Back to index
Narrative Themes of the American Character
Omar Swartz is Assistant
Professor, Department of Communication, University of
This essay considers some of the salient dimensions of American
ideological culture and explores important legal limitations
interfering with the United States becoming a truly multi-ethnic
this essay historicizes the serious shortcoming of the U.S. commitment
toward democratic self-rule and freedom and introduces readers to a
discernible cycle in U.S. history, one of repeated breakdown and
reassertion of elite control. Once
this dialectic is acknowledged, we can learn that resistance to elite
control is not only possible but very much in the American tradition
and in the best interests of the American people.
SUSPICION OF TOTALIZING NARRATIVES
As a nation, the United States evokes different experiences for different
people. Nearly all nations on Earth and hundreds of millions of people
have been affected in some way by the United States and its policies.
Some nations, such as Japan, Israel, and others in Western
Europe, have benefited greatly from the United States and owe much of
their current prosperity and security to American aid.
Others, such as those in Latin America, Southeast Asia, and
throughout most of the Middle East, suffer greatly because of the
United States and owe their poverty and insecurity in large part to
our actions. In this view,
the “United States has had a large negative impact on human rights
in the Third World and should be regarded as a primary source of human
rights violations, rather than as a world leader devoted to their
Given the size and world-historic power of the U.S., however,
it is not possible to reduce the experience of the nation to a set of
propositions or static categories.
Not everything the United States does is cruel.
The interests and practices of nations change.
The job of the critic is to trace these changes as they occur
and to nudge society when needed changes are not forthcoming.
As a critic of American culture, the critic’s target is amorphous and
fluid—that as soon as parts of it are captured other parts—perhaps
equally representative—escape. The
danger of any representation is the illusion of totalization, as
Edward Said articulated:
[I]n writing and speaking,
one’s aim is not to show everyone how right one is but rather to try
to induce a change in the moral climate whereby aggression is seen as
such, the unjust punishment of peoples or individuals is either
prevented or given up, the recognition of rights and democratic
freedoms is established as a norm for everyone, not invidiously for a
What is considered dangerous about the United States can be used to
construct a narrative of resistance or a healing power, one that comes
from a structural understanding of our common disease—the efforts of
the United States to stymie social justice at home and throughout much
of the world. As Said
explains, the goal is to move beyond the easy verbal commitments to
equality and harmony and “to bring these notions to bear on actual
situations where the gap between the profession of equality and
justice, on the one hand, and the rather less edifying reality, on the
other, is very great.”
Exploration of the systemic features of American society that contribute
to our immoral actions as a nation requires selection from among the
different narratives of the U.S. that exist, discounting some,
concentrating on others. This
is an altogether different type of selection and emphasis from what we
frequently find expressed by our leaders and many citizens when they
attribute to the United States divine sanction or universal
reductions are not healthy. Rather
than have the power to heal, they announce a retrenchment of the
agencies of disease. Such
attributions limit the moral imagination and reduce all of us to
historical passivity. A
rejection of such passivity seeks to raise the consciousness of the
American people to view normative wealth and power in the United
States as fundamentally corrupt and generative of much of the pain and
suffering experienced by more than 80% of the people on the planet.
This number includes the 32.9 million people within our own
nation who live below the poverty level.
When the United States acts honourably, unselfishly, and for the good of
the world, then it deserves our admiration and respect.
Yet, to do so, it must demonstrate through conduct “the
efficacy of plural, partial, and experimental methods in securing and
maintaining an ever-increasing release of the powers of human nature,
in service of a freedom which is cooperative and a cooperation which
This sort of action, however, is rare, yet Americans are led to
believe that their government, in fact, acts this way a majority of
the time. To be fair,
perhaps most governments perpetuate a similar illusion and demand an
uncritical acceptance of that illusion.
Government itself may be an imperfect institution, one which we
are better off to reject; classical anarchists such as Peter Kropotkin,
Pierre-Joseph Proudhon, and Michel Bakunin certainly argued this
claim. But rejecting
government would be a mistake. Government
is necessary and can be moral and beneficial.
The absence of government presents significant problems for
social justice, but its existence is only as good as its commitment to
all of its citizens and not merely to a favoured few.
In the political and economic environments of today, only
governments can create conditions necessary to allow for social
justice, although most, especially the United States, appear unwilling
to do this. Whatever
arguments can be said against government, the movement for progressive
change must be institutionalised so that the hope of today becomes the
backdrop upon which a future enlightened society can be situated.
Americans have a particular responsibility to criticize the policies of
our own government. Unlike
many other nations, the United States has the power, ideology, and
capability to be, in reality, what it claims—a force for good.
Therefore, the imperfections and contradictions of our
political and legal institutions demand particular attention.
Americans should be comfortable with critical public activism
because, in theory, the United States is a government we can affect
through our moral condemnations and critical activities.
