Businessmen and Reform

Citizens United (2010) was a watershed, to be sure, because it abolished the long-standing legal distinction between a natural person and a corporate person—the distinction the Supreme Court had sustained since Santa Clara (1886), which designated corporations “persons” as per the second clause of the 14th Amendment, thus affording them substantive rather than procedural rights of due process at the law.

The specious premise of the Citizens United decision was that money spent by corporate persons is the equivalent of speech acts made by natural persons—as if noise were music. Only penitent men in purgatory like Antonin Scalia can appreciate the simple fact, and the great irony, that this premise repudiated the “original intent” of the founders, which, in James Madison’s phrasing, meant balancing the “two cardinal objects of Government,“ the rights of persons and the rights of property. Madison spent his entire adult life trying to extricate the American polity from the mistakes of previous republics, ancient and modern, which “sacrificed the poor to the rich”—his words—by assuming that the rights of property were paramount.

Now, corporations are old news. You could say that the USA is a country created by corporations. The European invasion of North America was led, after all, by the Massachusetts Bay Co. and the Virginia Co.

But their sentimental and political significance was magnified in the 19th century, as the courts and the electorate woke up to the power of concentrated wealth. This awakening reached its apogee in the 1890s, when the Populist Revolt overlapped with a fiercely anti-corporate majority on the Supreme Court (the Harlan majority of 1897-1911, which ignored the “rule of reason,” that is, the common law distinction between lawful and unlawful combinations in restraint of trade).

Still, corporations as we know them are specific to the very late-19th century, when they were no longer chartered by states for specific public purposes—and, more important, when they spread from railroads and extractive industries to manufacturing. By then businessmen could consolidate their enterprises for just about any purpose without much supervision by state governments. The New Jersey statute of 1889, written by James B. Dill, a New York investment banker, was the template and the incentive. 80% of the 500 new industrial corporations created in the great merger wave of 1898-1904 (still the largest) were chartered in New Jersey.


The American Left has identified itself as anti-corporate since then, and has been incapable, accordingly, of understanding how businessmen would be interested in reform, then as now. It has ignored Marx’s copious remarks on the matter, and, if I may, it has also dismissed my explanation of why corporate executives wrote the signature legislation of the Progressive Era, including the Food & Drug Act, the Federal Reserve System, and the Federal Trade Commission—all of which created a new role for the federal government in regulating commerce and subordinating economic forces, including the market power of corporations, to social goals.

Marx first. In volume 3 of Capital, he emphatically claimed that the convergence of modern credit—banking as we know it, everybody using other people’s money—and modern corporations made for a new, socialized mode of production. The corporation accomplished “the abolition of capital as private property within the boundaries of capitalist production itself.” The historical standard Marx used to measure this epochal change was the transition from feudalism to capitalism. I’m not going to quote him yet again: see the Kerr edition, volume 3, pp. 516-19, or just wander around in chapters 27-32. The point is that Marx glimpsed the transition from capitalism to socialism in the rise of the corporation.

Now me. I have argued that capitalists were losing the class struggle of the late-19th century, in the US at least, where the scope of that struggle was wider, deeper, and more consequential than in Europe, and that they resorted to the legal device of the corporation as their salvation. The larger regulation and reform of the market was the alternative to subaltern triumph. Businessmen weren’t co-opting anybody, they were saving themselves. They invented the industrial corporation as the means to that end. Their question was not whether but how to reinvent the market so that its civilizing content might be sustained. But they did meanwhile sentence themselves to social death by separating ownership and control of corporate assets—just as the landed nobles of England did when they handed control of agricultural production over to rent-paying commoners in the 15th and 16th centuries.


Since 1898, businessmen are reform, in other words. They want to keep up with the times because if they don’t, they lose market share. Their “brand” suffers. But these truths apply most stringently, most consistently, to retail enterprise. A consumer backlash against or boycott of, say, a manufacturer of construction equipment is improbable, even inconceivable, because that manufacturer is selling his product to contractors, not to consumers.

Notice, then, that the more the economy is driven by consumer demand rather than investment decisions—as the Eastern European economists of the 1950s put it, when growth becomes intensive rather than extensive—the more reformist businessmen will tend to be. To the extent that consumers can amplify their demands via social media, whether mimeographed manifestoes or Facebook, this reformist imperative becomes unavoidable, no matter how politically backward these businessmen may be in person.

The new corporations invented at the turn of the last century socialized property and goods production, and led the way toward an intensive model of growth which grants priority to consumers rather than investors in deciding the shape of the future. In this sense, the legal device we call the corporation is something to be deciphered, not denounced as such. Its political valence is totally unpredictable.

James Surowiecki of The New Yorker captures that mystery in his recent column on corporate opposition to LGBT legislation in North Carolina, Georgia, and Mississippi. He notes that executives from more than 80 companies signed a letter to the governor of North Carolina protesting the law he recently signed which would allocate bathroom privileges according to gender declared on birth certificates. The corporations ready to leave these three states include Disney, GE, Pepsi, Dow, Lionsgate, and PayPal.

