The Darwinian Lockean Liberalism of "the Right of the People to Keep and Bear Arms"

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  That's the Second Amendment to the U. S. Constitution, and that's the constitutional statement of the Lockean natural right that has been exercised in black armed self-defense.

As I have said in a previous post on the decision in District of Columbia v. Heller (2008), the Supreme Court has correctly interpreted the Second Amendment as recognizing the right to keep and bear arms as an individual right, a natural right, and a limited right.  The "right of the people to keep and bear Arms" is not only for service in a state militia, because it is also necessary for individual self-defense, and therefore it is an individual right.

It is also a natural right or what William Blackstone called "the natural right of resistance and self-preservation" through armed self-defense.  Similarly, St. George Tucker, in his edition of Blackstone's Commentaries, spoke of the "right of self-preservation" as allowing a citizen to "repel force by force" when "the intervention of society in his behalf may be too late to prevent an injury."  This was what Locke called "the executive power of the law of nature" in the state of nature--the natural power and propensity of individuals to use force to repel and punish violence or the threat of violence against themselves.

Locke explained this right to punish threats to one's self-preservation as rooted in the biological psychology of self-ownership--that every human being senses or feels that he owns his own body and thus has the right to protect that body's existence and well-being.  We now know that this sense of each person’s self-ownership arises in the evolved neuroanatomy of the brain to serve the survival and well-being of the human animal.  We can understand this as expressing interoception—the neural perception of the state of the body--and the evolved propensity to guard that body from threats.

We can also explain now how this propensity to punish violent threats to our existence and well-being was made more effective by the Darwinian evolution of the human power for killing at a distance--first by throwing rocks, then by shooting arrows, and later by firing guns that shoot projectiles.  Paul Bingham has shown how much of human evolution can be explained by the evolution of killing at a distance.

Locke recognized that punishment could be costly for the punisher, because "such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it" (ST, sec. 126).  The costs of punishment come mostly from provoking violent attacks from those who are being punished.  So, the power to punish could never be effectively executed until the risky costs of punishment could somehow be reduced, so that the immediate costs of coercive punishment could be less than its immediate benefits in enforcing social cooperation.

Locke never explains how this could have happened. One likely explanation is that human beings became the first animals capable of killing at a distance by throwing rocks at their victims.  Once this developed as a technique for hunting large animals, it could then be used to kill or threaten other humans who deserved punishment.  Many people could throw stones at a misbehaving individual, and the punishers could do this with little risk to themselves. Thus, the evolved human power to punish violators of the law of nature through killing at a distance could be a crucial evolutionary adaptation for Lockean liberalism.  The expansion of social cooperation enforced by cheap punishment of cheaters has evolved from the expanding range of the weapons for remote killing--from rocks to bow-and-arrow to guns and other weapons.

Moreover, Bingham has provided a Darwinian evolutionary explanation confirming the insight of those political philosophers (like Aristotle and Machiavelli) who claimed that the structure of political order depends on whether the access to weapons of coercive power is confined to a few or open to many.  Oligarchic regimes must ensure that the people are disarmed.  Democratic regimes need the people to be well-armed.  That explains why overturning the American Southern regime of white freedom to dominate blacks required black armed self-defense.

And yet this Lockean individual and natural "right of the people to keep and bear Arms" is still a limited right because everyone has an equal right not to be harmed by gun violence, unless someone has committed some offense that justifies violent punishment.  For that reason, while people have a right to be armed for self-defense or for resistance to tyranny, they do not have a right to keep and bear the most dangerous weapons in circumstances that are likely to risk harming innocent people.  This allows for reasonable gun control laws.

In my next post, I will consider how this right of the people to keep and bear arms has been manifested in the history of black armed self-defense in America.

The American Black Tradition of Armed Self-Defense as a Natural Right: A Response to Jefferson Cowie

The 13th chapter of Jefferson Cowie's Freedom's Dominion has a provocative title: "Lynching as an Act of Freedom."  Cowie explains: "A person did not have to see a dead and mutilated body to know that white people relished a uniquely sinister form of liberty: the freedom to take a life with impunity" (233).  White people lynching black people expressed the freedom of white people to dominate others.

Cowie observes: "The only cure, short of changing the hearts of white people or the armed resistance of Black people, was the power of the federal government" (241).  But while the federal government had restrained the freedom of the dominant white class to inflict violence on the blacks during Reconstruction, once Reconstruction was over, the federal government never made lynching illegal until the "Second Reconstruction," in the 1960s, when major civil rights legislation was passed.

But notice how Cowie quickly passes over "the armed resistance of Black people" as a possible restraint on lynching, which suggests that black people never saw this as a serious option.  Cowie thus ignores the black tradition of armed self-defense.  For example, while Cowie makes one brief reference to Ida B. Wells, who was a famous black journalist known for her national campaign to expose the brutal injustices of lynching, he says nothing about her argument that armed self-defense was the best way to prevent lynchings.  In one case, after telling the stories of blacks using firearms to stop lynchings in Jacksonville, Florida, and Paducah, Kentucky, she declared:  "The lesson this teaches us and which every Afro-American should ponder well, is that the Winchester rifle should have a place of honor in every black home.  The more the Afro-American yields and cringes and begs, the more he is insulted, outraged, and lynched" (Johnson 2014: 109-110).  We should remember that the Winchester was the best lever-action repeating rifle of that time.  It could be considered the assault rifle of its day.  One full fifteen-shot magazine could be fired in 11 seconds. 

The white fear of armed blacks was manifested in the "Black Codes" enacted in the Southern States after the Civil War, which prohibited blacks from having guns.  The law in Alabama, for example, prohibited "any freedman, mulatto or free person of color in this state, to own fire-arms, or carry about this person a pistol or other deadly weapon" (Johnson 2014: 79).  Cowie is silent about this.

Similarly, although Cowie has an entire chapter on the "convict lease system" as a disguised form of black enslavement, he is silent about the fact that one of the most common charges against these black convicts was the crime of carrying a concealed weapon (191-209).  Thus, Cowie does not allow his readers to see this as evidence for a widespread culture of black gun ownership that threatened white dominance.

Cowie also gives his readers a brief account of the race riots after World War One that is silent about how blacks fought back with guns (242-43).  One example is the Tulsa riot of 1921, in which as many as 100 people were killed, and over one thousand black homes were destroyed.  John Hope Franklin, who became a prominent black historian, moved to Tulsa in 1925 at age ten.  Franklin reported that "many more whites were killed during the riot than many whites were willing to admit," because they didn't want to admit that armed blacks had fought back heroically.  Franklin observed:

"The self-confidence of Tulsa's Negroes soared, their businesses prospered, their institutions flourished, and they simply had no fear of whites.  After 1921, an altercation in Tusa between a white person and a black person was not a racial incident, even if there was a loss of life.  It was just an incident.  Such an attitude had a great deal to do with eradicating the fear that a Negro boy growing up in Tulsa might have felt in the years following the riot" (Johnson 2014: 189).

Cowie says nothing about this.

He is also silent about black armed self-defense in Alabama during the modern civil rights movement.  For instance, he writes about Rosa Parks and the Montgomery boycott of the bus system and about Autherine Lucy's attempt to enroll at the University of Alabama.  But he says nothing about Rosa Parks' account of how important armed defense was for the black community, and he says nothing about how a group of armed black men protected Autherine Lucy from a violent mob (Johnson 2014:220-222).

Similarly, Cowie says nothing about Condoleezza Rice's testimony about the importance of black armed self-defense for her family when she was growing up in Birmingham, Alabama.  She has said: "Because of this experience, I'm a fierce defender of the Second Amendment and the right to bear arms.  Had my father and his neighbors registered their weapons, Bull Connor surely would have confiscated them or even worse" (Johnson 2014: 223).  Cowie does not even mention the Second Amendment.

