Response to Gerken, Winant and Lebron

Response to Heather Gerken

Heather Gerken has launched this seminar on Our Declaration with an elegant exposure of my method. Like Constitutional lawyers, I focus on a single fragment, one utterance, crafted in a particular moment of time under the most unusual and trying of circumstances, and develop “a robust set of democratic commitments from a thin textual guarantee.” How did the words of the Declaration come to be expressed? How can we still access the intentions of those who wrote these words and interpret their evolving meanings for our own generation? “When constitutional lawyers turn to a text, they look not for precision,” Gerken writes, “but what Ronald Dworkin calls ‘fit’ and ‘justification’ – a normatively attractive account that fits within the extant interpretive landscape.” As in the work of constitutional lawyers, there is a marriage in my book of historicism and pragmatism (by which I mean the school of philosophical thought bearing that name). This marriage is effected through a theory of language and its place in politics.

Language has always been, for me, the strangest and most cunning unifier of past and present, a deep ever-flowing stream passing from mouth to ear and ear to mouth and on again, across millennia, shifting yet durable, transporting visions and perspectives from the deepest recesses of history to the present, under layers of silted accretion, accumulated through a confounding blend of social accident and logic. These layers give way to a form of archaeology, and reveal the secrets of the past.

Why does it become reasonable, as you will read in Our Declaration, to introduce the divorce decree dis-uniting Prince Charles and Princess Diana in order to explain the dissolution of the political bands between the colonies and Britain? This isn’t just the teacher’s trick of using something present, something already known, to lead the students from what is familiar to what is more distant. Among genres, legal language is distinctively durable. This durability in effect shrinks the time span between the Declaration of Independence and the royal divorce decree of 1996. This stands in contrast to the temporal distance between the popular speech, images, and metaphors of eighteenth-century almanacs and what now gushes forth abundantly on blog pages, Pinterest, and Instagram. Popular speech is volatile and changeable. Set an almanac’s maxim and a blog’s self-disclosure side-by-side and the two periods will look more rather than less distant.

I used twentieth and twenty-first-century legal examples to access some of the language in the Declaration deriving from a legal tradition, but I also illustrated the book with pages from eighteenth-century almanacs, the most common reading material in the period after the Bible. The images and texts from those almanacs reveal that the metaphors of the political elite were woven from the warp and woof of the popular imagination. In other words, my book is organized around the question of how you teach the history of language, in this case, specifically as it relates to American history. The result is a method that, it must be admitted, as Gerken says, is “eclectic, even strange.”

But as I excavated the language of the Declaration, I sought in each instance to do two things. I aspired to offer readings of words, of phrases, and of sentence structure that were true to the language and patterns of thought of the time. I wanted the readings to pass muster with historians. Even though I claimed to tread lightly on the historical side of the tale, I strove to avoid anachronism. No doubt I might have failed on occasion to meet that goal, but I did set myself that target. This was, in Dworkin’s terms, my effort to achieve “fit.” The second thing I attempted was to actually dig into the language of 1776—through the letters written by the men in Congress and their wives, through the almanacs, through the abundance of political writing from the period—to discover conceptual insights that can still speak to us, today, as we too struggle to understand democracy. This was my effort to achieve “justification.”

This takes me back to my primary theme: the special gift that language offers to the historian and political philosopher, especially one who works in the context of a continuous cultural and political tradition. I am a certified and practicing historicist, trained as such by Paul Cartledge, the historian of ancient Greece. I affirm that language is marked by its time and place. But as a philosopher, I pursue the paths of William James and John Dewey and work in the tradition of pragmatism. I follow James in treating beliefs as rules for action. This means that we can understand the full meaning of an idea, a concept, an utterance, only by seeing what material realities it brings into being in the world. In this regard, language users continuously test the validity of their language—its fitness for the purposes of their lives—and where it comes up short, they modify. The two centuries and thirty-nine years of American democracy, are a single continuous, pragmatist experiment in how to define liberty and equality. On this pragmatist account, the conceptual discoveries achieved in the Declaration are still of relevance because they help us map out the terrain of the experiment; they mark paths ill-judged as well as successful ventures. Moreover, language lives and must; language can’t be frozen, although its different streams can move at startlingly variable paces. It remains up to us in our own time and place to develop such definitions of terms like liberty and equality as seem to us most likely to effect our safety and happiness. We have no way to proceed other than building on the experiments that have preceded us.

