Race and the Propositional Nation

Michael P. Zuckert

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We often hear America referred to as a "propositional nation." Abraham Lincoln, it seems, was the first to introduce the idea in these terms when he declared that America was "dedicated to the proposition that all men are created equal." But in a broader sense the idea predated Lincoln, as statesmen such as Thomas Jefferson, John Quincy Adams, and Henry Clay spoke of the country in similar ways.

When we speak of America as a propositional nation, we refer to the fact that at its origin as a political entity was a pronouncement or proposition (or series of "truths") that expressed an explicit doctrine of justice to which it then and later has aspired. America is sometimes seen as the exemplary propositional nation. Political scientist Martin Diamond, for example, wrote that the "term Americanism expresses the conviction that American life is uniquely founded on a set of political principles." Diamond quoted another writer who asserted that "Americanism is...not a tradition or a territory...but a doctrine — what socialism is to a socialist."

While most Americans assent to the truth of the proposition, we disagree today — often bitterly and sometimes violently — about whether it has been fulfilled, or what might be required to do so. Part of the reason for that disagreement is that our founding documents do not provide much guidance about how to secure the rights promised within their texts.

OF NATIONS AND EMPIRES

Propositional nations can be contrasted with at least two other sorts of political entities: a nation, in the ordinary or original sense, and an empire.

Nations in the ordinary and original sense are composed of people of more or less common descent, as the term "nation," derived from "nationality," suggests. Empires, on the other hand, are political entities that cannot be considered nations in the original sense, for they are multi-ethnic and often do not share a common language, culture, or extensive history. They are formed most often via conquest.

America was more explicit and definite in its ordained proposition than many, but it would be wrong to see it as a uniquely propositional nation. After all, France adopted propositions we might capture in the slogan "liberté, égalité, fraternité" at its revolution. The Soviet Union, by its formative revolution, committed itself to the propositions of Marxism-Leninism.

The Hebrew people, meanwhile, began as a nation in the original sense: They identified themselves as the descendants of their common ancestors Abraham, Isaac, and Jacob. But with Moses, the Hebrews became a propositional people, as is advertised in their holiest prayer: "Hear, O Israel: The Lord is our God, the Lord alone." That is to say, the God of this particular nation is the God of the whole universe and all mankind.

In fact, the Hebrews were a hybrid of a propositional nation and a nation in the original sense: They affirmed that, though their God is God of all, he retains a special relation to them as a nation. The hybrid thus formed was captured in the notion of the "chosen people." The French, too, are a hybrid: a combination of a nation in the original sense, formed from Frankish tribes, and the propositions associated with the French Revolution. The French hybrid has found expression in the long-standing French belief that France is the bearer of the highest Enlightenment civilization.

Despite its propositional base — the Declaration of Independence and related ideas — America has never been a purely propositional nation. Rather, it is a hybrid — though unlike France, America is clearly not a nation in the original sense. America does, however, have imperial dimensions in the mode of traditional empires. These include not only the conquered native tribes, but also African Americans — who are not a conquered people in the ordinary sense, but a people forcibly brought here and incorporated into the United States in the manner of a subjugated people.

It is frequently the case that hybrids suffer from tension between their different components. For example, the tension between the particularism of Hebrew nationhood and its universalism ultimately led to the emergence of Christianity, which jettisoned Judaism's particularistic side in favor of its universalism. The American hybrid suffers from a similar, and perhaps even more intense, incompatibility between its constituent elements.

PROPOSITIONS AND TENSIONS

America's propositions proclaim a notion of justice starkly at odds with its partial character as an empire of conquest. As often happens in cases of such hostility between the elements of hybridity, the country's history reveals a contest or battle of sorts among these aspects.

Lincoln spoke in related terms of this contest in his "House Divided" speech: The nation, he said, faced the necessity of becoming all one thing or all the other — either all slave or all free. Lincoln, of course, was a great champion of trying to liquidate the hybrid by elevating the propositional over the imperial. But there were others who sought to deal with the hybrid in different ways.

