Author: Gregory Rodriguez

The U.S. Supreme Court’s reversal of Roe v. Wade is a blow to the American body politic.  Worse yet, it is part of a larger war over the architecture of American governance. The decision exposes a dangerous tension between two competing theories of power that the Framers of the Constitution left unsettled.  Three years ago, I had the great pleasure of interviewing historian Gary Gerstle about some of the key ideas in his landmark 2015 book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present. Clear, measured, and sweeping in his vision, Gerstle, who teaches American history at Cambridge, has the rare gift of being able to speak as intelligibly as he writes.  He explains the improvisational strategies with which the U.S. has developed an increasingly strong central government—something the Framers explicitly discouraged.  His analysis suggests that America’s contemporary system of governance is built on an insecure foundation, and that we may have to brace ourselves for more earthquakes ahead. This interview was edited for clarity.

Gregory:     So you’ve essentially explained the history of American governance. What are the two essential theories of power or theories of governance that the U.S. adheres to, is forced to balance?

Gary:          Well, one theory is very familiar to everyone who knows something about America. And that is the notion that the power of government needs to be limited. America was founded against George III and his overweening power. And as he exercised that power, personally and through parliament, it came to be seen in the colonies as the ultimate source of tyranny. So to fashion a meaningful liberty, the power of the government had to be curtailed, had to be limited, and had to be fragmented. This is written into the Constitution and, so far as students in America still take civics lessons, they learn about the separation of powers; they learn about the fragmentation of government into central government states, municipalities; they learn about the emphasis on curtailing the ability of any single government source to exercise influence over an individual. This is best encapsulated in the New Hampshire license plates that say “Live Free or Die”.

Gary:          I mean it’s a crazy thing to put on a license plate if you think about it for a moment– but what are they talking about? The only way to live free is to be free of government surveillance of your life. That is foundational to the story that Americans tell about themselves. That is also what later is going to be called, and we may get into this discussion later, negative liberty, which means liberty from something. You’re only free if you can get institutions that are governing your lives out of the way. So this is seen as being central to the American Revolution and hence the story of America being a free society, meaning a society not governed powerfully from a national capitol with a big bureaucracy and a large administration: Americans experience their freedom by having a distant government strictly limited in its power.

Gary:          Now we’re dealing with this at the level of blueprint and myth. We can talk about what that government actually does and doesn’t do at another time, but this is part of the myth of America and it lives on incredibly powerfully today in the Republican Party, it’s something that all kinds of Americans still do believe today.

Gregory:     And yet, there’s another theory of power ensconced in the U.S. system of government.

Gary:          Yes. There is a very different theory of power and this is a theory of power that is ensconced in the states and not in the central government. It’s got a very strange name. It’s called “The Police Power” and does not refer to the common modern sense of what police do, which is law and order, arrest criminals, stop crime, protect property. The police power in the 18th century sense says that the government has the responsibility to look after the good and welfare of the commonwealth, which means looking after the welfare of the people.

Gary:          It’s a very broad charter of powers. It says the government must step in to do all sorts of things: educate people, pick up rotting carcasses in the street, improve morals, enforce the Sabbath, enforce rules and morals, govern sexuality and private life. It’s an extraordinarily broad charter of powers. It’s unknown to most Americans, incredibly. And so if I were to mention to someone walking down the street, tell me about the police power, they’ll start talking about the local cops and rounding people up and putting them in jail. But the idea that this is a much larger charter of power, it’s invested in the state legislatures, not in the central government, is a carryover from 18th century Britain, where it was called the public police. And in this moment when Americans are creating this very limited central government wanting to protect individuals against the tyranny of the central government, they are investing their state governments with extraordinary, almost unchecked power.

Gary:          And here’s the way in which you can understand how broad this power is. Every American knows about the Bill of Rights. What is the Bill of Rights? The Bill of Rights says there is, at its core, I’m not going to list the different freedoms and liberties it enshrines, but at its core is the belief that surrounding every individual, there must be a sphere that is inviolable and no government can touch that person in his privacy or in his speech or hers or her religion—except under the most extraordinary circumstances. It’s very celebrated in terms of what Americans do. It turns out that the Bill of Rights does not apply to the states. It applies only to the federal government.

Gary:          So the First Amendment says, Congress shall make no law abridging freedom of speech or religion. Now, when I read that for most of my adult life, I just thought, well no one in America can make a law abridging freedom of speech and religion. While it turns out, the courts interpret that literally. Congress can make no law abridging freedom of speech and religion, but it does not apply to what the state governments can and cannot do.

Gregory:     Who decided–and why did they decide–to allow the states to maintain this kind of power that they didn’t want the central government to have?

Gary:          This remains something of a mystery to me.

Gregory:     What is your theory? 

Gary:          Well, I have several theories and I’ll share them with you. One is that, the most benign theory is this, that they, the Americans of the late 18th century, are engaged in a revolution. They’re getting rid of a king. They’re inventing a revolutionary kind of politics, which on the one hand is tremendously exciting. On the other hand, it’s tremendously scary. They are in their own minds establishing a republic, which is a polity in which the people are sovereign. But they were worried by the history of republics and that republics can degenerate into democracy. And democracy is a bad word in the 18th century among a lot of people because it meant the rule of the mob.

Gary:          So how do you protect liberty and how do you make the people sovereign and how do you ensure that this won’t descend into anarchy? And so in this moment of incredible creativity, there is nervousness that they won’t have enough order, that the people will literally run amok. So some institution of government has to be invested with the traditional sort of power. What institution should be invested with this power? Not the central government, which is identified as the locus of tyranny, but state governments. Because after all, they are the governments closest to the people. And plus, the state governments operate according to state constitutions, which unlike the federal constitution, are easy to change. So if you invest a lot of this power in state governments, you are in a sense giving it to the people. And the people most of the time are not going to do anything wrong. And if they, because they’re the people and there’s a tremendous belief in that, and if they do do something wrong, they will step in to change the constitution.

Gregory:     So, one; It may have been an insurance policy.

Gary:          Yes.

Gregory:     Two; It was justified because states were representative of people and people wouldn’t do that to themselves. But you also mentioned another possibility that the understanding of the late 18th century of classical liberalism was imperfect.

Gary:          Yes.

Gregory:     So in other words, the framers may not have fully understood…

Gary:          The consequences of their action. That is correct. So they developed a theory of government tyranny that pertained to a government that was distant, ruled by a king or a powerful executive. Many of the founders didn’t really think that governments that were close to the people would behave in nasty ways. They thought that if you really invested the people with the right power, they would do the right thing. And they hadn’t reached the point of saying, there will be a day when any government, no matter how far from the people are close to them, will do something wrong and will violate the right of an individual or a minority that should not be violated. That was not part of the democratic theory at the time. So you could say a lot of them just didn’t worry about it. It was not a problem. They had trouble imagining how the people would oppress themselves.

