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Did the Enlightenment Give Rise to Racism?

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Slate chief political correspondent Jamelle Bouie set off a heated online debate with a series of tweets[1] claiming “the concept of race was birthed by the Enlightenment,”[2] which then sparked a full-length article fleshing out his position.[3] His key claim is that colonialism, slavery, imperialism, and racism in general were not “incidental developments or the mere remnants of earlier prejudice.”

Race as we understand it—a biological taxonomy that turns physical difference into relations of domination—is a product of the Enlightenment. Racism as we understand it now, as a socio-political order based on the permanent hierarchy of particular groups, developed as an attempt to resolve the fundamental contradiction between professing liberty and upholding slavery. Those who claim the Enlightenment’s mantle now should grapple with that legacy and what it means for our understanding of the modern world. (Bouie 2018)

Bouie draws on the works of several distinguished scholars on this topic, including George Fredrickson, Ivan Hannaford, Emmanuel Eze, Robert Bernasconi, and Charles Mills.

Nevertheless, these arguments and the support Bouie received from numerous scholars on Twitter was surprising to me. In my research on religious intolerance I’d encountered detailed discussions of racism emerging in 15th century Spain. And I was aware of literatures on ethnocentrism in Song dynasty China, on racialist categorizations in the middle ages and in the classical antiquity.

But given the boldness of Bouie’s claim and the support he received, his challenge to “grapple with” the troubling aspects of the Enlightenment seems worth taking up. If reflection on the long history of racial prejudice, on the diverse legacies of the Enlightenment, and the troubled relationship between the humanities and the sciences today interests you, read on.[4]

The questions to be addressed

What does it mean to say that racism is a “product of the Enlightenment,” or that it was “birthed by,” or had its foundations “laid by key thinkers like Locke and Kant”? It’s clear that Bouie doesn’t simply mean coining the word “racism”. For example, antisemitism is a late 19th century word. No one before the late 19th century identified as an antisemite, but claiming that antisemitism didn’t exist before then is absurd, and clearly not what Bouie is getting at.[5]

The claim made by historians of childhood that modern western notions of childhood became prevalent in the 18th and 19th centuries is, to the best of my knowledge, a credible one. In what follows, I will assume that Bouie meant modern racism was a “product” of the Enlightenment in much the same way that historians meant modern childhood is a “product” of the 18th and 19th centuries. Though there is clear continuity with past phenomena, there are also enough distinct characteristics to speak of something singular.

My critique of Bouie will proceed as follows: first, I will establish the universal nature of prejudice against outgroup and advance a speculative hypothesis on the dynamics of how this manifested in complex agrarian societies in general, exploring examples in antiquity, early Islamic history, and Medieval Iberian antisemitism. These sections will seek to lay crucial context rather than directly contradict Bouie, who acknowledges examples such as these.[6]

Once this is established, I will proceed to the key points which undermine the specific culpability of the Enlightenment: the universalism of its main thinkers, and the environmental and institutional theories of racial and ethnic differentiation which made up the bulk of their writings on the matter (with important exceptions such as David Hume and especially Immanuel Kant). And finally, the critique of the Enlightenment passes over the role of the Counter-Enlightenment, which was particularistic and directly involved in the development of a biologically-based “scientific” racism.

Ethnocentrism is pervasive

Society depends on agreements that define ingroups and outgroups. Xenophobia, or hostility to foreigners or outsiders, is ubiquitous across human societies. This is not to say the level or nature of xenophobia is constant in different societies.  More complex agrarian societies had sharper hierarchies and finer divisions of labor than did small-scale societies. In these societies distinctions between insiders and outsiders play a more important role in sustaining the political order.

Who do we deem outsiders?  Linguistic and phenotypic markers are highly salient.  For the Greeks, the most important distinction was whether or not a people spoke a dialect of Greek (βάρβαρος meant “babbler”).  Religion and cultural practices also played an important role in differentiating insiders from outsiders.[7]

The prevalence of linguistic, cultural, and religious signifiers does not however mean that phenotypic differences were unimportant. Linguistic and religious distinctions often map onto ethnic or racial ones. This is why arguments like “society x was not racist because x discriminated on the basis of religion or language” don’t work.

Ethnocentrism is thus extremely common. “Tribe Y have ugly expressions” or “Tribe Z are tall” were likely common ways to differentiate one’s own group from a rival or enemy group. The question is under what conditions do these loose ethnic prejudices harden and become something recognizable as racism?

I don’t believe theorists have developed a comprehensive answer to this question, and I won’t provide one here. Instead, I will point out factors that make the reification of phenotype differences more likely. The existence of sufficiently sharp differences in physical appearance clearly does so. A system of group discrimination would have trouble operating if the differences between members of the two groups are trivial and overlapping. But the existence of such differences is also insufficient for a theory of impermeable group hierarchies to exist.

Several other factors matter. Differences in appearance must overlap with other differences (in culture, language or religion) as this reinforces phenotype differences and imbues them with greater cultural significance.  Another element is that the system of racial hierarchies provides benefits to members of the dominant group for keeping subordinate groups down.  Moreover, these benefits must be easily captured, visible, and outweigh the diffuse gains that could be made from trading and interacting with them as equals.[8] This is likely one reason why racialism often accompanies slavery.[9]

If these points can be granted, it follows that it is highly likely that racism in some form has emerged at various points in history. And indeed, it has many times. We can now investigate some of the more salient examples. Importantly, most of these examples will turn out to rest on environmental theories of racial superiority or inferiority, rather than biological foundations. The sole exception is the case of Iberian antisemitism.

The emergence of ancient racism

Imperial expansion in antiquity involved confrontation with peoples of different ethnicity, language, culture, religion and skin color, meeting several of the conditions specified above. Ancient writers like Herodotus and Tacitus provide abundant details on the physical characteristics of various barbarian peoples they met. To what extent did these resemble a racial classification scheme?

The debate about classical attitudes to race is ongoing and controversial. Nevertheless, Benjamin Isaac argues that racism was “invented” in the classical world. The racism common to the ancient world was not modern racism.[10] In particular, it was often environmental. Hot climates were thought to produce darker skins and lazy, soft national characters.  The harsh north, in contrast, bred toughness and a desire for freedom. The Roman author Vitruvius observed that

those that are nearest to the southern half of the axis, and that lie directly under the sun’s course, are of lower stature, with a swarthy complexion, hair curling, black eyes, [strong legs,] and but little blood on account of the force of the sun. Hence, too this poverty of blood makes them over-timid to stand up against the sword, but great heat and fevers they can endure without timidity, because their frames are bred up in the raging heat. Hence, men that are born in the north are rendered over-timid and weak by fever, but their wealth of blood enables them to stand up against the sword without timidity. (quoted In Isaac 2005, 82)

Such observations were commonplace in the ancient world. They formed the basis for racialist discussions when it came to purchasing slaves or when enlisting non-citizens into auxilia units.

Islamic racialism

Distinctions between ingroups and outgroups, we have argued, were more likely to become important in complex agrarian societies. Thus, it is hardly surprisingly that we find racialist views in the Islamic world, which was one of the most economically advanced and sophisticated parts of the world between 700-1300 CE. Numerous commentators have pointed out racist statements by the great Arab thinker Ibn Kaldun.  According to Kaldun, “the Negro nations are, as a rule, submissive to slavery, because (Negros) have little that is (essentially) human and possess attributes that are quite similar to those of dumb animals”.  These were not idiosyncratic statements but reflected common beliefs developed by a number of Muslim thinkers including Ibn Battuta. James Sweet summarizes this as follows:

Negative racial stereotypes crystallized . . . over the duration of the trans-Saharan slave trade. As reflected in Arabic linguistic constructions, religious assumptions, and literary records like Ibn Battuta’s diary, blacks, regardless of their legal status, were always viewed as morally and culturally inferior. The Muslim world expected blacks to be slaves. (Sweet 1997, 147)

This is entirely consistent with the framework sketched above. The Arabs ruled a great empire, which possessed a tremendous appetite for slaves. For much of this period the Arabs were both economically more advanced than their neighbors and militarily superior. They enslaved both Europeans and Africans  and like later European colonialists in the Americas distinguished between different kinds of slaves based on their skin color and ethnic characteristics. Sweet observes:

Wherever there was back-breaking work to be done in the Arab world, black slaves were made to do it. From ninth-century Iraqi land reclamation projects to fourteenth-century Saharan salt and copper mines, black Africans toiled under the worst conditions. (Sweet 1997, 145)

It would be surprising if an ideology did not emerge to justify this state of affairs. Given the phenotypical differences between Arabs and sub-Saharan Africans, this ideology of difference centered on skin color; and it was one we would recognize today as racist.

Islamic racial theorizing may seem of less interest because it was not a direct ancestor of modern racism. According to Sweet, however, this would be a mistake: Iberian racial categories were directly influenced by Islamic practice and thought and these Iberian categories are the direct antecedents of colonial-era racial theorizing.

Iberian racialist antisemitism

Another important “invention of racism” occurred in late medieval Spain: racial antisemitism. Medieval antisemitism was, in theory at least, religious rather than racial. It was rooted in Jewish rejection of Christ and alleged guilt for his crucifixion. In practice, it spilled over into prejudice about the appearance, language, and demeanor of Jews. But it was focused on their religious identity. Conversion transformed Jews into Christians.

However, this changed in Spain following the pogroms and forced conversions of Jews in 1391.  Unlike in the rest of Europe, Jews had formed a substantial part of the population in medieval Iberia.  They comprised much of the urban middle class in Aragon and New Castile. Economic conflict undergirded much of the hostility between old Christians and the “Conversos.”

In 1449, a statute was issued against the Conversos by the city of Toledo. Commenting on it, the historian Benzion Netanyahu observes:

Determining the sameness of their hostility to Christianity was, apart from their common Jewish religion, another, more powerful and more crucial factor: their common racial origin.