Because I function as a pragmatist, I have no warrant for my normative arguments other than that they represent my own best effort to judge the right course, after considered reflection and a testing of my views against people (the men of 1776) who on many critical questions disagreed with me profoundly. For this reason, I have an obligation to present to you who I am, the standpoint that lies behind my judgments. Gerken recognizes the core of my pragmatist’s method when she writes this: “Because law is a craft, not a discipline, there’s always a danger that one’s preferences about the ought will bleed into one’s interpretation of the is. It is essential, then, to do precisely what Allen does in this book. Be rigorous. Show your work. Acknowledge ambiguity. Put your normative cards on the table.” To this I always add, “And invite your audience to judge in turn.”

I’d like to conclude this first response by saying a word about why I chose to write about the Declaration of Independence. Constitutional lawyers — regardless of whether their political predispositions are conservative or progressive — have an easy and necessary answer to the equivalent question. In the U.S. the Constitution is, after all, the law of the land. They have to work with it, regardless of what they think of it. The Declaration is a different matter. Progressives in the U.S. have dispensed with it because of its imbrication in systems of domination (of women and people of color) and genocide (of Native Americans). Yet I have embraced the text willingly, and recommend it, even to progressives, as salutary for the effort to think through the re-vitalization of egalitarian participatory democracy in contemporary circumstances. Why?

In the final clause of the very long sentence about self-evident truths, the Declaration offers the most compelling charge to democratic citizens of which I know. It is this:

[W]henever any Form of Government becomes destructive of these ends [of securing rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Yes, those who were dominated as of 1776 had to fight for inclusion in “the People”; yes, those who are still dominated today need to advance the fight. Yes, allies fighting alongside are needed too. But this clause does more to clarify the work of democracy than any other I know. Those who care to make good on the democratic potential in this sentence must achieve a fully inclusive people, scrutinize and where necessary revise the principles that we use to orient our public life, and scrutinize and where necessary alter or abolish existing organizational forms through which power is deployed.

The men of 1776 self-consciously exploited the gap between the selection of principles and decisions about organizational form. In letters, John Adams, for instance, explicitly acknowledged that women, children, and laborers (a category that included the African Americans hired by his wife in the spring of 1776) were among those whose rights should be protected and who should benefit from the achievement of collective safety and happiness. But he was adamant in the view that the powers of government should be organized such that men with property controlled the levers and pulleys. He and his colleagues were not about “to repeal our Masculine systems,” he wrote to his wife, Abigail Adams. It was Abigail who knew that this firewall between principles and organizational form was unsustainable. In March 1776, she wrote to John that if the new governments did not do more to incorporate the interests of “Ladies,” “we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.” And in May 1776 she responded to his defense of the “Masculine system,” thus: “you must remember that Arbitrary power is like most other things which are very hard, very liable to be broken.” She achieved that rare thing in political science: an accurate prediction.

Right from the outset, the very terms of the Declaration itself were amenable to use in critiques of how the men of 1776 organized the powers of government. This is because, at the end of the day, the Declaration articulates a theory of revolution. Why should progressives give up a framework as powerful as this for thinking through transformation simply because some people used it to bad ends? Is it not more important to ascertain how to direct the democratic powers so clearly delineated here to better ends?

Response to Chris Lebron

I concluded my response above to Heather Gerken’s post by affirming that, at the end of the day, the Declaration articulates a theory of revolution. In his comment, Chris Lebron advances our understanding of the contemporary implications of the Declaration’s intellectual, argumentative and, yes, radical resources. I agree with Lebron’s fundamental points, which I would identify as these:

• “I want to conclude, then, by affirming my thesis. This tension between being formally a part of the people but in fact, not fully part of the people, of having one’s membership brought into substantive question by way of deep injustice on the part of American institutions gives blacks due cause to claim that American institutions and government are illegitimate for they are systematically violating the very thing they were established to do – treat American citizens as such with all the benefits and protections that entails. And, precisely because blacks today share the same sorts of justification for complaint as the Declaration’s writers did at the founding, they, like the founders, are justified in pursuing a radical politics.”
• “A proper or justified radicalism is never a way of life. Indeed, radicalism is a response to a state of affairs that has been judged cruel or corrupt or deeply unjust. As a response to that world, radicalism seeks to eradicate the very conditions that brought it into being in the first instance. That is, the actions which it issues aim to destabilize the reasons for continued radical action.”

In his comment Lebron ruminates on how the course of events appears to be unfolding for African Americans. My own work on the Declaration has led me to a similar line of reflection, and an assessment of the course of events for African Americans necessarily makes visible severe failures over the last forty years in how we have organized the powers of government.