Surowiecki also ponders the implications. Here’s the key passage:

“The emergence of companies as social activists is complicating traditional attitudes on both the left and the right. Progressives have long complained of corporate influence over government policy. They’ve pilloried companies that threaten to move operations in order to extract favors from state legislatures; they’ve attacked the Koch-funded American Legislative Exchange Council for its role in drafting a slew of pro-business state laws; they’ve called for overturning Citizens United. Now, though, progressives are confronted with a situation where [corporate] meddling with the legislative process and overriding popular opinion seems desirable.” (my italics)

Which is to say that social justice and majority rule are now at odds, at least in these states—and that the monetized voice of large corporations here speaks on behalf of justice, not majority rule. The Jim Crow South was ruled by majorities, after all, and they sacrificed justice on the altar of white supremacy. Do the interests of the Left now intersect with the voice monetized by Citizens United? That’s Surowiecki’s real question—the bottom line.


Democracy prevails where the rights of persons and the rights of property converge—where state power is justified by the consent of the governed. But the practical embodiment of consent is public opinion. So, to ignore or override it is to discard democracy in favor of rule by the well-educated, the well-informed, and the wealthy, who must know better than the rest of us—you know who I mean, all those philosopher kings and queens from Harvard or Yale. To pay attention to public opinion it is to know that in a modern society, persuasion, not power, is the fulcrum of political change. “He who molds public opinion goes deeper than he who makes or enacts statutes,” as Lincoln put it.

Progressives, as we now call them, have always been willing to challenge public opinion, from the abolitionists of the 1830s to the civil rights activists of the 1950s and 60s. The question Surowiecki raises is more fundamental. Are they willing to make a pact with the devil to override it?

But that question raises two others. Can corporate persons be admitted into a body politic that defines itself as democratic? And, more urgently, is the Left itself committed to democracy, or is it willing to override public opinion in the name of better, scientific knowledge? The first question boils down to whether money is a form of protected speech specific to the corporate person. The Court said no until Citizens United. As late as Bellotti (!978), the most-cited precedent of the 2010 decision, the justices held that precisely because the monetary resources of corporations were both greater and more variegated than individuals—stockholders, those natural persons, have conflicting political views—their expenditures for political purposes could not be protected by the 1st Amendment as if they were unitary, natural persons speaking their minds in public.

The second question boils down to whether public opinion and majority rule are inviolable principles of democratic governance. A majority of money is no better than a majority of numbers or weapons, or a preponderance of intelligence, in the attainment of democracy. The Left rightly rejects Citizens United and its corollaries on these grounds. But how to make majorities that are not themselves undemocratic—the kind that reflect public opinion and yet lead directly to oppression?

And these questions leave us with the larger one of how to define democracy as such. I am one of those historians who think that the prospects of social democracy have improved since the rise of corporate capitalism, ca. 1890-1930. In other words, I think the Populists weren’t our last best hope. I think the cultural and political ferment of this period let us imagine the selves and the societies we can now demand without apology. The corporation was and is at the very center of our imagining, not least because it was and is an “artificial person”—something like ourselves, what we can remake in the image of the future we want.

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Nice Day at the Hoover Institution


Well, it happened—I met Harvey Mansfield, Christina Hoff Sommers, and William Kristol at the Hoover Institution’s outpost in Washington, D.C., courtesy of my girlfriend. She was invited to give a talk at an event that celebrated the 10-year anniversary of Harvey’s Manliness (Yale UP) because she has debated him before, and wrote about this very debate in MEN: Notes from an Ongoing Investigation. I went along for the ride.

It was an interesting and strangely edifying day. And it ended with the most spectacular dinner at an Argentine restaurant called Rural Society. No menu choices, family style common dishes, everyone awash in a rising sea of wine—despite what you may have heard about the supply side, in D.C. it’s alcohol that lifts all boats, not tax cuts.

First course: ensalada arugula, roasted red peppers with eggplant and anchovies, beef and spinach empanadas. Second: Snake River Wagu (the generic origin of Kobe beef), garlic whipped potatoes, wood-grilled mushrooms. Third: dulce de leche plus flan, on a spoon. Simple, rustic, extraordinary.

At one point, to my girlfriend’s obvious chagrin, I loudly ordered more Wagu because my end of the table had eaten most of the original serving—six Oliver Twists at the other end were pleading for more.


The two panels at the event proper were interesting in very different ways. The first featured Sommers and my girlfriend sparring about what Mansfield calls a “gender-neutral society”—in which putative natural differences between the sexes are denied or effaced by feminism and its policy-relevant armature. After Sommers argued that such differences are indeed natural—if not, where are the women among the entrepreneurs in Silicon Valley?—Kipnis explained at length that gender difference isn’t the issue. Of course there are differences, she said, but to assume that they’re natural is to leave gender hierarchies unexamined and in place.

We don’t live in a gender-neutral society, Kipnis continued, not by a long shot. We live in a society that bends or blends genders, often in and through the market, so that choices about where you identify on the spectrum are constantly multiplying. Why can’t conservatives embrace this bending and blending as one more dimension of those free markets they admire, rather than insist that male and female—manliness and femininity—are the only available choices?

But on it went, the repeated assertion that natural (binary) differences are denied by current feminist regimes, to the detriment of manliness, masculinity, civilization, and good sex. Sommers cited William James from “The Moral Equivalent of War” (1910) in passing, to demonstrate that old Will, a progressive and a socialist in his time, was someone desperate to preserve the “masculine virtues” without resort to war. She was on her way to praising John Stuart Mill’s Subjection of Women (1869) as the manifesto we deep thinkers need in our time to keep the feminist barbarians at the gate.