This view of the authors of the Statute is already implied in their identification of the conversos—those bearers of a deadly hatred for the Christians—as ‘descendants of the Jews.’ “For by saying ‘the conversos, the descendants of the Jew,’ they meant to signify not an extraneous, but an inherent, unalterable relationship. For ‘descent’ is conceived by them not merely as a factor that establishes contact between generations through certain attitudes, beliefs and customs transmitted from one generation to another, but as the very root of the common attitudes, etc., and their related forms of behavior. The identical conduct towards the Christians by both the conversos and the Jews is thus explained by the identical cause of their conduct: the common ‘descent’ or race. (Netanyahu 1995, 381)

Jewish ancestry or descent, not religious belief, came to be seen as inherently corrupting.  The precise relationship between modern notion of race and the contemporary Castilian word “raza” is debated by historians. Nevertheless, the extent to which they overlap is remarkable. David Nirenberg quotes the definition of raza that Sebastian de Covarrubias gives in his Spanish dictionary: “the caste of purebred horses, which are so marked by a brand so that they can be recognized . . . Race in [human] lineages is meant negatively, as in having some race of Moor or Jew” (quoted in Nirenberg 2007, 79).[11]

In the 16th century these arguments became formalized in the statutes of limpeiza de sangre or purity of the blood. Historians like Henry Kamen describe these prejudices as racial in nature. Writing of Ignatius Loyola, founder of the Jesuits, he notes “Loyola was . . . particularly conscious of the antisemitic attitudes in Castile. From the 1540s he encouraged his clergy in Spain to stand firm against racial prejudice” (Kamen 2007, 105).

The racial contract and the Enlightenments

So in Iberian antisemitism, at least, we have an example of a bloodline-based prejudice against a group differentiated by appearance. If this isn’t full-blown scientific racism, it is certainly a close cousin.

We are now in a position to focus on the relationship between the Enlightenment and racism. What’s at stake is not whether individual Enlightenment thinkers were racist—Hume and Kant were—but the nature of the relationship between Enlightenment thought and modern scientific racism.

Critics of the Enlightenment contend that there was something deeply rooted in Enlightenment thought that led to the exclusion of non-whites, colonial subjects, and women. This critique is brought out in philosopher Charles Mills’s notion of a racial contract.

Mills’s question is simple. How was it that the Enlightenment celebrated liberalism, reason, and autonomy at the same time that chattel slavery, colonialism, and the oppression of non-whites flourished? His answer is that these two facts are reconcilable once one realizes that the liberal social contract was a racial contract, one that explicitly excluded non-whites from consideration.

Racism, racial self-identification, and race thinking are then not in the least ‘surprising,’ ‘anomalous,’ ‘puzzling,’ incongruent with Enlightenment European humanism, but required by the Racial Contract as part of the terms for the European appropriation of the world. (Mills 1997, 122)

The rights of man were the rights of white men; they were built on the oppression of nonwhites. As Mills explains, if one accepts this argument, then racism is not just a blemish on Western liberal society; it is at the rotten core of it. Western societies were, and remain, racially structured. White supremacy is at the historic center of liberalism.

Mills doesn’t provide a detailed account of the relationship between Enlightenment liberalism and modern racism. He simply states that “it would have to be agreed that the ideology of modern racism is far more theoretically developed than ancient or medieval prejudices and is linked (…) to a system of European domination” (Mills 1997, 63).

It is important to note at this point that there was no single Enlightenment. Disagreement between different Enlightenment thinkers was stark.[12] For the sake of conciseness, I’ll stick to a broadly agreed upon definition of the Enlightenment.[13] This definition excludes 19th century thinkers such as John Stuart Mill or Alexis de Tocqueville and 17th century thinkers like Blaise Pascal or Thomas Hobbes.[14]

The other necessary caveat is to reiterate the point that no subsequent development in Western thought escaped the influence of the Enlightenment. Both free-market liberalism and communism trace a lineage to aspects of Enlightenment thought. Therefore, to say that something was influenced by the Enlightenment is a low bar. If every aspect of modern thought bears the imprint of the Enlightenment, then it hardly surprising that modern racial theorizing can trace some of its roots to it. The claim that Enlightenment thought helped give birth to modern racial theorizing requires stronger evidentiary support than this.

In the remainder of this piece, I will defend the universalism of key Enlightenment thinkers against Mills’s charge that it was a sham and address the role of progress in these thinkers’ assessments of non-Western cultures and peoples. Finally, I will discuss the Counter-Enlightenment and romantic nationalism, both of which were huge currents of thought and are neglected by Bouie and Mills. This neglect is particularly egregious in Mills’s Racial Contract, which easily moves from liberalism to the Nazi genocide, but it is also evident in Bouie’s account. If the Enlightenment gave birth to racism, what role do we assign to the Counter-Enlightenment?

A sham universalism?

The charge that the Enlightenment’s universalism was color-coded or racial might be true of an individual Enlightenment thinker like Thomas Jefferson, who was immersed in both the world of Enlightenment intellectual discourse and that of chattel slavery. But Jefferson was hardly representative of Enlightenment thinkers in this regard. We need to ask: was the universalism of Enlightenment thinkers in general reserved for whites?

Enlightenment thinkers from Montesquieu to Adam Smith pioneered an approach that was universalist, not relativistic. In Montesquieu, Smith, and others we find attitudes toward the non-European world that are considerably more subtle and sophisticated than one might think based on reading Edward Said’s Orientalism. They were open to the possibility that non-European societies had much to teach them, but willing to condemn anything that fell short of what they considered civilized norms. This is evident in Voltaire’s praise of Qing China, in Smith’s condemnation of infanticide in the classic world, and in Montesquieu’s implied critique of sex mores in the Islamic world.[15]

Kant marks an exception to this. Kant did not have a full-fledged theory of racial differences, but his hostility to racial mixing and his emphasis on the fixity of race do set him apart from other 18th century writers on race. Recent literature among scholars of racism have highlighted the importance of race in Kant’s anthropology, something that is neglected in most treatments of his political philosophy. The debate on the relationship between Kant’s racial theorizing and his liberal cosmopolitanism is a fascinating one and currently unresolved.[16]

What role did Kant have in influencing the subsequent development of racialist ideas? This is a topic in need of further research. Many of these works on race were not translated from German until recently. Their influence therefore was confined largely to German-speaking circles, and they were unlikely to be a direct influence on the development of racialist ideas in England in the mid-19th century , nor on the “scientific racism” in the English-speaking world that developed later.

On the issue of colonialism, far from providing justifications, the major Enlightenment figures were either skeptical or hostile to Western colonial adventures. Denis Diderot and Edmund Burke in particular pioneered a critique of western imperialism that rests on the universal character of humanity, including colonized peoples, and which was deeply skeptical of self-justifying claims made by colonizers to rule in the interest of the colonized. Kant was a racist but a fierce opponent of all colonial endeavors.

One of the best treatments of this is Jennifer Pitt’s A Turn to Empire, which contrasts Enlightenment skepticism with colonial projects with mid-19th century liberal imperialism. Smith can stand in as an exemplar of this skepticism. Pitt notes that Smith’s analysis of non-western societies is “strikingly non-judgmental” and that he did not believe,

…as many later British writers would, that certain, particularly Asian, cultures threw up barriers to progress, that some peoples’ passivity in the face of their laws, customs, religions, or taboos made them less amenable to progress. (Pitts 2005, 39)

Pitts comments on Smith’s universalist moral language (“the common sentiments of mankind”) and notes that it was used to refer to many different societies. When comparing different cultures, Smith was generous “in the evaluation of others’ aesthetic and moral customs” and aware of “how such customs function in European culture, as elsewhere, to enshrine and legitimate possibly harmful practices” (Pitts 2005, 51).

Nor was Smith unique, even outside of philosophy. These views were widely held and influential. In his recent book Imperial Twilight, Stephen Platt documents the admiring opinion of China held by the majority of British visitors to Canton until the early 19th century.[17]

Jürgen Osterhammel’s Unfabling the East: The Enlightenment’s Encounter With Asia can be read as a paean to the immense literature produced by travelers to Asia in the 17th and 18th centuries. He describes the Enlightenment’s engagement with Asia in the following terms:

Such tensions and contradictions in how Europeans perceived the world came especially to the fore under conditions of a temporarily reduced dogmatism. On the one hand, the seventeenth century’s astonishment at the splendor and wealth of Asiatic courts and cities had given way to a more skeptical view. The spell cast by the old mother culture had been broken. On the other hand, the nineteenth century’s smug assumption of superiority still lay some way off. Asiatic civilizations—at first mainly China, later India—posed intellectual challenges that seemed worthy of discussion and debate. Experimenting with different perspectives, playfully adopting the viewpoint of the non-European Other, and relativizing one’s own criteria of evaluation were more than just literary tricks . . . Few were convinced by simple dichotomies. Before 1790 hardly anyone saw a stark opposition between the cultural macrospheres ‘East’ and ‘West,’ fewer still believed them to be incompatible, and no one posited a ‘clash of civilizations.’ (Osterhammel 2018, loc. 8902-8911)

Osterhammel sees the early 19th century as a European “saddle period” that saw a transition from an inclusive Eurocentrism to an exclusive Eurocentrism. The key driver of this transition: imperialism and the sudden rise of European military power. In the first half of the 19th century, the sudden discovery of the weakness of ancient powers in China, India, the Middle East, and Japan inspired contempt and what Osterhammel calls the “unfabling” of Asia.

Osterhammel brings to life numerous figures such as Alexander Russell and Patrick Russell, whose 18th-century writings about Aleppo he describes as “one of the forgotten founding documents of European sociology” and “far removed from the alienating simplifications of a ‘savage anthropology.’” Another such forgotten Enlightenment thinker, Abraham Hyacinthe Anquetil-Duperron, was a fierce critic of British colonialism in India and demolished the empirical basis of Montesquieu’s theory of oriental despotism.

William Dalrymple’s White Mughals discusses the story of James Achilles Kirkpatrick, the British Resident of Hyderabad who married into a Muslim Indian family. Dalrymple portrays Kirkpatrick as imbued with the Enlightenment belief in Western and Eastern cultures learning from one another. And he discusses how this mode of thought was displaced in the early 19th century by one that erected firm barriers between the English and Indians, prohibited intermarriage, and condemned “Brahminised” British.

The villains of this piece are the Evangelical Christians who denounced Indian culture and the colonial ambitions of men like Arthur Wellesley who did not want an Anglo-Indian settler class arising who might challenge the authority of the East Indian Company as British Americans had done. Dalyrmple depicts a world in which racial distinctions are gaining currency, but it distinctively does not portray one where modern racist theories were established or widely held. The late 18th century was a different world from post-Mutiny India after which “British culture was unapologetically imposed on India”.

Progress as critical standard

Enlightenment thinkers were greatly interested in the question of human progress, what today we might call development or, more narrowly, economic growth. This is often rendered in terms of a belief in progress in a way that makes it appear naive. But the analysis of Montesquieu, Smith, Adam Ferguson, and Edward Gibbon was far from naive.