At the time of the founding until well into the 19th century, the politically dominant elements in American society recognized neither the natives nor the enslaved as part of the propositional nation. There were different ways of understanding that exclusion. John Calhoun and Stephen Douglas, for example, claimed these excluded and quasi-conquered peoples were not actually included in the terms of the propositions that defined America: They were thus not among those declared to be created equal. As such, Chief Justice Roger Taney could decree in Dred Scott v. Sandford that the enslaved had no rights that white men were bound to respect.

Other prominent Americans, such as Jefferson, were of a more generous and humane turn of mind. They had no doubts that these peoples were included in the proposition's terms, but they recognized that this fact was not in itself sufficient to make them part of the propositional nation thus formed. As conquered peoples, they had not themselves signed on to the set of propositions, one of which specified that the "just powers" of government, and thus its allegiance and membership, depended on the "consent of the governed." As the former slave Frederick Douglass famously asked: "What country have I?"

Men like Jefferson also thought that something besides sharing in universal human equality was required for a person to be considered a member of a given people. In other words, although they acknowledged that all humans are equal, they maintained that all humans may not be equally well suited to live together as fellow citizens. Jefferson, in particular, was concerned that the memories of past slavery on both sides would stand as a barrier to Americans' future common life.

A central part of anti-slavery thought in the 18th and 19th centuries more generally was colonization — sending the enslaved back to Africa or elsewhere. To adherents of this view, justice required the end of slavery, but it did not require common citizenship. Lincoln seems to have believed colonization the best solution for all involved until well into the Civil War.

Colonization was a recognition of sorts of America's hybrid status — of being part propositional nation and part empire of conquest. It was a way to expel the imperial component and to leave America a more purely propositional people. As it turned out, there was insufficient will for colonization on either side — the side of former masters or former slaves — when emancipation finally came.

THE FIRST RECONSTRUCTION

The Civil War changed things drastically, especially for the enslaved. Emancipation fulfilled the moral demand for an end to slavery implied in the nation's proposition that "all men are created equal." At the same time, the politically triumphant part of the nation turned away from colonization, as did the freedmen themselves. The fate of African Americans was now to be lived out among their former oppressors.

The end of slavery did not, however, mean the end of the hybrid — as became clear when former slave states passed a series of repressive laws called "black codes." An emissary sent by President Andrew Johnson to report on the post-war situation in the South found the following frame of mind dominant among the whites:

It is that the negro exists for the special object of raising cotton, rice and sugar for the whites, and that it is illegitimate for him to indulge, like other people, in the pursuit of his own happiness in his own way. Although it is admitted that he has ceased to be the property of a master, it is not admitted that he has a right to become his own master....The whites esteem the blacks their property by natural right, and, however much they may admit that the relations of masters and slaves have been destroyed...they still have an ingrained feeling that the blacks at large belong to the whites at large, and whenever opportunity serves, they treat the colored people just as their profit, caprice or passion may dictate.

In other words, African Americans continued to be treated as a quasi-conquered people who could not enjoy the promises of the American proposition.

The end of the Civil War and the formal establishment of freedom was not enough to incorporate the freedmen into the propositional nation; to dissolve the hybrid, additional efforts were required. In a series of fundamental legal and constitutional actions, the ruling Republicans attempted to incorporate the freedmen as citizens whose rights were to be recognized and vindicated as equal to those of whites. By rejecting colonization and welcoming the rights now held out to them, the former slaves appeared, on their part, to have consented to being members of the American regime. There, it would seem, ended the face of the American hybrid that was still an empire of conquest. America had finally become, wholly and truly, a propositional nation.

But all was not what it appeared. Ratification of the Reconstruction-era constitutional amendments — which abolished slavery and guaranteed citizenship, equal protection of the laws, and voting rights to African Americans — was set as a precondition for readmission of the Confederate states, whose endorsement of them was, let us say, far from wholehearted. Even in the Northern states, there was less-than-uniform enthusiasm for accepting the freedmen as fully free and equal citizens, for much of the impetus behind the amendments derived from bitterness and resentment against the South.