In the Q & A, I pointed out that Mill was one of James’s heroes, but he nonetheless criticized that epochal book for denying any differences between males and females, or rather for insisting that the ideal marriage would consist of an identity of interests between husband and wife—oh, and that sex was insignificant, in marriage or out. Sommers waved off this Jamesian critique of Mill, which I have argued is the founding gesture of the entire corpus, in “Hamlet, James, and the Woman Question,” Chapter 5 of my Pragmatism, Feminism, and Democracy (2001).

The denial of difference is, of course, a signature feature of liberal opposition to modern feminism and black nationalism (think affirmative action), both of which are animated by the assumption that neither women nor black folk want to treat white males—the “man of reason” posited by western philosophy and the common law—as their standard of achievement or comportment. Everybody denies that they’re denying difference, except the critics of liberal individualism who don’t claim to be conservatives.


The second panel concluded with William Kristol’s dramatic reading of the preface to Manliness. It could have been stand-up hilarious, but Bill was clearly feeling pedagogical. He wanted to explain political philosophy in the Straussian/Mansfield mood, by parsing every other sentence, as if close reading would convince us of the truth in the method. Since there’s nothing new about the method—ask Harvey—it was a mysterious moment.

Then Harvey himself spoke for about 35 minutes. Here again he invoked the supposed natural differences between males and females to cast doubt on a feminism that would deny them, and accordingly deform both men and women. But what he seems to have ignored or forgotten is that the goal of a gender-neutral society is not the erasure of difference—sameness is not the point. Unless we’re different, equality, the absence of hierarchy, can’t be something we could want, because then we’d all be alike. Who would then be able to care about equality? Mansfield fears this state of sameness, but it’s not where we are, and it’s not what feminists want.

The puzzling thing about the proceedings was the role of Nature in making them incoherent. On the one hand, it served as a fixed, external reality that can be violated, but only at the expense of intellectual order and political stability. That’s the legacy of ancient political philosophy, natural law theory, medieval theology, and Straussian method. The conservative critique of a world without differences between males and females is grounded in this idea of what Nature must be.

On the other hand, it served as the fixed, external reality that these Aristotelians cannot abide—the dead universe of matter measured by modern science, the objective place where laws of motion hold. “Manly nihilism” derives directly from the Darwinian disenchantment of Nature, according to Mansfield, and leads directly to Nietzschean excess, then on toward Jamesian, pragmatic acquiescence.

You can’t have it both ways. Or rather, you can, but then you’ve stopped making sense to anybody who doesn’t already share your schizophrenic attitude toward modernity.


Things got more interesting after Harvey’s talk, at the reception that preceded the dinner in Argentina. My girlfriend and I are just waiting around, hoping to get going, when this very large manly man approaches her and says “I got a question for you.” I think immediately of Paul Newman and Richard Boone in Hombre (“How you gonna get down that hill?”), and realize that I might eventually have to intervene. Not to save a damsel in distress, just to assuage my irritation at the guy’s aggressive assertiveness—his manliness, as Harvey would say.

“Why is it that American women are so ideological? You can’t talk to them, I mean I’ve been all over the world and talked to a lot of women, believe me, but here you just get into an argument. Why is that?”

“Because we have more choices?” Kipnis says. “More resources? Are you complaining that women have more power here?”

“They just want to argue about everything, why? Women don’t argue with you in Africa.”

I leave to get a drink because I think I might have to break a glass on this guy’s forehead. When I get back with a beer, he’s kind of cave-man crouched and he’s saying “Just answer the question.” I’m thinking she’s gonna gut this Neanderthal with a plastic knife, but instead she says, “No,” then turns and leaves, to join another conversation. Just like that.

“You see what I mean,” the large manliness says to me, “she just walked away, she won’t answer the question.”

“It’s a stupid question,” I say, “No reason to answer it, I don’t even understand it, and why do you get to control the fucking conversation? Because you don’t like feminism?”

“You academics are all alike,” he says, “You don’t want an argument.”

“About what? Say something I understand, I’ll argue with you. Say something interesting for God’s sake. You want to explain ‘Nature’ to me, as Harvey speaks it? It makes no sense, either way he goes with it.”

“Like I said, you’re all alike. Have a nice life.” He leaves.

I drove him away, what a nice feeling it was. For just a few seconds before then, I thought he’d get all assertively manly and attempt a physical assault on my person—that’s probably the masochistic homosexual in me talking—but I was prepared for this possibility.

And there’s the really interesting thing. I am surely the least manly man Harvey Mansfield has ever met, because I’m a Marxist and a nihilist and a pragmatist and a feminist, but I’m usually ready for a fight—notice, I did not say fisticuffs. On second thought, this wouldn’t have been a fair fight. He would have been acting on impulse. Me, I was the man of reason who had already calculated the odds.


On the train back to New York, I was trying to figure out why the official hosts of this little conference were so affable, so comfortable, whereas my girlfriend and I were on guard the whole time. Sure, they were on home turf, and we were the outsiders—they could afford to be nice, and, as hosts, they were supposed to be.