Cowie does not recognize armed self-defense as a natural or constitutional right, and that points to the fundamental flaw in his understanding of American freedom.  He agrees with Orlando Patterson that there are three kinds of freedom.  The first is the freedom to enjoy individual liberty as long as one does not infringe on the equal liberty of others.  The second is the civic freedom to participate in political life--freedom as democracy.  The third is the most ominous--the freedom of some people to dominate or even enslave others (6, 415-416). 

The problem is how to defend the first two forms of freedom against the third.  In America, the only way to do that, Cowie suggests, is to have the federal government protect individual freedom and democratic freedom at the local and state levels of government, which means overriding "states' rights."  The flaw in Cowie's reasoning here is that he does not allow people to defend their natural rights from attack when government fails to defend them.   

This governmental failure can either be malevolent or structural.  A malevolent governmental failure is when government becomes the tool of an oppressive ruling class in dominating an inferior class, as when local and state governments enforced white supremacy in the South.  

A structural governmental failure is when government either cannot or will not protect the equal liberty of all people.  When the federal government refused to protect equal liberty in the American South, that was a structural governmental failure.  But even when a government strives to protect the rights of all of its people, it often fails because the governmental agents of law enforcement are often not present when there is some imminent threat to someone's life or liberty.  In either case, where people cannot rely on government to protect them, they have a natural right to armed self-defense, which is also made a constitutional right by the Second Amendment.

Although this right to self-defense is important for all people, it has been especially important for black people in America because they have so often not been able to depend on government to defend them from violent attack.  Previously, I have written about how guns made the civil rights movement possible.  But in my next post, I will extend the story of the black tradition of armed self-defense that stretches over 200 years of American history, from the Founding to the present.  The most comprehensive account of that story is Nicholas Johnson's Negroes and the Gun (Prometheus Books, 2014).  It is remarkable that Cowie has no place for that story in his history.

How Lincoln's Rhetoric of Equal Liberty Defeated Wallace's Rhetoric of Freedom as Separation

By the mid-1950s, the modern civil rights movement had come to Alabama.  In 1954, the Supreme Court's decision in Brown v. Board of Education of Topeka had declared that racially segregated public schools violated the 14th Amendment--particularly, the Equal Protection Clause.  In August of 1955, some black citizens of Alabama petitioned the state department of education, asking that Alabama should integrate the schools in conformity with the Brown decision.  The following December, Rosa Parks refused to move to the rear of a bus in Montgomery, Alabama, violating a law that racially segregated buses.  Then, a young Martin Luther King became the spokesman for Montgomery's black people who boycotted the bus system for 381 days.  In February of 1956, federal courts ordered the University of Alabama to enroll Autherine Lucy, who had been admitted, but then her admission was rescinded.  At the end of 1956, the Supreme Court--in Browder v. Gayle--declared unconstitutional the state laws for segregating public transportation.  Montgomery then ended its segregation ordinances, and bus riders were allowed to sit anywhere on a bus.  Two days later, a shotgun was fired into Martin Luther King's home in Montgomery.  Gunshots were fired at integrated buses.  Black Baptist churches were bombed.

In 1956, the entire congressional delegation of Alabama joined many other congressmen from the South in signing a "Southern Manifesto" that claimed that Brown v. Board of Education was an unconstitutional abuse of judicial power.  They made four arguments.  First, that there is no mention of education anywhere in the Constitution.  Second, that there is no evidence in the debates preceding the submission of the 14th Amendment to the states that the framers of that amendment intended to change the state systems of education.  Third, that Plessy v. Ferguson (1896) was a well-established precedent that interpreted the 14th Amendment to mean that "equal protection of the laws" allowed a state to provide "separate but equal" public facilities.  Finally, it was argued that the Brown decision violated the principle of states' rights as declared by the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As I have indicated in a previous post, the resistance to the Brown decision as an exercise in judicial lawmaking prompted the conservative legal movement for a jurisprudential philosophy of originalism.  But while it is hard to show that the Brown decision was a correct interpretation of the original intent of the 14th Amendment's Equal Protection Clause, originalists have shown that Brown could be justified as a reading of the original meaning of the 14th Amendment's Privileges and Immunities Clause (Barnett and Bernick 2021: 4-6, 22-30).  

Moreover, some originalists now agree with the claim of the abolitionist constitutionalists that the Constitution is founded in the principles of the Declaration of Independence, and therefore Lincoln was right:  the text of the Constitution is the silver frame around the golden principles of the Declaration of Independence, and thus the original meaning of the constitutional text must be interpreted in the light of the Declaration of Independence and its Lockean philosophy of natural rights.  This Lincolnian rhetoric of constitutionalism founded on the Declaration of Independence is manifest in the rhetoric of the civil rights movement that interprets civil rights as ultimately expressing the natural rights of equal liberty as affirmed in the Declaration of Independence.

Cowie fails to see this, and so he does not see how the Lincolnian rhetoric of equal liberty in the civil rights movement defeated Wallace's rhetoric of freedom as separation.  Cowie is also mistaken in describing Wallace's rhetoric as based on "a peculiar ideology of white freedom: an ever-evolving freedom to dominate others" (4).  Wallace never used these phrases--"white freedom" and "freedom to dominate others."  Instead, Wallace defended freedom as separation--a freedom that respects the separateness of others, including racial separateness.  Of course, I understand that Cowie would probably say that what Wallace called freedom as separation was really the white freedom to dominate others.

Wallace manifested his distinctive rhetoric of freedom in his Governor's Inaugural Address of January 14, 1963, after his first election as Governor of Alabama in 1962.  He delivered that speech in Montgomery, standing in front of the Alabama State Capitol, at the same spot where Jefferson Davis stood to take his oath of office as President of the Confederacy in 1861.

The most famous line from Wallace's speech was his declaration: "segregation now, segregation tomorrow, segregation forever."  But one must consider that line within the context of the whole speech to see how Wallace believed segregation to be in the service of freedom, and the primary theme of his speech was freedom.  After this one line about segregation, Wallace used the word "segregation" only once more in the speech.  But he used the words "freedom" and "free" over thirty times.

That famous line appeared at the end of this paragraph:

"Today I have stood, where once Jefferson Davis stood, and took an oath to my people.  It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and again down through history.  Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South.  In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation now . . . segregation tomorrow . . . segregation forever."

In sounding the drum for freedom, Wallace claims that he is continuing a tradition of freedom that includes the Confederacy.  He thus implies that the slavery to which the Confederacy was devoted was somehow compatible with freedom, although he never uses the word slavery here or anywhere else in the speech.  Perhaps, he's suggesting that slavery could be understood as a form of segregation.  In any case, he is clear that freedom requires defending the Southern States from the tyranny of the federal government and preserving segregation.  

Wallace provides an example of this later in the speech when he condemns the actions of President Kennedy in the fall of 1962 in sending 30,000 federal troops to Jackson, Mississippi, to quell the violence provoked by the attempt of a black man--James Meredith--to register as a student at the University of Mississippi, despite the resistance of Governor Ross Barnett.  Here then is an example of federal tyranny ruling by military force over the sovereign state of Mississippi to overturn the lawful segregation of Mississippi's schools.  But how does such segregation serve freedom?

Wallace's answer later in the speech is that freedom requires "respecting the separateness of others," and segregation is a form of separation.  Freedom for the states requires that they be separated from one another and from the national government.  Religious freedom requires respecting the rights of religious believers to have separate denominations.  Freedom for political parties means that each party has its "separate political station."  Similarly, freedom in our racial lives means that each race has its "separate racial station."

