from becoming citizens once here, with the forced relocation and imprisonment of American citizens of Japanese descent in concentration camps during WWII as the Supreme Court refused to consider the Constitutional issue of incarcerating U.S. citizens without due process, or with the multi-century bigotry against Hispanics in the Southwest; and with our centuries-long treatment of women as second-class citizens.
But, we do not need to speculate on the role white supremacy has played in American history. Just read the words of the U.S. Supreme Court in its
Toyota v. the United States decision (1925):
The Court’s
ruling in that case is of particular significance to this essay when it
affirmed that it was “the policy of Congress to limit the naturalization of
aliens to white persons and to those of African nativity or descent” (Toyota v.
United States 1925, p. 268, U.S. 412). With that decision, the Court directly acknowledged
that overt white supremacy had been and remained the law of the land.
As a nation, we want so desperately to believe we truly are, as John Winthrop wrote in 1630, “. . . a city upon a hill, the eyes of all people are upon us,” that we have created what amounts to a parallel universe where we have been given a special mandate from God to spread the gospel of our version of capitalist democracy across the Earth because our values and way of life are intrinsically superior to those of every other nation.
Today, reflective Americans are faced with a dilemma. How do we celebrate the many remarkable contributions of our Framers and Founders in creating the country in which we now live and fail to acknowledge that their hypocrisy and morally flawed judgments led to enormous social costs that continue to plague us? Those tragically flawed judgments included slavery that forced many hundreds of thousand blacks to suffer horribly and die in chains, the white supremacy that for nearly two centuries turned away all potential citizens of color and only admitted whites, the forcible removal of more than one hundred thousand Native Americans from their homelands without just compensation, the 625,000 Civil War deaths, the unilaterally abrogation of every treaty Congress signed with native tribes, and permitting millions of black Americans to suffer the violence and torments of Jim Crow terrorism and modern-day racial discrimination?
Those Americans holding our National Myths deeply in their hearts, mostly conservatives of various ideological stripes, never tire of trumpeting America’s Exceptionalism. They argue that the Founders/Framers were not racists and go out of the way to quote their recognition of the essential humanity of those black folks.[33] What apologists for the Founders/Framers fail to do is to reconcile their dedication to the “eternal principles” embodied in the Declaration of Independence and the Constitution with the laws they passed that allowed slavery, white-only citizenship, and the centuries-long exploitation of Native Americans.
Although many conservatives quote Thomas Jefferson, the principal author of the Declaration of Independence, when he denounced slavery as “a cruel war against human nature,” they typically fail to mention the critical fact that not long after writing those inspiring words Jefferson retired to his bedroom where he raped his comely female slave, Sally Hemmings, his deceased wife’s half-sister, so regularly she had six biracial children by him. Seldom do they mention the inconvenient reality that Jefferson never freed the 150 slaves he owned at the time of his death. So, we are left with a dilemma. In which did our revered Framers/Founders invest their innermost convictions? In their inspiring and enduring words or in the morally reprehensible deeds that document their feet of clay? Perhaps the solution for us as a country is to open our eyes and unite the two disparate threads into a single strand of America as lived and stop spouting the mythical nonsense of Exceptionalism.
For those who are true believers in America’s National Myths, the history of hard facts is often a great inconvenience whose pesky details are largely ignored in favor of the far less messy and far more inspiring words and ideas so skillfully promulgated by men like Jefferson, Monroe, and Madison in our founding documents. But, as the historian Andrew Bacevich (2005, p. 207) has said: “And yet in the end it is not motive that counts but outcome.”
To some readers, this essay must appear to be a thinly veiled attack on American Exceptionalism. Although more than a kernel of truth is contained within that perception, I see it rather as an attack on a certain conservative point of view perhaps best expressed by Irving Kristol: “What rules the world is ideas, because ideas define the way reality is perceived” (Kristol 1975).
A great many conservatives accept the concept that ideas have far-reaching consequences and that the course of history can turn on skillful framing and agenda setting. Freedom, equality, the inalienable natural rights concept, the overarching prerogatives of property and authority and tradition, the special world mission of America mandated by God are all critical ideas conservatives have superimposed on the disorderly landscape of lived experience. Through well-constructed framing, focusing, and polarizing what they believe America was in our glorious past and continues unabated today, they have tried to manipulate our national character and even our future to fit their ideological vision.
