A River and Its Water: Reclaiming the Commons - Part 8

Eighth of a series

“Rain follows the plow.”

- Charles Dana Wilbur

Here is all you really need to know about the history of water in the western United States: This map, which appears on page 170 of Wallace Stegner’s 1954 book,

Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West, shows a line just east of the 100th meridian that divides America into a wet half and a dry half – a map that has remained essentially unchanged since white Americans began aggressively settling the west over 150 years ago.

Through a long history of damming, drilling, diversions, and water grabs, we have dried up the West’s rivers and extracted its groundwater at rates that are now – and have long been – unsustainable. Over the years, prophets have tried to tell us so – Stegner in Beyond the Hundredth Meridian (1954), John McPhee in Encounters with the Archdruid(1977) and The Control of Nature (1989), and Marc Reisner in Cadillac Desert: The American West and its Disappearing Water (1993) – but we didn’t listen.

Before them, there was John Wesley Powell.

Despite having lost his right arm at the Battle of Shiloh, Powell made the first recorded expedition down the Green and Colorado rivers and through the Grand Canyon. Later, as director of the federal government’s U.S. Geological Survey and its Bureau of Ethnology, he argued that the West was far too dry for intensive development. That made him a lot of powerful enemies – from railroad moguls to homesteaders, from farmers to every real estate speculator in the land. “Fraud was never provable,” Stegner wrote of western land deals, “but it was estimated that 95% of the final title proofs were fraudulent, nonetheless.”

“It is good to be shifty in a new country,” said the fictional Captain Simon Suggs.

But Powell’s prescient words were drowned out (if you will pardon the expression) by Charles Dana Wilber’s crackpot theory that “rain follows the plow.” Needless to say, Wilbur was a land speculator and booster of agricultural development in the West. His mantra, which maintained that agricultural production would actually lead to increased rainfall and greater prosperity, had a huge following in the late 19th century, not only in the West but also among the rich and powerful, and therefore, in the halls of Congress.

 “I tell you gentlemen,” Powell said to an irrigation conference in 1893, “you are piling up a heritage of conflict and litigation over water rights, for there is not sufficient water to supply the land.” He quickly became a pariah.

“He told them,” wrote Stegner, “and they booed him.”

Forty years later, the Dust Bowl devastated land and ruined lives, primarily west of the 100th Meridian, just as Powell had warned them. The drought lasted for almost the entire 1930s. On April 2, 1935, desiccated western topsoil rose up in the wind and blew all the way to Washington, D.C., where the director of the Soil Erosion Service was testifying  before Congress in favor of a national soil conservation program. Powell had been dead for 33 years.

And so, in southeast Nevada, which gets 4.2 inches of rain a year, we built the sprawling city of Las Vegas, home to almost three million people and endless fountains – most famously, the “Fountains of Bellagio”, a 375,000 square-foot lake whose 1,214 “devices” keep 17,000 gallons of water in the air. In California, which is just now emerging (hopefully) from years of drought that threatened both water supplies and food production, we created “one of the world’s most productive agricultural regions” in the desert of the San Joaquin Valley . . . by extracting so much groundwater that the land itself is literally sinking. And today, Arizona, New Mexico, Colorado, Nebraska, California, and Idaho continue to extract more water each year than they replenish.

Average annual rainfall, 2000 – 2013. Compare with the  map at the top of the page.

A River and Its Water: Reclaiming the Commons - Part 7

Seventh of a series

“[T]he West’s cardinal law: that water flows toward power and money.”

- Marc Reisner

In the first season of the television series, “Yellowstone,” a California developer named Dan Jenkins reveals his plans to divert the Yellowstone River to provide water and power to the huge casino he intends to build in Paradise Valley. When the timid bankers voice skepticism, Jenkins replies, “On our land, it’s our river. This isn’t California, gentlemen. This is Montana. We can do whatever we want.”

Well, not quite. Jenkins’ dam was still on the drawing board when John Dutton dynamited both the valley and Jenkins’ plans, rerouting the river so that it now ran solely through the Dutton ranch. That took care of that problem.

A couple of articles have subsequently tried to spoil the fun. One noted that Jenkins seemed ignorant of Article IX Section 3.3 of Montana’s Constitution, which states: “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.”  Montana allocates water rights through a system called “prior appropriation”, which basically means whoever gets there first gets the water (“first in time, first in right”). Because the Duttons came to the valley in 1883, “they didn’t need dynamite, they needed a decent water rights attorney. . . and a permit.” But that ain’t the way the Duttons do business.

Nor were the people of California – at least the old timers – the wimps whom Jenkins mocked. They were just more subtle.  At the beginning of the 20th century, when the power brokers in Los Angeles wanted water to build the city and enrich themselves, they stole it. All the way from the Owens Valley, 270 miles to the northeast, where they had surreptitiously bought up the land and built an aqueduct.

The original name of the Owens Valley was Payahǖǖnadǖ or “place of flowing water,” which is a bit ironic since it took Los Angeles only 13 years to empty the 100-square-mile lake completely, sending to the city four times as much water as it needed. Draining the lake put the local farmers out of business, and they did respond with dynamite – by trying to blow up the aqueduct on 17 separate occasions. Today, Los Angeles owns most of the land in the valley, and the empty lake’s dry bed has created serious air pollution issues for the inhabitants.

