The Two Faces of American Freedom, Ten Years Later: Part One

PUBLISHED

Aziz Rana is a professor of law at Cornell Law School.

Henry Brooks is a recent graduate of Harvard College, where he concentrated in Social Studies with a focus on Latin America.

PUBLISHED

Aziz Rana is a professor of law at Cornell Law School.

Henry Brooks is a recent graduate of Harvard College, where he concentrated in Social Studies with a focus on Latin America.

Few events in my undergraduate experience were as intellectually fruitful as my chance encounter with Aziz Rana’s The Two Faces of American Freedom. I discovered the book in a seminar on populism and democracy, alongside works by the conventional greats of American history – Richard Hofstadter, Arthur Schlesinger, and the like – and a smattering of contemporary contributors. Rana’s Two Faces more than the others seemed to capture the perplexing spirit of autumn 2017, nine months into an unanticipated presidency whose governing philosophy, if such a thing cohered, people had taken to describing charitably as “populist.”

The recent ten-year anniversary of Two Faces seemed a fitting occasion to reach out to Rana. In honor of the tenth anniversary of Two Faces, our conversation focused on the legacies of empire in today’s populism, emphasizing the closeness of radical democracy and settler exclusion. Revisiting key arguments from the book, we complicate traditional narratives of American history to make room for a richer story of membership and inclusion.

Henry Brooks

I want to start with a vignette from your book: it’s 1880, and the frontier is still the dynamic force in American economic and political life.  More than twenty states have passed laws permitting European immigrants to vote, regardless of their citizenship status (so-called “resident voting” laws).  The federal government has passed a law permitting non-citizens to receive land grants.  How did such a progressive vision take hold in America?

Aziz Rana

The really distinctive feature of early American history was how a rich internal account of freedom—what I call “freedom as self-rule”—ended up being joined to a very rigid politics of exclusion and land expropriation.  The settlers that came from England carried with them a radicalized version of the republican tradition. According to this account, in order to be free you had to have control over all of the central sites of collective decision-making: political, economic, and spiritual. 

What those settlers realized pretty early on was that, in order for this kind of project to work, there would have to be enough land for everybody—because it’s basically an agricultural society—so that they could actually enjoy things like independent proprietorship and homesteading. And there would have to be enough people to actually settle the land. So they developed policies to induce folks from Europe to come over to the U.S. That’s why, by the late nineteenth century, you have practices like non-citizen voting in a majority of the states and territories and non-citizen access to western land grants. 

Still, these policies were inherently tied to the expropriation of indigenous land. Just as essential, for some to enjoy the benefits of economic independence, you had to have others do the necessary but hard work of menial labor. That’s where enslaved African workers and later Chinese workers fit in. So, the story of the nineteenth century is that the engine of westward expansion and territorial settlement facilitated a really robust vision of economic and political freedom—and indeed what today would be called economic populism—for those that were insiders but in a way that was fundamentally married to a politics of exclusion.

The country’s migration policies on the eve of the Civil War testified to this exclusion. Alongside voting rights, most European migrants—even before formal citizenship—were free from deportation and enjoyed essentially complete freedom of movement, while colonized subjects benefited from no similar privileges. Native peoples, such as the Cherokee, faced wholesale removal and then federal authority over the internal ordering of Indigenous institutions. Fugitive slave laws created administrative proceedings with minimal judicial oversight to forcibly return enslaved persons back to bondage. As for non-enslaved Africans Americans, despite technically being formal citizens (at least at the state level) they nonetheless faced extensive restrictions on their movement.  States with slavery generally barred the admission of so-called “free Blacks” unless they were already residents.  And newly opened land out west may, like Indiana, Illinois, Iowa, and Oregon, may have been welcoming to European non-citizens but they prohibited entirely the entrance of Black people into the territory. All of this meant that a person’s access to economic independence or to basic rights depended on whether or not they were included as a settler, which was far more important than one’s formal citizenship or actual history on the land.