Wallace explains:

"And so it was meant in our racial lives . . . each race, within its own framework has the freedom to teach . . . to instruct . . . to develop . . . to ask for and receive deserved help from others of separate racial stations.  This is the great freedom of our American founding fathers . . . but if we amalgamate into the one unit as advocated by the communist philosophers . . . then the enrichment of our lives . . . the freedom for our development . . . is gone forever.  We become, therefore, a mongrel unit of one under a single all powerful government . . . and we stand for everything . . . and for nothing."

Wallace believed that this conception of freedom as separation could have a broad popular appeal--not just in the South but across the nation--and he explicitly promised to lead a national political strategy to promote this kind of freedom throughout the country; and as part of that strategy, the votes of the South could decide the next presidential election.   

In his speech, he first addressed his fellow Southerners in the South, then Southerners who had "moved north and west throughout this nation," and finally those native people in all regions of the country:

"And you native sons and daughters of old New England's rock-ribbed patriotism . . . and you study natives of the great Mid-West . . . and you descendants of the far West flaming spirit of pioneer freedom . . . we invite you to come and be with us . . . for you are of the Southern mind . . . and the Southern spirit . . . and the Southern philosophy . . . you are Southerners too and brothers with us in our fight."

Wallace insisted that all Americans should recognize that the American system of freedom was founded by Southerners:

"We remind all within hearing of this Southland that a Southerner, Peyton Randolph, presided over the Continental Congress in our nation's beginning . . .that a Southerner, Thomas Jefferson, wrote the Declaration of Independence, that a Southerner, George Washington, is the Father of our Country . . . that a Southerner, James Madison, authored our Constitution, that a Southerner, George Mason, authored the Bill of Rights, and it was a Southerner who said, 'Give me liberty or give me death,' Patrick Henry."

This is Wallace's only reference to the Declaration of Independence in this speech.  And notice that he does not quote any of its most famous language--"that all men are created equal," and endowed with rights such as "Life, Liberty, and the pursuit of Happiness."  Similarly, he does not quote any of Mason's most famous language in the Bill of Rights--"that all men are by nature equally free and independent."  Thus, Wallace does not allow his audience to see that while these documents do affirm freedom, it's an equal freedom for all men, which was affirmed in the 14th Amendment as the equal liberty of all citizens of the United States.  Indeed, in Wallace's speech, the words "equal" and "equality" never appear.

Now, of course, Wallace could have argued that his freedom as separation does not violate the principle of equality because the separate "stations" of life can be "separate but equal," as majority of the Supreme Court had declared in Plessy v. Ferguson.  But then he could have been challenged by anyone familiar with Justice John Marshall Harlan's dissent in Plessy, in which he said: "The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."  The white race might deem itself to be "the dominant race in this country," Harlan observed.  "But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law" (Plessy v. Ferguson 163 U.S. 537, 559, 562 [1896]). 

The equal freedom of citizens before the law denies any freedom for a ruling class of citizens to dominate others.  That's the principle of the Declaration of Independence and the Constitution that supported the rhetoric of the civil rights movement and defeated Wallace's rhetoric of freedom as separation.

Six months after Wallace's inauguration, his attempt to prevent the racial integration of the University of Alabama created a nationally televised confrontation between these two concepts of freedom: freedom as separation versus equal freedom under law.  In his campaign for the governorship, Wallace had promised to "stand in the schoolhouse door" to prevent any attempt by federal authorities to integrate the public schools of Alabama.  On June 11, 1963, he fulfilled his promise by standing at the entrance of a building at the University of Alabama where two black students, Vivian Malone and James Hood, wanted to register.  President Kennedy had federalized the Alabama National Guard and ordered some of its units to the university to prevent any violent resistance to the students' registering.  This became a standoff between Wallace standing at the entrance of the building and U. S. Deputy Attorney General Nicholas Katzenbach standing in front of Wallace.

Wallace read a speech arguing that the federal enforcement of school integration in Alabama was unconstitutional because it violated the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."  The organization and management of public schools was clearly a power not delegated to the federal government, Wallace asserted, and therefore it was reserved to the state governments.

But a few hours after Wallace had spoken, the General in command of the federalized Alabama National Guard walked up to Wallace, and said, "It is my sad duty to ask you to step aside, on order of the President of the United States."  Wallace responded by saying: "Alabama is winning this fight against Federal interferences because we are awakening the American people to the trend toward military dictatorship in this country."  He then walked away, and he was driven back to Montgomery.

Cowie agrees with Wallace that he was "winning this fight."  He explains: "Wallace lost the policy but won the political moment.  He would continue to do the same throughout his career. . . . by wrapping racism into questions of federal power, and then making both race and federal intervention into an assault on American freedom, Wallace had himself a winning formula and a growing national audience" (332-33).

Cowie is wrong about this, however.  Although Wallace had gained "a growing national audience" for a few years, he eventually lost the political debate over freedom and equality, because the rhetoric of the civil rights movement appealed to the principle of equal liberty as rooted in the American founding and particularly in the Declaration of Independence, and this proved to be more persuasive with more Americans than Wallace's principle of freedom as separation.

This contrast between these two kinds of freedom emerged immediately after Wallace's speech at the University of Alabama on June 11 when President Kennedy delivered a nationally televised speech on civil rights that evening.  Kennedy defended his enforcement of the federal court order calling for the admission of the two black students.

He began by invoking the fundamental principle of equal liberty in the Declaration of Independence by saying that America "was founded on the principle that all men are created equal, and the rights of every man are diminished when the rights of one man are threatened."

While the words "equal" and "equality" never appeared in Wallace's speech, they appeared 11 times in Kennedy's speech.  While Wallace spoke of "freedom and liberty under the law," Kennedy spoke of equal freedom under law.

And while Kennedy reminded his audience that 1963 was the 100th anniversary of Abraham Lincoln's Emancipation Proclamation, Wallace said nothing about this.

Later that summer, the significance of that Lincolnian anniversary was again evoked by Martin Luther King in his "I Have a Dream Speech," delivered at the "March on Washington" gathering of hundreds of thousands of people in front of the Lincoln Memorial.   King's speech was the single most powerful speech of the civil rights movement and one of the three most powerful political speeches in American history: the other two were carved into the walls of the Lincoln Memorial--the Gettysburg Address and the Second Inaugural Address.  Remarkably, Cowie has only two sentences about King's speech, and he says nothing about how this speech surpassed Wallace's speech in shaping American public opinion (328).

King's speech is driven by Abraham Lincoln's rhetoric of equal liberty and particularly his interpretation of the Declaration of Independence as providing the "standard maxim of free society."  King begins his speech by pointing to Lincoln.

"Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation.  . . . But one hundred years later, the Negro is still not free."

He then turns to the promise of equal liberty in the Constitution and the Declaration of Independence.

"In a sense, we've come to our nation's capital to cash a check.  When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.  This note was a promise that all men, yes, black men as well as white men, would be guaranteed the 'unalienable Rights' of 'Life, Liberty, and the pursuit of Happiness.'  It is obvious today that America has defaulted on this promissory note."

King then speaks of this promise of equal liberty as a Dream--the American Dream.  In the second half of his speech, he expresses that dream rhetorically through two uses of anaphora (the Greek for "carrying back")--a rhetorical device that consists of emphasizing a thought by repeating a sequence of words at the beginning of sentences.  He does this first with "I have a dream" and then with "Let freedom ring."

He repeats "I have a dream" eight times.  This dominates the middle of the speech, and it is the most memorable passage of the speech.  His first "I have a dream" anchors the entire speech in Lincoln's vision of the Declaration of Independence:

"I have a dream that one day this nation will rise up and live out the true meaning of its creed:  'We hold these truths to be self-evident, that all men are created equal.'"