Today historians worry on social media about condemning the Aztec practice of human sacrifice.[18] To make such judgments one needs to secure grounds upon which one can make such a statement. Enlightenment thinkers accomplished this by developing various notions of “progress.”

Belief in progress meant that Enlightenment thinkers were often confident in denouncing specific practices as barbarous and uncivilized. This shaped their attitudes to both non-Europeans and to Europe’s own past. One example of this is their contempt for the Middle Ages, as evident in Voltaire’s scathing mockery or in Gibbon’s dismissal of the Byzantine empire (“a dead uniformity of abject vices, which are neither softened by the weakness of humanity, nor animated by the vigor of memorable crimes”) or the Crusades (“the triumph of barbarism and religion”).[19]

Today we are quick to interpret such judgements as thinly veiled prejudice—and racial prejudice at that. But if there was one notion characteristic of most Enlightenment thinkers it was that progress was possible given the right institutions and government. As Adam Smith put it “Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things.”[20]

Nor were Smith’s lessons only intended for some nations or peoples. Egalitarianism was a key part of his approach to questions of political economy. In a famous passage he observed that the difference between a philosopher and a street porter stems “not so much from nature, as from habit, custom, and education.” According to Smith, human differences were at least as much a product as a cause of the division of labor.[21]

The majority of Enlightenment thinkers sought institutional and environmental explanations for the differences they observed between societies. An example is Christian Wilhelm von Dohm’s Ueber die bürgerliche Verbesserung der Juden (On the Civil Improvement of the Jews), a highly influential Enlightenment document. It won Dohm the favor of Germany’s Jewish communities and played a key role in inspiring the emancipation of the Jews in the late 18th century.  Nevertheless, it is possible to selectively quote Dohm and make him appear almost antisemitic. At times he assents to almost every racial stereotypes of Jews as clannish, selfish, and dishonest. But Dohm attributed these purported traits not to the nature of Jews, but to the oppression that the they suffered: “Everything the Jews are blamed for is caused by the political conditions under which they now live, and any other group of men, under such conditions, would be guilty of identical errors.”

This institutional approach taken by both Smith and Dohm is of course characteristic of modern economics. In both its analytical apparatus and policy recommendations, economics is far removed from the type of racial theorizing common in the late 19th century or early 20th century.[22]

Finally, consider a clear example of contempt for non-European societies and peoples: the work of Comte de Buffon, the celebrated 18th century biologist. Besides his unenumerable contributions to classifying different species of animals and plants, Buffon articulated a clear hierarchy of human societies and wrote harshly about “miserable” Australians and Native Americans and Asians with “pig-eyes.”

However, Buffon’s racialism is not modern scientific racism. For Buffon, environmental factors were responsible for the differences we observe between different groups of humans today. He believed skin pigmentation was reversible (even within a single generation). This degeneration theory of racial origins was highly influential and has clearly racialist  overtones. But it is not the lineal antecedent of modern racism.

Buffon was not father of modern racialism.[23] Buffon’s environmental approach put him in the classical tradition that went back to Aristotle and which stressed climate and diet rather than a fixed biological category like race.

Enlightenment universalism and its enemies

This brings us to my third point. Something entirely missing from both Bouie and Mills is the Counter-Enlightenment. The attempt to lay the sins of the modern West on the Enlightenment lets the Counter-Enlightenment off the hook. It was in reaction to the universalizing moral philosophy articulated by Enlightenment thinkers that romantic, nationalist, and indeed ethnocentric ideas sprung: Johann Gottfried Herder, Johann Georg Hamann, Johann Gottlieb Fichte, Jacob and Wilhelm Grimm, Friedrich Heinrich Jacobi, Joseph de Maistre, Thomas Carlyle, and others produced a well-spring of ethnocentric, nationalist, and in some case racialist arguments to bear in opposition to what they conceived to be Enlightenment liberalism.

Hardened racial boundaries, romanticized ethno-nationalist histories, and the notion of national cultural and national spirit evolved in reaction to the Enlightenment. This is brought out clearly by Jennifer Pitt in her contrast between Adam Smith and Jeremy Bentham on the one hand and John Stuart Mill on the other. Mill, though a thorough liberal, believed in and made use of the concept of national culture. Indeed, he believed that this concept was a major advance on the thinking of Bentham’s generation.

It was precisely the universalizing ideals of the Enlightenment that its critics reacted against most vehemently. De Maistre denied there was such a thing as man; only “Frenchmen, Italians, Russians, and so on,” writing that “I even know, thanks to Montesquieu, that one can be Persian. But as for man, I declare I’ve never encountered him.” He condemned as hubris the notion of liberal constitutionalism and railed against the Enlightenment faith in reason. For de Maistre: “All known nations have been happy and powerful to the extent that they have more faithfully obeyed this national reason, which is nothing other than the annihilation of individual dogmas and the absolute and general reign of national dogmas, that is to say, of useful prejudices.”[24]

David Levy and Sandra Peart have documented how political economy’s 19th century romantics like Carlyle and John Ruskin were incensed by Smithian assumptions of human equality.[25] To Carlyle, blacks were “two-legged cattle” who needed the beneficent rule of whites; Carlyle condemned economics as the “dismal science” for denying this and for making common cause with abolitionists in asserting that human beings should be treated equally. John Stuart Mill responded to Carlyle, condemning “the vulgar error of imputing every difference which he finds among human beings to an original difference of nature.”

As Levy and Peart document, Carlyle’s doctrines contained the seeds of genocide.  Addressing West Indian blacks who “refuse to work” he wrote:

To each of you I will then say: Here is work for you; strike into it with manlike, soldierlike obedience and heartiness, according to the methods here prescribed,— wages follow for you without difficulty; all manner of just remuneration, and at length emancipation itself follows. Refuse to strike into it; shirk the heavy labour, disobey the rules,—I will admonish and endeavour to incite you; if in vain, I will flog you; if still in vain, I will at last shoot you,—and make God’s Earth, and the forlorn-hope in God’s Battle, free of you.[26]

Carlyle’s arguments won him favor with Ruskin and Charles Dickens among others, thinkers today celebrated as critics of unrestrained laissez-faire capitalism.[27] They represent the triumph of Counter-Enlightenment, romanticism, and explicit rejection of the Enlightenment project associated with Smith.

Some preliminary conclusions

We saw that modern racism had its antecedents in the 15th to 18th century. But if any period saw the birth of modern scientific racism it was the 19th century, not the Enlightenment. My reading of the evidence is consistent with Edward Beasley’s claim that in the 18th century “there was no idea of race as we have come to know it—no widely shared theory of biologically determined, physical, intellectual, and moral differences between human groups” (Beasley 2010, p. 1).

So what changed between the 18th and the 19th centuries? A short essay can’t answer this; it would be the thesis of a book. The best one can say is that a confluence of factors were likely responsible. First, the rise of modern biology made the classical emphasis (restated by Buffon) on environmental factors less attractive. Second, race was a convenient ideology for the new formal empire that Britain had acquired across the world. Third, there was widespread disenchantment with Enlightenment notions of universalism which were associated with the French Revolution. In its place we find, in the writings of Thomas Macaulay, Walter Bagehot, and Carlyle, a new emphasis on national character.

Pitts discusses this transition in the context of James Mill and John Stuart Mill. She contrasts the subtle discourse of Scottish Enlightenment theorists about the stages of societal progress with the elder Mill’s binary distinction between civilized and barbarian peoples. And she documents how the younger Mill wrestled with questions of race even as he argued against Carlyle’s call for slavery to be reintroduced and condemned the extra-judicial killings carried out in Jamaica by Governor Eyre.[28]

Mill was committed to liberalism and egalitarianism. But Pitts shows, unlike his Enlightenment predecessors, his thought was undoubtedly influenced by the racial and nationalism ideas current in mid-19th century England. Another important example is Bagehot, a classical liberal and economist who could nevertheless write:

There are breeds in the animal man just as in the animal dog. When you hunt with greyhounds and course with beagles, then, and not till then, may you expect the inbred habits of a thousand years to pass away, that Hindos can be free, or that Englishmen be slaves. (quoted in Beasley 2010, 75)

By the late 19th century, these ideas were commonplace. An intellectual prosopography is required to trace out the diffusion of these ideas among 19th century thinkers. In continental Europe, Arthur de Gobineau (1816-1882) was a crucial figure. Gobineau adhered to a polygenic theory of races. Racial character is fixed. Individuals vary but individual characteristics are not heritable; racial characteristics are. In contrast to previous thinkers, Gobineau associated specific racial groups with “interests” and “objectives” and cultural achievements. While Karl Marx and Friedrich Engels claimed that classes acted in the interest of their class, Gobineau claimed races acted as groups, thereby elevating race to historical importance. Civilization rested on the achievements of the “Aryan” race. Finally, Gobineau was a hereditarian. Hence maintaining the purity of the white race was of critical importance to him.

What is interesting here is that while Bagehot, and to a degree Mill, were able to combine adherence to classical liberalism with a racialized notion of national character, these ideas were clearly in tension.[29] For Gobineau and the scientific racists of the late 19th century, such as Ernst Haeckel or Alfred Ploetz, it was the racial collective that came first. Modern racialism of this kind is collectivist rather than individualist. This was the collectivist ideology that seized the minds of the Nazis and others in the early 20th century.

The key ingredients of modern racism are: a scientific or pseudoscientific theory of fixed differences between human “species”; an emphasis on group or collective identity; a stress on national culture and ephemeral spiritual differences rather than institutions to explain differences in societal outcomes. All of these were products of the 19th century and in many cases emerged in diametrical opposition to Enlightenment ideas of individualism and egalitarianism.

This is not to excuse the racism of any given classical liberal or to deny that racialism and liberalism could coexist. But it does suggest that a Foucauldian attempt to trace back the sins of the modern world to the Enlightenment is hardly the path towards a better understanding of the past.

Selected Bibliography

Beasley, Edward (2010). The Victorian Reinvention of Race. London: Routledge.

Bernasconi, Robert (2002). “Kant as an Unfamiliar Source of Racism.” In Philosophers on Race: Critical Essays, eds. Julie K. Ward and Tommy L. Lott. Oxford: Blackwell Publishing.

Blaut, James M. (2000). Eight Eurocentric Historians. Guilford Press.

Dalrymple, William (2002). White Mughals: Love and Betrayal in Eighteenth-Century India. Penguin Books.

Gibbon, Edward (1788, 1879). Decline and Fall of the Roman Empire, volumes 4 and 6. New York: Harper & Brothers.

Kleingeld, Pauline. (2007). Kant’s second thoughts on race. The Philosophical Quarterly, 57(229), 573-592.