Why criticize foreign nations that we cannot hope to influence
when, perhaps, our voices can engage the political machinery of our
own community? This is
especially important because the United States is the sole superpower
on the planet, one whose leaders are seizing nearly unfettered and
unaccountable power. This
fact adds urgency to our criticism and should strengthen our
Even though totalising narratives describing the U.S. are suspect, some
principles or themes can be isolated that broadly describe the
character of the United States. These
themes are particularly salient because they have greatly influenced
the development of American self-perception and have important legal
and historical implications.
BRIEF SKETCH OF AMERICAN IDEOLOGICAL CULTURE
From the start of British colonization in what is now the United States
until the 1730s, there was little that could be considered a coherent
American ideology. What
existed were three general rhetorical visions of community that, with
variations, constituted local normative political practice.
These rhetorical visions refer to the ways communities
articulate their identity and use that identification to define the
larger social reality of not only their immediate community but also
of the communities they are able to dominate.
Rhetorical visions emerge when group members engage in community-defining
discourse, inventing the group's past, defining and explaining events
in the present, and aiding group members to forecast the community’s
future aspirations. These
visions find expression in jokes, stories, analogies, and metaphors
and constitute a roadmap for the interpretation of social events and
the reinforcement of member self-identification.
As group synergy increases, the visions tend to “chain out”
in a process that Ernest G. Bormann identified as symbolic
convergence, by which a group of people is transformed into a
As the community grows, a new view of social reality evolves
into a rhetorical vision.
Such shared visions, highly structured and ideologically
situated, become the currency by which group members negotiate their
interpersonal and larger social relationships.
Over time, these narratives totalise, and the culture they
create becomes increasingly reified.
Thus, these symbols do more than merely bond; they direct
people toward specific meanings and behaviours.
Such narratives include the perception of social order—how
and why certain things are accomplished—in a process that becomes
subconscious and structured. As
the historical or literal context of the vision fades, logological
residues remain to influence contemporary society.
VISIONS AND THEIR CRITIQUE
Over time, three visions—the Puritan religious vision, the Virginia
vision of wealth, and the Pennsylvania vision of democracy—chained
out and occupied prominent roles in the official ideology of our
nation. The remnants of
each of these remain today as a productive cultural force and by
understanding them, we can discern insights into contemporary American
motivations. Much of what
is wrong with the United States can be traced back to the historical
expression of these narratives, while much that is good has arisen in
reaction to their influence. In
simplified form, these narratives are familiar to every child who
attends primary school in the United States.
The Godly People
The first vision is associated with the Puritans and Pilgrims of the New
England colonies who sought a new life in North America.
The version of this narrative that school children learn is
that the Pilgrims came to the New World to escape religious
persecution and to tame the wilderness.
These initial settlers were underdogs who exemplify the
American commitment to providing the downtrodden with a second chance.
With hard, self-sacrificing work, religious and political
outcasts could remake themselves in the land of opportunity.
With faith in God and limited government, freedom could find
its most complete expression.
This narrative is an incomplete representation of what happened.
The Puritan vision was one of religious intolerance and
manifest destiny (although the term was not articulated until much
later), in which these Europeans claimed for themselves the vast lands
of North America to perfect a strictly defined Christian civilization.
At the time, different Christian sects throughout Europe had
been fighting each other for centuries, undermining the dream of a
heavenly Christian society on Earth.
The Puritans, in particular, were zealots who were politically
active in trying to refashion English society along lines of their
austere religious views. When
they proved unable to do this, they left, claiming that they were
escaping an imminent Armageddon in Europe.
In the New World, they sought to construct their utopia—what
they proclaimed to be the “Kingdom of God” under the “rule of
saints.” These societies
were guided by the “errand in the wilderness” vision, and the
colonists believed that they were building a “new Jerusalem” and a
In considering themselves the "Chosen Elect,” these early settlers
strove to purify first themselves and then others of everything that
did not fit within their narrow interpretation of scripture.
To achieve purity on behalf of the state, they engaged in
deception, torture, and war. They
saw themselves as fighting a holy battle against the devil, and anyone
who disagreed with them was considered the enemy.
On religious matters (which, in effect, were coterminous
with daily life), tolerance was seen as the enemy of truth and a
violence against God. For
example, in 1647, the Reverend Nathaniel Ward published a book
entitled Against Toleration, in which he argued that “God
doth no where in his word tolerate Christian States, to give
Tolerations to such adversaries of his Truth, if they have power in
their hands to suppresse them…”
Ward equates religious tolerance with theological insincerity, a sin
under any ideological system based on a doctrine of faith:
“He that is willing to tolerate any Religion, or discrepant
way of Religion, besides his own, unless it be in matters meerly
indifferent, either doubts of his own, or is not sincere in it.”
