The US at 250

The good, the bad, and the ugly of our constitutional order and its liberal tradition

If you haven’t heard, America is turning 250 years old today. At least, in a certain sense. The constitution we have today, the document which tells us what “The United States of America” actually is, is a little over a decade younger. Perhaps the ratification of the constitution is the US hitting puberty, while the articles of confederation are the naive innocence of youth. In any case, this brings back the tired argument whether or how the US should be celebrated, and whether or how it should be condemned. The political right and the majority of the center are effectively univocal on this point, saying the US should be celebrated. Despite this superficial agreement they mean different things when they talk about the US. The left has long been divided on this point, between those who see the early republic as a slaver state obsessed with colonizing Native land, and those who see it as a radical liberal experiment that successfully escaped the baggage of pre-Enlightenment European aristocracy and post-Enlightenment European nationalism (both of which still burden most European countries to varying degrees). Perhaps both of these things are true, to an extent. Perhaps that has always been the fundamental contradiction at the heart of American society. As Friedrich Engels wrote:

… as people were no longer living in a world empire such as the Roman Empire had been, but in a system of independent states dealing with each other on an equal footing and at approximately the same level of bourgeois development, it was a matter of course that the demand for equality should assume a general character reaching out beyond the individual state, that freedom and equality should be proclaimed human rights. And it is significant of the specifically bourgeois character of these human rights that the American constitution, the first to recognise the rights of man, in the same breath confirms the slavery of the coloured races existing in America: class privileges are proscribed, race privileges sanctified.

What’s remarkable about the US constitution was the early implementation of universal equality as the basis for its social contract. The notion that justice is only just when it applies to all people equally, and when the state applies the law without prejudice, was an alien concept to most of the old aristocracy of Europe. This in turn is enshrined in the Bill of Rights.

Yet the interests of the founders were not in real universal equality, so the boundaries of “the person” was circumscribed. Slaves and tribal peoples fundamentally had less rights than citizens. Later, as immigration from non-Anglophone peoples increased, so did nativism towards immigrants, and we had bills passed like the Exclusion Acts. Class equality remains largely ignored in substance, even if class inequality is formally abolished. In fact, the much vaunted American Dream presupposes class inequality while also pretending it doesn’t exist.

The slavery question was obviously resolved by the Civil War (bracketing the issue of prison slavery), but with the end of reconstruction the idea of civil equality between black and white would be put on the backburner. We needed the Civil Rights movement to finally realize the aborted premise of de jure equality between the races implied by the Union victory over the Confederacy. Even then, this de jure equality between black and white concealed a de facto inequality that most African Americans felt in their bones but was denied by a self-congratulatory and increasingly “color-blind” majority. It wasn’t until cell phone footage became a thing that police abuse of black people (as well as native Americans and even the rural white working class) became socially recognized. Until then, the standard response was simply to gaslight and quote Martin Luther King Jr out of context. “Well, as King said, judge a person not by the color of their skin…”

What we must admit is that the idea of liberal equality enshrined in the constitution was premised on the inviolability of property, and slaves were a type of property. Thus, a fundamental contradiction. All people are equal, this equality means that no individual’s property can be violated in a way that others are not, yet some people are the property of others. It took two centuries to realize the idea that slavery was incompatible with universal equality.

Tribal members did not gain citizenship rights until the 1920s, and even then their collective rights were often violated. Significant portions of indigenous religious practice was banned until the 1970s despite the much-vaunted first amendment protection on religion. Their land, history, and environment are still sites of struggle. Even the definition of a tribal person is set by the US federal government, which imposes the “blood quanta” concept right out of the 1800s. It is not unheard of that existing tribal elites will utilize the federal blood quanta rule to strip individuals of their tribal citizenship. Even within this imperfect framework, many tribes still lack federal recognition.

The tribal problem was a simple one. They were nations with their own ideas, property relations, cultures, religions, and economic systems not compatible with the narrow terms laid out in the Constitution. Their collective property rights could only be asserted by treaties between these tribes and the US federal government. It was the US federal government that enforced these treaties, though, and the natives could not vote. Even if they could, their voice was limited by the demographic crash caused by disease. This created a gigantic conflict of interest that led to the US government repeatedly breaking these treaties, triggering Indian Wars which it generally won (albeit sometimes with significant casualties), and imposing new, weaker treaties. Of course, this in turn only further worsened the demographic crises facing tribal nations as their buffalo herds were hunted and their hunting grounds were settled. Eventually the tribal peoples became dependent on the same hostile federal government since they were deprived of their traditional methods of feeding themselves. All this is not even touching what happened to the Kingdom of Hawaii, which is its own saga.

The immigration question touches on another contradiction at the heart of the US. Is it a post-national state which asserts equality without reference to culture, language, or religion? Or is it a quintessentially Anglo-Saxon protestant experiment in liberalism? Again, perhaps both of these things are to some extent true. No doubt the nativists are normatively in the wrong by their own principles of classical liberalism (many are conned by the culture war discourse to reject anything “liberal”, yet they still defend the liberal constitution). Native American language and culture predates the US by millennia, and there have been Spanish Speakers in Puerto Rico and New Mexico before the English ever began colonizing the 13 states. Yet descriptively it is true that the founding fathers were largely of English origin, celebrated the aesthetics and cultural values of Western Europe, and built this country around a WASP elite that largely still dominates the state. Their principles were universalist, and should protect the rights of Confucian Chinese, Catholic Latinos, Muslim Arabs, and Hindu Indians as much as White protestants (to say nothing of the Native and African Americans who had no say in the matter). Despite this, so long as enough people vote for Anglo-Saxon cultural chauvinism, the US will be a culturally chauvinist country. The US in principle is not ethno-nationalist, but in practice the culture and politics ends up there anyways.