The half-heartedness of these efforts soon became evident when the Supreme Court indicated in 1873 that it was going to read the Reconstruction amendments in a restrained way. Even more significantly, the Compromise of 1877 that handed Rutherford Hayes the presidency effectively ended Reconstruction and returned leadership of the Southern states to the same political class that had seceded and fought the Civil War. The amendments thus remained on the books but were greatly in need of a respirator. The newly freedmen, left to the ministrations of their former masters, were certainly better off than they were under slavery, yet they were still treated as the conquered element in an empire of conquest.

THE SECOND RECONSTRUCTION 

For various reasons this arrangement, unjust as it was, proved stable for decades. But World War II unsettled matters, causing the tension within the American hybrid to reassert itself as the propositional aspect more forcefully pushed forward.

The civil-rights era of the mid-20th century was in effect a double assault on the quasi-conquered status of African Americans. Increasingly, government leaders came to recognize that the situation of blacks violated the proposition at the heart of the American creed. In the executive branch, President Harry Truman desegregated the military; in the judicial, the Supreme Court found separate but equal unconstitutional; and in the legislative, Congress passed the far-reaching Civil Rights Act of 1964 and the Voting Rights Act of 1965. Along with and to some extent driving these actions came an uprising by the quasi-conquered themselves, primarily in the form of non-violent resistance to segregation and exclusion, and secondarily in more forceful efforts such as the Black Power movement. The quasi-conquered were themselves being seen, in a way impossible to miss, to reject their subjugated status.

This second reconstruction occurred in two phases, each directed at a different aspect of what remained of the hybrid after the first reconstruction. The first phase abolished segregation of the quasi-conquered that had been formally imposed by state action. The second phase went much deeper, attempting to undo unofficial separation and harmful discrimination inflicted by non-governmental (i.e., private) actors within the sphere of civil society. This phase proved to require a rethinking of what the propositional core of the nation allowed or demanded in service of liquidating the hybrid.

The first reconstruction had provided emancipation and a commitment to equal civil rights through legislation. The Civil Rights Act of 1866, for instance, came as a response to the aforementioned black codes, which denied or abridged basic civil rights to the freedmen. These codes set limits on where black people could reside, on terms of employment for which they could contract, and on the types of court cases they could participate in. The 1866 act established that all citizens are entitled to the same basic rights as a white citizen, including the right to own property and to make and enforce contracts. More generally, it guaranteed to all citizens "the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens." The formula that captures this mandate is the phrase "equal civil rights for all."

Despite its gestures toward America as a propositional nation, the mandate cleared the way for the dominant legal rules that emerged from and defined the settlement of the first reconstruction: the separate-but-equal rule and the state-action doctrine. The latter guaranteed that the state could not intervene to protect against or correct private discrimination, while the former allowed a system of segregation to be imposed so long as the requirement of equality was formally met. The true meaning of the separate-but-equal rule was apparent in its administration, for equality of rights or benefits was seldom provided.

The rule allowed the continued treatment of blacks as a conquered, subordinate people not wholly incorporated into the propositional nation. At the same time, it provided the appearance or impression of propositional conformity. That impression, in turn, contributed to the relative stability this settlement enjoyed up until the post-war era. It was made possible by the general failure to conceive of the status of blacks as that of a quasi-conquered subordinate nation in a hybrid empire. If Americans had thought more clearly about the nature of their regime and the continued subjugation of African Americans, it would have been more evident from the outset that separate but equal was not a formula for equality; it merely gave the hierarchical character of the hybrid a new and more concealed guise, one seemingly consistent with the notion of a propositional nation.

The second phase of the second reconstruction went further in its efforts to dismantle unofficial segregation and the repression of blacks by private entities. On one side, it reached private action through the Civil Rights Act of 1964. On the other, it worked toward the political empowerment of the quasi-conquered through the Voting Rights Act of 1965.

It had long been a matter of debate whether the liberal state — the state governed by the principles contained in the American proposition — was permitted to control the private choices and actions of its citizens, even if they were discriminatory. This debate was furthered in the American context by the language of the 14th Amendment. The prohibitions contained in the amendment were cast in the form of "no State shall," implying that they did not apply to private actors. But this dispute was not solely about the amendment's wording, for other liberal states debated the question as well.