In other words:
The Scripture saith, there is nothing makes free but Truth, and Truth
faith, there is no Truth but one: If the States of the World would
make it their summ-operous Care to preserve this One Truth in its
purity and Authority it would case you of all other Politicall cares.
I am sure Satan makes it his grand, if not only task, to adulterate
Truth; Falsehood is his sole Scepter, whereby he first ruffled, and
ever since ruined the World…
Echoes of Ward’s intolerant view can be seen expressed later when U.S.
Supreme Court Justice Joseph Story wrote in an influential commentary
that “it is impossible for those who believe in the truth of
Christianity as a divine revelation to doubt that it is the especial
duty of government to foster and encourage it among all the citizens
For Story, the purpose of the religious clause of the First
Amendment was not, in his words, to “prostrate Christianity” but
to exclude competition and hostility among Christian sects.
The drafters of the First Amendment were cognizant that, for
centuries, Europe had been mired in religious warfare among different
forms of Christianity. Story
specifically condemned Islam, Judaism, and infidelity as unworthy of
protection and argued that the goal of the First Amendment was to
effectuate a united Christian front.
The role of government was to ensure that such a “front”
was nurtured. This rigid
fundamentalism, not unlike that of the Taliban movement at the end of
infused in our national fabric a messianic fanaticism that can be
discerned in both the Cold War and in the current war on terrorism.
In short, Americans often view the world in terms of a
black/white dichotomy in which the forces of good battle the forces of
evil, with good always winning because the good are aligned with the
wishes of God. Wander
terms this phenomenon “prophetic dualism,” a view of the United
States grounded in the belief that the U.S. occupies the moral or
spiritual high ground:
Religious faith, moral insight, a respect for the laws of God formed a
set of virtues attributed to the nation which . . . could be called
upon not only to explain why those in power deserved to be there, but
also why the United States should engage in certain kinds of action
abroad . . . .[P]rophetic dualism divides the world into two camps.
Between them there is conflict.
One side acts in accord with all that is good, decent, and at
one with God’s will. The
other acts in direct opposition. Conflict
between them is resolved only through the total victory of one side
over the other. Since no
guarantee exists that good will triumph, there is no middle ground.
Hence neutrality may be treated as a delusion, comprise
appeasement, and negotiation a call for surrender.
Prophetic dualism is a powerful ideology that transports its adherents
far beyond mere patriotism. The
citizens of most nations feel positively toward their nationality, but
few invest their national identity with such stark and antagonistic
transcendental values as does the United States.
While the cosmology of most national or ethnic communities is
usually couched in terms of God or divine creation and postulate a
special connection between the deity and that group, few communities
at the present time view themselves with such messianic drama (what
James Chace calls “American Messianism”).
This paradigm was particularly evident in the discourse of
Ronald Reagan: “Let us be frank.
Evil still stalks the planet.
Its ideology may be nothing more than bloodlust; no program
more complex than economic plunder or military aggrandizement.
But it is evil all the same.”
The parallels between Reagan’s anti-communism and George W. Bush’s
war on terrorism are many—both stem from the same narrative source
in dogmatic Puritan ideology.
President Bush has repositioned the drama surrounding American
Messianism in terms of what he calls “a distinctly American
A cornerstone of this internationalism is the readiness of the
United States to wage pre-emptive nuclear war against real or imagined
enemies (what Bush calls “proactive counter proliferation”).
The implication of this messianic and proactive national
self-identity is troubling, for it invites crusader thinking and is
rapidly pitting the United States against the rest of the world and
Islamic nations, in particular.
While the appeal to prophetic
dualism strikes many as insincere and a manipulation of public
sentiment for private political gain, such reasoning permeates public
discourse and is accepted and unquestioned by a significant portion of
the U.S. population. Regardless
of the motivations of the prophetic dualist, the pragmatic function of
the argument form is obvious: it
“stifles debate” and “encourages a heightened dependence on the
Genocide, Slavery, and the Pursuit of Wealth
The second rhetorical
vision, rooted in colonial Virginia, concerns a social order grounded
in unrestrained economic freedom and the possibility of creating vast,
unregulated wealth for a small brutal oligarchy.
As Warren M. Billings notes, “Virginia drew freewheeling
Britons who wished to exchange the intricate legalities of home for a
perceived opportunity to chase private gain in Virginia in nearly
This freedom “gave such colonists competitive advantages,
enabling them shamelessly to exploit any opportunities that fell in
This vision of economic freedom is grounded in the genocide of
the Native Americans, indentured servitude, and slavery and is
exemplified by what Richard Drinnon calls “the metaphysics of Indian
hating” and empire building.
Drawing on an observation by American novelist Herman Melville, Drinnon
views the metaphysics of Indian hating as part of early
exterminationist policies. According
to Drinnon, racism and the duality that the Europeans brought to the
New World between civilization and nature played an important role in
the formation of U.S. empire building and consequent overseas
expansion. The European
settlers perceived Native Americans as less than human and thus found
justification for the subjugation and usurpation of Indian lands.