But still. I decided that the sheer serenity of their affect is a function of their beliefs. They know who they are and what they think. Us creatures of the Left often torture ourselves when we reach any state of belief, because, unless we’re sectarian fanatics, we don’t rest easy with faith, whether it’s religious or political. We’re always asking how we know what we know. These figures on the Right, at least in this small sample, don’t seem to be bothered by that Kantian question. Again, they know who they are and what they think. They exude faith in themselves and their ideas.

The wonderful irony at work here is that their faith and our doubts derive from the same source—a profound sense of exile from the present. At the Hoover Institution, the form this sensibility took was a naïve faith in the ancients. Plato and Aristotle might as well have been on the program: references to them were as frequent as refusals to mention the Donald.

My girlfriend agreed with me, I think, when I offered this explanation of the weird equanimity that made everyone at the conference (except us) seem soaked in anti-depressants. She said, “It’s not meds, it’s money. You notice they didn’t ask about our allergies and food preferences, like they do when you go to a dinner planned by leftists. They just plunked a pile of meat on the table.”

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Miles on the Subway

The subway is tricky on weekends because that’s when the MTA repairs the tracks, especially on the lines below Penn Station. I guess they’re thinking the weekday commute to work is sacrosanct: fuck the tourists, or, I don’t know, let them experience the weird density of the place while they’re here.

So yesterday I allotted myself more time to get downtown, to save myself from the anxiety of jostling with Germans and Italians—they’re the predominant tourist type up here—who had just been to the Apollo Theater on 125th.

On the platform at 125th and Lenox, an old guy was holding a gym bag, green-lined with brown handles—there was music coming from the thing, somebody playing the horn. He wore sunglasses, sported a scraggly grey-streaked beard and a porkpie hat. He was a hipster out of phase, a visitor from an irretrievable past, a brother from another planet.

I stood next to him on the platform and sat down next to him when the 3 Train arrived. I just wanted to hear the music—I wasn’t looking for a lecture or a conversation. In my pedantic, academic way, I was trying, I admit, to identify the source, so I finally said, between 110th and 96th, “That sounds good.”

“You gotta listen. You know who that is? Nobody plays like that.”

“I wanna say Louis Armstrong, but I don’t know, it’s too contemplative, you know what I mean, the guy is thinking out loud.”

“Just listen. Best teacher I ever had kept sayin’ that.”

“I’m a teacher. That’s Miles, isn’t it?”

“Yeah, that’s him. What do you teach?”

“I teach what I hate, I teach history, I can say that to you because I don’t know you.”

“I love history. This is the sound of 200 B.C., before Christ, you know, it’s the same music.”

“You can’t believe that, c’mon, nobody could’ve listened to this back then. They would’ve covered their ears.”

“No, don’t say that, you gotta listen.   I’m 85 years old. Listen to this.”

I stopped talking. The old guy got off at 34th, said he was bound for Long Island.


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I’ve been working construction since I was 15 years old. Back then it was cleaning up after the carpenters and the masons, gathering and setting fire to whatever flammable debris they left behind.

When I was not in college, I worked for a mason contractor. That’s how I fell those 27 feet to my death, and why I was reborn as a Marxist who became a professor of History.

By the time I made it to graduate school, I knew my way around construction sites. I could mix mortar, I could carry tons of brick and cinder block, I could hold my own—when Stony said, “get you a plumb stick,” I knew what he meant.

I got the job with Mike Long because my friend Bob Graham recommended me. Bob was a grad student at NIU like me, but, having written an MA thesis on Henry Clay, he had decided to settle out in DeKalb, work the six months for Mike and collect unemployment the rest of the year, see what happened. He came from Providence—he might as well have been a Martian from my parochial Midwestern perspective. He took basketball way too seriously.

My life was breaking up in 1977. My mother had died of cancer at the age of 52, my sister was about to die of cancer at the age of 30, and my wife had left me to become a movie star in LA. The construction job saved my life. It paid $9.33 an hour, and it introduced me to the netherworld of country-ass bars in DeKalb, where you could cash your check on Fridays and dance with fat ladies to the tune of Patsy Cline.

Bill and Rog’s was the center of this world. There was a cash register, but the real money was in a drawer behind the bar, where old Roger also kept a loaded gun, just in case. You’d endorse your check, he’d pay you to the penny—my weekly take home was $291.25—and then you’d buy a round because, well, because there was this pile of bills with nothing better to do. Rog died like his dear friend, Bob Graham’s older brother Jack did, of cirrhosis of the liver. Jack taught chemistry at NIU. He was a patent holder on nuclear magnetic resonance imaging.

Saturday nights at Bill and Rog’s were an idyll, langorous evenings that always ended peacefully. You didn’t pick up girls there. You danced with fat ladies, and you said your goodbyes at 1:00 AM. I’d meet Bob there around 7:00, buy a couple rounds, pour the quarters into the jukebox, and wait for nothing because nothing was going to happen. The hardwood floor had turned white long before I arrived. The only honey-colored traces of oak were the narrow perimeters of the jukebox.

I think of my career in construction because today I served as the super on Mel’s masonry job. A square of sidewalk in front of the halfway house had turned to rubble, so he had to repair it. He used a miniature jackhammer to clear the broken concrete. We bagged the stones, if that’s what you can call the remainder.

