Ken Burns and the whitewashing of Benjamin Franklin

Ken Burns has a new documentary out about Benjamin Franklin, and it’s not entirely bad – well-paced, beautifully shot, but more than a bit on the bland side thanks to sponsors like Bank of America and Pew Charitable Trust and Burn’s own soft-core patriotism.  (See my review here.)  But the movie raises a point about the Declaration of Independence that’s worth exploring.

Benjamin Franklin: Deluded

It concerns the declaration’s most famous line.  Thomas Jefferson originally rendered it as, “We hold these truths to be sacred and undeniable,” but Franklin, a master of plain speaking, blue-penciled the last three words and substituted “self-evident” instead.  The result was pithier, more secular, and also more mathematical in that it paved the way for a document constructed much like a Euclidean theorem.  The declaration thus began with a series of axioms to the effect that all men are created equal, that they are endowed with certain inalienable rights, and “that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  It then marshaled evidence in the form of a lengthy bill of indictment charging George III with “repeated injuries and usurpations all having in direct object the establishment of an absolute tyranny over these states.”  Finally, it arrived at a conclusion: since Britain aimed to reduce Americans to slavery and since the colonists had the same right of self-government as everybody else, then it followed that “these united colonies are, and of right ought to be, free and independent states.”

QED, as the math textbooks say.  The declaration “proved” that Americans had a right to go their own way.  But then Burns brings in a Columbia historian named Christopher Brown to zero in on a crucial contradiction:

“To say something is self-evident, to say that it’s common sense, is to say that there’s no other way to think about this, that only an irrational person who’s not using their mind correctly could contend with this thing, which is in fact really contentious.  It’s a classic lawyer’s trick to say, ‘We all agree to this thing.’  Who’s ‘we’?   The ‘we’ is presumptuous.”  (Quote begins at 30:04.)

Brown is right for the simple reason that Euclidean methodology is more paradoxical than it initially appears.  As readers may recall from high school, the purpose of an axiom is to provide a foundation with which to build a larger system of geometry.  Euclid began with just five, including the famous parallel postulate holding that parallel lines never meet.  From there, he went on to demonstrate how they could be used to generate a seemingly endless number of theorems about triangles, squares, rectangles, and so on.  It’s fascinating but problematic: all that system-building comes at a price since once you accept such axioms as your starting point, you essentially rule them off-limits to further inspection.  You can almost hear the wise guy in the back row raising his hand and asking how we know that parallel lines never meet.  To which the teacher can only respond: we just do – end of discussion.  The instructor must close off one avenue of inquiry so others can open up.

This may be what Brown means by “presumptuous.”  When it comes to such “self-evident” axioms, everyone must agree that “there’s no other way to think about this” so that the task of system-building can proceed. 

But imagine if the founders had not been in such a hurry.  Imagine if instead of accepting such axioms as givens, they had opened them up to debate.  Slaves, presumably, would have had something to say about all men being created equal when 20 percent of the population was in chains.  So would Native Americans since it was clear that the first thing the colonists would do upon casting off British rule would be to embark on a hell-for-leather western land grab.  The same goes for the 50 percent of the population that was female.  Did “men” refer to humanity in general or just the half that was male?  It’s a safe bet that women who had previously remained silent on such topics would suddenly have had much to say.  As someone who would enslave some 600 people over the course of his lifetime and father six children by a slave named Sally Hemings, Jefferson would also have had some ’splainin’ to do.

Which is why the founders preferred to toss off a few airy generalities before getting on with the business at hand, which was declaring independence.  Although often described as a forerunner of the French Revolution, the American revolution was in many ways the opposite.  In contrast to the French national assembly in which members raged at one another to boos and cheers from the galleries, the Constitutional Convention, which was held in secret, was a decorous affair in which debate was stilted and constrained.  Delegates didn’t passionately denounce the ancien régime for the simple reason that most didn’t view the ancien régime as entirely bad.  To the contrary, their goal was to turn back the clock to the ancien régime that existed prior to the mid-1760s when London was content to leave the colonies more or less on their own.  Instead of advancing into a brave new world, their goal was to return to the easy-going regime that had existed in the past.

This was a revolution in the pre-modern sense of society revolving in place.  A sense of this restorationist spirit can be gleaned from an interview that a certain Captain Preston, a 91-year-old veteran of the Battle of Concord, gave in 1842.  The exchange went like this:

Did you take up arms against intolerable oppressions?

Oppressions?  I didn’t feel them.