As the European settlers moved farther west, they recreated the
frontier, turning it into a political justification for the
accumulation of wealth and power.
Drinnon argues that as the frontier receded and, along with it
the Native Americans, Anglo-Americans looked elsewhere for
empire—the Spanish-American War, the colonization of the
Philippians, and the Vietnam War are noteworthy examples.
Filipinos and the Vietnamese became the new Indians, and their
countries the “new frontier,” waiting to be tamed and civilized by
North American ideals of civilization and progress.
This metaphysics of Indian hating and its graphing onto the national
consciousness has its origins in Jamestown, Virginia.
From the very beginning, the settlers were in direct conflict
with the Native Americans. The
Virginia model of race relations was one of apartheid and genocide.
Some of the earliest European laws on this continent featured
repeated calls for the isolation and then extermination of the Native
Americans. For example, in
a series of laws from 1609 through 1629 known as Lawes Divine,
Morall and Martiall, interaction with the Native Americans was
carefully proscribed. Article
1.15 of this legal code reads, “No man of what condition soever
shall barter, trucke, or trade with the Indians, except he be
thereunto appointed by lawful authority, upon paine of death.”
Even talking privately with Native Americans without permission
from the colonial authority was an act punishable by death (Article
By 1629, the laws in Virginia called for total war against the Native
Americans and placed colonial society on a war-time economy and
prepared for total war. Everyone
in the community was recruited to be a part of the war effort and was
required to give complete aid to the community in the extermination
effort. The colony, in
short, organized for genocidal war.
Later, the violent conquest of North America by the Europeans
was condoned by the United States Supreme Court in Johnson v. M'Intosh,
a case that grounds land rights in the United States on the doctrine
M'Intosh presents conflicting claims to large tracts of land in southern Illinois
and Indiana. The
plaintiffs claimed title by virtue of deeds through a third party that
had originally had been bought directly from Native Americans.
The defendant grounded his claim through a United States patent
(now known as a deed). In
ruling for the defendant, the Court conclusively established the
principle that the federal government would not recognize the title of
any land sold directly to individuals by Native Americans.
In other words, at the root of most land titles in America
outside the original thirteen colonies sits a federal patent.
The validity of the government’s title, in turn, rests on M’Intosh,
which held that a discovering sovereign has the exclusive right to
extinguish Indians' interests in their lands, either by government
purchase or what the Court called “just war.”
The Court reasoned that the
treaty that ended the American Revolution gave the powers of
government and the rights of the soil, which previously had belonged
to England, to the United States.
The doctrine of discovery gave the British an exclusive right
to extinguish the Indians’ title of occupancy through purchase or
conquest. As the Court
Conquest gives a title which the Courts of the conqueror cannot deny,
whatever the private and speculative opinions of individuals may be,
respecting the original justice of the claim which has been
successfully asserted. The British government, which was then our
government, and whose rights have passed to the United States,
asserted title to all the lands occupied by Indians, within the
chartered limits of the British colonies.
It asserted also a limited sovereignty over them, and the
exclusive right of extinguishing the title which occupancy gave to
them. These claims have been maintained and established as far west as
the river Mississippi, by the sword. The title to a vast portion of
the lands we now hold, originates in them.
It is not for the Courts of this country to question the
validity of this title, or to sustain one which is incompatible with
it. The title by conquest is acquired and maintained by force. The
conqueror prescribes its limits.
In other words, the judiciary is precluded from judging executive action.
More substantially, it is precluded from conceptualising the
assumptions that ground the social controversies that the Court is
asked to mediate. In this
sense, justice is blind. Rather
than being a moral system in the sense that most people think of
morality, the law is a closed system.
Unless moral concerns are intentionally introduced into the
legal calculus, the judiciary will go to great lengths to exclude them
from its reasoning. Such
issues are usually dismissed by the judiciary as “political
questions” not susceptible to legal analysis.
As expressed by Chief Justice Marshall, the ''province of the
court is, solely, to decide on the rights of individuals, not to
inquire how the executive, or executive officers, perform duties in
which they have a discretion. Questions
in their nature political, or which are, by the constitution and laws,
submitted to the executive can never be made in this court.''
is not usually evoked when legal scholars discuss the political
question doctrine, M’Intosh is a paradigmatic example of that
doctrine, highlighting the large gap between law and morality in the
U.S. legal system. Contrary
to what the Court characterizes as its responsibility to abstain from
political controversy, the separation of powers and a system of
checks and balances is supposed to keep the U.S. system just.