Isaac, Benjamin (2005). The Invention of Racism in Classical Antiquity. Princeton, N.J.: Princeton University Press.

Israel, Jonathan (2001). Radical Enlightenment: Philosophy and the Making of Modernity 1650–1750. Oxford: Oxford University Press.

Israel, Jonathan (2005). Enlightenment Contested: Philosophy, Modernity and the Emancipation of Man 1670–1752. Oxford: Oxford University Press.

Israel, Jonathan (2011). Democratic Enlightenment: Philosophy, Revolution and Human Rights 1750–1790. Oxford: Oxford University Press.

Leonard, Thomas C. (2016). Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era. Princeton, N.J.: Princeton University Press.

Levy, David M. (2001). How the Dismal Science Got Its Name. Ann Arbor, Mich.: University of Michigan Press.

Levy, David M., and Sandra J. Peart (2005).  The ‘Vanity of the Philosopher’: From Equality to Hierarchy in Post-classical Economics. Ann Arbor, Mich.: University of Michigan Press.

Levy, David M., and Sandra J. Peart (2008). The Street Porter and the Philosopher: Conversations on Analytical Egalitarianism. Ann Arbor, Mich.: University of Michigan Press.

de Maistre, Joseph (2009). Considerations on France, translated by Richard A. Lebrun. Cambridge, UK: Cambridge University Press.

Mills, Charles W. (1997). The Racial Contract. Ithaca, N.Y.: Cornell University Press.

Montesquieu (1717, 2008). Persian Letters, translated by Margaret Mauldon. Oxford: Oxford University Press.

Netanyahu, Benzion (1995). The Origins of the Inquisition in Spain. Random House.

Nirenberg, David (2009). “Was There Race Before Modernity? The Example of ‘Jewish’ Blood in Late Medieval Spain.” In The Origins of Racism in the West, ed. Miriam Eliav-Feldon, Benjamin Isaac, and Joseph Ziegler, pp. 232-264. Cambridge, UK: Cambridge University Press.

Platt, Stephen (2018). Imperial Twilight: The Opium War and the End of China’s Last Golden Age. Random House.

Olson, Mancur (1965). The Logic of Collective Action. Cambridge, Mass.: Harvard University Press.

Osterhammel, Jürgen (2018). Unfabling the East: The Enlightenment’s Encounter with Asia, translated by Robert Savage, Kindle ed. Princeton, N.J.: Princeton University Press.

Robertson, John (2015).  The Enlightenment: A Very Short Introduction. Oxford: Oxford University Press.

Pitts, Jennifer (2005). A Turn to Empire. Princeton, N.J.: Princeton University Press.

Smith, Adam (1790, 1984). The Theory of Moral Sentiments, eds. D. D. Raphael and A. L. Macfie. Indianapolis: Liberty Fund.

Smith, Adam (1776, 1904). An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Edwin Cannan. London: Methuen.

Stewart, Dugald (1980). Account of the Life and Writings of Adam Smith, LL.D., ed. Ian Simpson Ross. In Essays on Philosophical Subjects, by Adam Smith, 269-351. New York: Oxford University Press.

Sweet, James H. (1997). “The Iberian Roots of American Racist Thought.” William and Mary Quarterly 54, no. 1: 143-166. doi:10.2307/2953315.

Todorov, Tzvetan (1993). On Human Diversity: Nationalism, Racism, and Exoticism in French Thought. Harvard University Press.

Voltaire (1756, 1759). An Essay on Universal History: The Manners and Spirit of Nations. Translated by J. Nourse. London.

[1] The initial tweet ran “racism is an enlightenment idea, whose foundations were laid by key thinkers like Locke and Kant.” A subsequent tweet said “the quasi-scientific categorization of humanity into immutable groups defined primarily by skin color—i.e. race—is a product of the Enlightenment.”

[2] In a reply in the original thread.

[3] Jamelle Bouie, “The Enlightenment’s Dark Side,” Slate, June 5, 2018.

[4] In what follows I rely heavily on block quotations in order to give voice to the historians who have written on these documents without editorializing.

[5] I was once told by a historian not to use the term antisemitism to refer to medieval pogroms. I retorted that medieval violence against Jews and late 19th century violence against Jews was based on the same tropes: claims of a conspiracy against gentiles, and accusations of host desecration or blood libels.

[6] “To say that ‘race’ and ‘racism’ are products of the Enlightenment is not to say that humans never held slaves or otherwise classified each other prior to the 18th century. Recent scholarship shows how proto- and early forms of modern race thinking (you could call them racialism) existed in medieval Europe, with near-modern forms taking shape in the 15th and 16th centuries. In Spain, for example, we see the turn from anti-Judaism to anti-Semitism, where Jewish ancestry itself was grounds for suspicion, versus Jewish practice. And as historian George Fredrickson notes in Racism: A Short History, ‘the prejudice and discrimination directed at the Irish on one side of Europe and certain Slavic peoples on the other foreshadowed the dichotomy between civilization and savagery that would characterize imperial expansion beyond the European continent.’ One can find nascent forms of all of these ideas in antiquity—indeed, early modern thinkers drew from all of these sources to build our notion of race” (Jamelle Bouie, “The Enlightenment’s Dark Side”).

[7] My forthcoming book with Noel D. Johnson, Persecution and Toleration: The Long Road to Religious Freedom (Cambridge University Press, 2018) documents this in detail.

[8] There must also be a way of punishing those who deviate from group based discrimination. The logic here is that of collective action in groups as developed by Mancur Olson (1965).  The difficulties of doing this in a free economy is one reason why economists like Gary Becker argued that market competition can erode racial discrimination.

[9] It may also help to explain why Europeans visitors to Asia were largely free of racial prejudices until the nineteenth century. In the eighteenth century when they came as merchants, missionaries, and diplomats their attitudes were open-minded and often admiring.

[10] For instance, a passage in the Historia Augusta, Septimius Severus, who originated from North Africa, ordered an Ethiopian soldier removed from his sight on the basis of his “ominous color”. Some scholars have interpreted this as a joke on racist attitudes by Severus. But, however this passage is interpreted, it suggests that Romans were not blind to skin color. Isaac doesn’t discuss Roman attitudes to Black Africans. The racialist categories he focuses on do not evolve around skin color.

[11] Nirenberg backs away from claiming that medieval Spanish notions of race were the same as modern racism. But he does note that “Spaniards utilized a vocabulary of race grounded in theories of animal husbandry that posited the biological reproduction of somatic and behavioral traits . . . this vocabulary underwrote a set of strategies that explained and legitimated the creation and perpetuation of certain hierarchies and discriminations” (Nirenberg 2007, 83).

[12] Historians distinguish between a French, a Scottish, and a Neapolitan Enlightenment.  Jonathan Israel divides a Radical Enlightenment associated with Spinoza, with the moderate Enlightenment of Voltaire, Montesquieu and Smith.  See John Robertson, The Case for Enlightenment, (2009). Cambridge University Press for analysis of the Enlightenment in Naples and Scotland. Jonathan Israel’s interpretation of the Enlightenment is contained in his three volumes Radical Enlightenment (2002), Oxford University Press, Enlightenment Contested (2006), Oxford University Press and Democratic Enlightenment (2011), Oxford University Press.

[13] To contemporaries the idea of the Enlightenment as an intellectual movement was the largely invention of the French lumières in the middle years of the 18th century. They retrospectively claimed Newton and Locke as representing the triumph of modern science and knowledge over the ancients.

[14]Chronologically, the French Revolution marks the end of the Enlightenment period. Thinkers like Burke and Herder can be considered as both Enlightenment and Counter-Enlightenment thinkers. But Hegel, Fichte, Tocqueville, and Mill are not Enlightenment thinkers.

[15] See Voltaire (1756, 1759), An Essay on Universal History: The Manners and Spirit of Nations, translated by J. Nourse, London.  Smith (1790, 1984), The Theory of Moral Sentiments, edited by D.D. Raphael and A.L. Macfie, Liberty Fund, Indianapolis. Montesquieu (1717, 2008), Persian Letters, translated by Margaret Mauldon, Oxford University Press, Oxford.

[16] Kant was vehement in condemning colonialism. The key piece making the case for Kant as a source of modern racism is Robert Bernasconi, “Kant as an Unfamiliar Source of Racism,” in Julie K. Ward and Tommy L. Lott, eds., Philosophers on Race: Critical Essays (Blackwell Publishing, 2002), pp. 145-166.  Pauline Kleingeld, however, argues that Kant had second thoughts on race in the 1790s.  He moved away from a strict hierarchy of races and in his later work objected strongly to chattel slavery. Kleingeld, P. (2007). Kant’s second thoughts on race. The Philosophical Quarterly, 57(229), 573-592.

[17] Stephen Platt (2018), Imperial Twilight, Random House.

[18] Which was on display when journalist Lizzie Wade defended the practice (

[19] Edward Gibbon (1788, 1879), Decline and Fall of the Roman Empire, volumes 4 and 6, Harper & Brothers, New York.

[20] Quoted in Dugald Stewart, Account of the Life and Writings of Adam Smith, LL.D., in Adam Smith (1980), Essays on Philosophical Subjects (New York: Oxford University Press), p. 322.

[21] Adam Smith (1776, 1904), An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Edwin Cannan (London: Methuen), Book I, Chapter 2.

[22] Despite this scholars conducting institutional analysis are frequently accused of being Eurocentric. See James M. Blaut (2000), Eight Eurocentric Historians, Guilford Press.

[23] Tzventan Todorov in On Human Diversity (1993) seems to make this claim. The evidence is simply not there, however.

[24] Joseph de Maistre (2009), Considerations on France, translated by Richard A. Lebrun, Cambridge University Press.

[25] David M. Levy and Sandra J. Peart (2008), The Street Porter and the Philosopher: Conversations on Analytical Egalitarianism, University of Michigan Press. David M. Levy and Sandra J. Peart (2005), The ‘Vanity of the Philosopher’: From Equality to Hierarchy in Post-classical Economics, University of Michigan Press.

[26] Quoted in David M. Levy and Sandra J. Peart (2001), “The Secret History of the Dismal Science, Part I: Economics, Religion and Race in the 19th Century,” Library of Economics and Liberty (Liberty Fund, Inc., Indianapolis), January 22.

[27] “Against Adam Smith’s doctrine that to be human is to exchange freely, Ruskin juxtaposes a doctrine that to be human is to be improved by our betters, those who can make men the way a potter makes potter” (Levy 2001, 8).