Looking at the new, still fluid concrete, and eyeing the trowels he hadn’t yet handled, I said, “Mel, I can float this if you want.” He laughed and said, “What do you know about this, Jim?”

“I spent at least two years of my life doing this, I can bullfloat it if you want.”

Technically speaking, I was bullshitting. A bullfloat is a device you can extend up to 20 feet. It’s more or less a big trowel attached to a long handle. Think of a Swifter, only a lot larger. You hang the handle on your shoulder and push the trowel out to smooth the concrete, make the water rise, burnish the surface.

Mel and Lee, his second in command, floated the square nicely. But I got to do my part because, sure enough, in loading those stones, I stepped on a corner of the setting concrete. The wooden trowel I used to smooth this small surface felt like a musical instrument I hadn’t played in 30 years.

Still, I wasn’t just clumsy. The sidewalk will look better tomorrow. So will I.

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As I Fell

I fell 27 feet to my death on June 1st,, 1970. On the fifth floor of an office tower under construction—I was part of the mason contractor’s crew—I picked up one edge of a 3X3 plywood plank, started pushing it out of my way, and walked into the air. The plywood had covered a square hole in the floor.

It was a long way down. I had all the time I needed to assess my boots, my jeans, my life, and to decide in air that they all required replacements. I turned as I fell, trying to look down, so I landed on my right side. That’s why I never lost consciousness: my head hit the fourth floor, but glancingly, upside it.

The sound I made when I landed was a death rattle as rendered by those huge Marshall amps you still see behind every band in concert—in that moment I thought, this is an exhalation equal to any Poseidon made in obstructing Odysseus, and through meticulous research, I have subsequently determined that its butterfly effect was the oil crisis of 1973.

My right leg was totally purple by the time they got me to the emergency room at Elmhurst Memorial Hospital. So was my right arm. I couldn’t move either. Was I paralyzed? My teeth also hurt. I answered the routine medical questions without opening my mouth. “Yes” sounded like “Ussh.”

My elbow was shattered, the doctors said, but everything else seemed, miraculously, intact. They would operate within the hour, repair the joint with metal screws, and keep me overnight at least. One of my bosses was there in the emergency room. As I remember, so was my father.

I stayed in the hospital for three nights. My girlfriend visited, as did friends who brought six-packs, and that boss from the mason contractor. I was most touched by his solicitude. I had nothing to do except read and drink beer, also ingest pain-killers—some things never change—so I churned my way through Catch-22. The experience was something like reading The Fountainhead two years earlier: here was a license to think yourself apart, so far apart that your abstention from the norms of everyday life, even civilized behavior, was not just sanctioned but sanctified.

I was on the fifth floor of that building under construction because I had been expelled from a small liberal arts college. I needed a real job, not just a summer gig between school years. Now here I was with time and pain and drugs enough to ask myself what I wanted to be when I grew up.  Neither the pilot nor the architect looked like role models.  But then my father didn’t, either.  He was a great bullshitter, a great salesman, he could beguile almost anyone except my mother with his stories about growing up in Chicago.  By his own account, he never did what he wanted to.

That boss showed up, unannounced, at my father’s house one night. I was still in the elbow sling, I hadn’t even started collecting workman’s compensation. The man offered a $1300 settlement to preempt any lawsuit for damages—the super on the job, he explained, had complained about the plywood covers on those square holes as a safety hazard—and my father enthusiastically recommended acceptance.

I wasn’t so sure. But I went along.

I’m glad I did. I took the $1300 and rented an apartment for nine months in DeKalb, Illinois, where my application for admittance to Northern Illinois University had been accepted. I figured I’d go back to college—it had to be better than working construction or pumping gas—but if the professors were morons, as they had been at the previous place, I’d just hole up in my apartment and write a novel. Give it three weeks, I told myself, see what happens.

That self died suddenly when I went to the first day of class. The rest is history.

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Sullivan & Connolly v. Trump 243 US 183 (2016)

Two recent essays have called the sovereignty of the people—the founding, central principle of American politics—into serious question, and with it the notion that democracy is either governable or desirable. Both claim that Donald Trump’s ascendance is the occasion for their interrogations. In New York Magazine, Andrew Sullivan argues that the Donald is the epitome of the tyrant as Plato understood him—as the inevitable offspring of a centrifugal, democratic society with no limits on individual choices or voter preferences, and no intellectual guidance from elites. In the LA Review of Books, Brian Connolly argues that Trump is the return of the repressed, as psychoanalysis understood the imaginary Law of the Father—the castrating will of our dreams.

Connolly makes the better case by insisting that the various attractions of Trump reach beyond the rational, toward unmodulated infantile desires, and therefore must be explained by enlisting Freud and Lacan, not to mention Schmitt, Lefort, Hardt & Negri. He gives us a hilarious post-structuralist accounting of contemporary political crisis. Sullivan gives us a somber, serenely classical accounting of the same phenomenon which leaves out the unconscious, inarticulate urges that constitute—they do not exceed or enliven—modern politics.