The judiciary has a constitutional role to play in being more
than a sycophant to power. Why
cloak in law the politics of the sword unless the law is but an
extension of the sword? Indeed,
this may be the case:
Humanity, however, acting on public opinion, has established, as a
general rule, that the conquered shall not be wantonly oppressed, and
that their condition shall remain as eligible as is compatible with
the objects of the conquest. Most
usually, they are incorporated with the victorious nation, and become
subjects or citizens of the government with which they are connected.
The new and old members of the society mingle with each other; the
distinction between them is gradually lost, and they make one people.
Where this incorporation is practicable, humanity demands, and a wise
policy requires, that the rights of the conquered to property should
remain unimpaired; that the new subjects should be governed as
equitably as the old, and that confidence in their security should
gradually banish the painful sense of being separated from their
ancient connexions [sic], and united by force to strangers.
Citing from what was rational, given centuries of European infighting,
the Court recognizes that this policy of conquest is really nothing
more than the law of foreign relations within the European nations.
Such was the Rule of Law as practiced in Europe during
centuries of internal conquest as well as competition for overseas
colonies. The people of
Europe had to live and trade with one another and they shared a common
heritage. Thus, the Court
explains, “When the conquest is complete, and the conquered
inhabitants can be blended with the conquerors, or safely governed as
a distinct people, public opinion, which not even the conqueror can
disregard, imposes these restraints upon him; and he cannot neglect
them without injury to his fame, and hazard to his power.”
Such a ruling, claimed the Court, was “indispensable” for the order
and system of the colonizers. With
the Native Americans, however, things were different for the Court.
Native Americans were not the type of people about whom humanity makes
demands on the Anglos:
[T]he tribes of Indians inhabiting this country were fierce savages,
whose occupation was war, and whose subsistence was drawn chiefly from
the forest. To leave them
in possession of their country, was to leave the country a wilderness;
to govern them as a distinct people, was impossible, because they were
as brave and as high spirited as they were fierce, and were ready to
repel by arms every attempt on their independence.
As a result of the Court’s reasoning, Native Americans were to be
considered merely as occupants in the possession of their lands and
deemed incapable of transferring the absolute title to others.
Practically, this meant that only the United States had the
legal authority to convey title of Indian lands to third parties.
Therefore, the conveyance of lands by chiefs of a tribe to an
individual was invalid. Through
an act of law, Native Americans were alienated from their land.
The Democracy of Distance
A third important vision in American culture concerns the commitment
toward increased levels of democratic self-rule and freedom.
Most Americans do not realize that when we look back at the
notion of democracy, particularly among the settlements, we are
speaking of a democracy of distance from England.
Two months were needed to send a message by ship across the
Atlantic Ocean. This
distance necessitated self-rule in the colonies.
Thus, much of the so-called “democracy” we find in the
early experience of this country was simply that of the white,
wealthy, colonial community members working to fill in the gaps
between the needs of their local communities and villages and the
utter neglect and ineffective colonial administration and the
indifference of the English Crown and Parliament—what Robert A.
Friedlander calls the “benign neglect” of the English leadership.
As Friedlander notes further, “As the seventeenth century
wore on, it became increasingly difficult to distinguish between
self-regulation and self-government.”
To the extent that the democratic vision our nation celebrates today
existed in the early years of the Republic, it most clearly could be
seen in Pennsylvania. This
society was set up as self-consciously tolerant and as widely
inclusive as any that existed at the time.
As a result of this tolerance, Pennsylvanian society was at
times so chaotic that the other colonies accused it of being
troublesome and anarchistic. This
became a recurring theme in U.S. geopolitical labelling, particularly
as applied to Central and South America.
The more democratic a society (defined here as being
even-handed toward its citizens), the more it is labelled a
troublemaker (what would become “communist” in the twentieth
century and “terrorist” in the twenty-first century) and the
stronger the pressure to return power to an oligarchy or a neo-fascist
police state. As Robert
Kennedy notes, there is no consensus on the definition of
“terrorism,” and many, even most, countries tend to label their
political opponents “terrorists,” making the label overly
inclusive and draining the term of categorical meaning.
According to Kennedy, “Failure to focus on such difficult but
vital issues is likely to undermine efforts to deal effectively with a
kind of violence that forges and reinforces deep seated animosities
between communities of different persuasions.”
Following the September 11 attacks in the U.S., Israel, Russia,
and China latched on to the “terrorist” label and used it to
suppress their own dissident minority populations.
The United States, of course, is milking the term to justify its
imperialistic ambitions. This
point is seen clearly in the words of George W. Bush when he argues
that in “this world, there are good causes and bad causes, and we
may disagree on where that line is drawn.
Yet, there is no such thing as a good terrorist.
No national aspiration, no remembered wrong can ever justify
the deliberate murder of the innocent.”
In a limited sense, Bush is correct.
“Terrorist” is a negative label.
By definition, there can be no good “terrorist” (instead,
we use the term “freedom fighter” to describe the person whose
political violence advances a cause that we support).