He concludes with the music of the Liberty Bell ringing: "Let freedom ring . . ."

His last words are the ecstatic words of a black spiritual:

"Free at last!  Free at last!

"Thank God Almighty, we are free at last!"

George Wallace had nothing to compete with that!

I have a clear memory of the power of King's speech as I watched it on television.  I was a 14-year-old high school student in a racially segregated school system in Wills Point, Texas.  So, I saw the racial inequality that still prevailed in the American South in 1963.  But then when my parents moved to Big Spring, Texas, in 1964, I discovered that Big Spring High School was racially integrated, and that it had been one of the first school systems to integrate in Texas in 1955, shortly after the Brown decision.

Looking back on those days, I can now see that King's Lincolnian rhetoric at the March on Washington was a turning point in the history of the civil rights movement.  After the assassination of John Kennedy on November 22, 1963, Lyndon Johnson continued to push for civil rights legislation such as the Civil Rights Law of 1964 and the Voting Rights Law of 1965.

Johnson's confrontation with Wallace came in the spring of 1965.  Civil rights protestors demanding voting rights for blacks planned to march from Selma, Alabama, to Montgomery.  But on March 7, as they tried to cross the Edmund Pettus Bridge in Selma, they were attacked by police who Wallace had ordered to stop the marchers.  The marchers were brutally beaten, and the attacks were broadcast on national television.  It came to be known as "Bloody Sunday."  This shocked the nation.

Wallace asked for a meeting with Johnson, and Johnson immediately agreed to meet him at the White House.  Johnson was well-known for working people over in personal meetings.  And he did that to Wallace.  "What do you want left when you die?" he asked Wallace.  "Do you want a great big marble monument that reads, 'George Wallace--He Built,' or do you want a little piece of scrawny pine board that reads, 'George Wallace--He Hated'?"  He told Wallace that he needed to obey the court orders allowing the Selma march and to stop the police attacks on the protestors.  He should also support voting rights for blacks.  Wallace left the meeting feeling defeated.  He told his aides: "When the President works on you, there's not a lot you can do" (Cowie 345-46).

Two days later, Johnson delivered a speech to a joint session of Congress proposing the Voting Rights Act.  Continuing in the tradition of Lincolnian rhetoric, Johnson appealed to the principle that "all men are created equal" and endowed with equal liberty.  His most famous line was one sentence: "And--we--shall--overcome."

A few days after this speech, a federal judge ordered that the civil rights protestors should be allowed to resume their march with protection from federal officers.  Prior to the march, Wallace appeared before the state legislature and said: "I do not ask for cowardice, but I ask you for restraint in the same tradition that our outnumbered forefathers followed."  The Confederacy was surrendering once more!  "Though it be galling," Wallace said, white Alabamians should "stay home."

Cowie writes:  "He washed his hands of the situation, and the state house erupted in applause for what was basically Wallace's bitter retreat.  'I have kept faith with you,' he declared.  Wallace again affirmed his unique political skill set: losing the fight but winning the politics" (347).

"Winning the politics"?  No, Cowie is wrong about that.  Wallace lost the politics.  And ultimately, he even admitted that he had lost by asking forgiveness for his losing battle against civil rights.  Strangely, Cowie refuses to see this.

Wallace ran for president four times--1964, 1968, 1972, and 1976--and he lost four times.  He reached his peak in 1968 when he ran as a third-party candidate and won 46 electoral votes from five Southern states.  When he was campaigning in Maryland in 1972, he was shot four times in an assassination attempt.  He was left paralyzed from the waist down for the rest of his life.

Beginning around 1978, Wallace began to feel guilty for the wrongs he had inflicted on black people, and he asked for their forgiveness.  He called many black politicians and civil rights leaders and asked to meet with them to ask for their forgiveness.  John Lewis, whose skull had been cracked by police beating him on "Bloody Sunday" in Selma, said: "He literally poured out his soul and heart to me. . . . He kept saying to me, 'John, I don't hate anybody, I don't hate anybody.  I don't hate black people.  I want to ask your forgiveness for anything I've done to wrong you'" (Carter 1995: 461-62).

When Wallace won his fourth and last term as governor in 1982, he won 90% of the black vote.  During that last term, he appointed a record number of blacks to state positions, including, for the first time, two black members of his cabinet.

In March of 1995, on the 30th anniversary of the Selma march to Montgomery, hundreds of people retraced the steps of the march.  When they reached Montgomery, Wallace was there to congratulate them and to ask forgiveness for what he had done in 1965.  An article about this appeared on the front page of the New York Times for March 11, 1995, with the headline "Emotional March Gains a Repentant Wallace."  I remember reading that article and thinking--Wow, how America has changed for the better!

Cowie passes over all of this quickly in two sentences: "The governor from Clio had since wept and repented, prayed and commuted with civil rights leaders about his racist sins.  He regretted it all, he openly proclaimed, and asked everyone he could for forgiveness."

Cowie then immediately dismisses the significance of this by saying: "In the meantime, the gains of the civil rights movement and Voting Rights Act were steadily worn down by the aggressive localism Wallace had championed" (412).  Here again is Cowie's claim that Wallace was always "winning the politics."

Cowie's attempts to offer evidence to support this claim are not persuasive.  For example:

"Since the 1960s, a slow motion 'redemption' undermined the gains of the Second Reconstruction of the civil rights era.  Since Fred Gray left office in 1972, no African American Democrat has represented Barbour County.  James Rapier's one term in the US Congress during Reconstruction stands out as the lonely interregnum of Black elected leadership to Washington, DC" (405).

Both of these claims are false.  Barbour County is in State House District 84, which is represented by a black politician--Berry Forte--who has served since 2010.  Of the 105 representatives in the Alabama State House, 26 are black, which correlates with the 26% black proportion of Alabama's population.

It is also not true that there is no black elected leadership from Alabama in Washington.  Of the seven Alabama representatives in the U.S. House, one is black--Terri Sewell (7th District)--who has served since 2010.

Here's another example of Cowie trying to show evidence that Wallace's white freedom has prevailed over the civil rights movement in Barbour County:  "Over a century after the polling place massacre in 1874, the Eufaula police killed two African American brothers in 1983, inspiring the Southern Christian Leadership Conference to launch a campaign on their behalf" (405).  Cowie does not tell his readers that a grand jury (with 12 whites and 6 blacks) cleared the two police officers, saying that there was evidence that one of the victims--Hampton Russaw--had fired first at a police officer.

Cowie also attempts to present evidence that the U.S. Supreme Court has overturned the constitutional right to vote for blacks.  He writes: "In the Supreme Court's monumental decision in 2000, Bush v. Gore, the nation learned something long extant but that few people knew. . . . Few knew . . . as the court's majority declared, 'the individual citizen has no federal constitutional right to vote' short of enforcing what states decide their systems to be" (412).

Cowie has distorted the meaning of this brief quotation from Bush v. Gore by taking it out of context.  If you go to page 104 of the opinion, you will see that he has quoted a few words from a long sentence: "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college."  They cite Article II, sec. 1, of the Constitution, which leaves the state legislatures free to decide how their state's electors are to be chosen.  Originally, most state legislatures chose the electors themselves.  But by the 1830s, most of the state legislatures allowed the electors to be chosen by popular vote.  So, the court explains: "History has now favored the voter, and in each of the several states, the citizens themselves vote for Presidential electors.  When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter."  So, under these conditions, the individual citizen does have a federal constitutional right to vote for electors for the President!  Cowie does not allow his reader to see this.