Gregory:     Those are two rather benign theories.

Gary:          Now there’s a more malignant explanation for this that I ought to raise. The Bill of Rights only refers to the rights of persons. It refers to the rights of persons much more rigorously than the Constitution, in the Constitution you have the concept of other persons, other persons refers to slaves. There was no conception of other persons in the Bill of Rights.

Gary:          There is the possibility lurking underneath this that when James Madison, who is someone who sees clearly the problems that are going to arise if the states are not made subservient to the Bill of Rights. He says, at the end of the day we’ve got to have an 11th amendment making the states subservient to the Bill of Rights. And even his fellow Virginians won’t give them any time of day for that. And you asked why did this critical crafter of the Constitution, why was he greeted with such silence about this? Well, I think it’s possible that some of his fellow Virginians and other Southerners thought that this Bill of Rights, if made incumbent upon the states, could be used to undermine slavery.

Gary:          Because at the end of the day, the states were responsible for whether there would be slavery or not with regard to peoples of African descent. And if you made the Bill of Rights, which talks about the rights of persons, incumbent upon the states, what would stop a slave, who was a person–and no one denied the personhood of slaves–what would deny that person the right to go to court and to demand liberties promised in the Bill of Rights?

Gregory:     This is a hunch of yours? This is a theory of yours?

Gary:          This is a hunch; this is a theory of mine. And various historians hint at it, but they don’t discuss it fully. The grand compromise of the Constitution had already been agreed to, that the issue of slavery would be left to the states. Slavery would be protected in those states that wish to protect it. And so lurking in my thinking is the possibility that, if the Bill of Rights was made incumbent upon the states, there was this understanding that this would upend the great compromise of the Constitution.

Gregory:     Could this also have derived from the fact that there was competition among the states and they wanted to preserve some power unto themselves?

Gary:          Yes. Yes. Yes. Several of the original 13 states had been colonies for more than a hundred years. In other words, they were long-standing entities. They had long-standing powers. They had long-standing systems of representation. They were connected to the metropole of London more closely than they were connected to each other. And so another explanation is simply they were loath to give up more power than they needed to because the representatives of the states in the Constitutional Convention were representing political entities that had existed in their own minds for a long period of time. And they were reluctant to give up too many of the privileges that they thought would transfer from the colonies to the states.

Gregory:     So you have a variety of theories, but is your hunch that this was a singular decision or was it a series of political compromises?

Gary:          I think we will never find the smoking gun as to why the states were left with this extraordinary and unexamined power. I think I’m floating various theories because I don’t think it was decided in a day. And I don’t think it was decided directly. If you searched the Constitutional Convention, you will not find lengthy debates about this. And so this was a way of, I think, of making a set of insurance policies for people who who were concerned with different risks all saw in this set of powers given to the states a kind of insurance. That made them more comfortable with the radical experiment and central government power that they were creating.

***

Gregory:     You have identified three strategies that have powered what you have called the “improvisational central state-building project” in the United States. What are those three strategies and could you give examples of how each was used?

Gary:          Yes. Let me give you a bit of background first. I think it has to be granted that the states have robust powers and they can do a lot of things and the central government is sharply limited in its powers. While there are certain things the states can’t do, like build a transcontinental railroad. One state can’t build a railroad across the country. The states can’t effectively fight a war. They can’t have their own currency systems. There are things that need central government power. And so the question becomes, by after the Civil War in the late 19th century, there’s increasing demand by the people of America on the central government to do things, to build railroads, to build infrastructure, to build roads, to create incentives for Industrialization to regulate industry.

Gary:          Because the central government did not have a clear charter of powers to regulate industry, to take care of the morals of the American people, which the states are perceived as failing to do. So there are increasing demands on a central government that is formally limited in its power. So the question becomes, how does a central government formerly limited in its powers get additional powers? In a situation where the Constitution for all intents and purposes can’t be changed unless you fight a civil war. And the US is not ready in the late 19th century to fight a second civil war. The Civil War amendments were relatively easy because if you kick a third of the states out of the Union, it becomes much easier to get a constitutional amendment through Congress and through all the state legislatures. But with all the states present with all their varying interests, amending the Constitution is in normal times a near impossibility.

Gregory:     What were the forces in the late 19th century that led to a growing demand for a stronger central government?

Gary:          One is the country is expanding and it sees its future in expansion. And first it’s contiguous expansion. And then after 1898 it’s international expansion. It is: How do you govern colonies? Where are the powers to govern colonies come from? What will Hawaii be? What will the Philippines be? What will Puerto Rico be? So part of it is expansion and how do you govern these different kinds of territories and different kinds of peoples, not anticipated by the original Constitution. Another is that the US is interested in economic expansion. It senses within itself the capacity to be the major industrial player in the world and that can’t be done without government incentives. And then when the inequities of capitalist development become manifest, who’s going to have the power to step in to regulate industry capitalism and its own interests and who’s got to have the power to give workers and others who are suffering the costs of industrialization a better deal?        

Gary:          There is an intensification of the problems that we now associate with capitalist development, which is patterns of economic booms, which become speculatory booms followed by busts. And so once you have an economy that is growing by boom and bust, you have not simply economic expansion but severe contraction. You have the intensification of severe social conflict in America in the 19th century. So there are fears that the Republic can’t hold with the antagonisms between farmers and railroads, the antagonisms between Andrew Carnegie and his steel workers on the one hand and the steel workers who are working for him on the other who are working under very difficult circumstances, the number of people who can’t get decent jobs or who can’t support themselves.

Gary:          These problems are becoming so severe that there is a feeling that some force outside of industry or labor has to step in to regulate industrialization. And of course industry is also accompanied by, everywhere in the world, intensive urbanization. So the United States had been dispersed agricultural land, and suddenly it’s got these big cities and huge numbers of people living together often uneasily because the demands for labor are so high, a lot of people are being brought in from abroad. And so in these urban areas you have a clash of cultures, you have a clash of morals, you have clashes of religion and people are living in circumstances that are economically harsh.

Gary:          Not enough provision is made for housing and sanitation and all the things that go with big city life. And all these issues are percolating and overwhelming America in the late 19th and early 20th century. And the states are failing to do this work. And in part they can’t because the corporations are bigger than any single state. And what you might regulate in one state doesn’t work in another. Or if you regulate a corporation too much in New York, it’ll pull up its stakes and go to Alabama or Texas where the laws are less severe. And so a demand arises for some kind of a national regulation to get a tremendously chaotically expanding economy under control.