But both conclude on the same note: we’re fucked unless we debunk the sovereignty of the people, understood either as unchecked majority rule (Sullivan) or the “latent desire of the people to be subjected to some sovereign authority” (Connolly). Note that this conclusion comes from opposite ends of western intellectual history, indeed from the beginning and the end of western philosophy. Note also that it follows not from any study of modern politics, you know, like what actually happened in between Plato and Lefort—from, say, 1640 to 1970—but rather from theoretical speculations about the symbolic properties of Donald Trump.

Don’t get me wrong, I have nothing against theory as such (I teach the stuff). But when it’s undisciplined by historical questions and methods, it becomes mere license for more theoretical speculation. Then it might as well be metaphysics. So, let me address this question of sovereignty, this problem of democracy, by consulting “original intent”—yeah, those guys.


In early 1787, having made a detailed study of republics ancient and modern, James Madison wrote a memo to himself called “Vices of the Political System of the United States.” This was a long rough draft of the famous Federalist #10. Here he worried about the multiplicity, the mutability, and the injustice of the laws passed by the various states under the diplomatic compact called the Articles of Confederation. But the big problem was the will of the people itself—an “elective despotism,” as Thomas Jefferson himself put it in 1783.

“If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental question of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”

Sound familiar? Andrew Sullivan just got there: “Democracy, for [Plato], I discovered, was a political system of maximal freedom and equality, where every lifestyle is allowed and public offices are filled by lottery. And the longer a democracy lasted, Plato argued, the more democratic it would become. Its freedoms would multiply; its equality spread. . . . And when all the barriers to equality, formal and informal, have been removed; when everyone is equal; when elites are despised and full license is established to do ‘whatever one wants,” you arrive at what might be called late-stage democracy. There is no kowtowing to authority here, let alone to political experience or expertise.”

Uh oh. Unlike Sullivan, however, Madison persevered because he believed in the sovereignty of the people as the sine qua non of republican government. He assumed that the defense of majority rule, and with it the possibility of a legitimate exercise of state power, required a logic that wasn’t circular—a logic that didn’t justify the power of the state, as expressed in law, by reference to power as such, in this instance the power of numbers.

In sum, Madison knew as well as Sullivan that a majority could be as despotic as Plato’s tyrant. What was to be done? How to contain or combat this despotic potential and thus preserve the substance and legitimacy of popular government? Neither a “prudent regard” for the common good nor “respect for character”—for elite opinion—was adequate, according to Madison. But piety was no help, either, because, like other “passions,” it could easily inflame oppressive majorities.

“The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other Passions, is increased by the sympathy of a multitude.”

So, the way to establish a republic on enduring foundations was not to prevent but to prolong the process of majority formation, to devise, as Madison put it, “such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions.”

In place of prudence and character and piety—instead of respect for elite opinion and its attendant hierarchies—Madison proposed, then, to put the structural constraints of a constitution. By this I don’t mean only that he proposed a “limited government” circumscribed by rights guaranteed to individuals, or prerogatives reserved to the states (the Bill of Rights), as enforced by a judiciary that recognized the federalist separation of powers. Of course he did. I mean also that his constitutional design, his “modification of the Sovereignty,” inscribed a difference, and a debate, between what he called “the two cardinal objects of Government, the rights of persons and the rights of property.”

It did so by adopting a “middle mode” through which the legislative branch was divided against itself, and each house became the effective voice of one of those “cardinal objects.” In this sense, Madison proposed to enlist historical time as the bulwark of justice in a society that would inevitably be riven by the differences between what he called “the Class with, and the Class without property”—he proposed to indefinitely prolong the debate between the social classes that had already appeared, in the 18th century, as the bearers of these different rights. The class without property would defend the rights of persons in and through the lower house of the legislatures, including the Congress itself. The class that possessed it would defend the rights of property in the upper house. But both houses would be subject to periodic electoral discovery and pressure.


In a critique of Jefferson’s draft of a constitution for Virginia, Madison explained the historical grounds for this division of labor.

“This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property. The former will be sufficiently guarded by one branch, the latter more particularly by the other. Give all power to property, and the indigent will be oppressed. Give it the latter and the effect may be transposed. Give a defensive share to each and each will be secure. The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution [because the bulk of the revolutionary coalition was small holders].

“In all the Governments which were considered as beacons to republican patriots & lawgivers the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population & American property, the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified.

“Experience and investigation have however produced more correct ideas on the subject. [That is, the study of history has forced the revision of classical and modern republican theory, Aristotle to Montesquieu. As he said in the constitutional convention on June 19, 1787, “According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority.”]

“It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property. It must be foreseen that America, and Kentucky itself will by degrees arrive at this stage of Society, that is some parts of the Union, a very great advance is already made towards it [Kentucky was shorthand for the most verdant lands on the trans-Appalachian frontier, a new Garden of Eden].

“It is well understood that interest leads to injustice as well where the opportunity is presented in bodies of men as to individuals; to an interested majority in a Republic, as to the interested minority in any other form of Government. The time to guard against this danger is at the first forming of the Constitution, and in the present state of population when the bulk of the people have a sufficient interest in possession or in prospect to be attached to the rights of property, without being insufficiently attached to the rights of persons. Liberty not less than justice pleads for the policy here recommended.