Cowie also distorts the decision in Shelby v. Holder.  He writes:

"By 2013, the teeth of the Voting Rights Act were extracted in the Alabama-based Supreme Court case Shelby v. Holder.  Under the original Voting Rights Act, jurisdictions with a history of discrimination in voting had to submit any proposed changes to their voting systems and procedures to the U.S. Department of Justice or a federal district court.  After Holder, they did not.  The half-century-long project to redeem power from federal authority was near complete as state after state passed new voting restrictions and rejected proposed federal voting reforms" (413).

If you look at the decision in Holder, you will see that what the Court did was to strike down section 4 (b) of the Voting Rights Act that laid down a coverage formula based on data that was over 40 years old.  The Congress could rectify this by amending the Voting Rights Act to devise a new coverage formula based on updated data.  Some such amendments have been proposed in the Congress beginning in 2014, but so far none have passed.  The fault here is in the Congress's failure to pass the necessary amendment.

In any case, I don't see any evidence here for Cowie's claim that Wallace's defense of racial segregation succeeded in reversing the gains won by the civil rights movement.  On the contrary, what we see is that the Lincolnian rhetoric of equal liberty defeated Wallace's rhetoric of freedom as separation, which Wallace himself conceded in the last twenty years of his life in admitting that his opposition to civil rights had been wrong.

REFERENCES

Barnett, Randy E., and Evan D. Bernick.  2021.  The Original Meaning of the 14th Amendment; Its Letter and Spirit.  Cambridge, MA: Harvard University Press.

Carter, Dan T. 1995. The Politics of Rage: George Wallace, The Origins of the New Conservatism, and the Transformation of American Politics. New York: Simon and Schuster.

Cowie, Jefferson.  2022. Freedom's Dominion: A Saga of White Resistance to Federal Power. New York: Basic Books.

J. D. Vance, Trump's VP, Known for Kissing Trump's Ass and for Associating with Catholic Integralists.

Trump has identified J. D. Vance as his choice for Vice-President.  

Everything you need to know about Vance is in my two posts.  He had condemned Trump in 2016.  But then in 2022, Trump bragged that Vance was "kissing my ass" to get Trump's endorsement for the Senate race in Ohio.  It's all chimpanzee politics.  And that's what you have to do if you're the beta male in a submissive coalition with the alpha male.

While campaigning for the Senate, Vance participated in a conference on Catholic Integralism at Franciscan University of Steubenville, Ohio; and he is a recent convert to Catholicism.  So, he could be the best hope for the Integralists to gain influence over the next Trump Administration.  

And, of course, we can assume Trump will win, unless the Democrats nominate someone other than Biden--such as Governor Gretchen Whitmer of Michigan.

The White Freedom to Dominate Versus the Lockean/Lincolnian Liberal Tradition in America: A Response to Jefferson Cowie

Jefferson Cowie's Freedom's Dominion: A Saga of White Resistance to Federal Power won the Pulitzer Prize in 2023 for history.  It deserved the prize because it is a deftly written history of freedom understood as the freedom of white Americans to dominate others as vividly manifested in the history of Barbour County, Alabama, from the 1830s to the present.  Barbour County is in southeastern Alabama, on the Chattahoochee River bordering Georgia.  Cowie chose Barbour County because that was George Wallace's home county, and Cowie presents Wallace as the leading proponent of white freedom in resistance to federal power in the last half of the twentieth century.

Cowie's historical insight is in seeing how Wallace's assertion of American freedom as white supremacy was rooted in almost 200 years of history in Barbour County, which was a microcosm for the history of most white Americans.  Whenever the federal government has intervened to protect nonwhite people from oppression, many white Americans have resisted this as an infringement of their freedom--their freedom to dominate others.  

This supports Cowie's general argument that the history of freedom in America has been predominantly not a liberal history of all people seeking freedom from oppression but an illiberal history of white people seeking freedom to oppress others.  This then allows him to argue that the illiberal conservatism of Donald Trump's Republicans is not an unusual departure from America's liberal tradition of politics but a continuation of America's illiberal tradition of white freedom to dominate others.

There are, however, four problems with Cowie's arguments.  The first problem is that while Cowie says we need a "better freedom" than the white freedom to dominate, he never clearly explains the standard by which we might identify that "better freedom."  Abraham Lincoln argued that the best freedom--and the alternative to freedom as domination--was the equal liberty of all men affirmed in the Declaration of Independence as the fundamental principle of American politics.  But Cowie never takes this seriously.

The second problem is that Cowie ignores the importance of black armed resistance to white violence in the black struggle for freedom.

The third problem is that in arguing that the American political tradition is predominately illiberal, Cowie supports the anti-liberals who claim that only they speak for the true America.

The fourth problem is that Cowie falsely claims that the "Second Reconstruction" (the post-World-War-II Civil Rights Movement) was a complete failure because it was defeated by Wallace's "white freedom."

But before I consider those four problems, we need to survey Cowie's history of Barbour County.

BARBOUR COUNTY, 1830-2000

Cowie's illiberal history of Barbour County can be divided into four periods.  First, Barbour County originated in the 1830s from the seizure of Creek Indian land by illegal white settlers who fought federal troops who tried to enforce a federal treaty that guaranteed the land to the Creek Nation.  The federal defense of Native American rights was regarded by the white intruders as a violation of their freedom to dominate the land that they wanted to settle.  The state government of Alabama legalized the white settlers' land claims in violation of the federal treaty and justified this as an exercise in "states' rights" and resistance to federal tyranny.  After two wars with the Creek Nation, the Indians were finally forced by federal soldiers in 1836 and 1837 to move to Indian Territory west of the Mississippi, which was authorized by the federal Indian Removal Act of 1830.  This began the American tradition of white freedom to dominate nonwhite people.

This also initiated the second period of Barbour County's history when the white settlers brought in their black slaves to work the land and grow cotton for the white plantation owners.  Previously, white people had asserted their freedom to dominate Indian land; now they asserted their freedom to dominate black labor.  The number of slaves in Barbour County grew rapidly, and by 1860 there were 16,150 enslaved people working for 1,143 masters.  In defense of their freedom to enslave against the tyranny of Northern abolitionists attacking slavery, the white people of Barbour County were enthusiastic in support of secession and the Confederacy in its war with the Union invaders.

Abraham Lincoln explained the Civil War as a war between two definitions of the word liberty.  Speaking in Baltimore, in the spring of 1864, he observed:

"The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one.  We all declare for liberty; but in using the same word we do not all mean the same thing.  With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor.  Here are two, not only different, but incompatible things, called by the same name--liberty.  And it follows that each of the things is, by the respective parties, called by two different and incompatible names--liberty and tyranny."

He then expressed this thought in the form of an Aesopian fable:

"The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one.  Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and are professing to love liberty.  Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as sthe destruction of all liberty" (Lincoln, 2:589-90).

Cowie quotes these remarks as showing that Lincoln had "a crystal clear idea about the ideas of freedom at stake" (112).  But Cowie devotes only two paragraphs to this; and he says nothing about how Lincoln had justified his definition of liberty--"for each man to do as he pleases with himself, and the product of his labor"--as grounded in the Lockean liberal principles of the Declaration of Independence.  As I have indicated in previous posts, Lincoln repeatedly affirmed this Lockean conception of individual liberty as "the principle of self-government"--"each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as he in no wise interferes with any other man's rights" (1:449).  And he set this in opposition to the slaveholders' tyrannical definition of liberty--"the liberty of making slaves of other people" (1:309).