But Bush is wrong when he asserts that nothing justifies the
“murder” of innocent people (“murder” is also a negative
label). Bush’s actions
in invading Iraq, for example, contradict his own words, as many
“innocent” people (soldiers and civilians) have died—such deaths
resulted from Bush’s deliberative action.
In a more general sense, U.S. foreign relations, as well as
international intercourse, occur in a realm far removed from the
judicial sense of “guilty” or “innocent.”
Where state action is concerned, there are only degrees of
state interests, strategic calculations, and expressions of power.
The motivations for war vary among different states in
different settings, each requiring evaluation before the decision to
support or condemn a military campaign can be made.
Thus to declare, as Bush has done, that the “enemy is
terrorism—premeditated, politically motivated violence perpetrated
is to obscure public comprehension of the issues for which the United
States is fighting.
Pennsylvania alone in what would become the United States made an effort
to include different people and different ideas.
Its state constitution of 1776 was the most radical document to
come out of the American war for independence.
This occurred because, unlike the other colonies, the state
government actually changed as a result of the war.
In Pennsylvania, the local elites were considered too
conservative and lost power. The continuity of leadership in the other
colonies provided a natural break from revolutionary or democratic
thinking because the reins of real power did not change hands.
All that was different was the absence of a British imperial
presence, which was never strong.
Pennsylvania was the exception to the stabilizing continuity of the other
state governments and was in the position of creating an entirely new
government, one that was decidedly amateur in that politicians were
paid very little and expected to serve out of duty while they took
short breaks from their professional lives.
What they created had only a very limited property requirement
to vote or to serve in government.
Pennsylvania was tolerant of the Jews and did not exclude them
from the civic community, as most of the other states did.
The government in Pennsylvania encouraged public works and
universal education: “A
school or schools shall be established in each country by the
legislature, for the convenient instruction of youth, with such
salaries to the masters paid by the public, as may enable them to
instruct youth at low prices: And all useful learning shall be duly
encouraged and promoted In one or more universities.”
The state constitution also encouraged a free press to serve as
a check on the legislature and to contribute to the general openness
Commitments toward such historical ideals are often expressed in our
official discourse as moral principles and conditions.
These commitments, however, held true only to an extent.
Certainly, the American experience is marked by an unfolding of
political and social freedom, a gradual movement toward greater
political (but not economic) inclusion.
To talk about American “democracy,” we have to keep in mind
this condition of imperfect expression and gradual unfolding.
Prior to the 1960s, this “becoming” was so incomplete that
democracy in the United States could be defined by its absence.
The movement toward civil rights for African-Americans, women,
and the poor during this period was followed by a movement toward
inclusive civil liberties in general, like freedom of speech and the
right to criticize the government.
In retrospect, the 1960s, with all of its accomplishments and promises,
was the high-water mark in America’s moral development.
The next few decades very well may be remembered as the time in
which the United States gave up on the pretension of democracy and
equality as civil society dissolves under an increasingly intolerant
police and military state and as hereditary social classes calcify.
These trends are already pronounced, and they are disturbing.
REPEATED BREAKDOWN AND RE-ASSERTION OF ELITE CONTROL
A theme related to these three visions characterizing American culture is
that of repeated breakdown and re-assertion of elite control.
Elites never have been able to maintain complete control over
the American population. The
last major contest on this issue came about during the political and
social turmoil of the 1960s. The
crucial social movements of the 1960s—the civil rights moment, the
anti-war movement, the feminist movement, the ecological movement, the
poor people’s movement, the homosexual movement, the Native American
movement, the Chicano Movement, and others—received a great deal of
criticism by modern elites in our country.
Yet, each of these movements was crucial for Americans of all
colours and cultural identities in asserting a popular democracy that
challenged norms of elite control in our country.
As Rorty notes, “America will always owe an enormous amount
to the rage which rumbled throughout the country between 1964 and
1972. We do not know what
our country would be like today, had that rage not been felt.
But we can be pretty certain that it would be a much worse
place than it is.”
Many of these domestic movements were also connected with
international counterparts that reflected a rethinking of the
relationship between the elite class and the rest of us.
France, in particular, experienced a great deal of growing
pains as the May Student Movement of 1968 galvanized the French
working classes and came close to reinventing the French government
Throughout much the history of the United States, “the people” were
often considered a dangerous enemy.
Elites used the phrase “the excesses of democracy” to
counter popular expressions of the demand for political, social, and
economic inclusion and argued that the common people had to be
controlled for their own good. We
are, as a mass, too fickle, whimsical, and passionate, and, left to
our own devices, we may act in our own interest (which is often
antithetical to that of the elites, particularly in terms of property
and the control of the economy). For
example, during the drafting of the Constitution, James Madison
expressed the following concern:
An increase of population will of necessity increase the proportion of
those who labour under all the hardships of life and secretly sigh for
a more equal distribution of its blessings.