Gregory:     And so the demand for national regulation puts pressure on the central government, which does not have the authority. Which leads to the development of these three improvisational state-building strategies.

Gary:          Exemption, surrogacy, and privatization. Exemption and privatization are the two easiest to understand. Exemption simply says the government is going to exempt itself from Constitutional constraints in these areas. And they tend to be issues that the government is involved in beyond the formal borders of the country. Immigration is defined as exempted. So immigration is not covered by the Bill of Rights or Constitutional guarantees. So if you want to exclude Chinese from coming to the country as the United States government decided to do in 1882, you can do it. If you want to throw Mexicans out and  deport them from the country, these Mexicans are going to have very few rights. This gets defined as an activity that is exempt from Constitutional scrutiny.

Gary:          Also, the possession of colonies: up until 1898 any territory taken by the United States is considered to be an incorporated territory. It’s a legal term, which means if it’s incorporated it will be put on the road to statehood. Well, the US government is not sure it wants to put Puerto Rico, Hawaii, and the Philippines on the road to statehood. Hawaii is put on the road to statehood, Puerto Rico and the Philippines are not, so a new term is invented for those lands which is called the unincorporated territory, which exempts the US government from having to put these territories on the path to statehood. Which means they have no right to be self-governed.

Gregory:     So, exemption applies to gray areas in which there is no Constitutional authority. Did no legislators at any point say we must create laws that would put this gray area under Constitutional authority?

Gary:          Yes. Yes.

Gregory:     What were those discussions and debates like?

Gary:          These debates were furious. Some Americans said what distinguishes America is that when America expands, it doesn’t treat the newly acquired lands as colonies of the original metropole. Right? We can imagine a different form of political development in America where the 13 colonies remained supreme forever and Texas and Kansas and California, the state in which this interview is occurring, will be something else. They will be subservient to the others. So the US has a mechanism for spreading the fruits of self-government everywhere. So some people are saying we can’t invent a new mechanism. Other people are saying, well, we can invent a new mechanism, which means we should not be taking the Philippines and Puerto Rico as colonies. We don’t want them. We just refuse, and make them self-governing, independent immediately. That’s something else. So there are furious debates about this and then there are furious debates about what the rights of immigrants are.

Gregory:     But were there also broader debates about the existence of these gray areas and whether they should be put under Constitutional authority?

Gary:          Yes.  But all liberal democracies have gray areas. And I have a new essay coming out, which I call spaces of exception, which are spaces where the flag flies, but where the Constitution does not follow, and I argue in this that this is not a particularly American problem, that every liberal democracy is going to confront certain issues for which they’re not prepared. And they’re going to acquire certain lands and peoples that can’t be incorporated fully and instantaneously. We might wish for a different situation. But all liberal democracies have spaces of exception and they come to depend on spaces of exception as a way of solving nettlesome problems in uncomfortable ways. And it’s critical. And if the liberal democracy is to survive, it’s critical that these spaces be seen as limited in time, limited in space.

Gary:          And if they are not and limited in time and limited in space, if they are not seen as exceptional, they will become the norm. And liberal democracy will vanish. And part of the story of Trump is that he’s taking mechanisms that were invented, these spaces of exception, and turning them into something much more dire: mainstream, normative. And if this goes on for too long, if the camps housing immigrants in the Southwest remain in place for too much time, housing too many people, then America will lose its normative reputation as being a democracy. In other words, the exception will become the norm. So, Trump is taking certain devices that were invented in the late 19th and early 20th century, meant to be exceptional spaces, and turning them into something mainstream and normative. And if that happens, then liberal democracy will, in America, will cease.

Gregory:     Now, can you please explain the second strategy, surrogacy?

Gary:          The central government has certain powers that it can act upon at any time. It can make war. It has the exclusive right to emit currency and to regulate the currency. It has other laws it can use to its advantage but it remains limited in terms of what it can do. Let’s say, for example, Americans are concerned about immorality in American society. The federal government actually has no statutory power to render Americans more moral. What do we mean by more moral? That they have the right sexual practices, that they abstain from sex before marriage, that they remain monogamous, that they don’t shop on the Sabbath or engage in commerce on the Sabbath, these sorts of things. The federal government does not have, by what the Constitution says, the right to act in these areas. The states have these rights.

Gary:          In the late 19th century, there was a man by the name of Anthony Comstock saying women have much too much access to birth control information. They’re having abortions, which he considers immoral, which leads to promiscuity and all kinds of immoral practices in American society. He wants to act. He wants some kind of federal law that’s going to prevent that kind of immorality from happening, but Congress can’t pass a law that says abortions are immoral. It just doesn’t have the authority to do that. What he says is that the government has the right to regulate the mails. In the late 19th century, most information about birth control, also pornography, is traveling through the mails, and so he wants to use the post office to regulate morality in American life.

Gary:          This is what I’m calling surrogacy. You take a power given for an explicit purpose, and, from 1792, the federal government has the unambiguous right to regulate the mails, and you use it for something else. You hang on the peg of the post office a campaign to eliminate obscenity and knowledge about birth control from American life. This becomes one of the activities that the post office is engaged in. The post office becomes one of the biggest centers of bureaucracy and administration in American life. Are they doing this just to deliver the mails? Well, the US does have a remarkable postal system, that is true, but they also begin to take on all these other tasks which Congress is asking them to do because Congress can’t address these other problems directly. Another example, there’s pressure in the early 20th century to regulate prostitution. The Congress can’t pass a law saying, “We outlaw prostitution.” States can do that but not the central government, but the central government has the unambiguous right to regulate interstate commerce. This is a power given to it by the Constitution. Congress passes a law saying that any prostitute carried across state lines enters the stream of interstate commerce, and thus anyone purveying these women across state lines can be prosecuted in federal court.

Gregory:     What year was it?

Gary:          1911. It’s called the Mann Act.

Gregory:     And now to the third strategy, privatization.

Gary:          Privatization is something Americans will be familiar with. If the government can’t do it, find a private organization that can. If the central government is going to be formally limited in its powers to enact change, it needs help and assistance, and, in the 19th century, it turns increasingly to the private sector for help in building railroads. It turns to religious groups for help in enforcing morality. If the federal government can’t legislate about birth control or prostitution, well, it can give money and support to private church groups to become very active as advocates for a purer moral order. In all kinds of areas of life, the federal government looks for allies and adjuncts to carry out its power, to carry out its wishes.  There’s nothing to stop it from asking someone of influence and power in private life, to use their soapbox, and, let’s say you were a minister, to use your church to try and persuade people of the virtue of certain courses of action. In all kinds of areas of American life, the US government looks for allies in the private sector to carry out its wishes. If it asks them to volunteer to do this—or maintains the myth of volunteerism—then it sidesteps the thorny Constitutional issue about whether the federal government is actually allowed to participate in these activities.