Having issued the Emancipation Proclamation on January 1, 1863, Lincoln delivered the Gettysburg Address the following November, in which he explained the Civil War as testing the endurance of a nation born in the Declaration of Independence, and thus conceived in liberty and dedicated to the proposition that all men are created equal.  If that nation could endure, it could have a "new birth of freedom," which was Lincoln's forecast of how the amendments to the Constitution after the war and the Reconstruction of the South would become what some historians now identify as the "Second Founding" of the United States--a renewed dedication to the Lockean principles of equal liberty in the Declaration of Independence.

This would confirm what Lincoln had said in 1857 about the principle of equal liberty in the Declaration of Independence as a "standard maxim for free society" that "even though never perfectly attained," would be "constantly approximated" in the forward movement of American history, and "thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere" (1:398).  This was Lincoln's philosophy of American moral and political history as the progressive enforcement of the Lockean liberalism of the Declaration of Independence.

Cowie says nothing about this.  He does not even mention the Gettysburg Address.  Nor does he say anything about how the letters written by soldiers in the Civil War (as collected by James McPherson) show that many of them had accepted Lincoln's interpretation of the war as a test of the principles of the Declaration of Independence.  Nor does he recognize how much of the rhetoric of Reconstruction and of the Civil Rights Movement appealed to the Declaration of Independence as the fundamental statement of America's Lockean Liberal Tradition.

Cowie does recognize, however, how the surrender of the Confederacy in 1865 marked the beginning of the third period in the history of white freedom in its struggle against what white Southerners regarded as federal tyranny.  The 13th Amendment abolished slavery.  The 14th Amendment established the equal liberty of all people as citizens of the United States.  The 15th Amendment declared that the right of citizens to vote could not be denied or abridged "on account of race, color, or previous condition of servitude."  The final section in each of these three amendments declared: "The Congress shall have power to enforce this article by appropriate legislation."  This allowed the Radical Republicans who controlled Congress to order by legislation the Reconstruction of the South enforced by federal military occupation.

During Reconstruction, freedmen joined organizations--Loyal Leagues and Union Leagues--that built schools and churches while also mobilizing freedmen for political action and teaching them how to negotiate contracts for work.  All of this activity was supported by the Freedmen's Bureau--an office created by Congress and put into the control of the military.  New state governments were established, and freedmen became voters and candidates for office.  White Northerners who moved to the South and white Southerners who accepted the fall of the Confederacy supported Reconstruction and the political dominance of the Republican Party.  For the first time in human history, there was a biracial democracy.  But for many white people in Barbour County and the rest of the South, this was a denial of their freedom enforced by a military tyranny that supported the corrupt rule of the Republican Party over the southern states.

Reconstruction began with statewide conventions of blacks held throughout the South in 1865 and early 1866.  Hundreds of black leaders attended.  They demanded their rights--such as the right to bear arms, serve on juries, assemble peacefully, and vote--and they repeatedly justified these claims by appealing to the Declaration of Independence, which one speaker described as "the broadest, the deepest, the most comprehensive and truthful definition of human freedom that was ever given to the world."  One gathering declared: "By the Declaration of Independence, we believe these are rights which cannot be justly denies us."  Other speakers portrayed the Civil War and emancipation as events in the forward march of "progressive civilization" as embodying "the fundamental truths laid down in the great charter of Republican liberty, the Declaration of Independence."  One observer said in 1868 that "the colored people had read the Declaration until it had become part of their natures."  By the end of 1867, almost all black voters in the South were enrolled in a Union League or some other similar local organization.  It was common at these meetings to have a Bible, a copy of the Declaration of Independence, and an anvil or other symbol of labor laying on a table.  Radical Republican leaders of Reconstruction like Charles Sumner claimed that the Declaration of Independence ought to have equal legal standing with the Constitution, so that "anything for human rights is constitutional" (Foner 1988: 110-115, 232, 283, 317, 320; Foner 2019: 13-14, 19).  Cowie says nothing about this.

There were violent attacks on Reconstruction from its beginning in 1865.  The peak of this violence was the Colfax Massacre on Easter Sunday 1873 in Colfax, Louisiana.  After a contested 1872 election for governor of Louisiana and local offices, there were violent battles between white and black militia groups.  In Colfax, 60 to 150 black militia men were murdered after they had surrendered to a mob of former Confederate soldiers and Ku Klux Klansmen.  This example became contagious as angry white people joined violent mobs and militia groups that formed what was called the "White Line" to stop Reconstruction.

In Barbour County, this violent movement erupted in the election of 1874.  In Eufaula, the largest city in Barbour County, as many as 80 to 160 black people trying to vote were shot.  Hundreds of people fled from the violence and were not able to vote.  This depressed the Republican vote in Barbour County.  The Black Republican congressman, James T. Rapier, was replaced with a Democratic white supremacist Jeremiah Williams.

Because of such violent resistance to Reconstruction by many white Southerners, support for Reconstruction in the North waned during President Grant's administration.  In 1877, federal troops were withdrawn from the South, which was the effective end to Reconstruction.

This allowed white Southerners in Barbour County and across the South to restore white supremacy through the violent intimidation of blacks (such as lynching) and by finding ways to evade the three Reconstruction amendments to the Constitution.  The 13th Amendment stated: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."  Notice the exception--"except as a punishment for crime."  For white Southerners, this provided a new way to enslave blacks.  Once blacks were convicted of crimes based on flimsy charges, they could be leased out to private employers to labor without pay.  Leased convicts could be forced to pick cotton or work in coal mines under brutal conditions.  The leasing of convicts became a primary source of revenue for Southern governments.  Moreover, convicts were often charged for their own court costs, sheriff fees, jurors' fees, and costs of trial.  White businessmen could then pay off these fees, and they could take the prisoners into indentured servitude.

The 14th Amendment protects the equal liberty of all persons as citizens of the United States.  But in a series of decisions, the Supreme Court distorted the original meaning of the amendment in ways that eviscerated it so that the white supremacist regimes in the South could not be challenged in the federal courts.  For example, Plessy v. Ferguson (1896) ruled that laws of racial segregation did not violate the 14th Amendment if facilities were "separate but equal."

The 15th Amendment declares: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."  White Southern lawmakers found clever ways to evade this amendment.  The right to vote was not "denied or abridged . . . on account of race, color, or previous condition of servitude," but it was denied by many other restrictions that effectively disenfranchised blacks.  To vote, one could be required to pass a literacy test, be employed for a year, show that one had never been convicted of a crime, pay a poll tax, or prove to a white voter registrar that one was not mentally or morally defective.

This rule of white supremacy prevailed in Barbour County without any serious challenges from the federal government from the end of Reconstruction to the end of World War II.  But Cowie shows that after the war, Barbour County entered a fourth period in its history, in which white segregationists had to defend their white freedom against a new civil rights movement demanding what some historians have called a "Second Reconstruction."  When Barbour County's George Wallace was elected Governor of Alabama in 1962, he became the leading defender of white freedom, not only in Alabama but across the nation.

This new period began in 1947 when President Harry Truman began to turn the federal government towards enforcing the principles of the Declaration of Independence in the American South by overturning the system of racial segregation.  Truman appointed a Committee on Civil Rights to recommend to him legislation that would advance civil rights.  The fundamental principle for the Committee's Report was stated in the words of the Declaration of Independence: "Man is endowed by his Creator with certain inalienable rights.  Among these are life, liberty, and the pursuit of happiness.  To secure these rights, governments are instituted among men."  The italicized words show that, as the Report said, "there is no essential conflict between freedom and government" as long as government is instituted to secure freedom, and freedom means "the right of a man to manage his own affairs as he sees fit up to the point where what he does interferes with the equal rights of others."

Cowie recognizes that the Report was referring to the Declaration of Independence (295), but he does not see how the Report was embracing Lincoln's idea of the Declaration as setting the "standard maxim for free society," in which freedom for Lincoln meant that "each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as he in no wise interferes with any other man's rights," which denies freedom as domination.