I take the structure of our drug laws to be the fundamental problem underlying the immiseration and decline of very many African Americans in this country. As is well known, New York State’s Rockefeller Drug Laws, which were signed into law in 1973, initiated the dramatic acceleration of the criminalization of drugs and the carceral state. The Drug Enforcement Agency, which was created in the 1970s in the wake of new legal frameworks, acquired rapidly expanding powers and in 1984 launched Operation Pipeline to interdict drug trafficking on the nation’s highways. This program is now widely understood to have disseminated practices of racial profiling throughout the nation, despite the equal opportunity involvement of white Americans, too, in the drug economy. Operation Pipeline thereby supported the differential exposure of white and non-white participants to the power of criminal law.

As I wrote in a recent Washington Post op ed, thanks to the racially disparate enforcement that was set in motion with Operation Pipeline, much drug economy labor is, for all intents and purposes, not free. This is especially true for the couriers, brokers and lower-tier wholesalers. Young people are recruited to handle low-level tasks, setting them up to be booked on a felony as an adult not long after they turn 18. Once that happens, they find themselves broadly unemployable — with one major exception: by the drug industry. How voluntary can we consider repeat participation in the supply chain, then, when a criminal record precludes other opportunities?

The libertarian vibe in the world of pot smokers and other drug users makes these issues all the more stark. Freedom for those who want a hit has been wrung from the exploitation of others. We have numbers for the price of that freedom: 1.5 million African American men missing from U.S. cities. And this doesn’t count the men who are still in those cities but are trapped by the felonies on their records.

Through decades of the war on drugs, we have bought ourselves an economic crisis with the drug economy’s impacts on poverty and education. One of the hardest challenges of school reform in the context of low-income communities of color is to protect students from exposure to violence, even on their daily walks to school. In the op ed, I argue for full national legalization of marijuana, for the decriminalization of other drugs, and for expunging non-violent felonious sentences for drug offences. To quote Elena Kagan’s recent dissent in Yates vs. the United States, we need to “bring[] to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code.” This mode of organizing the powers of government has delivered a human catastrophe, on par with the worst of our bad American habits. I consider it urgent, in other words, that we effect a radical reorganization of the powers of government to shift us away from that “overcriminalization and excessive punishment.”

For me, three graphs, taken together, convey our recent course of events:

NOTE: Detail may not sum to 100% due to rounding. Figure reflects 99% of schools offering preschool, including over 1 million preschool students, nearly 5,000 students suspended once, and over 2,500 students suspended more than once. Preschool suspensions and expulsions were collected for the first time in 2011–12. SOURCE: U.S. Department of Education, Office for Civil Rights, Civil Rights Data Collection, 2011–12.

I have not addressed the issue of rising income inequality in this response. I’ll save that for the response to Gabriel Winant’s comment. But let me here simply note that the combination of mass incarceration and rising income inequality constitute a double strangulation for lower income people of color.

In short, we know where we are, and there is nothing for it but to change course. I take it that this is the central point of Chris Lebron’s response and I affirm it.

Response to Gabriel Winant

Gabriel Winant credits Our Declaration with “a novel claim—that the Declaration, of all documents, could be a reading in the pedagogy of the oppressed”; here he invokes the title of Paolo Freire’s 1968 book outlining liberation pedagogies for “the colonized.” Whereas Chris Lebron endorses my claim about the radical resources of the Declaration, Winant is skeptical. Without a fuller description of the experiences of the low income students in my night class, and greater explicit discussion of the socio-political effects of elite universities, Our Declaration leaves Winant without the resources to judge my argument’s validity. In particular, Winant is skeptical that the resources provided by the Declaration can overcome “a vicious dialectic of individual and structural disempowerment.”

Most important, the speech acts with which the men of 1776 achieved their own political self-assertion were “enabled and authorized” by the fact that they stood “at the top of an ecology of unfree dependents.” Winant is right in broad brush strokes, but I have to pause to make a minor correction. In arguing that the ideals of equality and independence espoused by the revolutionaries depended on their ownership of “land and people,” Winant makes a mistake that is common now in our treatment of revolutionary America. He treats Southern political conceptions as standing for the political whole. The Southerners, yes, required ownership of “land and people” as signs that a man should be treated as a free equal. The Northerners, too, required ownership of property, but they did not require that it should be in the form of land, and were already well on their way to rejecting the idea that it should be in the form of people. Nor were the Northerners scrupulous about enforcing property qualifications when it came to political participation, a point that was a source of irritation to the British. None of this undermines Winant’s basic point that political self-assertion succeeded for the men of 1776 because they stood on top an ecology of unfree dependents. That claim is correct, and I’ll come to its substance in a moment. But it is worth underscoring the fact that by routinely turning the Declaration of Independence into a resolutely Southern text, we miss half of its meaning and political work.