Since the time of the amendment's passage, no clearly satisfactory rationale for its extension into the private or civil-society sphere has been put forth. In order to find a constitutional basis for the law, an appeal was made to the Commerce Clause — but this clearly missed the moral motive for the law. From the point of view of liberal theory, the conquered-people rationale provides a more solid foundation for intrusions into the private sphere in such a situation, but it does not so clearly provide a better constitutional grounding. The most promising constitutional avenue, perhaps, is provided by the citizenship provisions of the 14th Amendment.

At the time of the Reconstruction amendments' drafting, there was an important disagreement among the drafters about whether the best approach was the provision of direct rights protections, as appeared in the 14th Amendment, or the political empowerment of the newly emancipated and some degree of disempowerment of the white Southerners. They ultimately settled on a combination of the two with the passage of the 15th Amendment. That provision proved to be a weak reed, however: Framed as a prohibition of denying the right to vote on the basis of race or previous condition of servitude, it proved remarkably easy to circumvent via facially neutral devices like literacy tests.

The Civil Rights Act of 1964 was the most effective law yet devised to work toward undoing the subordinate status of blacks within the American hybrid. The act prohibited discrimination in public places, provided for the integration of public facilities, and forbade employment discrimination. As implemented, it took the disparate impact of facially neutral rules seriously and put in place race-conscious remedies cognizant of the lingering legacy of slavery.

With the second reconstruction's efforts to constitutionally and legally reject the conquered-nation status of African Americans that had still prevailed in the wake of the failed first reconstruction, many Americans were prepared to pronounce their country a purified propositional nation. It seemed that the first reconstruction's aspirations were being fulfilled at last. The wicked hybrid was dead — or was it?

A THIRD RECONSTRUCTION?

Americans today disagree about whether our nation is a purely propositional one, making it difficult to reach a consensus on questions like the legacy of slavery, the salience of race, and how best to unify the country.

According to one view, American blacks are no longer a quasi-conquered people: They now have full legal rights and equal opportunities, and are fully incorporated into the nation defined by the American proposition. Those who say otherwise, this camp claims, are not looking toward inclusion in the propositional nation, but toward undoing or rejecting the America of that proposition. They are socialists, or worse — critical race theorists. They are enemies of America.

Those who hold the other view divide into two camps: those who are committed to the American proposition, and those who are not. The former wish to extend the proposition to those not yet fully included. The propositional side of the hybrid has not, they maintain, overcome the status of African Americans as a quasi-conquered people; there is more to be done. They see our present surge of concern as a third installment in the effort to align America with the proposition to which it is dedicated: Reconstruction was the first, but it failed; the civil-rights movement was the second — a success in some respects, but still incomplete. In providing a formal commitment to equal rights, it gave us something like what the first reconstruction aimed for. However, it gave insufficient weight to the subtle and not so subtle ways in which the conquered-nation heritage lives on.

These third reconstructionists call for a program that starts with more attention to the place of slavery in American history as a precondition for facing up to its lingering consequences. They challenge such ongoing practices as the honoring of Southern Civil War leaders and generals as a sign of the continuing conquered-nation status of African Americans. To honor the imposers and defenders of slavery is to memorialize and in some sense validate the institution itself. They also emphasize the continuing presence of "systemic racism," by which they mean the policies and practices that disproportionately harm blacks and that are a legacy and continuing manifestation of the conquered-people status of African Americans. They discern subtle forms of implicit racism, and often seek race-conscious remedial action. Although in various ways they go beyond the targets, goals, and methods of the second reconstruction (just as that one went beyond the first), they see their efforts as serving to make the nation more adequately live up to its propositional commitment to equal rights, equal opportunity, and the rule of law.

In going beyond the previously accepted terms of the proposition, they arouse the suspicions of those who believe, for instance, in color-blindness as the morally and constitutionally correct principle of action. Yet many of these partisans of the second reconstruction are confused about their opponent — just as their opponents tend to be confused about them. On the one side, many of them tend to believe that partisans of a third reconstruction go beyond the American propositional settlement and that their "woke" stance is illegitimate. Perhaps some parts of it are incompatible with any plausible interpretation of America's propositional principles. But in a larger sense, we are actually engaged in a debate about what the meaning and implications of these principles are. That — not critical race theory versus authentic Americanism — is the important issue.