I think an honest reckoning with the 250 years of the US requires recognizing the contradictory truth of both the good and the bad. Moreover, reckoning with the fact that the good and bad lie together, and are deeply intertwined. This shouldn’t come with a sentimental fetishization of America’s symbols and history. This sentimentalism is everywhere, it is fundamentally vacuous, uncritical, and moralist. Not only does one get gushy good vibes from bald eagles, star spangled banners, and the Statue of Liberty, but there’s something fundamentally wrong or perverse in a fellow American not sharing these sentiments. This makes it impossible to reckon with the way the good and the bad are fundamentally intertwined, and go back to the origins of the state 250 years ago. So does the inverse, where the radical nature of 18th century bourgeois equality is conflated with the regressive European aristocracy that preceded it. None of this is to say it’s bad to feel good sentiments when reflecting on the US and its history, but these good sentiments shouldn’t override our rational and critical capacities like some sort of religious fanaticism.

We also should not overstate the uniqueness of the US constitution. The US was the first but it is not the only such state. In fact, most states in the Western hemisphere share the liberal ethos of the US. Latin America has implemented similar liberal ideas, albeit from a Hispanophone (and to a lesser extent indigenous) point of view, and in a similarly imperfect way. While the founding fathers of Latin America looked up to the US (and to a lesser extent Haiti) as an example of what could be done, their republics were not carbon copies of the US. Consider Mexico. Mexico did abolish slavery much earlier than the US, though it retained forms of peonage. It had its first indigenous president and possibly its first black president in the persons of Benito Juarez (a Zapotec) and Vicente Guerrero (also the President who banned slavery in the 1820s). Between Juarez and the later Mexican revolution, peonage in its various forms was largely abolished. Its 1917 revolutionary constitution in some ways is even more “progressive” than that of the US by protecting the linguistic and land rights of indigenous peoples and asserting that multiple nationalities constitute the state. The later addition of ejido rights formalized the practice of agrarian land-communism found in many pueblos. Despite this, Mexico has its own contradictions … Spanish continues to push out the old indigenous languages, and the communal right to the ejido was reduced by the neoliberal reforms of President Salinas.

In fact, when one looks at the map of countries with birthright citizenship, it is remarkable that most New World countries have it while most Old World countries do not. It is surely one of the important and egalitarian planks of the US constitution. Yet when conservatives read the same document, they do not see that right there undoubtedly due to biased or motivated interpretation. However unreasonable the rejection of birthright citizenship is, it’s no accident that the most vocal and vociferous patriots reject it.

Perhaps the Washington DC reflecting pool is an excellent analogy for the US. Formally, the reflecting pool is geometrically perfect (or, as perfect as a material piece of architecture can be). It is laid out on the precise models and architectural values of the Freemasons and post-Renaissance classicism. The image in it reflects the republic back to itself, formally pure and apparently perfect … at least, that’s the idea. Yet it is built in a swamp, and its content is fundamentally impure. The water is murky and infested with algae. We look at our reflection, and its murky and a little icky. The sentimental patriots cannot abide this, and so Trump decides to fix matters by draining and painting the reflecting pool “American flag blue”. As per usual, in the American tradition of things he sells the contract to his business buddies who do a sloppy job. In any case, repainting the bottom doesn’t fix the structural problem. The issue isn’t the color of the granite on its base, but the old pipes and drainage systems that keep the water stagnant. The algae, the rotten content coming in from the surrounding rivers, inevitably returns once the pool is refilled. The pure reflection back on ourselves remains dirty and sully. So Trump’s corrupt contractors dump corrosive liquids into the pool to kill the algae. These caustic chemicals not only kill cute and innocent ducklings but destroy the very paint Trump paid a bunch of public money to put on the floor (though Trump’s motorcade driving over the paint surely didn’t help things). Then, when the pool returns to its fetid condition, the logical response by the patriots isn’t to admit their wrongdoing but to blame antifa terrorists. Oh, our constitutional order would work perfectly if only for those pesky “woke” blackblock kids meddling with our country and criticizing its foundations. Our order is formally good, at least as much as such a document can be, but the appearance of formal perfection often reveals the imperfect content. A simple can of paint and nice vibes cannot fix this flawed content and restore the form to its perfect state, since the form and content are, in fact, codependent.

The US was a remarkable achievement by a sparsely populated collection of colonies inspired by the noble ideas of the Enlightenment (at least, the liberal end of the Enlightenment). Yet it was also a product of its time, and despite its assertion of formal equality reproduced the substantive forms of inequality already present in the society. The next 250 years would be a long struggle over how to realize those formal ideas of justice and “clean the pool”, as it were. Yet these efforts never worked out and we’re still struggling to realize the vision of formal liberal equality (though they were surely more successful than the reflecting pool saga, where now the whole thing is worse off). Many of America’s greatest intellectuals like Douglass, duBois, Dewey, Lasch, and Rawls questioned how this social contract could be fixed in various ways. Do we need a new Bill of Rights, as FDR suggested? Do we need a whole new constitution? Or do we need to just accept what we have as the highest and best instantiation of human possibility? This last option does not convince me, but its hard to see how the others work out.

Should we celebrate or condemn America? The answer to this question might just be a simple “yes”.