By the spring of 1776, the term “property” had already come to be closely connected to a defense of slavery. Its absence from the list of basic rights– “life, liberty, and the pursuit of happiness,”– was the result of the political work of Northerners, chief among them John Adams. To see Adams’ influence on the Declaration, one has only to track the resolutions that he moved in Continental Congress across the fall of 1775 and spring of 1776 as well as his April 1776 pamphlet, Some Thoughts on Government. Jefferson over-claimed when he had his tombstone inscribed, “Author, Declaration of Independence.” Adams had far more to do with the development of the arguments of the text. And the Declaration did genuinely establish a framework for advocacy of abolition, work that began within months of its passage. There is far more to the story of the Declaration than Southern politics, and it’s a shame that we routinely miss this fact.

Yet to invoke the polyphonic nature of the Declaration is by no means to wish away Winant’s basic argument that revolutionary self-assertion, as represented by the Declaration, succeeded for those who were structurally advantaged in 1776 precisely because they were so advantaged. As I’ve indicated already, in responding to Heather Gerken’s post, Adams was no egalitarian in anything like our modern sense. Despite considering slavery a bad thing, he insisted on maintaining “the Masculine system” for the organization of political power, and he lamented that the revolutionary politics of the day was “loosen[ing] the bands of Government every where. That Children and Apprentices were disobedient — that schools and Colledges were grown turbulent — that Indians slighted their Guardians and Negroes grew insolent to their Masters” (to Abigail Adams, April 14, 1776). In an exchange with Abigail that was presumably meant to be superficially playful, he imagined calling on George Washington to come to the defense of these forms of structural advantage:

We have only the Name of Masters, and rather than give up this, which would compleatly subject Us to the Despotism of the Peticoat, I hope General Washington, and all our brave Heroes would fight. I am sure every good Politician would plot, as long as he would against Despotism, Empire, Monarchy, Aristocracy, Oligarchy, or Ochlocracy.

The important question that Winant poses is why I think that revolutionary self-assertion, as taught by the Declaration of Independence, should work for those who are structurally disadvantaged. Surely, the text doesn’t even pretend to offer any such resources.

The answer lies in how to think about the vicious dialectic of individual and structural disempowerment. At first blush, the problem seems like a chicken and egg problem. But in fact, it is not. There is not now and there never has been a deus ex machina available to solve the problem of structural disempowerment. The numbers of those who possess power and will seek to hold it will always be large enough to ensure that structural change must come from below. Some power-holders may become allies to the oppressed, or coopt them to fight their own opponents within an elite, but if either of these circumstances is to result in benefits to the oppressed themselves, this will be on account of their own self-assertion. Winant acknowledges the historical accuracy of this point.

Consequently, individual empowerment is the only route out of structural disempowerment. Individuals need agency enough to diagnose their circumstances (the course of events), to “compare their experiences and validate shared grievances” with others, to identify alternative paths, and to build movements toward them. In my view, necessity sets this out as the only possible path forward.

The experience of teaching the Declaration to my night students was distinctly moving for me, but I decided to write the book when one of my students was quoted in a local paper saying that a session about the double-edged language coming out of the Declaration of Independence—the proximity of “separate and equal” to “separate but equal” —had been especially memorable for her. I was lucky with those night students in that every student in my class had already decided to change his or her life. They had awoken already, without any of my doing, and laid claim to individual agency. Together in our classroom we were able to connect each student’s burgeoning commitment to self-advancement to awareness of the bigger picture, of the patterns appearing in the multiple obstacles hindering their achievement of safety and happiness. As I write in the book: “My night students’ lives overran with death—from gunshots and overdoses and chronic disease and battery.” My students began to name places where they saw governmental agents failing to protect rights, and they began to imagine the speeches they would like to make to propose alternative visions and policies.

Winant is right. Speech-ifying is not enough. But I can confirm that my students were wakeful and ready for political work. Whether they have since undertaken that work consistently, I cannot say, but I do know that in the time immediately following the course a repeated pattern was that students found ways to lodge their voices in our cultural universe—writing for local magazines, entering film competitions, tracking and commenting on politicians. They had, at the very least, achieved that ideal of W.E.B. DuBois that we all become co-creators in the kingdom of culture. I take that to be the beginning of the pathway to political empowerment. And for the question of how the disempowered may be able to move from voice to influence, please see a new book of that title, From Voice to Influence: understanding citizenship in a digital age.