Gary:          The US develops a model, especially at the federal level, of private public interpenetration, of finding corporations, church groups, labor groups, all kinds of voluntary associations to carry out the wishes of the central state without the central state coercing them to do that, and that has seemed to be permitted. It’s almost as if the central government becomes a national bully pulpit of asking private actors to do its work. Sometimes it has the authority to do something. It has the authority to build roads. It has the authority to build a national railroad across the entire country but its administrative capacity is limited. It’s the number of bureaucrats it has. The expertise it has is limited, and so it goes to the private sector. It goes to private industry and says, “Do this work for us and we will pay you for it.”

Gary:          Of course, the danger there is if, once you’re enlisting and conscripting private actors in public projects, sometimes the public value of this gets lost, or it gets swamped by the private interests of the people getting the money and the charters.

***

Gregory:     So those who wanted a stronger central government have repeatedly used these three improvisational strategies.

Gary:          Yes.

Gregory:     At no point did these people say, “This is not good enough. We need to change the structure of American government.” Were there no efforts to make these strategies more than improvisational?

Gary:          Oh, there was enormous pressure to do more.

Gregory:     When was that?

Gary:          Well, it begins in the late 19th and early 20th century. The protesters in America and also the state-builders, they looked to Europe. They looked to the large centralized states of Great Britain, France, and Germany principally, and they see the state having powers and administrative machinery to provide welfare, regulate industry. They perceive Europe as being far ahead of America in these respects, and many of them go to study in Europe and they come back with the European ideas and they try to implement them.

Gregory:     But did anyone seek to build a stronger central government through strategies that were more than improvisational?  Was there ever an attempt to say this Constitution has a fundamental weakness to it, that the balance between state police powers and central government liberalism is not working?

Gary:          Yes, in the Progressive Era in the early 1900s these issues are being fought out intensely, this is the moment where there is a serious Constitutional politics in which many, many Americans–ordinary farmers and workers plus leading politicians like Theodore Roosevelt–are saying the Constitution is crap. It’s not working. We either need the Supreme Court to deal with these problems of industrialization that they refuse to deal with or say the central government doesn’t have the power or we have to change the Constitution. The Progressive Era is the only period in which they are successful in pushing through a set of Constitutional amendments. It’s the only period in American history where Constitutional amendments pass in a moment that is not extraordinary. What’s extraordinary? The founding of the country is extraordinary. You get 10 amendments there. The Civil War is extraordinary. You get three amendments there. You get four amendments in the Progressive Era. You get the power to tax, you get the direct election of senators, you get the right of women to vote, and you get Prohibition. You get four Constitutional amendments. Now, there is a war in there but it’s not principally because of war. You get four Constitutional amendments within a space of 10 years.

Gregory:     That, you’re saying, is the largest surge for support for reorganizing the government constitutionally.

Gary:          Constitutionally, yes.  But the kind of change that you’re asking about does not become an amendment, which would have said the US government has the right to regulate manufacturing. That’s something they could have done, right? However, giving the US government the power to tax has enormous consequences because its power to assess taxation is distinctly limited before then, and this gives the government another very, very large power, which it did not have, which is going to promote, over the long term, a politics of redistribution, of being able to tax the very wealthy at very high rates and use the money that’s coming into the federal government to benefit the lower orders of society.

Gary:          At some point, I’m going to write an essay on what made this progressive moment so unusual because I think, if this Constitution is to survive another century, we’re going to need another Progressive Era where we amend the Constitution in a meaningful way.

***

Gregory:     On that note, let’s please take a step backwards and talk about the military career of Andrew Jackson and what it tells us about the strengths and weaknesses of a weak federal government.

Gary:          Andrew Jackson was many things but, among the things he was, he was a very successful general and military leader. If you’re a betting person in America in 1805, you’re betting that what is the United States will not survive in its current form, its current geographical form, because the central government was too small and already the land mass that the US had acquired through the Louisiana Purchase is so vast. It does not have a central government machinery, it does not have a standing army that can police and patrol this whole area. If you’re a betting person, you’re betting that North America is going to look like what South America is becoming, which is this: multiple republics descended from one imperial ancestor. The South American model and also the southern part of North America, Mexico, Argentina, Peru, Bolivia, these are all republics, or countries wanting to be republics, descended from one imperial ancestor.

Gary:          This helps me make sense of another puzzle, which I didn’t understand for the longest time. What is Aaron Burr, a very distinguished figure in the early American public, almost president of the United States, why is he going off on a filibuster to take part of Mexico to set up his own republic? It’s a good bet to be making in the early years of the 19th century because you’re betting that the central government can’t hold this place together. In place of one United States, you have an eastern United States, you have a southern United States, you have Texas, you have California, and maybe Mexico itself becomes part of an assembly of republics. In other words, a very different shape to North America. This is what you’re betting on.

Gary:          The question becomes, how does the center hold? How does this sprawling territory that wants to be a country, how does it enforce its will? Some of that answer has to do with Andrew Jackson, both his skills as a general and we might say his ruthlessness. Him developing a model of military force, and also a deep commitment to having this larger continent-wide republic survive, this is his vision of America and he is going to stop at nothing to do it. He developed some model of military action that requires a small standing military and instead depends on the martial valor and ruthlessness of citizen soldiers, those people living in Tennessee and other places on the frontier, living in very insecure circumstances. He finds a way to mobilize them in a project to maintain this great dream of the United States on the one hand and, on the other hand, he conscripts them in his plans by promising them land and freedom and territory, land that first and foremost has to be cleared of Indians, and then has to be cleared of rival European powers.

Gary:          He has a remarkable string of successes. I never, in my earlier career, paid much attention to the War of 1812. It’s kind of the untaught war, but this is the war that demonstrates that America can hang together. Andrew Jackson, in the course of that war, which begins before 1812 and really goes until the 1820s, he defeats the British, he defeats the Spanish, he defeats multiple Indian tribes in different locations, he defeats a military federation. If you want to look for the place where America ensured its survival in its continental form, perhaps forever, or at least for a few hundred years, it’s the War of 1812 that does it, and General Andrew Jackson is the key pivotal figure in that drama.