“If all power be suffered to slide into hands not interested in the rights of property which must be the case whenever a majority fall under that description, one of two things cannot fail to happen; either they will unite against the other description and become the dupes & instruments of ambition, or their poverty & dependence will render them the necessary instruments of wealth. In either case liberty will be subverted: in the first by a despotism growing out of anarchy; in the second, by an oligarchy founded on corruption.”

That last paragraph sounds like a Platonic prophecy along the lines drawn by Andrew Sullivan. Except that Madison never doubted that majority rule was the necessary if not the sufficient condition of popular government. In the convention, on June 26, 1787, he said this:

“An increase of population will of necessity increase the proportion of those who labor under all the hardships of life & secretly sigh for a more distribution of its blessings. These may in time outnumber those who are [placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. How is this danger to be guarded against on republican principles?” In other words, how to preserve both liberty and equality? How to treat both the rights of property and the rights of persons as commensurable commitments? How to embrace majority rule without enabling an “elective despotism”?

Nor did Madison ever think that a “natural aristocracy” of well-educated men with good character—an elite—could contain or guide the unruly energies of the proletarian masses. He always believed that the constitutional structures he designed would convert passions to interests, and that insofar as economic development created more and more interests, an oligarchy founded on corruption was unlikely if not impossible.


He was more or less correct until our own time. Even in the so-called Gilded Age, when the robber barons bestrode the earth, the rights of persons and the rights of property were reconciled at the law and in the larger political debates of the time, which culminated in the remarkable reform movements and legislation of the Progressive Era. In our time, at the moment variegated social movements have successfully asserted the rights of persons—all persons, not just white males—the Supreme Court has announced that the rights of property are identical to the rights of persons, thus repudiating the “original intent” of James Madison, a founder if ever there was one.

Yes, corporations have enjoyed the standing of “persons” entitled to due process at the law since the Santa Clara decision of 1886; but until Citizens United in 2010, the Supreme Court held to the distinction between natural and corporate persons enunciated in the 1906 decision in Northwestern National Insurance Co. v. Riggs 203 US 243 (1906), and accordingly denied that corporate political expenditures were a form of free speech to be protected by the 1st Amendment. Sullivan is right to suggest that the power of money in politics is overrated. He is wrong to suggest that its power is negligible, or to deny that an oligarchy founded on corruption has been validated by the Court.

And he is wrong to suggest that Donald Trump is the beneficiary of “late-democracy,” when unchecked majorities supposedly trample decency, technical expertise, higher purpose—goods available where elite opinion is on sale. If majorities mattered that much, the Affordable Care Act would be a single-payer system, or some such extension of Medicare. If majorities mattered that much, the Republican Party’s rearguard actions against civil rights, gender equity, sexual freedoms, etc.—the content of the cultural revolution of our time—couldn’t have stalled social progress for so long. If majorities mattered that much, George W. Bush wouldn’t have been elected president, and couldn’t have started a pointless, pitiless war.

Sullivan’s detour into history comes late, in the 21st century, and when he gets there his fundamental complaint is against “media democracy,” the culmination and emblem of the late-stage kind. At first the Internet held political promise and journalistic possibilities, but by now it’s a melee at best: “The web’s algorithms all but removed any editorial judgment . . . And what fuels this [melee] is precisely what the Founders feared about democratic culture: feeling, emotion, and narcissism, rather than reason, empiricism, and public-spiritedness.”

Barack Obama was the first beneficiary of media democracy, according to this tragic account. Trump is the next: “He intuitively grasped the vanishing authority of American political and media elites.”

This is the pivot of the argument: chaos and demagogues rule when elites cannot. Sullivan cites Sinclair Lewis’s It Can’t Happen Here (1935) to chide himself and his fellow “respectables” for abdicating their responsibility to govern. “’We Respectables’ deserve a comeuppance. The vital and valid lesson the Trump phenomenon is that if elites cannot govern by compromise, someone outside will eventually try to govern by popular passion and brute force.”

Sullivan admits that since 2001, elites on Wall Street and in Washington have brought us economic, social, and political catastrophe on a global scale. But he ignores the simple fact that what he calls the “media elites”—from the New York Times and the New Yorker to The Atlantic and The New Republic—have cheered them on. As part of that crew, he did he, too, in 2003, by supporting Bush’s insane martial adventure in Iraq.

Why, then, should we want these people telling us what to do? Sullivan has the answer! Sort of. “But elites still matter in a democracy. They matter not because they are democracy’s enemy but because they provide the critical ingredient to save democracy from itself.”

And that ingredient? Sullivan never names it. Instead, he claims that to support the “demagogue of the left, Bernie Sanders,” is to play into Trump’s hand, and recommends solidarity with Republicans who would deny the Donald the nomination. Thanks, Andrew, really useful advice. Who are you offering it to?


I’ll spend less time with Brian Connolly’s essay because I enjoyed it so much and—full disclosure—because he’s a former student of mine at Rutgers. I don’t want to get the reputation of a castrating father, the role Connolly has devised for the Donald.

Now I’m as much an admirer of Freud and Lacan (also Lefort or Hardt & Negri) as Connolly is. But after reading this piece, I still don’t see how to apply Carl Schmitt’s notions of sovereignty and the “exception” to Trump except as hyperbole, just as I don’t see how Sullivan’s citation of Plato permits a portrayal of Trump as the tyrant in waiting.