[28] Governor John Eyre brutally suppressed the Morant Bay Rebellion in 1865.  He declared martial law and killed hundreds of individuals, imprisoning and flogging many more. In Britain, liberals like John Stuart Mill demanded that he be put on trial for murder.

[29] By the late 19th century, the progressive economists and reformers studied by Thomas Leonard in his Illiberal Reformers were led by their faith in eugenics and race science to abandon liberalism entirely. See Thomas C. Leonard, (2016). Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era. Princeton University Press.

Featured image is Immanuel Kant

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Tendencies and Contingencies: On Social Constructivism

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Recently, Canadian philosopher Joseph Heath wrote an essay on social constructivism in which he tries to clean up some ambiguities and tensions. I think he’s right to point out that the debate between social constructivism and biological determinism is really just an extension of the old nature versus nurture issue. At the end of the day, Heath suggests, we really haven’t made much progress in either debate, both sides digging into their familiar and worn-out defenses. The correct conclusion to the nature-nurture debates of old, Heath says, “would have been that there is a continuum, with some things being more biological and some things more social.” Instead, each side took the resolution “everything is both” to be a point in favor of their own side: people who believed it was nature all the way down still went around construing everything as biological or innate, and those who thought it was nurture all the way down still went around thinking everything was a question of social norms, environment, and upbringing. Nobody missed a beat.

New ways of talking about an old problem have disguised the fact that all we’ve really done is apply a fresh coat of paint and shuffled some furniture around. On one side, there are people like Jordan Peterson lecturing us about how there are certain structures in place that developed for evolutionary or biological reasons, arguing that we should be wary about changing them or even thinking about them as “constructed”—which amounts to the classic argument from human nature dressed up in evolutionary language. Then there’s the “gender is a social construct” people who think all our norms, practices, values, and ideas are social through and through and human beings, rightly considered, are just a product of their environments—which, of course, is just the nurture argument dressed up in the latest academic neologisms.

I agree with Heath when he says “a lot of things that are socially constructed cannot easily be changed,” but I don’t think this is a blow to the social constructivist position nor do I think any interesting conclusions can be drawn from this fact. As Jason Kuznicki writes, “Gender is constructed, but so are prisons.” The claim that there are social costs to change or that change is difficult—a mantra that Peterson echoes quite often—is just as empty as saying it’s social construction all the way down. As Kuznicki rightly points out, nowhere will you find Michel Foucault or Judith Butler saying that because gender is constructed that it is necessarily easy to change. Both sides draw way too much social and political firepower from their philosophical positions.

But Heath slips as he develops his own position and muddies the water further by bringing the concept of canalisation into the picture: canalized in the sense of ingrained, whether genetically or otherwise, “and thus more resistant to social or environmental modification.” I want to quote at length to avoid misinterpretation.

It is, of course, a scientific question how canalized the development of a particular trait is, and thus, how much socializing effort would be required in order to divert that trajectory. Unfortunately, there is a powerful political motive that interferes, for many people, with the impartial adjudication of this question. Whenever one has a trait that is involved, in one way or another, with some injustice, many people would like to believe that it is more “social” than “biological,” precisely because they would like to see it changed. This has had numerous consequences, perhaps the more obvious of which is the outrageous misallocation of the burden of proof that prevails in the social sciences, but also in everyday public debate, where proponents of “biological” explanations, in order to vindicate their claims, must rule out every possible “social” explanation, but where proponents of “social” explanations typically feel no obligation even to present evidence for their claims, much less rule out all possible “biological” explanations. For instance, when it comes to observed gender differences in children, biological explanations are ordinarily taken to be defeated by purely hypothetical accounts of how the observed difference could be the result of socialization.

It’s unclear to me why Heath thinks understanding whether something is social or biological is a scientific question. What would count as evidence? Brain scans? How do we know those neurons weren’t conditioned or if they were to what extent? He goes on to say that the “impartial adjudication” of whether something is an expression of our biology or whether its constructed gets hamstrung by political motives. This, he says, has the consequence of shifting the burden of proof on the biological determinists who “in order to vindicate their claims, must rule out every possible ‘social’ explanation.” In other words, whereas biological determinists have to refute every social explanation in order to make their case for determinism, social constructivists feel they are under no obligation to provide evidence for their claims. But this isn’t true. One can broadly gesture at history for a few examples and this would be just as crude, but more correct, than Heath’s gesture toward “science” to help us figure out whether it’s social or biological. Furthermore, it doesn’t strike me as all that disconcerting that there’s a higher standard for those who parrot biological determinism as an explanation for this or that practice—there probably should be.

To illustrate his point, Heath uses religion and the family as grist for his some-things-are-just- stable mill, and he makes the same error when looking at both. First, religion.

Religion is obviously cultural, and it is also, obviously, made up. In any case, from the fact that religions are made up, one might conclude that it would be easy to make up a new one. And indeed, many people have tried. What they discover, however, is that while working up a new “revelation,” or developing a set of new ritual practices, is not that difficult, securing their widespread acceptance is almost impossible.

This is the core of Peterson’s point about religion: if it’s not encoded, biological, blessed by evolution, whatever, then why do we still have these relatively stable religions? If the choice is between religion in general and no religion, it’s easy to say that these ideas and institutions are around for a reason. But working at this level of abstraction is pointless. Religion in general loses meaning when you look at not only the myriad religions that exist today (so much so that the idea of a religious sensibility means close to nothing since this sensibility expresses itself in an equal myriad ways), but the ways in which specific religions, like Christianity, have changed over thousands of years.

So why has Christianity been around and stable for so long? I’m doubtful that it has. Christianity has mutated, changed, developed, progressed, and everything in between over the course of its long career. The Christianity of Bible Belt Christian in 2018 would have been unrecognizable to 12th century French Christians, and vice versa. Indeed, part of someone like Peterson’s entire project hinges on this process of mutation, and dressing it up in evolutionary language is no more or less stable than those councils who were dressing up this or that change as the will of God. Describing something in a different vocabulary is change.

The same goes for the family. Although Heath argues that the family is “an extremely flexible institution,” he goes on to say that “social reformers have been trying, off and on, to abolish the family for literally thousands of years, without success.” And why has this proved unsuccessful?

[B]ecause the institution [of the family] organizes and channels a set of emotional and behaviour dispositions that are deep feature of mammalian psychology, which are extremely difficult to override. The most that anyone has been able to accomplish is to create a “sterile caste” (such the Catholic priesthood, or the Chinese imperial eunuchs), and these also tend to be unstable. By contrast, the “guardian” arrangement that one finds in Plato’s Republic has been tried innumerable times, and has never been made to work.

The mistake is the same: set up a supposedly stable institution or practice and compare it to the attempts to completely dismantle or destroy said institution or practice. The only thing this exercise proves is that people are relatively attached to what is familiar; it says nothing whatsoever about whether those familiarities are socially constructed or biologically innate. To concede a point, familiarity and stability might indeed imply evolutionary usefulness but it need not necessarily. Heath says in passing that “arbitrary” practices like “adoption” have “extended” these practices, and that what we refer to the family “exists in very different configurations in different societies.” But this takes him nowhere, as the example of failed reformers attempting to abolish the family only proves to him that the family is biologically, evolutionarily, and psychologically grounded, unchanging, stable. Relatively minor tweaks like adoption and gay marriage—tweaks that add up to much more than the sum of their parts when viewed historically—are brushed aside.

Trading in Platonic essences is a dubious practice. It’s why people like Jordan Peterson always get to say that the manifestations of this or that practice are but manifestations of this essential part of us or that essential social structure. You just gesture towards Essence A, the family, to Manifestation B, adoption, to make it seem as though the latter has always been implicit and a latent possibility in the original essence. Adoption? Well the core impulse to care for human beings is still there! Practice intact. With this strategy in hand you can, quite literally, say anything about anything. Going from essences to actual practices and back again requires one to be ambiguous and vague, and makes otherwise empty statements sound profound. I just doubt the payoff is worth it.

But the phrase I can’t make any sense of in Heath’s otherwise good essay is “made up,” as in his point that “Religion is obviously cultural, and it is also, obviously, made up.” Made up compared to what? Is it any more or less made up than the idea of literature? Or poetry? Chess? Or even separation of powers, federalism, or democracy? It seems to me that you can go down the deconstructionist rabbit hole and say everything is made up, since language itself is made up.

I think we should talk about human tendencies rather than (biological) human nature, and talk about contingencies rather than social constructs. What this does is loosen our grip on both foundations. A human tendency doesn’t claim anything close to final authority on who we are or the words we choose to speak, without having to deny that our genetic makeup has some measurable effect on both. It replaces the argument from authority with the suggestion that there are reasons we’ve done it this way, and it’s wise to look into those reasons. Talking in terms of tendency allows us to put genetic and biological influences behind Chesterton’s Fence, alongside tradition, without bestowing any absolute authority upon either.

In much the same way, the idea of contingency robs the social constructivist position of much of its social and political power. Talk of social construction conjures up images of structures that must be knocked down if we are to make progress, but also of the absolute freedom in deciding what to build next. Contingency, on the other hand, brings into focus the fragility of a way of life, held together by a particular shifting arrangement of norms, values, and institutions. This maintains the freedom we have in changing particular norms, values, and institutions, but brings to view the ever-present danger that we may throw out the baby with the bathwater. Since it is the overall arrangement which constitutes the social order, rearranging a few parts can result in big and unpredictable transformations. In short, contingency allows us to emphasize both our freedom to seek a better way of life, but also that such a way of life would be fragile in ways we may not be able to anticipate.

So contingency cuts both ways: in addition to seeing norms and values as socialized or “constructed” all the way down, it also acknowledges the fragility of those norms and values. They may indeed be “made up” but they are none the worse for that fact, and they are certainly not inferior practices merely because they are contingent or more fluid than we previously thought. Change comes about not through revolutionary swaps from one norm to another, but through the reconstructing and redescribing of experience in relatively minor, but nonetheless novel ways. Whether talk of contingency is more accurate than talk of social construction is neither here nor there; but it’s certainly more useful to talk this way—perhaps just for political reasons. When we equate construction with inferiority, we rob ourselves of the very materials we need to reconstruct and reform our practices.

The larger point is that neither intellectual sophistication nor anchoring one’s worldview in either biology or social constructivism will help decide ahead of time whether we should hang tight to a practice, revise it, or throw it out. To put the point crudely, it’s always a matter of cost-benefit where there are always costs and always benefits, and ignoring either costs or benefits to score a conversational point obscures the tragic aspect of all human interaction.

