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

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.

Part One of this interview can be found here.

Brooks

Not every settler was enthralled by the promise of the west.  You mention three public intellectuals—Byllesby, Brownson, and Skidmore—who, to varying degrees, defied the structural dualism of settler life.  What kinds of alternatives did each envision?

Rana

All three are figures from the antebellum period.  For my purposes, they are important because they developed an internal critique of settlerism that by the late nineteenth and early twentieth centuries became central to democratic social movements, from the Populists to the Socialists. They were all based in major metropolitan areas back east, areas that were starting to truly industrialize.  As early as the 1820s and 1830s, they witnessed the economy moving away from small-scale capitalist production, where you had local artisans and farmers essentially controlling the terms of their own labor—directing their own work, owning their own tools.  That system was being replaced by large-scale industrial capitalism, where workers were wage earners within a very hierarchically managed firm structure.  All three saw that this new model of economic organization was just fundamentally incompatible with the classic republican idea of economic independence. 

For this reason, they start reasserting the importance of government power in constraining the private power of the corporation and of employers, and they called for a variety of revolutionary reforms, from aggressively taxing inheritance to supporting unionization to broader social programs. Just as important, they also argued that expansion and empire, rather than being a solution to the problems of hierarchy back east, were no solution at all, reproducing the emerging modes of economic hierarchy. They saw empire as providing a mechanism for the entrenchment of corporate wealth and power.

Finally, Skidmore in particular began offering an incipient defense of more inclusive membership. The growing ubiquity of regimented work meant that you couldn’t simply divide between free settler insiders that were European and non-free laborers that were not Europeans.  Rather, contesting the overall structure of the economy required having a much more expansive vision of membership that cut against racial exclusivities.  By the turn of the twentieth century, some radical elements of the Populist and Socialist parties would take on this perspective.  Those like Eugene Debs began linking economic transformation to a transformation in who counts as a full member. For such movement activists, it was no longer the case that you could simply assume that somebody’s race was going to tell you whether or not they were free as opposed to dependent laborers. 

Brooks

The practical success of that kind of criticism was limited. Do you think that any of the early populist criticism came to fruition through the New Deal? Was it stifled in a way?

Rana

My view of the New Deal is that it was a profound victory for working people and for the idea that the government has a fundamental role to play in providing everyone with basic security.  But it is also true that New Deal statecraft was deeply compromised by the politics of white supremacy.  In addition, New Deal administrators largely abandoned the vision of participatory, continuous democratic action as the basis of politics—a critical and emancipatory aspect of the old republican idea of freedom as self-rule. New Deal statecraft instead tended to disconnect mass mobilization and democratic energy from the government provision of security.  It elevated a mode of elite management that treated popular power as something to be contained and which asserted that popular intervention should only appear at election time. Such governance also became closely bound in the mid-twentieth century to the rise of American global authority and to an expanding national security infrastructure. 

Even worse, the further Americans got from the real achievements of the 1930s and 1940s, the more a conservative reaction chipped away at those real, but partial social welfarist victories. By the 1970s and 1980s, you had a state behemoth, organized to project global dominance and corporate interests but with little of the substantive benefits for most people. Of course, one can’t ignore how the same period saw the overcoming of segregation and of overt racial discrimination. But given the general direction of society and the nature of the consolidating state, the end of formal inequality did not mean a serious confrontation with most of the structural inequalities facing historically excluded communities. Instead, change often primarily entailed elite access for some African Americans and women into positions of professional and political authority. The great tragedy of all this was that over the second half of the twentieth century you finally have excluded groups with access to the vote (albeit still circumscribed), to political participation, etc. But it was coming at a time when individuals had less and less actual capacity to control the forces shaping collective life.  It was a victory and a defeat at once.

Brooks

It’s a common criticism nowadays that the presidency is more powerful than the founders envisioned. You write that the “constitutional problems with an unchecked presidency are not primarily legal difficulties” but are “symptomatic of political judgments that view foreign instability as a permanent justification for U.S. intervention.”  Could you expand on the argument there?  How does structural dualism underwrite the imperial presidency? 

Rana

These are questions that connect to my current research and book manuscript, “Rise of the Constitution.” Over the twentieth century, the US’s emergence as a global power entailed a transformation in the meaning of American empire—from settler to what I call humanitarian.  Basically, American policymakers and officials came to see the world as a necessary site for continuous international police power, based on the idea that the US is a historically exceptional country.  Since it was the place where universal principles first came down to earth, American interests were nothing less than the world’s interests.

The American Century was really rooted in this ideological perspective.  And even today, believing it is key psychically to American nationalism and to what it means to be an American citizen.   Such a vision has had real consequences for constitutional order and for basic legality.  To the extent that you view the US as surrounded by emergencies of all kinds that require continuous intervention, it’s very difficult to place constraints on the national security state.  In particular, the imperial imagination undermines the capacity of any reform effort to substantially limit presidential violence, because it’s the institution most equipped to respond aggressively to perceived threats.  

I should add that I do see the unconstrained national security state as tied in one critical way to the New Deal legacy.  For Populists, Socialists, etc., meaningful freedom-as-self-rule required parallel institutions, especially parties and unions that were continuously mobilizing the public on behalf of popular ends.  But the rise of presidential power in the 1930s, tied to a new managerial statecraft, largely suppressed these parallel institutions.  Key New Dealers saw presidential government as a better way of imposing popular ends, while at the same time ensuring national unity against the supposed dangers of class conflict.

The problem of course was that the presidency as an institution, as it got more powerful, could be truly coercive.  It also could easily substitute the interests of whoever was in the office—for instance, Trump today—for that of the actual public.  Further accentuating these problems of presidentialism was the very constitutional structure developed by the framers.  This structure, precisely because of founding era fears of mass democracy, has near endless veto points and counter-majoritarian constraints. From an unelected federal judiciary serving for life to the Senate to the Electoral College to the near-impossibility of constitutional amendment, the constitutional structure promotes paralysis and institutional capture by a wealthy few.  It undermines the functionality of the legislative process and further intensifies the focus on the president as the principal site of actual decision-making. 

The president thus becomes the focal point of imperial authority abroad and popular meaning-making at home.  Over time, this means that presidents generally claim more and more lawmaking authority from a dysfunctional legislative branch, for instance through the proliferation under Bush, Obama, and Trump of rule by executive order. In this way, Trump is just an extreme extension of internal institutional flaws.

Stay tuned for Part Three tomorrow.

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