Gary:          There were groups in the American government who did not want to unleash the ferociousness and ruthlessness and savagery of Andrew Jackson. They believed that there was a different future available to America. Not really peaceful coexistence with other European empires. I think there’s a consensus that Spain and Britain had to be excluded as much as possible from North America, or at least south of Canada, but there is a faction in the government that says, “We have treaties with these Indian nations. We have to respect their land claims. We have to respect these treaties. We have to live peacefully alongside them and we can do that.”

Gary:          But for that scenario to unfold, the United States would have had to have a much larger standing army responsible only to Washington, not to the states, not citizen militias, farmers fighting for their land. These would have had to have been professional soldiers, not attached to a particular plot of land in Tennessee or Alabama or Mississippi, clearly fighting for Washington and its intentions. It would have required a string of forts, manned by these professional soldiers, but America has said, “No, there will be no standing army of this sort because that is going to corrupt the central government.”

Gregory:     Just to make sure I’m understanding this right, Jackson’s military genius allowed for the small army to expand when needed, use force, and then to condense itself?

Gary:          Right.

Gregory:     That was also the genius of the federal government, of a weak federal government, on some level. The ability to expand when needed, then to contract.  Right?

Gary:          Right.

Gregory:     The weakness was its inability to impose its will on a growing country. What were the consequences of not having a central government that could extend its power to a growing country?

Gary:          The amount of land that the US had acquired, especially through the Louisiana Purchase, was simply extraordinary. If it was to reap the benefits of that land, that land had to be settled. It wanted that land settled with its own people, which it defined as Americans, which it defined as people of European descent. That meant westward expansion, not just of land but of people. This land was full of other people not of European descent and it was full also of people who were either part of the Spanish empire and in the process of Mexico becoming independent, of becoming an independent republic. The government was faced with the challenge of populating land with its people at a time when that land was populated by other people who had other ideas about what that land was to be used for.

Gary:          The US either could have built a much stronger central state to impose its will, both militarily and administratively. It could have ruled from the center, as London ruled much of the British Empire, or it could have relied on settlers who doubled as soldiers to take the job of expansion into their own hands. The US, almost in every case, opts for the latter strategy, not the former. They would have had to erect a different kind of central government from the one it had.

Gregory:     You’re implying that, had there been a stronger central government during westward expansion, that it could have been less chaotic, less anarchic, less violent.

Gary:          And less barbaric toward the Indians. Absolutely.  You have been asking me on several occasions, were there not Americans who had a different view of this? There are Americans who have a different view of westward expansion, who want to see it much more controlled, but they also tend to be more conservative. They want to see it more controlled by elites. They want elites of different nations to coordinate, diplomatically, their relations with each other. They understand the savagery that can be unleashed if the white settlers are allowed too much autonomy. They can’t do it.

Gary:          There are these moments where the settlers just won’t be restrained under any circumstances. Here also is where the state governments come into play because the western land is being turned into territories with the promise of statehood and the federal government wants to deliver statehood pretty quickly because states become a mechanism for ensuring order on the frontier that the central government can’t itself deliver, but what guarantee does it have that these states will enforce Washington’s wishes?

Gary:          This happens in Georgia, where Washington wants to honor the treaties it has with the Indians living in land that now belongs to the state of Georgia and the Supreme Court sides with the federal government against the state of Georgia, and the state of Georgia says, “To hell with Washington, to hell with the Supreme Court. This is state government here. We’re going to do what we want to do.”

Gary:          Then, there are countless examples of white settlers initiating conflicts with Indian tribes that the central government doesn’t want because either it’s not prepared to send a lot of troops there or it genuinely wants to honor certain treaties that it has with these Indians. It can’t stop these settlers from going into these territories and so the central government gets involved in military conflicts with Indians that it doesn’t want. At a certain point, so much chaos is being generated on the frontier that it can’t just say, “We’ll have nothing to do with this.” It has to send in its troops to clean up the mess.

***

Gregory:     There’s one line that perhaps best connects your books American Crucible and Liberty and Coercion. It reads: “The political failure to build a more capacious state, one might argue, heightened the importance of race as a sinew of sovereignty in this new nation.” Can you please explain this line?

Gary:          If you’re not going to have a powerful central government to enforce order on the frontier, where’s that order going to come from? The central government in Washington understands that the settlers, in many circumstances, can’t be trusted, that there’s a savagery and a determination in them to get land and to act on their own, so what will order look like on the frontier?  If the central government is abdicating its responsibility, it is reliant on settlers, citizen soldiers, to provide that order in circumstances of chaos. Where is that sense of order going to come from? It’s going to come from a strong sense of community. What are the bonds of community? Increasingly, the bonds of community are racial. We settlers are on a mission. We are the carriers of certain ideals. Those ideals are deeply embedded in our history and our national origins. They come from Britain, they come from Germany. We have a special destiny to establish a republic of liberty unlike any in the world. Many peoples of the world can’t understand what we’re doing. If we’re to be successful, we have to clear them out of the way.

Gary:          It becomes a process of settlement that finds its ultimate justification and bonding in blood and ethnoracial purity and in whiteness and in European-ness or whatever you want to call it, a sense of “we”, and here I’m ventriloquizing, the settlers, we are the carriers of a special heritage. We have a particular origin. We have a particular heritage, which is not something you just learn in school. It’s who we are. It’s the blood running in our veins. This will bond us with each other in ways that will make us strong enough to carry this experiment into the wilderness and defeat the savages that we find there.

Gregory:     Isn’t whiteness then created at this point? Doesn’t this heterogeneous group of settlers from different ethnic origins become white as they meet and fight Native Americans and Mexicans?

Gary:          Yes, absolutely. Theodore Roosevelt articulated this most forcefully in his historical writing, The Winning of the West. He was never a man for the narrow conception of racial purity. He was something of a mutt himself, part Dutch, part English, part German, and he believed that the fighting against the savage Indians was the crucible that made America, and the crucible was a melting pot.

Gary:          It fused out of the myriad strains of Europeans who were coming to America. It fused them into a single American race, so they come to inhabit their whiteness fully, and you’re right. It’s precisely in these encounters with racial others that, what comes to be understood as a commonality of Americanness gets forged.

Gary:          It is a commonality that comes to be understood as white, and that stands against those who are not white, and it generates ideas and then myths about America as a crucible, America as a melting pot but, from the start it’s conceived as a racialized melting pot. In other words, only certain kinds of peoples are let in and, if you have too many non-whites let in, the compound will be contaminated.

Gregory:     In short, you’re saying that white supremacy kept this community of white Americans together as the country moved westward.