The debate between determinists and constructivists is somewhat moot considering our ethical focus should be on specific norms, values, and institutions and not general ways of viewing the world and then applying that scheme to all norms, values, and institutions. William James was right that people tend to be conservative about their beliefs, adding new insights and ideas only when they can be seamlessly incorporated into one’s previously held beliefs. But he was also right when he characterized beliefs as essentially coping mechanisms and thus fluid and malleable. Interactions with the books we read, the people we run into, and even contradictions within ourselves all chain us to living with a relatively coherent sets of beliefs while always needing to revise, reconstruct, and redescribe them in order to cope with the changing world around us.

I pretty much agree with Kuznicki when he writes:

To say … that gender is a social construct is therefore not to say that gender is a matter of arbitrary choice. Nor would I say that gender is an inescapable social prison. Like language, gender is externally constrained as to many of its features, and yet it’s also full of potential for nuanced and authentic self-expression. At its best, gender expression is neither arbitrary nor totalizing, but it occupies—if we allow it—a happy middle ground.

To argue about how much we are constrained by our biology or how much potential there is for “nuanced and authentic self-expression” is to once again drag the debate back to its previous stalemate. Although Kuznicki’s strategy is a bit different than mine—arguing for a middle ground rather than reframing the two sides—I’m willing to go with whatever strategy puts an end to these pointless debates about nature and nurture, determinism and social constructivism.

Featured image is The City Rises , by Umberto Boccioni

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Reasons for Knowing Knowledge

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There are many theories of what knowledge is. That is clear enough from the past 400 years of philosophy, never mind the thousands before that. What has drawn less interest is that there are different reasons we may wish to know what knowledge is.

René Descartes and David Hume were quite clear on why they wanted to know of knowledge. Though they had radically different theories of knowledge, each believed that epistemology was necessary to shore up the foundations of other fields. From this perspective, historians and physicists and linguists need to wait around for philosophers to sort out how they can tell if they actually know anything about their fields. That is the central conceit of the so-called “demarcation problem,” for example.

It is against this sort of epistemology that Richard Rorty framed his pragmatism as anti-authoritarian. Imagine historians thinking they were the authorities on statecraft or politics. It’s laughable. Much has been said about the value of knowing history so one doesn’t repeat past mistakes, but to think of history as primarily a source of practical insights is to seriously misunderstand the field. I have to wonder if anyone who suggests such a thing has ever actually read a history book. Or, on the flipside, perhaps they are a little too well read in history and too short on practical experience. In any event, one needs to be deeply disconnected from either history as it is written, or the practical affairs of the world, to think that the former could be a manual for the latter, or that historians are in a special position to tell practitioners how to do what they do.

To Rorty, the image of philosophers lecturing scientists on when they can know they know anything in their own fields is even more absurd than the image of the historian telling politicians and public officials how to do their jobs. Scholars and scientists did not wait around for the perfect theory of knowledge to be developed before getting to work. And the notion that outsiders to those fields are in a position to dictate the terms of inquiry for insiders is highly questionable. I won’t reconstruct Rorty’s argument here, but suffice it to say that he sees epistemology of the Cartesian and Humean sort as a sort of will-to-tyranny over other disciplines.

His pragmatism is cast as a liberation of the disciplines to pursue their own discourses on the terms negotiated by fellow practitioners, rather than by interfering outsiders. Its value is akin to the counter-punch in boxing; rather than making the first move, it comes as a response. If we imagine historians and physicists minding their own business and pursuing their work, when a interlocutor comes along with an argument drawing on philosophical positivism or related frameworks, pragmatism is the tool to get that interlocutor to back down.  It nullifies the stultifying effects of tyrannical philosophy, rather than offering a substantive alternative.

Because he deflates all of philosophy’s big claims to value, Rorty concludes that there’s little use for philosophy any longer, except as a field of caretakers for a set of classic texts. This is where I must part ways with him.

I look instead to Hans-Georg Gadamer, the pivotal figure in 20th century hermeneutics. Like Rorty, Gadamer didn’t see his theory of interpretation as a guidebook for the social scientists whose fields he discussed in the course of Truth and Method and other works. He had no interest in dictating the terms of inquiry for practitioners. And like Rorty, in as much as it has practical value, it is of the counter-punch variety. Unlike Rorty, however, Gadamer views hermeneutics as discipline itself, as legitimate a field of inquiry as history. Like history, it is a study of human doings. Yet as hinted above, the relationship between these fields and practical insight is a complex one. Gadamer no doubt underplayed the practical value of hermeneutics, but, as mentioned, historians and especially history enthusiasts too often overplay the practical significance of history.

The reasons for knowing knowledge, interpretation, or history that align with the spirit of inquiry in these fields is much more indeterminate than something as simple as generating practical know-how. It is more like satisfying intellectual curiosity, or attempting to deepen your knowledge of the human story, or simply taking pleasure in developing and exercising the skills of inquiry and argument in a specific domain. I would sum up this non-authoritarian (contra Descartes and Hume) but non-eliminative (contra Rorty) sort of reason as seeking wisdom. That is an appropriately vague and indeterminate answer for the question I wished to pose in this post.

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Throwing Shade on the Enlightenment

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Slate writer Jamelle Bouie caused quite a kerfuffle by discussing the racist elements within the Enlightenment, first with a series of tweet threads and then with a more detailed article including, as they say, receipts. Bouie contends that the Enlightenment played an outsized role in creating our modern concept of race, and that if we want to take the Enlightenment seriously we have to grapple with the ways it is intimately bound with racism.

That’s it. Bouie was inundated with gasps of incredulity, however, drawing responses from both Ben Domenech and Robert Tracinski at the Federalist, and Katie Kelaidis at Quillette. Despite Bouie’s clarity, both his Twitter and long-form critics persist in misrepresenting his arguments and assaulting strawmen. Below I stylize some of the common misrepresentations or confusions and offer my own clarifications. The italicized statements are the things Bouie did not argue!

The Enlightenment invented xenophobia, tribalism, and every other form of bigotry.

Modern racism is a very particular beast, and not simply interchangeable with fear of foreigners or even colorism. Race in the European and American context (the relevant areas covered by the “Western” Enlightenment) is a theory of biological inferiority (though there are environmental and cultural variants) of nonwhite people, especially black people. This racial hierarchy was initially used to justify slavery and colonialism, but has evolved to maintain white supremacy long after chattel slavery was ended.

Because John Locke, Immanuel Kant, and other heroes of the Enlightenment were racist or supported slavery means we should stop talking about their ideas and eject them from the curricula.

This is just a non-sequitur. Realizing someone had some bad ideas doesn’t mean they have nothing to contribute, and Bouie never said otherwise. Besides, odious views of historical figures doesn’t even necessarily mean we have to condemn them. There’s a difference between moral fault and culpability.

The Enlightenment was racist so we should ditch the Enlightenment altogether.

Again, criticizing something is not the same as condemning. At least some of the scholars Bouie cites (Charles Mills is the only one I’m very familiar with) are trying to work through the baggage of the actually implemented beliefs and practices of Enlightenment liberalism in order to more fully realize its great promise. It’s a deconstructive, rather than destructive endeavor. The best way to separate the Enlightenment (or liberal) wheat from the liberal chaff is to not give the ideology the benefit of the doubt. If early scientific racialization counts as a mark against Enlightenment principles then that’s something that a sturdier liberalism just has to overcome.

There has been no racial progress since slavery.

In the last 250 years we’ve seen incredible progress on numerous fronts. And I think this progress has indeed come from certain liberal ideas. But that doesn’t mean everything is hunky-dory. Ibram X. Kendi suggests in his invaluable Stamped from the Beginning that we shouldn’t think about racial progress as marching along a single axis, whereupon you can take the proverbial two steps forward and one backward. Instead, racist and antiracist ideas can both progress and coevolve. The election of Barack Obama is surely a testament of our racial progress, but the election of the explicitly racist Donald Trump and the plethora of rhetorical dance moves made to evade its racist implications are all the latest in racist progress.

A booby-trapped ideology

Taking seriously the idea that racism could have been baked into the Enlightenment(s) and liberalism from the beginning is not about attacking liberalism or impugning Enlightenment heroes. The purpose of talking about how Kant, for example, explicitly and implicitly divided humanity into persons and subpersons is not to declare “Aha! Kant was a racist! Therefore we should ignore Kant, burn his books, and trash the Enlightenment!” No, problematizing Kant is the beginning of the argument, not the end. The real point is to see how racism and other ugly ideas that have been with the Enlightenment from the beginning might still be surreptitiously influencing even the good Enlightenment and liberal ideas we rightly cherish.

Before I give examples I want to cover my flank by pointing out that none of this criticism (or problematization or whatever you want to call it) is unique to the liberal wing of the Enlightenment. What Adam Gurri has called the minefield of prejudice afflicts every modern ideology, for the simple reason that every such ideology has evolved from intellectual ancestors. In his piece, Gurri admirably reflects on the potential pitfalls of his own beliefs and their influences, but argues that progressives and leftists face genealogical dangers as well:

Perhaps no single individual was more influential on the 20th century left than Karl Marx. Putting aside the obvious problems that arose among Marxists specifically—although a small but growing group has begun once again to defend the indefensible—Marx’s antisemitism is well known. What is more, “On the Jewish Question” is considered so central to the development of his thought that it is standard to include it in collections of his writing. His criticism of capitalism is intertwined with his antisemitism in ways that any critic of capitalism employing frameworks on which he had influence ought to be concerned about. Again, this isn’t a matter of discrediting the left …

I’ll give two examples of how liberal ideas are still being quietly influenced by the Enlightenment’s racist origins: the evergreen discourse on race and intelligence and the cloaking of capitalist values in ideal theory. First, my understanding from reading current reputable secondary sources is that race is not a scientifically useful concept, even though certain subcategorizations based on ancestry are valid for certain purposes (like predispositions to disease, etc). In other words, had early biologists not been afflicted with racist ideas to begin with, they would never have seized upon the broad racial categorizations we’re saddled with now. And so even as human biology and population science have progressed to the point (recently!) that the real scientists aren’t pressing racial narratives, we still have a public discourse where these ideas run amok even among good faith and intelligent people who appeal to other Enlightenment ideas to keep the race discourse forever open.