What I have tried to do in this essay is to strip away those so comforting but intentionally slanted framing and idealizing mechanisms. My goal has been to replace those devices with the historical reality of lived deeds, knowing that faithful conservatives will always point to the uplifting words and ideals of men like Jefferson, Monroe, and Madison while loudly claiming they were tried and true opponents of slavery and white supremacy. And that’s despite their being slave masters and rock solid supporters of white-only citizenship. For many conservatives, words, ideas, and values are far more important to what America is than mere real-world actions. Although I too value words and ideals, it should be obvious that my target audience in this essay is those who value facts over warm and fuzzy framing and analysis over comforting ideological convictions.
At the end of this essay I want to make sure readers do not mischaracterize as antipathy my criticism for the country in which I was born and still live. I accept America’s faults and failures to live up to what might be typified as unrealistic expectations of perfection; after all, we are a country of imperfect people who are human in every aspect. Despite not being blind to the historical struggle to ground the words and values in our founders and framers in lived experience, I understand the nature of human imperfection and love my country for what it is rather than for what I’d rather it be.
Supreme Court Cases—listed alphabetically
Berman v. Parker, 348 U.S. 26 (1954). Available online: https://supreme.justia.com/cases/federal/us/348/26/
Brown v. Board of Education of Topeka 347 U.S. 483 (1954). Available online: https://supreme.justia.com/cases/federal/us/347/483/case.html
Cherokee Nation v. Georgia, 30 U.S. 5 Pet. 1 1 (1831). Available online: https://supreme.justia.com/cases/federal/us/30/1/case.html
Civil Rights Cases 109 U.S. 3 (1883). Available online: https://supreme.justia.com/cases/federal/us/109/3/case.html
Corrigan v. Buckley 271 U.S. 323 (1926). Available online: https://supreme.justia.com/cases/federal/us/271/323/case.html
Hirabayashi v. United States 320 U.S. 81 (1943). Available online: https://supreme.justia.com/cases/federal/us/320/81/case.html
In re Ah Yup 1 F. Cas. 223 (C.C.D. Cal. 1878) (No. 104). Available online: https://en.wikipedia.org/wiki/In_re_Ah_Yup
Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823). Available online: https://supreme.justia.com/cases/federal/us/21/543/case.html
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Available online: https://supreme.justia.com/cases/federal/us/392/409/case.html
Korematsu v. United States, 323 U.S. 214 (1944). Available online: https://supreme.justia.com/cases/federal/us/323/214/case.html
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Available online: https://supreme.justia.com/cases/federal/us/187/553/case.html
Loving v. Virginia 388 U.S. 1 (1967). Available online: https://supreme.justia.com/cases/federal/us/388/1/case.html
Plessy v. Ferguson 163 U.S. 537 (1896). Available online: https://supreme.justia.com/cases/federal/us/163/537/case.html
Scott v. Sandford, 60 U.S. 393 (1856). Available online: https://supreme.justia.com/cases/federal/us/60/393/
Southern Burlington County NAACP v. Mount Laurel, 119 N.J. Super. 164 (1972) 290 A.2d 465. Available online: http://law.justia.com/cases/new-jersey/appellate-division-published/1972/119-n-j-super-164-0.html
Takao Ozawa v. United States, 260 U. S. 178, 260 U. S. (1922). Available online: http://caselaw.findlaw.com/us-supreme-court/260/178.html
Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 289-90 (1955). Available online: https://supreme.justia.com/cases/federal/us/348/272/
Toyota v. United States, 268 U.S. 402 (1925). Available online: https://supreme.justia.com/cases/federal/us/268/402/case.html
United States v. Bhagat Singh Thind, 261 U.S. 204 (1923). Available online: https://supreme.justia.com/cases/federal/us/261/204/case.html
United States v. Cruikshank 92 U.S. 542 (1875). Available online: https://supreme.justia.com/cases/federal/us/92/542/case.html
United States v. Kagama, 118 U.S. 375 (1886). Available online: https://supreme.justia.com/cases/federal/us/118/375/case.html
United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) 448 U.S. 371. Available online: https://supreme.justia.com/cases/federal/us/448/371/case.html or http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=371
United States v. Cruikshank 92 U.S. 542 (1875). Available online: https://supreme.justia.com/cases/federal/us/92/542/case.html
United States v. Wong Kim Ark 169 U.S. 649 (1898). Available online: https://supreme.justia.com/cases/federal/us/169/649/case.html
Williams v. Mississippi 170 U.S. 213 (1898). Available online: https://supreme.justia.com/cases/federal/us/170/213/
Worcester v. Georgia, 31 U.S. 515 (1832). Available online: https://supreme.justia.com/cases/federal/us/31/515/
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Endnotes
[1] For a
mainstream conservative interpretation about slavery and the Constitution that
cuts the Founders plenty of slack and identifies very few villains among the
Founders who believed slavery was right and proper, see: http://www.heritage.org/constitution/content/pdf/lesson-19.pdf
[2] See: http://www.samueljohnson.com/slavery.html
[3] See: http://www.history.com/topics/compromise-of-1850
[4] See:
http://www.heritage.org/constitution/content/pdf/lesson-19.pdf
[5] See: See
http://www.usconstitution.net/consttop_slav.html#origin
[6] See: http://www.phmc.state.pa.us/portal/communities/documents/1776-1865/abolition-slavery.html
[7] See: http://teachingamericanhistory.org/library/document/slavery-a-positive-good/.