What, were you not oppressed by the Stamp Act?

I never saw one of those stamps.  I certainly never paid a penny for one of them.

Well, what then about the tea tax?

I never drank a drop of the stuff; the boys threw it all overboard.

Then I suppose you had been reading Harrington or Sidney and Locke about the eternal principles of liberty?

Never heard of ’em.  We read only the Bible, the Catechism, Watts’ Psalms and Hymns, and the Almanac.

Well, then, what was the matter?  And what did you mean in going to the fight?

Young man, what we meant in going for those redcoats was this: we always had governed ourselves, and we always meant to.  They didn’t mean we should.[1]

Oddly enough, it was the Tories who were in favor of change while the “Old Whigs,” another word for the Patriot party, were opposed.  Eventually, Americans were forced to jettison such conservatism when the 1783 Articles of Confederation proved inadequate and they had no choice but to adopt a new constitution providing for an unprecedented degree of centralization.  But their reluctance was apparent.  While granting some powers to the new government, they specified in the Ninth and Tenth Amendments that all others would be “retained by the people” and that rights not expressly granted to the central authorities would be “reserved to the states.”  The language was foggy, but the underlying sentiment was clear.  While granting certain concessions to the new order, voters did so only under duress.

The contradiction was especially evident with regard to the class question, which is a good deal more complex than simple-minded populists like Staughton Lynd or Charles Beard would have us believe.  The French Revolution, as everyone knows, ended up sending the aristocrats to the guillotine.  But America’s sans-culottes, people like Sam Adams and the Sons of Liberty, did not.  Instead of chopping off the heads of the Virginia gentry, the closest thing America had to a native aristocracy, they deferred to people like Madison, Jefferson, and Washington, looked up to them, and wound up granting them more power than they ever enjoyed previously.  For “four score and seven years,” the sans-culottes – who were in fact an incipient bourgeoisie – took a back seat until society finally exploded in 1861.

The same goes for slavery. Instead of abolishing it as the French did in 1794, the Americans strengthened it to the point where it was virtually impregnable.  The three-fifths clause gave southern states as many as 25 extra seats in the House and an equal number of extra votes in the Electoral College.  Equal state representation in the Senate gave them a lock on both federal legislation and the constitutional amending process, a veto northern states couldn’t break no matter how much their population surged due to mass immigration.  Article I, section eight, required the feds to put down slave insurrections, while Article IV, section two, required northerners to return runaway slaves.

This was a change, certainly, since northerners had been under no obligation to return runaways before.  But it was change in defense of a pre-existing condition.  The result was a bizarre hybrid that was not only half slave and half free, but half democratic and half tyrannical, half progressive and half reactionary.  More than two centuries, the situation is essentially unchanged as American pseudo-democracy goes rushing backwards.

Burns ends his film with a description of how Franklin, after taking part in the Constitutional Convention in 1787, capped his career by taking on the presidency of the country’s first major abolitionist organization, the Pennsylvania Society for Promoting the Abolition of Slavery, and then presenting Congress with a petition declaring that the blessings of liberty cited in the Preamble “ought rightfully to be administered without distinction of color.”  Needless to say, Congress rejected it out of hand.

Burns presents it as a heroic gesture by one of the greatest men America ever produced.  But considering that Franklin had helped draft a constitution that strengthened slavery, it sounds like the final act of an old man who had deluded himself about the political structure he had just created and was now busily deluding others.

[1] Samuel Eliot Morison, The Oxford History of the American People (New York: New American Library, 1972), vol. 1, p. 284.

The “broken” Supreme Court confirmation process

Ketanji Brown Jackson

Now that Susan Collins, the moderate Republican from Maine, has announced that she’ll vote to confirm Ketanji Brown Jackson, it looks like her Supreme Court appointment is assured.  Spoil-sport Kyrsten Sinema is still sitting on the fence.  But it doesn’t matter because Jackson has 50 senators in her corner, enough to put her over the top with Vice President Kamala Harris casting the tie-breaking vote.

Not that it matters, though.  Jackson will be replacing liberal Stephen Breyer, who is stepping down after 27 years.  So despite her appointment, the court’s conservative majority will remain unchanged at 6-3.  Thanks to modern medicine, the two oldest conservatives, Clarence Thomas and Sam Alito, both 73, will likely go on handing down decisions for another decade or more, which means that the Supreme Court’s conservative dictatorship could continue well into the mid-2030s.  Jackson doesn’t change that a bit.

