America Is Anti-Racist. That's Why Racists Have Always Besmirched America.

The New York Times and Roger Taney have the same view of America. The authors of the 1619 Project and the author of the most infamous Supreme Court opinion in American history, Dred Scott v Sandford, both view America as a political society built exclusively by white people for the exclusive benefit of white people. To rationalize that view, both wrote histories of America that invent false facts, ignore obvious and important truths, and, in the words of the 1619 Project, “reframe the country’s history” by placing slavery and racism in the center and moving American ideals and institutions to the periphery.

This similarity struck me afresh as I re-read the opinions in the Dred Scott case last week. I teach the case every fall in my Foundations of Law course to show how judicial power can be abused, and to set up Lincoln’s rejection of judicial supremacy and his re-assertion of American ideals against Taney’s cynical power play. But this was the first time I had read Dred Scott since the 1619 Project moved into the mainstream and became Mandatory Doctrine for anyone who wants to participate in American public life. It occurred to me that Taney’s false history is, in essence, the same history that my students have been taught by their earlier teachers and elite media outlets.

Those false histories matter, because our histories tend to become self-fulfilling. Histories that emphasize American ideals of natural rights, common law institutions of legal justice, and political equality before the law motivate people like Lincoln, Harriett Beecher Stowe, Frederick Douglass, and MLK Jr to strive for a more perfect Union. Histories that emphasize our moral failings or, worse, invent sins that weren’t, are often used to create or rationalize racist systems. Throughout American history, the people who reject American norms and institutions are often the same people who build racists systems, from slavery, to the post-Reconstruction black codes, to retrospective zoning laws, to segregated housing policies, to eugenics programs, to internment of Japanese Americans, to immunities for abortionists. To build all of those artificial systems required either the denigration or the rejection of American ideals and institutions.

So, it is more than a little ironic that people who reject Americans norms and institutions blame racist systems on the American norms and institutions that they reject. To build racist systems it has always been necessary to weaken or destroy America’s jurisprudential commitments and constitutional safeguards for ordered liberty. And the favored programs and policies of powerful elites who reject American norms and institutions have often proven to be racist, either in purpose or in practice.

As Lincoln, Stowe, Douglass, King, and many other great Americans have understood, American norms and institutions are anti-racist in their core. Yes, racist systems have been built on American soil. But racist practices amount either to a failure to live up to our own ideals (see, eg, Jefferson, Thomas), or systems that require a rejection of our ideals (see, eg, Wilson, Woodrow), or false rationalizations of a cynical belief that everything is power (see, eg, Taney, Roger; Hannah-Jones, Nikole).

Twentieth-century Progressives understood this. (Oh, how I miss the candor and rationality of genuine Progressives.) That is why many Progressives fought so hard to undermine and displace founding American norms and institutions, such as vested property rights, separation of powers, and due process of law. They understood that those norms and institutions prevented them from building their zoning codes, eugenics programs, and other systems that they designed to perfect the human condition by separating us according to race and class.

You can tell the true character of an idea by its enemies. The idea of America has made lots of enemies. They include Communists, Nazis, slave-holders, segregationists, eugenicists, and other tyrants. Those who would eradicate the idea of America from American life ought to ask whether that is the sort of company that they want to keep.

UPDATE 17 Oct 2020: I’ve heard from a few people who are disappointed that this wee blog post merely asserts, rather than lays out an argument. Guilty as charged. I didn’t intend this to be an essay. I dashed it off because someone told me, “You should write that down. No one is making those points.” It’s mostly an exercise in getting it out of my head. Since people are actually reading this, if I have time next week, I’ll unpack the points in the third paragraph. There’s a story there worth telling.

UPDATE 20 October 2020: Here is the long version, which unpacks the claims made above.