See also: John C. Calhoun, "Speech on the Reception of Abolition
Petitions, Delivered in the Senate, February 6th, 1837," in Richard R.
Cralle, ed., Speeches of John C. Calhoun,
Delivered in the House of Representatives and in the Senate of the United States
(New York: D. Appleton & Co., 1853), 625-633.
[8] See: http://www.pbs.org/wgbh/aia/part2/2h38.html
[9] Note
that the correct spelling is Sanford, not Sandford; The documents filed before
the Court simply misspelled the name.
[10] See: http://thurgoodmarshall.com/the-bicentennial-speech/
[11] See: http://nationalhumanitiescenter.org/tserve/freedom/1865-1917/essays/reconstruction.htm
[12] See: http://www.crf-usa.org/impeachment/impeachment-of-andrew-johnson.html
[13] See: https://www.nps.gov/nhl/learn/themes/CivilRights_VotingRights.pdf
[14] See:
https://www.nps.gov/nhl/learn/themes/CivilRights_VotingRights.pdf
[15] See: http://www.crf-usa.org/black-history-month/race-and-voting-in-the-segregated-south
[16] See: http://umich.edu/~lawrace/votetour4.htm
and http://sageamericanhistory.net/reconstruction/reconstruction.html
[17] See: http://www.pbs.org/wnet/jimcrow/struggle_congress.html
[18] See: https://web.archive.org/web/20120320165033/http://www.pbs.org/wgbh/americanexperience/features/biography/flood-vardaman/
[19] See http://www.displaysforschools.com/rosewoodrp.html
and http://digital.library.okstate.edu/ENCYCLOPEDIA/ENTRIES/T/TU013.html).
[20] See: http://www.npr.org/sections/thetwo-way/2016/10/19/498536077/interactive-redlining-map-zooms-in-on-americas-history-of-discrimination
[21] See: https://www.ourdocuments.gov/doc.php?flash=true&doc=47
[22] Act of
Dec. 17, 1943, ch. 344, § 3, 57 Stat. 601
[23] See: https://history.state.gov/milestones/1937-1945/chinese-exclusion-act-repeal
[24] Act of
July 2, 1946, ch. 534, sec. 1, § 303(a), 60 Stat. 416.
[25] Section
311 of the Immigration and Naturalization Act of 1952 eliminated race as a
factor in naturalization: Act of June 27, 1952, tit. 3, ch. 2, § 311, 66 Stat.
163, 239; for the full law, see:
http://www.immigration-usa.com/ina_96_title_3.html
[26] See: http://library.uwb.edu/static/usimmigration/1965_immigration_and_nationality_act.html
[27] See:
http://www.cherokee.org/AboutTheNation/History/Facts/TreatyofHolston,1791.aspx
and also http://founders.archives.gov/documents/Washington/05-09-02-0100
[28] See:
https://history.state.gov/milestones/1830-1860/indian-treaties
[29] For
more information, see: http://teachinghistory.org/history-content/ask-a-historian/24391
and http://outreach.asu.edu/book/resource-guide/plenary-power-cases.
[30] An Act
to Provide for the Allotment of Lands in Severalty to Indians on the Various
Reservations (General Allotment Act or Dawes Act), Statutes at Large 24, 388-91,
NADP Document A1887.
[31] See: https://tm112.community.uaf.edu/files/2010/08/Non-Intercourse-Act.pdf
[32] See: http://thefederalist.com/2016/08/30/american-exceptionalism-human-exceptionalism/
[33] See the Heritage Foundation’s
remarkable essay: http://www.heritage.org/research/reports/2011/01/frederick-douglass-s-america-race-justice-and-the-promise-of-the-founding