These may in time outnumber those who are placed above the
feelings of indigence. According to the equal laws of suffrage, the
power will slide into the hands of the former.
No agrarian attempts have yet been made in this country, but
symptoms of a levelling spirit, as we have understood have
sufficiently appeared in a certain quarter, to give notice of the
Because of concerns such as this, a major purpose of the judiciary was to
ensure that the poor majority of this country do not unify politically
and interfere with what are called the rights of property.
In the words of Charles A. Beard, the drafters “were anxious
above all else to safeguard the rights of private property against any
levelling tendencies on the part of the propertyless masses.”
Long before most Americans enjoyed political rights, the elite
held well-established property rights in this country.
This is an expression of what Beard identifies as the conflict
between business and populism that occurred during the drafting and
ratification of the Constitution.
In the United States and increasingly throughout the world, the
rights of property are considered more important than human rights.
These issues go back centuries to the earliest experience of the North
American colonies and provided much of the ideological impetus for the
American Revolution. Much
of the population in the colonies did not want to be ruled by either
the King of England or by Parliament.
The colonists were highly suspicious of the colonial
administration, whom they correctly saw as gorging themselves at the
expense of the colonists. In
their pamphlets, circulated when tensions with England grew, many
colonists expressed that they wanted to be governed “by countrymen
like ourselves, that know our wants” and not by “kings and
gentlemen [that] make us laws, that are chosen for fear and oppress
us, and do not know the people’s sores.”
These were some of the ideas that stirred the rebellious farmers of the
colonies, and much of the ideology behind the Constitution reflected
them as well. By and
large, however, these were not the people who wrote the Constitution,
as that job was assigned to the moneyed class of the American
colonies, resulting in a constitutional system quite different from
what many of the common people would have liked.
The Constitution was designed as a block—a check to keep the
revolutionary impulses of the independence movement from going too
far. As such, the American
Revolution was not a “positive” revolution, not the result of a
bottom-up, well-considered, or even popular social movement that was
attempting to enact a social agenda.
Rather, it was a reactionary movement to specific English
provocation that created a unified colonial response.
The British sought to deny the colonists their British rights of
representation and treat the colonists as second-class British
citizens, which the colonists resisted.
Few people thought of actual independence.
Economically and culturally, the various colonies were too
different and had too little in common for a theory of independence to
develop. The Declaration
of Independence offers no positive theory of why that document was
created and consists largely of vague references to something called
“Natural Law.” In
fact, the document is overwhelmingly a series of complaints against
England for its heavy-handed control of the colonies, mostly to
collect taxes for the Seven Years War against France.
This war had devastated the English economy, and England needed
its colonies to contribute funds to the Crown (the colonists, after
all, benefited from British trade and naval supremacy).
In other words, after the Seven Years War, “the new King
George III, along with the Ministry of George Grenville and its
successors, determined that the Americans should be made to pay their
share of the costs of empire.”
Without the extreme actions of the English, which prompted
colonial resistance, there would have been little reason or
opportunity for the common people of the colonies to become engaged
politically with the constructing of their society or the running of
their economies. In what
Howard Zinn describes as “a forecast of the long history of American
politics,” these lower-class people were used by the colonial elite
for their own selfish interest.
In sum, the goal of the new federal Constitution was to “protect the
minority of the opulent from the majority” and to ensure that “the
country is governed by those who own it.”
These are the words of James Madison, a leading Framer of the
Constitution and president of the Continental Congress, and of the
first Chief Justice of the United States Supreme Court, John Jay.
Their conception of society prevailed, to an extent, but the
conflicts between the elite and the common people continued.
These conflicts have been expressed in many different ways and
continually take on new forms and enjoy periodic resurgence,
especially after the Reagan Revolution of the 1980s and the ascent of
the far Right in the 1990s and again after the 2002 Congressional
Today, many Americans are dissatisfied with the status quo. We are, in Rorty’s words, “in a situation in which resentment and frustration have taken the place of hope among politically concerned intellectuals.” Many progressive people recognize that this is so but have lost their political will and regressed into self-indulgence. Indeed, as Roderick P. Hart notes, “We now place little faith in hope and we decry the hopeful among us as simple-minded, manipulated, or worse.” In response to these sentiments, this essay is an attempt to understand this discontent by critiquing the systemic inadequacies of our legal order, particularly in the conflict between property rights and human rights and between elite control and resistance to that control.
 Edward S. Herman, “The United States Versus Human Rights in the Third World,” Harvard Human Rights Journal 4 (1991), 85. Critics of the U.S. point to the infamous “School of the Americas” to substantiate Herman’s point. See Jack Nelson-Pallmeyer, School of Assassins: The Case for Closing the School of the Americas and for Fundamentally Changing U.S. Foreign Policy (Maryknoll, N.Y.: Orbis Books 1997).