Brooks

You cite Chief Justice John Marshall’s opinion in Johnson v. M’Intosh (1823), a case that abrogated settlers’ rights to buy land directly from Indigenous peoples, as a watershed moment in projecting government power on outsiders. How did Marshall’s opinion constitutionalize an imperial prerogative?

Rana

The case had to do with whether or not Native peoples could gift or sell their land to private individuals.  Marshall says no. Native peoples only enjoy rights of occupancy, not actual sovereignty over their land, and so can’t actually gift or sell it.  The actual sovereign is the US federal government, which gained its authority as the relevant imperial successor to the British Empire.  

For my purposes, what the case addresses is a foundational question about the American constitutional order: namely, how does the US ground its territorial claims? And then relatedly, is the US a republic, or is it an empire?  By this I mean, is it a polity in which its borders are fixed, or is it an empire, in which its borders are essentially provisional? 

By denying Native peoples’ sovereignty over their own land, the case provides a legal justification for American conquest, and then suggests that the US’s borders are provisional.  Recall, Native peoples were distinct political communities sharing the same landmass.  But what Marshall is saying is that even if American settlers are not currently on Native land, all Indigenous territory is still within the sphere of American federal control and sovereignty.  If the US were to invade Native land, there is no legal limitation on doing so.  The choice to do so is simply dependent on internal political calculations. Indeed, if another European power were either to invade Native land or to make alliances with Native peoples—say, with Tecumseh in the early nineteenth century—that would be a violation of US sovereignty.

All of this is especially significant because as the twentieth century progressed, American came to imagine that their society was quintessentially anti-imperial, since it treated most of its territory as equally on a path to statehood.  But these assumptions, buttressed too by the elimination of explicit racial discrimination, ignored how the country was nonetheless organized around a foundational effort to expropriate and conquer.  Moreover, the refusal to see such racialized and imperial underpinnings means that to this day American political elites have never properly confronted the country’s colonial infrastructure, whether within the 50 states, in the territories, or overseas where the U.S. asserts its international police power.

Brooks

This view of territory mingled with early US institutional arrangements to relegate populism to the frontier.  What specific elements of the governmental design forced the “institutional demise” of populism? And then how did populism resurface in the American west?

Rana

The revolutionary period — the 1770s and early 1780s — saw localist settler democracies emerge on the ground. Anglo-American farmers and artisans used the settler revolt against the British to assert participatory control over politics and to press for their own economic interests. They created small scale governments with strong legislatures, based on simple majoritarianism.  All of this allowed the “many” to impose their immediate will on the community as a whole.  Just think of debt relief, access to paper credit, etc.

In many ways, the American federal constitution was a direct pushback against these developments.  Its underlying theory of design sought to limit mass participatory control.  Its framers saw the legislature as both the most democratic and most dangerous branch.  For them, the problem of the day was democratic excess, expressed especially in things like Shays’ Rebellion and various other assaults on gentry and elite interests.  As a result, Madison, Hamilton, and others constructed a constitutional system in which federal authority was quite remote and property rights were both insulated and protected. 

In response, many poorer settlers instead began to view government power—especially federal power—as almost inherently a threat to their own local goals.  For a moment during the 1770s and 1780s poorer settlers had emphasized exercising energetic government power as a key to freedom.  But as the nineteenth century wore on, energetic authority became far more associated with federal imposition and especially with the imperial prerogative that political elites often asserted over outsider populations, like Native peoples and enslaved workers.  Instead, settler freedom became very closely bound to westward expansion. In fact, one of the things that reduced early settler conflicts over resources and land was Native expropriation, opening up chunks of territory for settlement.  Internal class tensions were eased because poorer settlers could avoid debt and poverty by picking up and moving west.

Empire was thus more than just a safety valve; it was a critical means for actually gaining material independence and enjoying self-rule. For more and more settlers, this meant that freedom was itself closely tied to a negative freedom from government power. The state became defined by the violence it imposed on outsiders, and so a central way European settlers in the US psychically and materially maintained their status as free persons was by what I call in Two Faces policing the “colonial divide” and ensuring that the imperial prerogative didn’t apply to them.

Stay tuned for Part Two tomorrow.

Related Content