But the nomination does matter in one respect, i.e. what it says about the process.  The verdict is not good.  The New York Times says that “Republican manhandling” of the nominee, behavior that included asking about her religion, her racial views, allegations that she’s soft on child porn, etc., shows that the “confirmation process is irredeemably broken.”  “Broken” is also the word that Bloomberg News used to describe the Amy Coney Barrett confirmation process in 2020 and how ABC News described the tumultuous Brett Kavanaugh hearings two years earlier.  

So broken it is.  But this leads to the big question: why, precisely, has the confirmation process plunged to such abysmal depths?  For the pro-Democratic press, which includes just about everyone except for Fox News, the answer is easy: Republicans have taken a deep dive into racial backlash and QAnon freakdom, and their ridiculous questioning concerning Jackson’s views on Critical Race Theory and kiddie porn shows it.  And they’re right – except that Dems went equally bonkers over Kavanaugh and Barrett.  (See “The Great Kavanaugh Freakout” below.)  Either both parties have gone crazy at the exact same moment or something deeper is going on.

Needless to say, it’s the latter.

Basically, the real issue at hand is one of meaning and interpretation.  You don’t have to labor through William Empson’s Seven Types of Ambiguity to know that meaning is problematic and that clarity only emerges as part of an on-going dialectical struggle.  Anyone who’s married knows how it goes.  “But that’s not what I meant,” one spouse will say, whereupon the other will reply, “Then what did you mean?”  Only after an extended give-and-take does the answer begin to come out.

The concept of a living Constitution, that old liberal mainstay, assumes something similar, i.e. collective engagement by the courts, the people, Congress, etc. in the process of figuring out what it says about any given topic.  Because the document has so many layers of meaning, only the constitutional system as a whole, with all its various institutions and organs, is capable of sorting it all out.  But the concept opens itself up to attack from conservatives who invariably complain that the purpose of endless chatter about penumbras and emanations is to cover up for the fact that liberals are torturing the text to make it say what they want.  What’s the point of a Constitution if Democrats get to change its meaning at will?

Hence the great conservative backlash of the 1980s.  The battle began with Ronald Reagan’s nomination of Robert Bork in 1987.  Bork’s position was as plain as the text he proposed to explicate.  Liberal jurists, he said, should adhere to the clear meaning of the Constitution, and if they don’t like what it says, then they should avail themselves of the amending clause in Article V to change it.  Interpretation was to be reined in. But Bork was more than a bit disingenuous since, as he well knew, the amending clause is so dysfunctional that it allows impossibly small minorities – as little as 4.4 percent according to the latest census figures – to block even the most modest constitutional reforms.  This is why Americans are forever agonizing about the Second Amendment: because an infinitesimal number of rural Americans are determined to veto any textual emendation aimed at clearing it up and they have the power under the Constitution to make their views stick.

Bork’s modest proposal would thus cripple liberals for decades to come. Their only option, therefore, was to up the rhetoric to the highest possible level.  Declared Teddy Kennedy in a nationwide TV address:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Wow!  NAACP executive director Benjamin Hooks added of the Bork nomination: “We will fight it all the way – until hell freezes over, and then we’ll skate across on the ice.”

Liberals cheered and cheered.  But what no one had the guts or the analytical ability to point out is that Bork was not the problem – the amending clause was.  The more difficult the clause, the more frozen the constitutional structure and hence the greater the dependency of liberals on the miracle of interpretation to break through the ice.  

Since Congress was by this point dysfunctional as well, the Supreme Court rose in importance and the battles over each new nominee grew more and more vicious.  Kavanaugh – whom the liberal Yale law prof Akhil Reed Amar said “commands wide and deep respect among scholars, lawyers, and jurists” – ran into a MeToo wave of hysteria thanks to the dubious testimony of Christine Blasey Ford.  Amy Coney Barrett ran into religious bigotry on the part of Dianne Feinstein – “The dogma lives loudly within you,” the California Democrat memorably declared – while Jackson ran into racism on the part of Ted Cruz.

Each side is more disgraceful than the other.  But it’s not their fault, at least not directly, because the real problem lies not with people like Josh Hawley or Lindsey Graham, however reprehensible they may be.  Rather, it lies with a political structure that grows more frozen by the year.  This is the elephant in the room that no one knows what to do about, least of all office-holders who have taken an oath to preserve, protect, and defend a document that is beyond decrepit.  So they all pretend that the problem doesn’t exist.  Could anything be more pathetic?