Sam Harris is a good example of this. It is abundantly clear in his debate with Vox’s Ezra Klein (and the associated blog posts and articles) that he doubts whether history or the humanities can have anything useful to say about questions of race and intelligence. He is immune to understanding that centuries of racist ideology have guided and shaped scientific questions in ways that might have lingering effects even now, to say nothing of the obviously persisting effects they have had on popular discourse about these scientific questions, which continue to “just ask questions” about race and intelligence long after the relevant experts themselves have determined race isn’t a useful genetic grouping. The most salient thing for Harris in controversies over race-based science is that he sees people pushing racial narratives as being bullied and their freedom of speech threatened. Harris and Charles Murray and others like them thus harness the Enlightenment values of free speech, open dialogue, and free inquiry — all good and important in and of themselves — to serve the interests of racism.

Second example: the liberal practices of private property and free exchange are extremely important, and they’re central to the progress that we’ve seen in terms of rising living standards and expanding capabilities. But the liberal justifications for economic freedom tend to assume equality of persons in terms of rights and powers, and also that economic freedom has no important dependence on history. Individuals just happen to own property that they bought or inherited fair and square and defending freedom means defending these property claims. But of course the actual distribution of property was brought about by violence, expropriation, and exploitation. Not only this, but the expropriation and exploitation were racialized, meaning persons belonging to groups now understood to be different races systematically bore the brunt of this process. Now, modern liberals defend present holdings and wealth/income distributions based on ideal assumptions and scoff at demands for racial justice and recompense as fundamentally opposed to liberal values. Again, private property and free exchange are essential ideas, but they require subtler justification, and any such justification will fall well short of absolutist interpretations.

Both of these examples show how racialization in the early Enlightenment advantaged non-racialized groups at the expense of racialized groups, and how liberal ideology has worked to conceal the process, even as Enlightenment and liberal ideas have become less racist over time. Grappling with the sometimes implicit racist roots of Enlightenment thinkers helps us to understand how those ideas are still influencing us today.

Featured image is “A Concise History of Black-White Relations in the United States” by Barry Deutsch (Patreon), shown here with permission.

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26 days ago
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Is Internet Access a Right?

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As a teenager I would mow lawns. The implicit contract was relatively simple, but it illustrates the relationship between claims and duties. If I mowed Mrs. Nichols’s lawn, then I had a claim of $15, which she had a duty to pay.

Similarly, when it is claimed that Internet access is a right, then a duty to provide that service naturally follows. In this case, citizens are the claimants, and the state, or perhaps some other agent, becomes duty-bound to furnish Internet access to the citizens.  

Like many other phrases, Internet access is a polysemous term, encompassing a range of possible claims. So, the right to Internet access takes differing forms.

In the United Kingdom, for example, the right to Internet access was recently defined in the context of speed. Instead of placing regulations on Internet service providers or demanding that they abide by buildout requirements, the government made access to high speed Internet of 10 Mbps a right. Now there is a legal requirement for BT to provide high speed broadband to anyone requesting it in any region in the UK, subject to a cost ceiling. In the government’s announcement, it made the goals abundantly clear. The change was meant to “maximise the provision of fixed line connections in the hardest to reach areas.”

In the United States, where broadband begins at 25 Mbps, the right to high speed Internet suggests a different set of duties. Indeed, if the US were to define broadband at the 10 Mbps mark, then the right of Internet access would almost have been met since 96 percent of people in the United States already have this level of access.

Speed and deployment aren’t the only ways to define rightful Internet access. When the United Nations passed a nonbinding resolution making Internet access a human right, there was little mention of speed. Instead, the strongest opprobriums came in the form of Internet shutdowns and privacy violations. This version of a right to Internet access suggests a different set of duties, which the UN explained in their resolution language:

Condemns unequivocally all human rights violations and abuses, such as torture, extrajudicial killings, enforced disappearances and arbitrary detention, expulsion, intimidation and harassment, as well as gender based violence, committed against persons for exercising their human rights and fundamental freedoms on the Internet, and calls on all States to ensure accountability in this regard;

Condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law and calls on all States to refrain from and cease such measure.

Employing the language of Isaiah Berlin, Internet access can be understood as a negative right, which obliges a duty of inaction, or a positive right, which obliges a duty of action. That is, the right to Internet access can be understood as a positive right meaning that everyone should have access to certain speeds. Or, the right to Internet access can be understood as a negative right limiting the government from shutting down the Internet and using Internet access as a pretext for human rights violations.

Notice how Federal Communications Commissioner Michael O’Rielly defined the right to Internet access back in 2015:

It is even more ludicrous to compare Internet access to a basic human right. In fact, it is quite demeaning to do so in my opinion. Human rights are standards of behavior that are inherent in every human being. They are the core principles underpinning human interaction in society. These include liberty, due process or justice, and freedom of religious beliefs. I find little sympathy with efforts to try to equate Internet access with these higher, fundamental concepts.

What the Commissioner is doing here is known as lexical prioritizing. Lexical priority is a broad term to describe how rights are to be prioritized, like a dictionary. So, if right A is lexically prior to right B, then you will have to totally exhaust A before moving to B.

Even though he is not explicit, the emphasis by Commissioner O’Rielly on liberty, due process, and justice speaks to the negative right of Internet access, in that government should not be unduly interfering with Internet use. Indeed, the rest of his speech focuses on government hindrances. In this way, he places the negative right before the positive right of Internet access.

While O’Rielly was chided at the time for those remarks, U.S. law is centrally focused on negative rights and limitations on government action. As Judge Richard Posner explained, the Constitution serves as “a charter of negative rather than positive liberties.” That focus, however, does not require that negative Internet access rights be lexically prioritized—there needn’t be a complete satisfaction of the negative rights for us to then turn to positive rights and the issue of broadband buildout.

Rights talk, though, necessitates lexical priority. When the rhetoric of rights is involved, the matter at hand is set apart from other concerns, and is granted claims and duties. One still could retort, “why do we need to classify it as a basic human right in order to argue that the Internet, in this day and age, is a necessity that we want more and more people to have equal access to?”

Yet, rights talk is made within a political context. Philip Tetlock (summarized here by Steven Pinker) correctly characterized this act of prioritizing for what it is, a shrewd move meant to create unpalatable political tradeoffs:

Tetlock distinguishes three kinds of tradeoffs. Routine tradeoffs are those that fall within a single relational model, such as choosing to be with one friend rather than another, or to purchase one car rather than another. Taboo tradeoffs pit a sacred value in one model against a secular value in another, such as selling out a friend, a loved one, an organ, or oneself for barter or cash. Tragic tradeoffs pit sacred values against each other, as in deciding which of two needy transplant patients should receive an organ, or the ultimate tragic tradeoff, Sophie’s choice between the lives of her two children. The art of politics, Tetlock points out, is in large part the ability to reframe taboo tradeoffs as tragic tradeoffs (or, when one is in the opposition, to do the opposite). A politician who wants to reform Social Security has to reframe it from “breaking our faith with senior citizens” (his opponent’s framing) to “lifting the burden on hardworking wage-earners” or “no longer scrimping in the education of our children.” Keeping troops in Afghanistan is reframed from “putting the lives of our soldiers in danger” to “guaranteeing our nation’s commitment to freedom” or “winning the war on terror.”

Currently, when we discuss the issue of Internet access, it is best described as a routine tradeoff. By talk of rights, Internet access is raised to apotheosis. The effect has explicit political implications. By claiming that Internet access is a right, any future discussion of negative consequences will be understood as a taboo tradeoff. Once you make Internet access a right, mentioning the cost will be seen as simply crude.  

But it is a costly endeavor to build out Internet access to everyone. Last year the Federal Communications Commission (FCC) wrote a white paper on the topic and estimated that about $80 billion would be needed to get everyone onto a fixed broadband connection. Half of that would go to connecting the last 2 percent of homes in the United States. And even after this last group got connected, the government would need to provide continuing support.     

What rights talk accomplishes is the creation of a firm rhetorical footing for certain duties or entitlements. Yet you don’t need the right for the entitlement to be present, and for this reason in particular, I’m fairly skeptical of a positive right to Internet access.

For example, not many are concerned with a positive right to telephone access because various programs effectively create broad telephone access. This is done through the federal Universal Service Fund and other state-based versions of this program. For those not steeped in telecommunications policy, the phrase “universal service” has been the moniker under which telephone entitlements have been established, not a telephone access right. Indeed, the Telecommunications Act of 1996 has a section explicitly dedicated to universal service and defines it as the promotion of “quality services at just, reasonable, and affordable rates” and the expansion of “such services to all consumers, including those in low income, rural, insular, and high cost areas at rates that are reasonably comparable to those charged in urban areas.” In short, these are duties without rights.

Separately, I don’t think it is necessary to make Internet access a right in the negative sense because of the broader legal and political climate in the United States. Indeed, there is a case to be made that Internet access rights in the negative sense aren’t rights sui generis, but are merely emanations of other enshrined rights like the right to privacy, freedom of speech, freedom of association, the right of habeas corpus, private property rights, and the right to a speedy trial. In the U.S. it is difficult to shut down the Internet because governments are already constrained in what they can do. In other countries, this isn’t the reality. Both Ethiopia and Sierra Leone shut down the Internet recently, but both countries rank fairly low in international rankings on governmental constraint.

Claiming that Internet access is a right creates a rhetorical line in the sand. Yet, that categorization isn’t needed to make the case that people should have broad and equal access to the service.


Featured image is a partial map of the Internet

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31 days ago
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The Road to Citizens United Revisited: A Review of We the Corporations

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In the 2010 Supreme Court case Citizens United v. FEC,  the Court went out of its way to rule on matters never actually brought up in the original brief, making it a landmark case instead of a rather plain and incremental one based on precedent. Yet the decision was far from surprising given the long history—some might say the relentless march—of corporations fighting for and winning more and more Constitutional rights. Citizens United, as it turns out, was the cherry on top of a long, seemingly teleological movement toward greater and more clearly-defined rights for corporations.

This is not to say that there weren’t gaps in this history in which the courts were hostile to corporate interests, or that the expansion of corporate rights was inevitable from the beginning—only that Citizens United represented a significant step for corporations in which the relationship between the average citizen and the corporation was thrown into sharp relief. Citizens and the predictable ruling in Hobby Lobby shortly after don’t ease the worries of those who think corporations have become dangerously powerful in the 21st century and a potential threat to the democratic way of life.