Partisans of a third reconstruction also have misconceptions about their antagonists — leading to their hasty assertion that the position of the latter is merely another form of racism. There are, of course, still racists in America, but the defenders of the proposition in its received form are not necessarily among them. To accuse them of being such merely leads to the further polarization of an already divided nation and distracts us from the real conversation we need to have: one concerning whether a third reconstruction is consistent with, and perhaps even required by, the propositional aspiration of the nation.

Formal protections of rights and declarations of equality do not themselves establish the real defense of rights or recognize the promised sort of equality. The Declaration of Independence says as much when it avers that "to secure these rights, Governments are instituted among Men." That is, government must act to achieve what the proposition affirms about rights and equality. But the Declaration does not say what government must do in this regard. Nor does it establish explicit standards to measure when the proposition is achieved. Disagreements, therefore, naturally arise about what living up to the American proposition entails.

We are living through such a moment of disagreement right now, but we are not living through it well. We are confusing our disputes. Those who think the proposition already fulfilled too often see those who disagree as enemies of propositional America, while those who think the proposition has yet to be fulfilled and wish to extend it too often believe their opponents are racists or intentional supporters of the quasi-conquered status of blacks. That is, each of these two groups is a partisan of the proposition, but tends to believe its opponent is not.

It would help in these debates to recognize that whatever merit color-blindness has as a moral or constitutional standard, it is not a universally valid one. To say nothing of more complex matters, there are clearly times when race-conscious action by government or private actors is justified. Take, for example, the case of a municipal police department considering race when assigning officers to different neighborhoods, or recruiting police from underrepresented racial groups.

Those who think the proposition already complete, however, are right to note that there are many who reject the American proposition entirely. Some — or perhaps all — critical race theorists disavow American principles and their philosophical foundations. Indeed, one tenet of that movement "questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law," write legal scholars Richard Delgado and Jean Stefancic. This is no doubt a rejection of the American proposition.

A leading voice among contemporary anti-racists, Ibram Kendi, asserts that "when you truly believe that the racial groups are equal, then you also believe that racial disparities must be the result of racial discrimination." This, too, surely lies outside any plausible rendition of the American proposition. It just as surely defies common sense as well: The racial groups being compared would have to be identical in all respects relevant to the development of one or another talent or interest for this claim to even begin to make sense.

Our agitations about the American proposition exist in part because we conceptualize the issue in terms of slavery, race, or difference per se. But as we have seen, race is not just another term for minority groups in America — it accompanies the extraordinary and almost unique situation of a quasi-conquered and at the same time racially defined people living in an empire of liberty. The label "African American" obscures this fact by considering them more or less the same as, say, Italian Americans. Recognizing the unique status of blacks in America makes a difference for both the quasi-conquered and the quasi-conquerors. The wounds of conquest on both sides are deep and enduring, as Jefferson predicted they would be. Likewise, to see our present situation as a legacy of slavery, while true in a certain sense, is open to the counterclaim that slavery has been over and done with for more than 150 years.

The idea of quasi-conquest does a better job of capturing the lasting presence and consequences of the manner in which American blacks became part of our nation. The historical record shows that slavery versus freedom is not a simple binary: Former slaves were granted formal freedom, yes, but they have not been fully enfolded into the American proposition. These wounds may require remediation of various sorts — perhaps including special treatment outside the bounds of normal policy in accord with the proposition.

Confronted by rising partisanship and passion, name-calling if not violence, we need to emphasize the broad agreement on America's propositional principles. And we need to inquire, rationally and peacefully, how they can best be realized in the face of the genuine uncertainty about what these principles require in our situation.

MICHAEL P. ZUCKERT is the Nancy Reeves Dreux Professor Emeritus of Political Science at the University of Notre Dame and clinical professor at Arizona State University.


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