Gary:          Yes. I don’t want to suggest that white supremacy is the only thing that matters on the frontier, but it was a critical element in community building and bonding on the frontier. It also created the resolve that was thought to be necessary for what comes to be regarded as savage war against the Indians.

***

Gregory:     This is all extraordinarily fascinating.  But given all the terrain I still want to cover, let’s now move forward in time and focus again on the power and weakness of the federal government. Can you explain why the central government expanded in capacity and authority in the 1930s and ‘40s?

Gary:          Depression and war. The Great Depression that begins in 1929 and doesn’t end until 1941 is the most serious economic downturn in American history, 25% unemployment, despair, widespread recognition among almost everyone that capitalism is a system that’s not working. It discredits laissez-faire economics, market-based economics. It discredits it for 50 years, so that the people who are so prominent in American life today with their laissez-faire economics don’t get any kind of hearing from 1933 until Reagan is elected in 1980, almost a 50-year period.

Gary:          The belief takes root that only when you have a strong central state that can regulate the economy, this is its only chance for success, so what you get in the 1930s is what America’s never had until that point, which is a strong regulatory state with the ability and the will to regulate the economy, not just for the people on the bottom, but for capitalists themselves who are desperate for some kind of regulation from without so they can assure themselves of a regular stream of profits and not the collapse that they were subjected to in the 1930s. This is when laissez-faire jurisprudence gets overthrown by surrogacy, not by constitutional amendment.

Gary:          There’s a figure I love, farmer Roscoe Filburn of Ohio, who’s growing wheat on his own property and insists it can’t be regulated by the government because it doesn’t enter interstate commerce. And the Supreme Court, this is Roosevelt’s Supreme Court, says nine to nothing it is interstate commerce—so that’s the Constitutional revolution that, without an amendment, legitimates what the New Deal is doing and angers conservatives from now until the third millennium.

Gary:          The other great factor is World War II, which the emergency is so great, the attack by the Japanese, the threat of Nazism, the World War, that, for a period of war, all restraints on government basically are suspended. What’s even more important than World War II is the following of World War II with the Cold War, which is a state of near permanent war.

Gregory:     Let me get one more question before we get to ’40s, ’50s.

Gary:          Okay.

Gregory:     What did positive liberty mean in the context of the New Deal?

Gary:          So, there’s negative liberty and positive liberty, according to some political theorists. Negative liberty is associated with classical liberalism of the 18th century.  Classical liberalism believes in getting governmental structures out of the economy and letting people be free to do what they want to do. This is why the central government is made weak, so it can’t prevent the market from developing and allowing people as individuals to do what they want to do.

Gary:          This is understood as negative liberty. You simply remove the negative forces that are hampering liberty, and then you and I get to enjoy the full liberty that will now be within our reach, so it imagines that people live in a natural state of liberty, and what’s holding us back is monarchy, aristocracy, large, centralized tyrannical governments. You remove all that. You let us be our natural selves. Adam Smith, we truck, barter, and trade. That is you remove the negative influences that hold down our individual liberty. For a long time, those people who called themselves liberals said this is all that’s necessary for a liberal polity to develop.

Gary:          Those who began to talk about positive liberty and, here, Franklin Roosevelt is crucial. He doesn’t use the phrase himself. But if we want to understand what he’s doing, it’s positive liberty, because he’s the person who changes the meaning of liberalism in America. He says, ” Gregory, Gary, it’s not enough for government just to remove centers of government power, monarchy regulation because you guys don’t have enough education, you don’t have enough opportunity, you don’t have enough security, you live in an unequal society, and if we just let market forces run wild, you’re not going to be able to enjoy your liberty because you’re going to be poor, and you’re not going to get enough education.”

Gary:          So, in order for you and me to enjoy our liberty, we need assistance. We need education. We need college. Maybe we need graduate school. We need some unemployment insurance when we lose our jobs. We need help in getting a mortgage. We need education. We need public support for the arts because us having a full measure of individuality means we need to be cultured in some way.

Gary:          So, he says we are going to take positive steps so that you are in a position to enjoy your liberty. Think here of individuality fully, that we are going to educate you to the best of your potential. We are going to surround you with opportunity that is going to allow you to realize your liberty fully. So, in order for us to do this, we need a strong central government to make certain provisions.

Gregory:     So, he redefined liberty from just being the absence of someone controlling you arbitrarily.

Gary:          Yes, to the promise of assistance in allowing you to enjoy and achieve your full potential and that is, if you think about it, that’s what modern liberalism is, right? It’s a series of supports, a series of remedies to help against the casual brutality of economic life, misfortune, poverty, various inequalities in the larger society, things that hold us back.

Gregory:     So, modern liberalism isn’t liberal at all.

Gary:          Not by 18th century standards, no. 

Gregory:     Did FDR use the term liberal?  And were conservatives upset that the term had been redefined?

Gary:          Yes, he did, and Theodore Roosevelt did not, so what’s relevant about that is that everything Franklin Roosevelt does, he models on older cousin Teddy, who was his hero, but Teddy is a progressive. He’s not a liberal.  Franklin Roosevelt is the first liberal.

Gary:          One of the things that bothers Herbert Hoover most is that Roosevelt not only stole the presidency from him, but he stole the term liberalism. Liberalism was no longer negative liberty, you know, freeing the individual from constraints. Liberalism was now positive liberty, and his point was exactly your point. Liberalism had become something else entirely, so it was a betrayal of the term and the philosophy, and he will ultimately call himself a conservative, but conservative’s not really the right word for what he was.

Gregory:     So, the expansion of federal government in the ’30s and ’40s arose from the challenge of the depression and the expansion of government and governmental powers, as well from the increased taxation needed to run a world war.

Gary:          Right.

Gregory:     Now, please take us into the Cold War in the late 1940s and ‘50s. What happened in the Cold War era that led to the expansion of central government power?

Gary:          Well, the critical question in 1945 and 1946 is, would the powers that the central government had taken in depression and war survive? The model in America is that, like Andrew Jackson’s army, the government expands and collapses as needed. This is the model. The war’s over. The army shrinks. The Union Army has, in the Civil War, three million men under arms at its maximum power. By 1890, it has 25,000 soldiers.  In World War I, it has four to five million men under arms. By the 1920s, it’s down to 120,000, and the kind of the social and governmental infrastructure also gets dismantled after those previous wars.