 Representations of the Intellectual (New York: Vintage, 1994), 100
 Ibid., 94
 John Dewey, The Political Writings (Indianapolis: Hackett, 1993), 206.
 “Fantasy and Rhetorical Vision: The Rhetorical Criticism of Social Reality,” Quarterly Journal of Speech 58 (1972), 394-407.
See John Cotton, The
Divine Right to Occupy the Land (London,1630).
Cotton, an influential New England minister, argued that
the European confiscation of Native American lands was justified
by God’s authority. Relevant
parts of this text appear at http://classweb.uchicago.edu/Civilization/
 Reprinted in Albert Bushnell Hart, ed., American History Told by Contemporaries, vol. 1 (New York, 1898), 393-396 and can be found online at http//Swarthmore.edu/SocSci/bdorsey1/41docs/55-war.html.
 Commentaries on the Constitution of the United States 5th ed. (1891), 627-634. Originally published in 1833.
 See Ahmed Rashid, Taliban (New Haven: Yale University Press, 2000).
 “The Rhetoric of American Foreign Policy,” Quarterly Journal of Speech 70 (1984), 342.
 “Imperial America and the Common Interest,” World Policy Journal 19 (2002), 7.
 Ronald Reagan, The Great Communicator, ed., Frederick J. Ryan (New York: HarperCollins, 1995), 42.
 The National Security Strategy of the United States of America (September 2002), 1.
 Ibid., 14.
Recall George W. Bush’s initial call-to-arms after the September
11attacks, in which he described America’s response as a
“crusade.” See Peter Ford, “Europe Cringes at President
Bush’s ‘Crusade’ Against Terrorists,” Christian Science
Monitor (September 19, 2001), 12.
 “The Rhetoric of American Foreign Policy,” 345.
“Justices, Books, Laws, and Courts in Seventeenth-Century
Virginia,” Law Library Journal 85 (1993), 281.
 Facing West : The Metaphysics of Indian-Hating and Empire-Building (New York : Schocken Books, 1990).
Lawes Divine, Morall and Martiall, ed., David H. Flaherty
(Charlottesville, Virginia: The University Press of Virginia,
1969), 15. See David
Thomas Konig, “’Dale’s Laws’ and the Non-Common Law
Origins of Criminal Justice in Virginia,” American Journal of
Legal History 26 (1982), 354-375 (arguing that the Laws
Divine, Moral and Martial were not an aberration but part of
the larger Virginian legal tradition, that they were
unexceptional, and that the slavery of Africans—which I will
discuss below in relation to the Virginia vision—was the
“logical continuation” of the tradition established by these
 Lawes Divine, Morall and Martiall, 35.
21 U.S. (8 Wheat.) 543 (1823).
See Eric Kades, "History and Interpretation of the Great Case
of Johnson v. M'Intosh," Law and History Review 19
 21 U.S. (8 Wheat.), 588.
Marbury v. Madison 5 U.S. 137(1803), 170.
 21 U.S. (8 Wheat.), 589.
 Ibid., 590.
A similar rationale was used to cloak African slavery with the
mantle of law. The judiciary reasoned that it was an expression of
natural law that conquered people suffer the consequences of their
“Autonomy and the Thirteen Colonies: Was the American Revolution
Really Necessary?” Duquesne Law Review 18 (1980), 513.
 “Is One Person’s Terrorist Another’s Freedom Fighter? Western and Islamic Approaches to ‘Just War’ Compared,” Terrorism and Political Violence 11 (1999), 1-21.
Address to the General Assembly of the United Nations, New York
City, November 10, 2001. http://www.whitehouse.gov/news/releases/2001/11/20011110-3.html.
 National Security Strategy of the United States of America, 5.
 Kenneth M. Dolbeare, Democracy at Risk: The Politics of Ecnomic Renewal (Chatham, N.J: Chatham House Publishers, 1984), 24.
I date the beginning of free speech in the United States with the
Court’s decision in Brandenburg v. Ohio 395 U.S. 444
(1969) (holding that only speech urging imminent danger can be
 Achieving Our Country (Cambridge, MA: Harvard University Press, 1998), 68.
Cited in Charles A. Beard, The Economic Basis of Politics and
Related Writings by Charles A. Beard (New York: Vintage Books,
Cited in Noam Chomsky, Necessary Illusions: Thought Control in
Democratic Societies (Boston: South End Press, 1989), 23.
Friedlander, “Autonomy and the Thirteen Colonies,” 515.
 A People’s History of the United States (New York: Harper Perennial, 1990), 60.
 Cited in Chomsky, “’Consent Without Consent,’” 431-432.
 Philosophy and Social Hope (New York: Penguin, 1999), 232.
 “Rhetoric, Hope, and American Politics,” in Judith S. Trent, ed., Communication: Views From the Helm for the 21st Century (Boston: Allyn Bacon, 1998), 119.