The sovereignty of the people, as the founders conceived it, was never something indivisible, as in Dick Cheney’s dreams of a “unitary executive.” They sponsored a dispersal of power from the state to society, and from the center to the periphery, in two novel ways. On the hand, they claimed that sovereignty was “out of doors,” with the people in all their diversity and idiocy. Its address wasn’t the king, or the state, or the cabinet, or the ministers, or the president, or the legislature—its permanent residence was civil society. On the other hand, they treated the territories not as conquered, colonized hinterland to be merely exploited for the enrichment of the original states, but as “new countries,” states that would, upon admission to the Union, function as equals in the national government. They dismantled what Connolly calls the “colonial structure of sovereignty.”

As Connolly’s quote from Claude Lefort illustrates quite forcefully, and as his citation of Hardt & Negri would suggest, the idea of democracy and its alter ego, the commitment to popular sovereignty, are predicated on this very dispersal of power. Here’s Lefort on democracy: it “inaugurates a history in which people experience a fundamental indeterminacy as to the basis of power, law and knowledge.”

Connolly claims that the tension between freedom and subjection characterizes the issue of sovereignty, whether of a nation or an individual, and has now reached the point where subjection to the Primal Father feels like freedom. But here’s the thing. There is no freedom without subjection, as Tom Paine pointed out in 1776—absent society, absent a division of labor, you might as well be an animal, and even they run in packs. In the 19th century, and not until then, freedom finally came to mean self-rule, but that meant obedience to rules of your own making.

The sovereign, no less punishing image produced by this new figure—the American Adam, as we came to know him—was the self-made man, the father of himself. Freedom suddenly meant self-discipline, subjection to self-imposed limits and commitment to self-determined goals.

The question of sovereignty disappears in the last half of Connolly’s essay, much to my relief and delight; there it gets replaced by the fear of castration. There are 15 mentions of castration in the last nine pages, all of them designed to prove that we, the people, or at any rate Trump supporters, love the phallus wielded by this primal father, the “real but impossible masculine,” the guy who goes around castrating everybody in sight, from female Fox News reporters to pathetic Republican candidates like Marco and Jeb. For me, a who guy diagnoses castration anxiety in machinists of the early 20th century, this makes sense, but there are only about eight others outside of Zizek’s circle who might agree.

Still, I think Connolly is onto something, because, unlike Sullivan, he’s listening to the music as well as hearing the lyrics.



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The Inversion of Minstrelsy

The politics of art—any art—can’t be understood by holding it to the standard of historical accuracy. What the work “represents” may not, and often is not, a real event from the past, even when it’s apparently set in a specific moment of the past.

So my fellow historians quoted in the Times this morning have completely missed the point of “Hamilton,” which is not merely to depict the founding of the United States but to revisit and repudiate the conventions of minstrelsy–the most popular theatrical form in America from the 1850s into the 1920s. Hamilton’s political achievements and philosophy are incidental to the larger and more important purpose of rearranging our assumptions, ideas, and attitudes about where race fits in the imagined community we call America.

On this stage, no white faces, no black masks, no stereotypically shiftless fools. No blackface, just black faces as founders, as the people who built this country from scratch. No more permission for white men to project their fears and their hopes of release from necessity, obligation, and restraint onto the bodies of black men, or rather onto a grotesque caricature of the black male—which was precisely what Sambo and Jumpin’ Jim Crow made possible at the minstrel show. Also what more recent remarks from an ex-president about urban predators still make possible.

Yes, singing and dancing, but no celebration of a narrative end to repression. Just the reverse.   These are serious, self-conscious men and women (characters, to be sure) who sacrifice themselves to the future that we, as citizens, have inherited.

When I read the Times story today, I immediately thought of Nathan Huggins’s brilliant gloss on Frantz Fanon in the last chapter of Harlem Renaissance (1971). Here’s a passage worth pondering when you think about what Lin-Manuel has attempted and accomplished with his magnificent opera—when you realize that he has made the minstrel show and all its distant echoes impossible, unbearable.  Having seen it, you can’t think about the relation between race and nation the way you did when you arrived, regardless of what you know about American history.

“White men put on black masks and became another self [in minstrelsy], one which was loose of limb, innocent of obligation to anything outside itself, indifferent to success . . . and thus a creature devoid of tension and deep anxiety. The verisimilitude of this persona to actual Negroes, who were around to be seen, was at best incidental. For the white man who put on the black mask modeled himself after a subjective black man—a black man of lust and passion and natural freedom (license) which white men carried within themselves and harbored with both fascination and dread. It was the self that white men might become—would become—except for the civilizing restraints of character and order that kept the tension real. How much better it was to have that other self in a mask, on stage, objectified as it were.” (pp. 253-54; cf. 268-69)

I think Ron Chernow’s portrait of Hamilton is close to absurd–the man was afraid of democracy and thought the republic could survive only by cementing the interests of the “moneyed men” (his locution) and the new state, by means of a national debt and the Bank of the US.  So I  think Lin-Manuel’s portrayal of Hamilton as an historical figure is also close to absurd.  That doesn’t matter.

What matters is that Lin-Manuel has re-imagined this nation.  He’s let us in on the secret of its resilience: it lasts only as long as we know it’s always in need of a new birth of freedom.

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