Gary:          But now this new threat arises and the Cold War is a different kind of war. It’s a war that happens without an official declaration of war and it’s also the first war in human history where the principal antagonists can’t really fight each other because if they do, the world is destroyed. Well, then how do you fight? You fight through proxies, you fight through various kinds of competitions. You gear for the long term, but there can be no quick decisive victory. So this is not only a war without an officially declared beginning, it also is a war without end. It becomes the longest war in which America was involved, from 1946 to 1989, so almost a half century.

Gary:          America decides, because the threat from the Soviet Union is regarded as being so severe and so existential, both because literally they have the ability to blow us up and because Communism represents the negation of everything that America stands for, that America has to maintain the kind of large military establishment that it had never wanted to have before. So what Andrew Jackson didn’t want and what other Americans didn’t want, a large standing army, comes to America for the first time through the Cold War era.

Gary:          Republicans acquiesced to this, and it also meant acquiescing to a large government, which otherwise I think they would’ve taken down because they believe that the greatest menace to America is not the New Deal or a welfare state, which they sort of believe, but they believe that the Communist threat was so great that America had to stay on a war footing, which meant a large standing army for the first time in its history. Then you get a military industrial complex. Also, there was the understanding that the Soviets had to be fought in every realm, not just militarily, but you were competing against them economically, you were competing against them  to demonstrate who was taking better care of their people. So Republicans acquiesced to what the New Deal had set up. They acquiesced to a state of positive liberty.

Gary:          What would we expect a Republican president to do today? Imagine this kind of transformation in every sector of the economy, which is what Roosevelt had accomplished. Well, the Republicans today would want to get in there and take the whole thing down, everything down. But Eisenhower gets into office and says, ‘”We can’t do that. We are competing against the Soviets in every sphere of life. We have to demonstrate that our people, every one of our people has a better set of life chances than any communist regime has. That requires us to have a state of positive liberty that establishes certain levels of decency and opportunity. We can’t go back to the pre-New Deal environment because that is going to put us at too great a vulnerability in terms of waging the “Cold War.”

Gary:          So Eisenhower even acquiesces. Imagine this, think about this for a minute. What do you think the taxation rate on private incomes was, the highest marginal rate coming out of World War II?  It was 91% at the highest marginal rate.

Gary:          This was put up there and it went up to 75% in the New Deal and then it went up to 91% in World War II. So what’s the first thing we would expect a Republican president to do when he finally gets into office? Tear that down. Eisenhower does not do that. He says, “You have an obligation as citizens to pay taxes so we can take care of everybody and so we can wage this global fight against Communism.’” The global nature and the open-ended nature of this contest is critical because you’re fighting it everywhere, and because it’s open-ended. You just have to do certain things for the long term. So the Republicans end up being crucial to preserving the state of positive liberty that Roosevelt and the Democrats had erected under the New Deal and which Republicans today regard as the most devastating development in American life.

Gregory:     So the GOP adopts positive liberty because of the Soviet threat. And the central state is also fiscally flush. Now take us from here into the Civil Rights Movement.

Gary:          Well, it turns out the U.S. has to compete with the Soviets on the race question because this is a global war and there’s a feeling that the winner gets to be decided not just by one’s own strength but how many allies one has among the countries in the world. This is the great moment of decolonization. In fact, we should see the Civil Rights moment as an event in a longer history of decolonization, of freeing the subjugated peoples of color.

Gary:          So the Soviet Union and the United States are competing for the allegiance of what was then called the Third World. Whose side are they going to be on? Anytime there’s a serious racial disturbance or mistreatment of blacks in the United States, propaganda agencies of the Soviet Union broadcast it to the entire world. So suddenly the internal race problem of the U.S. is global issue number one in the Cold War. So the elites in the U.S. on the one hand and popular protest on the other are mobilizing to face the issue that can no longer be avoided.

Gary:          If you want to solve the problem of race in America, you have to strip the states of their police power because the states under traditional jurisprudence Constitutionalism were free to do in their states what they wanted to do. If they wanted to have a Jim Crow regime, they would have a Jim Crow regime. So in the 1960s, the Supreme Court under Earl Warren resolves finally to strip the states of their police power, or at least to make that police power subject to the Bill of Rights, the federal Bill of Rights. So what was not done in 1790 is done in the 1960s and it’s close to a revolution from above because these states have been operating with their traditional police powers for 150 years.

Gregory:     Wow.  At this point, I think it’s important to understand the two strategies used by the Supreme Court: incorporation and substantive due process.

Gary:          Yes. Incorporation is the simpler one. This is a judicial term which asks, ‘”Are the states incorporated under the Bill of Rights?’” Which simply means, are they bound by the Bill of Rights? The 14th Amendment has a clause in it that states cannot discriminate on the basis of race and other ascriptive characteristics. It was thought at the time by many of the framers of the 14th Amendment that this actually gave the federal government the power to incorporate the states on the Bill of Rights. But because of a series of judicial decisions taken in the 1870s and 1880s, the Supreme Court decides that the 14th Amendment in fact is not doing this. So it takes a different Court… and it really is the Warren Court, although it begins somewhat earlier, it takes a different Court to say the 14th Amendment actually does bind the states to the Bill of Rights.

Gary:          Now, what’s complicated about this is that there can be no general edict by the Court because that’s not how the Court works. Every right that an American has, has to be adjudicated on its own terms through a series of cases that gradually make their way up to the Supreme Court. So it’s a very time consuming and laborious process. It actually begins in the late 1920s and then goes through the 1960s with the Warren Court being the climax of it. On every right that a citizen is thought to have or not have and whether the states have to respect that right, every one of these has to be litigated individually. So it’s an extraordinarily time consuming process that takes 40 years. But at the end when Earl Warren retires in the late 60s and people are asking him why he’s retired, he says, “Well, I’m old and I’m tired. But I can also say now that the states have been substantially incorporated under the Bill of Rights. So my life’s work is accomplished.”

Gary:          This is an extraordinary moment and development in American life. Substantive due process is much more complicated. Let me first explain it in terms of liberty of contract because it’s easier to understand. The substantive due process, it took me a year just to hold that phrase in my mind. The 14th Amendment says, “No person shall be deprived of life, liberty, whatever, without due process of law.” That seems to suggest that if you got to deprive anyone of liberty, you must do it through due process. You must give them their rights, you must give them a trial, they have an opportunity to litigate it. It must be done with what the Constitution regards as due process. But another question arises. What is liberty? So the 14th Amendment says, ‘”You will not deprive people of liberty.’” Well, the framers of the 14th Amendment had the liberty of slaves in mind. You will not deprive a person of their liberty and enslave them without due process of law.