In a speech before ten thousand members of the NAACP gathered at the Abraham Lincoln Memorial in Washington, Truman asked the Congress to follow the recommendations of the Report.  To justify the federal enforcement of individual rights, he appealed to four "inspiring charters of human rights--the Declaration of Independence, the Constitution, the Bill of Rights, and the Emancipation Proclamation."  Cowie refers to Truman's speech, but he does not notice that Truman was endorsing the Report's Lincolnian idea of the "standard maxim for free society" as the guide for American historical progress.

Truman's "Civil Rights Program" split the delegates to the Democratic Convention in 1948 that nominated Truman for President.  Southern delegates failed to defeat a civil rights plank in the party platform.  In the debate over civil rights at the convention, Hubert Humphrey, the mayor of Minneapolis, delivered a speech that appealed to the Declaration of Independence as justifying a civil rights program that would enforce Jefferson's principle "that all men are equal" in their "right to enjoy the blessings of free government."  He declared: "to those who say that we are rushing this issue of civil rights, I say to them we are 172 years late.  To those who say that this civil-rights program is an infringement on states' rights, I say this:  The time has arrived in America for the Democratic Party to get out of the shadow of states' rights and to walk forthrightly into the bright sunshine of human rights."  Cowie refers to this speech, but without noting Humphrey's invocation of the Declaration of Independence or the significance of his remark that "we are 172 years late"--pointing to 1776.

Many of the Southern delegates to the convention walked out--including half of the Alabama delegation--and they then held their own convention in Birmingham, Alabama, where they formed the States' Rights Democratic Party (the "Dixiecrats"), which nominated South Carolina Governor Strom Thurmond for President.  In the election, Thurmond won Alabama along with Louisiana, Mississippi, and South Carolina.  But despite the split in the party, Truman was elected president, which was a kind of victory for his civil rights program.

This split the Democratic Party--with most northern Democrats agreeing that the principles of the Declaration of Independence required federal enforcement of a civil rights program, and many southern Democrats rejecting those principles as a violation of states' rights.

George Wallace was a young alternate delegate to the 1948 convention, but he chose to support Truman rather than join the Dixiecrats.  As a young politician, Wallace was a moderate on racial issues, and he was a protege of "Big Jim" Folsom, a New Deal populist who appealed to the Declaration of Independence as supporting racial equality (Carter 1995: 72).  Although Cowie identifies Folsom as "a believer in racial equality," he does not mention Folsom's appeal to the Declaration (299).

When Wallace ran for governor in 1958, he campaigned as a New Deal populist who was moderate on racial issues.  He was moderate enough to have the endorsement of the NAACP!  By contrast, his opponent John Patterson campaigned against racial integration, and he was endorsed by the Ku Klux Klan.

Wallace lost.  A few days after his defeat, he told a friend of his: "I was outniggered by John Peterson, and I'll tell you here and now, I will never be outniggered again."  When Wallace returned to win the governorship in 1962, he had perfected what Cowie calls Wallace's "winning formula": generate some conflict with federal authority over civil rights, and resist the feds on the grounds of "states' rights," which would generate votes for Wallace even when the feds won.  

The national reputation he won from this as a feisty fighter for Southern white freedom against federal tyranny allowed him to campaign for the presidency and to gain a large political following even in the Northern states.  But Cowie exaggerates Wallace's success in promoting white freedom and challenging the civil rights movement.  Ultimately, Wallace failed; and by the mid-1970s, Wallace was asking forgiveness from the civil rights leaders that he had previously opposed.  Wallace's rhetoric of white freedom was defeated by the more powerful Lincolnian rhetoric of equal liberty as affirmed in the Declaration of Independence.

I will explain this in my next post.

REFERENCES

Carter, Dan T. 1995. The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics.  New York: Simon and Schuster.

Cowie, Jefferson.  2022. Freedom's Dominion: A Saga of White Resistance to Federal Power. New York: Basic Books.

Foner, Eric. 1988. Reconstruction: America's Unfinished Revolution, 1863-1877.  New York: Harper & Row.

Foner, Eric. 2019.  The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W. W. Norton.

Lincoln, Abraham.  1989.  Speeches and Writings. 2 vols. Ed. Don Fehrenbacher.  New York: Library of America.

Trump's Supreme Court Amends the Constitution: The President Is Now a "King Above the Law"

The Supreme Court of the United States has issued its decision in Trump v. United States.  A federal grand jury has indicted former President Donald Trump on four counts for conspiring to overturn the November 2020 presidential election.  This case is the first criminal prosecution in American history of a former President for actions during his Presidency.  Trump has asked the federal courts to dismiss this indictment based on his claim that the President has absolute immunity from criminal prosecution for official actions that he took during his presidency.  The federal District Court denied his motion to dismiss, saying that former Presidents do not have federal criminal immunity for actions they took as President.  The D. C. Circuit Court affirmed this decision.

But now the Supreme Court has ruled (in a 6 to 3 decision) that the President has absolute immunity from criminal prosecution for actions within his "core constitutional powers"--that is, powers that belong exclusively to the President.  And he has at least presumptive immunity from prosecution for any of his "official acts."  But there is no immunity for his "unofficial acts."

Roberts wrote the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh joined in full, and in which Barrett joined in part.  Sotomayor filed a dissenting opinion, in which Kagan and Jackson joined.  Jackson also filed a separate dissenting opinion.

Sotomayor's dissenting opinion far more persuasive than Roberts' opinion for the majority.  In fact, the majority's opinion is so lacking in any clear constitutional grounds that it is really a judicial amendment of the Constitution disguised as a constitutional interpretation.  The majority has amended the Constitution to say--in Sotomayor's words--"in every use of official power, the President is now a king above the law" (Sotomayor, 30).

Think about what that means.  The Supreme Court has just told us that if Trump is elected in November, he will be a king above the law.  Doesn't that help Biden to recover from his pitifully poor debate performance?  Because now Biden can organize his entire campaign around one question--Do you want Donald Trump to become the dictatorial King of America with the support of Trump's Supreme Court?

Of course, it would be better to replace Biden with another Democratic candidate who could then press this issue with more clarity and youthful vigor than can Biden--someone like Governor Jared Polis of Colorado, Governor Gretchen Wittmer of Michigan, or Michele Obama.

Quoting language from the Court's decision in the Dobbs case (overturning Roe v. Wade), Sotomayor says that the majority's decision establishing presidential immunity for official acts has "no firm grounding in constitutional text, history, or precedent" (Sotomayor, 4).  We can organize the debate in this case around those three grounds for constitutional interpretation.

CONSTITUTIONAL TEXT

Of the six justices who signed the majority opinion in this case, at least four (Thomas, Gorsuch, Kavanaugh, and Barrett) are full-blown originalists; and two of them (Alito and Roberts) have often supported originalist opinions.  Although there are different interpretations of originalist jurisprudence, the one common theme is respect for the text of the Constitution as the starting point for any proper constitutional interpretation.  Any reasonable interpretation must be grounded in the constitutional text--in its original meaning or in the original intent of those who framed that text or those who ratified that text--and any judge's interpretation that has no textual grounds must be an expression of the personal preferences of the judge rather than a discovery of the Constitution's true meaning.  Some originalists (like Antonin Scalia) have even chosen to call themselves "textualists" to make clear the primacy of the constitutional text itself.

Amazingly, however, the majority opinion in this case is not grounded in the text of the Constitution, which exposes the dishonesty of those who profess to be originalists but then adopt legal opinions that conform to their political values even though they have no basis in the Constitutional text.  In this case, they decided to put Trump above the law by giving him absolute immunity from criminal prosecution for his official acts as President, even though there is no constitutional text justifying this.