But it wasn’t always this way. As Adam Winkler points out in We the Corporations, corporations “have pursued a long-standing, strategic effort to establish and expand their Constitutional protections” since the beginning. Their ability to find and fund the best lawyers along with an urge to increase profits and minimize regulation made them, quite literally, “Constitutional first movers” in every sense of the term (xiii). They haven’t just “piggybacked on the rights already held by individuals” (xiii). But in addition to being “first movers,” corporations were also great “Constitutional leveragers … [exploiting] constitutional reforms originally designed for progressive causes, transforming them to serve the ends of capital” (xiii). In essence, corporations have been on both sides of it, bravely hacking their way through unexplored Constitutional terrain as well as widening the Constitutional path traversed previously by individuals.  

The fundamental question at the heart of Winkler’s study is this: “Is a corporation, as Blackstone said, a legal person with rights of its own? Or is a corporation … best understood to be an association of people whose rights are derived from its members?” (70). This philosophical question has, unlike many philosophical questions, very real consequences, and the courts have at different times answered in the affirmative one way or the other, wavered on the question, and avoided answering the question altogether. At other times, they simply seemed to have answered “yes” to the question of “which one?” as if it were a coherent and satisfactory answer. t’s easy to take shots at the decisions, indecisions, and wavering of the courts: but that would be to misunderstand the murky nature of corporations and the questions that follow. Blackstone argued that corporations had three core rights: the ability to own property, make contracts, and a right to access the courts. But he also said, tellingly, that they were both public and private entities: while corporate bylaws were binding, they could be modified if “contrary to the law of the land.” As Winkler points out, this is in contrast to our modern view where we think of corporations as pretty much purely private entities.

Dartmouth College v. Woodward (1819) put an end to this uneasy tension between public and private, holding that a state legislature couldn’t change or dissolve a corporation’s charter. Chief Justice Marshall concurred with Daniel Webster—the lead attorney arguing on behalf of his alma mater and defendant in the case, Dartmouth—and broke with Blackstone’s view: although a corporation was not a person with all the rights of physical, warm-blooded persons, they were largely private, market-based entities created by and held accountable to the rights laid out in the corporation’s original charter; no longer were they the sole creatures of government and amenable to the public good. Thomas Jefferson, interestingly enough, responded:

the idea that institutions established for the use of the nation, cannot be touched nor modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself.

The court, also at Webster’s insistence, denied corporate personhood. Of course, this had a double-edge to it. Because corporations were not persons, the court had to “pierce the veil” and consider the corporation’s members, its trustees, its stockholders to make a decision. Corporate personhood—whatever its critics and advocates argue today—was advanced by both anti-business populists for the purpose of limiting corporate rights as well as by pro-business corporationalists for the purpose of securing for corporations the same rights as individual citizens.

As the decisions in Dartmouth and Bank of the U.S. v Deveaux (1809)—allowing corporations to appear in federal court, a right that was thought to be limited to citizens—settled in, Justice Taney swept the courts with a populist backlash against corporations, seeking to reverse the reach of these two decisions. “The Taney Court narrowed, refocused, and finally rejected [the] rule that, for access to federal court, the citizenship of a corporation was defined by the citizenship of its members,” and instead ruled that it was the state in which the corporation, as a legal entity, resided (103). Taney also suggested, Winkler writes, that “stockholders should not be able to take advantage of [corporate] personhood to shield their assets, only to turn around and argue for piercing the corporate veil when it came to corporate rights.” This logic would echo through the years, finding itself awkwardly nestled next to rulings like Hobby Lobby (2014) in which business owners were afforded the benefit of corporate piercing so as to deny their employees certain healthcare benefits based on religious reasoning, but were then able to pull the corporate veil back over themselves if, say, someone were to slip and break their arm on company property and sue.

After the Civil War, things went yet another direction. Justice Stephen Field, in a series of decisions and oversteps, finally ruled in Minneapolis St. Louis Railway Co. v. Beckwith (1889) “that corporations are persons within the meaning of the clause in question.” The clause, or more accurately the clauses in question are of course, the “equal protection of the laws” and deprivation of property clauses of the Fourteenth Amendment. In other words, Field, who had capitalized on a previous but erroneous headnote from a different case, had just ruled that corporations were persons protected under the Fourteenth Amendment. Although the court at the end of 19th century still believed in “minimal or necessary restrictions on business activity,” it’s difficult to overstate the precedent this ruling and this era set for the rights of businesses and corporations in the upcoming 20th century—especially considering the fact that many courts around this time were already showing a bias toward laissez-faire, free market thinking in most of its corporate case rulings. Beyond this, we need only look to the fact that, as Winkler points out, a mere 28 of the 604 Fourteenth Amendment cases brought before the courts dealt with “the group whose plight motivated the adoption of the amendment”: African-Americans. “[A]nd in nearly all of those cases the racial minorities lost.”

The beginning of the 20th century kicked off what historians called the Progressive Era and in terms of the judiciary the Lochner Era. It was also the trust-building and trust-busting era, as well as the pro-business era—this era pelts the reader with such a tangle of disparate and sometimes conflicting strands that it can be difficult to see what actually came of the period between the 1890s and the 1930s. One of the main things to come out of it, for our purposes, was the court’s ruling that that corporations had property rights but not liberty rights like freedom of association. Spurred by the Progressive era urge to regulate the trusts and hold businesses criminally accountable, the courts were forced once again to address “questions about the scope of corporate rights under the Constitution.” But alas, the court never offered a “thoughtful justification of the distinction” between property and liberty rights nor bothered to “define the respective terms.”

Progressive reforms brought corporations and businesses before the courts to once again be “first movers”—this time with regard to the Fourth and Fifth Amendments. Hale v. Henkel (1906) decided that corporation didn’t have a Fifth Amendment right against self-incrimination but did have Fourth Amendment claim against unreasonable searches and seizures. To be sure, a corporation’s right to not be unreasonably searched was less extensive than that which applied to actual people. The definition of “reasonable” is a much lower bar for corporations.

Two of the most interesting cases that came before the courts materialized in 1916 and 1919. In the first—more accurately a series of cases referred to as the Brewers Cases—the Michigan Supreme Court held that “corporations have no right to influence elections” and upheld a ban on corporate money-flow to campaigns. The other, Dodge Brothers v. Ford Motor Company (1919), held that, at the end of the day, “business corporations must be run in the interests of stockholders.” Corporate law scholar Kent Greenfield refers to the ruling in Dodge “corporate law’s original sin” (248). Although some scholars argue that the ruling isn’t as consequential—or detrimental to the public good—as some make out to be, it nonetheless “has become deeply ingrained in America’s corporate culture” as a general, guiding principle if not a legally binding statute. In fact the reason it is both a shocking and somewhat dull ruling is that, as Jonathan Macey points out, “the rule of wealth maximization for shareholders is virtually impossible to enforce as a practical matter.” Generally speaking, “As long as corporate directors and CEOs claim to be maximizing profits for shareholders, they will be taken at their word, because it is impossible to refute these corporate officials’ self-serving assertions about their motives.” In other words, the ruling has had more cultural consequences than legal ones.

In the mid-20th century, as the court decided corporations do indeed have press and speech rights, the fuzzy line previous courts drew between property and liberty rights was tossed out. As Winkler says, Justice Harlan Stone’s famous footnote number four in United States v. Carolene Products “marks the end of the Lochner era, when the court devoted itself mainly to protecting economic and property rights, and the beginning of the Brown era, when the court’s primary role became protecting civil rights and civil liberties” (232).  The famous footnote claimed that the courts should work to protect “discrete and insular minorities” who are the usual targets of majority persecution. As Winkler goes on to point out, though, Justice Stone “was not just referring to racial minorities; he also meant political minorities” (232). Or more accurately, any person, group, or entity that was the target of majoritarian impulses, oppression, or unfair treatment.

If our vantage point is the recent Citizens United decision, the mid- to late 20th century is best seen as an essentially pro-business century—perhaps unsurprisingly since free market principles have ushered in an era of unprecedented wealth and comfort. So Citizens United didn’t just appear out of thin air; the scaffolding to support it was largely in place by the end of the century, much to the chagrin of Jeffersonian populist-minded justices like Louis Brandeis. Hence, the unsurprising nature of the decision given the long view of corporate rights cases.

From the standpoint of judicial activism—a term not just reserved for more liberal decisions—the majority decision in Citizens United reached a new high. Originally only briefed on whether the FEC was wrong to censor a political documentary about Hillary Clinton funded with money from a corporation’s treasury, the conservative band of Alito, Scalia, Thomas, and Kennedy pushed back against Chief Justice Robert’s original narrow ruling. “The court,” this band of right-leaning justices explicitly stated, “should not focus on the narrow question of whether the Bipartisan Campaign Reform Act applied to this one movie but on the bigger question of whether corporate political expenditures could be limited at all.” “Their draft opinion was a bold corporationalist statement on the expansive rights of corporations that blew well past” anything the lawyers in the case were arguing for. As Winkler observes:

Judicial activism is often just a label given to court rulings someone opposes. In Citizens United, however, the charge was not without justification. The court’s majority had finessed the case so that the justices could decide a major constitutional issue that had not originally been briefed and argued by the parties. The court had also struck down key provisions of a law passed by Congress, and in doing so overturned McConnell, a precedent that was less than seven years old.

What had happened? Little more than a change of Supreme Court personnel could explain this radical shift, if not from the long shadow of the 20th century, from the recent precedents and rulings in the 21st. More on Citizens’ precedent-shattering nature in a moment.

Hobby Lobby—the case that essentially determined that corporations have religious freedom, though failed to explicitly rule on the Free Exercise clause—flows more or less naturally from the history. “The Supreme Court’s decision… was a near perfect embodiment of the more than two-hundred-year history of corporate rights jurisprudence” (380). Another victory for the corporation, we might say dryly.

But the whole point of Winkler’s sweep of the history of corporate rights is to illustrate that ever since this country’s founding, corporations

have fought to win a greater share of the individual rights guaranteed by the Constitution. First they won constitutional protection for the core rights of corporations identified by Blackstone in his Commentaries: rights of property, contract, and access to court. Then they won the rights of due process and equal protection under the Fourteenth Amendment [before both minorities and women, mind you] and the protections of the criminal procedure provisions of the Constitution. In the early twentieth century, the court said that there were nonetheless limits to the constitutional rights of corporations: they had property rights but not liberty rights. Eventually, however, the court broke down that distinction and began to recognize corporations have liberty rights such as freedom of the press and of association.

And the rest, that is, the rest of the 21st century, is history.

For anyone looking for a broad and relatively unbiased sweep of the history of corporate rights in the United States, Winkler’s We the Corporations is a good place to start. Although Winkler doesn’t offer a tantalizing conclusion or any solutions, the history is suggestive—which is all we can ever really ask of history.

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34 days ago
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