Gary:          But of course, liberty has many meanings as we’ve been discussing. So the question comes up in the 1870s, and in the 1980s, do corporations have liberty under the 14th Amendment? Of course, in that circumstance, do they have the freedom to buy and sell as they wish without government interference? The Supreme Court first defines them as persons, which they have to do in order to protect them for the 14th Amendment. But then it says, “Yes, liberty in the 14th Amendment means freedom of contract.” This is nowhere stated in the 14th Amendment. There’s nothing about liberty of contract in the 14th Amendment. This is imparting substance to due process. So we have to not only make sure that people, if a contract is violated, they can take it to court and have due process, we also have to decide as a court what is liberty, and liberty changes.

Gary:          So we are going to impart liberty of contract even though it’s not mentioned. In the 1960s, substantive due process comes up like this, do women have reproductive rights? Do they have a right to an abortion? It’s nowhere stated in the Constitution. Justice William Douglas invents a doctrine of privacy, but he says is inherent in the shadows of the constitution. By this doctrine of privacy… which is loosely connected to liberty, right? Because what is liberty? Liberty is the freedom to do things on your own if they’re not harming other people and especially the freedom to do things in your own home, which is your castle and no government can invade there except under the most extreme circumstances. So he says that women have the right to use birth control by this doctrine of privacy which is in the shadows of the Constitution and is embedded in this concept of liberty which is in the Constitution.

Gary:          It’s another example of imparting new substance to the meaning of liberty. What is substantive due process? It’s a way of finding new rights in the Constitution that are not mentioned in the Constitution and are not enumerated. It’s a way of what Louis Brandeis said was making an ancient Constitution that can’t be changed a living document. Given that you can’t amend the Constitution by including a right to privacy within it, we are going to reinterpret liberty as though it encompasses privacy and privacy entails the ability to control your own body as you see fit. So it becomes a mechanism for changing the Constitution, updating it to address problems that the founders had not anticipated and you need to do this because the Constitution itself can’t be changed.

Gary:          I mean, the straightforward way of doing this would be in the 19th century to pass a constitutional amendment that says, “The Constitution guarantees freedom of contract, laissez-faire.” In the 1960s, the way to do this would be to say the Constitution guarantees the right to privacy. But people don’t think that can be done so they find a way of changing the Constitution without changing it. That’s what’s so important about substantive due process. Here the anti-miscegenation laws which still prevailed in I think more than 20 states are declared unconstitutional in 1967 in Loving v. Virginia on these grounds, “That this is a matter of private liberty that no government has the right to interfere with.” Once Loving v. Virginia is decided by the Supreme Court all the state laws preventing marriage across the color lines suddenly and immediately become unconstitutional.

Gregory:     So how do all these shifts in understanding of government power manifest themselves today and hasn’t there been a profound conservative backlash?

Gary:          The root of what the Warren Court and liberals are doing in the 60s is the root of the utter divide on the proper scope of government that divides Democrats and Republicans today. It really originates from the 1960s and you can see both sides of the argument. I try and convey a respect for both sides of the argument. Conservatives say, “You can’t have unelected judges making all these decisions about what rights Americans have and don’t have. This should be done legislatively by the people. If legislatures want to pass laws, giving women birth control and so on and so forth, let them do it.” This is a slippery slope that’s going to make judges the governors of America and in that situation that people will no longer rule.

Gary:          The liberals say, “We’ve been struggling with this race issue for 150 years. We have no hope of giving African-Americans a full complement of rights unless we override the police powers of the individual states and enforce the Bill of Rights on everybody. This has to be done for elemental reason of social justice. If that requires us to take some more liberties with the Constitution through this doctrine called substantive due process, we will do it.” 

Gregory:     Was this done for reasons of social justice or for fear that country would soon become no longer viable?

Gary:          Well, both, but I think the America in the 60s is a hundred years beyond the Civil War and the problem of racial equality isn’t: It is as intense a hundred years later. So they have to keep the country together but they also feel that this is something that simply has to be done. So the liberals take their stand with the liberal Constitution and the conservatives are going to take their stand with originalism, right?

Gregory:     But didn’t the Warren Court’s achievements rest on an insecure foundation?

Gary:          This gets us back to the question of how do you dismantle police powers? How do you grant women fundamental rights when you have a Constitution that for all intents and purposes can’t be changed? If we imagine a different precedent, a different history, we could imagine a group of jurors sitting around and saying, “Police power belongs with the central government not with the states. If we’re going to have a general power to look after the good and welfare of the Commonwealth, let’s give that to Washington since they spend a lot of their time doing that anyway. Then if we transfer this to the central government, that police power will be bound by the Bill of Rights. So it will be less unfettered than it was with the state. So it will be better because it’ll give the central government a kind of broad power that many Americans have long wanted it to have. But we’ll also at the same time make sure that that strong centralized power is not used inappropriately.” That can’t be done. That would require a constitutional amendment. So what the liberal jurisprudence school, and the Warren Court is the highest expression of that, what they undertake to do, their fundamental point, is, we can’t really change the Constitution. We have to interpret it liberally. We have to update it. We have to make it relevant. We have to find in this document rights that are not enumerated, but that we’re going to insist that Americans have. That requires them to take certain liberties with Constitutional interpretation. That raises the question of whether this is something a Court should be doing or whether these are matters to be decided democratically by the people. So I find myself in the position of having some sympathy for the conservative critique of the Warren court because the Warren Court arguably did go beyond its remit constitutionally.

Gary:          But I also think if I was on the Warren court in the 1960s, I would have taken the steps that the liberal jurists on the court took to make the Bill of Rights the law of the land. Because I would have felt with them that the cause of racial justice and the difficulty of achieving it is such a gargantuan problem in American life that the kind of settlement the Warren Court reached in the ’60s was essential to securing it. If they had not done that, I’m not sure they would have been able to dismantle the regimes of Jim Crow in the southern states.

Gary:          The ’60s were a very scary time and there was a sense that America could not hold. I mean, the scale and the seriousness of protests over civil rights, Vietnam—these were incredibly intense. You throw into that the assassinations of two Kennedys and Martin Luther King and you have some sense of a country coming apart. But I also think it wasn’t just concern over viability, it was a deep conviction on the part of liberal jurists that the meaning of the 14th Amendment had been perverted after the Civil War. Now it’s hard for jurists to overturn a precedent that has stood for by that time almost a hundred years and they have not completely restored the 14th Amendment to what they think its original meaning was. But they’ve restored more of its original meaning. So in a sense, the Warren Court jurists were acting as originalists as it pertains to the 14th Amendment. That is not a matter of viability, that’s a matter of right and wrong.

Gregory:     I hope you enjoyed this. I did.

Gary:          I have, tremendously.