Sotomayor says: "The Constitution's text contains no provision for immunity from criminal prosecution for former Presidents" (4).  She gives three reasons for why this is important.  First, we can see in the Constitution that the Framers knew how to provide immunity from prosecution whenever they wanted to.  Because they explicitly provided a special limited immunity for legislators in Article I, section 6:  "They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."  They did not extend any similar immunity to the President.

A second reason for why this silence about Presidential immunity is significant is that the Framers knew that some state constitutions had expressly provided some immunities to criminal prosecution to sitting governors.  The Framers deliberately chose not to use similar language to give the President immunity.

A third reason for taking this seriously is that the Impeachment Judgment Clause explicitly pointed to a form of criminal liability for the President.  "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" (Art. I, Sec. 3).  

And since a President can be impeached for "Treason, Bribery, or other high Crimes and Misdemeanors" (Art. II, Sec. 4), a President impeached for bribery would still be exposed to criminal punishment for bribery, and bribery is surely an "official act."  So, for example, if the President took bribes in the exercise of his pardoning power, he could be punished for this according to criminal law.

Roberts responds to this by saying that it does not matter that there is no "Presidential immunity clause" in the Constitution, because, after all, there is no "separation of powers clause" either; and yet the doctrine of separation of powers is "undoubtedly carved into the Constitution's text by its three articles separating powers and vesting the Executive power solely in the President" (37-38).

Following the lead of the decisions in United States v. Nixon (1974) and Nixon v. Fitzgerald (1982), Roberts argues that presidential immunity is constitutional to the extent that it is necessary to preserve the separation of powers by protecting the President's free exercise of his executive powers.

Roberts asserts:  "Given the Framers' desire for an energetic and vigorous President, the principal dissent's view that the Constitution they designed allows all his actions to be subject to prosecution--even the exercise of powers it grants exclusively to him--defies credulity" (39).

But as Sotomayor indicates, the history of the framing and ratification of the Constitution indicates that the Framers really did believe that "an energetic and vigorous President" could be, and should be, "subject to prosecution."

HISTORY

As evidence that the Framers wanted "an energetic and vigorous President," Roberts cites Alexander Hamilton's argument in Federalist Number 70 that "energy in the Executive is a leading character in the definition of good government."  But then Roberts ignores what Hamilton said in Federalist Number 69 about how the President is "liable to prosecution and punishment in the ordinary course of law," and how this distinguishes the President from the King of Great Britain, who is "sacred and inviolable" and thus above the law in not being subject to legal punishment.

At the Constitutional Convention of 1787, James Madison "suggested . . . the necessity of considering what privileges ought to be allowed to the Executive" (Farrand, 2:503).  But there is no record that the Framers at the Convention ever discussed this.  Later, Charles Pinkney, one of the delegates at the Convention, explained: "Let us inquire, why the Constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shewn so little to the President of the United States in this respect. . . . No privilege of this kind was intended for your Executive" (Farrand, 3:385).

In the North Carolina Ratifying Convention, James Iredell compared the British King and the American President.  The King "has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong."   By contrast, the President can be punished for his bad behavior.  He can be impeached.  And "if he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life" (Bailyn, 2:873).  As far as I know, no one in any of the ratification conventions disagreed with Iredell about this.

If you are an originalist, this should settle the issue:  if the Framers of the Constitution and those who ratified the Constitution never intended to grant the President any such privilege, then there is no executive privilege in the Constitution.   But if you are one of Trump's Justices on the Supreme Court, you can set aside your professions of originalism to invent a doctrine of executive privilege that will put Trump above the law.  (Similarly, in Trump v. Anderson, Trump's Justices disregarded their originalist commitments in violating the original meaning of Section 3 of the 14th Amendment.)

You will also have to ignore the long constitutional history in which the President was assumed to be subject to criminal prosecution.  For example, when Richard Nixon resigned, it was assumed that of course he would be open to prosecution for whatever crimes he committed while President.  To avoid that, President Gerald Ford pardoned Nixon, granting him "full, free, and absolute pardon . . . for all offenses against the United States which he . . . has committed or may have committed or taken part in during" his Presidency.  Nixon wrote a response to this pardon saying that he was accepting "full and absolute pardon for any charges which might be brought against me for actions taken during the time I was President of the United States" (Sotomayor 9).

Roberts responds to this history of Ford's pardon and Nixon's acceptance with . . . silence.  If Roberts had said anything about this, he would have had to argue that Ford's pardon was unnecessary because Nixon had absolute immunity from criminal prosecution.  But if Roberts had said this, the absurdity of his position would have been evident.

Roberts is also silent about what Trump's own lawyers said during his second impeachment trial.  They insisted that a former President "is like any other citizen and can be tried in a court of law."  Trump's impeachment counsel stated: "If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . after he is out of office, you go and arrest him" (Sotomayor 10).  

Sotomayor observes: "In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump's lawyers, until now.  Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them" (10).

PRECEDENT

For the majority in this case, the text of the Constitution and the history of its interpretation do not matter.  All that matters is the precedent set by Nixon v. Fitzgerald (1982).

Arthur Fitzgerald had filed a civil lawsuit for damages against government officials--including Richard Nixon--claiming that he had wrongly lost his position as a contractor for the U.S. Air Force because of his testimony before Congress in 1968.  Nixon said that he had "executive privilege," such that he could not be sued for actions taken while he was in office.  Nixon's claim was rejected by lower courts.  But in a 5-4 decision, the Supreme Court ruled that the President has absolute immunity from legal liability for civil damages based on his official actions.

Now, Roberts and the majority of the Court say that this precedent supports an extension of absolute presidential immunity to include immunity from criminal prosecution.

There are two possible answers to this argument.  I think the best answer is that the Fitzgerald decision was wrong because there is no ground in constitutional text and history for saying the President has such immunity.  Unfortunately, Sotomayor does not say this; and this is the weakest part of her opinion--that she accepts the Fitzgerald decision.

But there is a second answer that she adopts:  even if we accept the Fitzgerald decision, we should see that it rules in favor presidential immunity only in civil cases; and the Fitzgerald opinion explicitly denies that that there is any presidential immunity in criminal cases (Sotomayor 12-19).

The majority in Trump v. United States disagrees, and in doing so, they have accepted a claim of absolute monarchic immunity once asserted by Nixon.  In 1974, Special Prosecutor Leon Jaworski had obtained a subpoena ordering Nixon to turn over certain tapes and papers related to the criminal investigation of the Watergate burglary.  Speaking before Federal Circuit Court Judge John Sirica, Nixon's attorney James St. Clair said: "The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment."  Sirica rejected this claim, which was also rejected by the Supreme Court in United States v. Nixon.

But now the Supreme Court has ruled that when Trump is elected President in November, he will be "as powerful a monarch as Louis XIV."

Consider Sotomayor's warning:

"The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world.  When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution.  Orders the Navy's Seal Team 6 to assassinate as political rival?  Immune.  Organizes a military coup to hold onto power?  Immune.  Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune" (29-3).

Roberts says nothing to show that these are not realistic possibilities under his opinion.  He does ridicule Sotomayor for "fear mongering on the basis of extreme hypotheticals" (40).  But since Roberts says that the President has absolute immunity for any exercise of his "core powers," and since the power of the President as Commander-in-Chief of the military is surely a "core power," ordering his military to assassinate a political rival must be within the absolute immunity the Court has created.

Happy 4th of July!

REFERENCES

Bailyn, Bernard, ed. 1993. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. 2 vols. New York: The Library of America.

Farrand, Max, ed.  1966.  The Records of the Federal Convention. 4 vols. New Haven, CN: Yale University Press.