Several years ago, I went to the Owens Valley to spend a week without food and only a little water in the Inyo Mountains. Because the high Sierras on the west side of the valley suck up all the Pacific rains, it is the driest place I have ever been. Just to its east is Death Valley.

The story of the great water theft in the Owens Valley is told mythically in Roman Polanski’s film, “Chinatown,” and majestically in Marc Reisner’s book Cadillac Desert, while the Yellowstone story is told melodramatically in the eponymous television series. But the less electrifying historical and academic papers show that, while “water wars” did bring violence and fraud to the West, “armed water insurrections have been replaced by court fights and water rights sales.”

And that brings me to another truth the headlines often overlook: that rivers have at least as much ability to bring people together as to send them to the mattresses – and that the commons does not have to be the catastrophe that Garret Hardin makes it out to be.

A River and Its Water: Reclaiming the Commons - Part 6

Sixth in a series

“Whisky is for drinkin’; water is for fightin’ over.”

- Mark Twain (reputedly)

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Who Owns Water?

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We will spend some time on this question in this series. Rivers and their waters have been the source of conflict throughout human history, and nations and states have devised all kinds of treaties, agreements, rights, and regulations to protect and allocate what they see as “their” waters. Too often, though, the matter comes down to one word: power.

Consider who owns these waters:

The Golan Heights

In 1967 and  again in 1973, Israel and various Arab States fought major wars over the Golan Heights. This was hardly new: Israelis and the people of Aram were fighting over Golan in the Old Testament.

Much is made of the Golan Heights’ strategic military value as the high ground in the region, but its even greater value lies in the fact that it feeds both the Jordan River and the Sea of Galilee and is a major source of fresh water for Israel.

The Colorado River

The Colorado River begins in the Never Summer Mountains, flows southwest through Colorado and Utah, and enters Arizona, where it turns west through the Grand Canyon and on to Lake Mead and the Hoover Dam.

There it turns south and flows along the Nevada and California border until it trickles into Mexico and ends its 1,450-mile journey in the Gulf of California. At least it used to. The river, which provides water to 40 million people and makes possible some of the most productive farmland in the world, rarely gets to the Gulf. The allocation of its water to seven US and two Mexican states involves a complicated set of calculations first laid out by the Colorado River Compact in 1922. There is no longer enough water to go around, and the Colorado has been called “a river in crisis” . . . if you can call something a crisis that we have seen coming for more than 60 years.

The Amazon

The Amazon is the world’s largest river, annually sending into the Atlantic Ocean about 20 percent of the world’s total freshwater discharges. Although two-thirds of the Amazon is in Brazil, the river begins in Peru and also flows through Ecuador, Colombia, Venezuela, and Bolivia.

Its drainage basin is the size of Australia, and it is so critical to the planet’s climate as to be a global resource. But governmental, corporate, and private encouragement of agriculture, oil drilling, road development, population growth – all accomplished primarily through deforestation (and of course corruption) – are destroying the forest at exponential rates. Is it too late to slow or reverse the damage? Can the basin be protected? If so, how? If not, then what?

The Nile

“From its headwaters in Ethiopia and the central African highlands to the downstream regional superpower Egypt, the Nile flows through 10 nations,” writes Fred Pearce. “But by a quirk of British colonial history, only Egypt and its neighbor Sudan have any rights to its water.

Attribution: Sir Samuel Baker, 1875

“That is something the upstream African nations say they can no longer accept. Yet as the nations of the Nile bicker over its future, nobody is speaking up for the river itself — for the ecosystems that depend on it, or for the physical processes on which its future as a life-giving resource in the world’s largest desert depends. The danger is that efforts to stave off water wars may lead to engineers trying to squeeze yet more water from the river — and doing the Nile still more harm. What is at risk here is not only the Nile, but also the largest wetland in Africa and one of the largest tropical wetlands in the world — the wildlife-rich Sudd.” And to its upstream neighbors, Egypt has made it as clear as the headwaters of the Blue Nile that it will destroy any efforts to impede the river’s flow.

The Tigris and the Euphrates

“The massive Ilisu Dam under construction in Turkey,” said Ulrich Eichelmann of Riverwatch, ‘is an infrastructure project with a 1950s mindset: big, bigger, as big as possible.’. . .[E]xperts say the [dam’s] impacts will be felt hundreds of miles downstream across large parts of the Tigris-Euphrates Basin, which includes Syria, Iraq, and Iran, exacerbating water shortages that will affect irrigation, biodiversity, fishing, drinking water, and transportation

‘But in a political context in which water is power, Turkey is not budging on its prerogative to dam ‘its rivers.’

“‘Turkey sees itself as completely sovereign in the management of its rivers and basically does whatever it wants, in terms of damming and discharging pollution,’ said Nicolas Bremer, author of a book on Turkey’s dams. ‘Turkey refuses to be bound by the international treaties and laws that exist.’” Paul Hockenos

New York City

The water that supplies the people of New York City with some of the world’s cleanest drinking water starts over 100 miles away in upstate streams, which then flow through tunnels into huge reservoirs on land the city acquired mostly between 1905 and 1967.

At the bottom of the reservoirs lie the remnants of 25 communities, which were condemned through the process of eminent domain and required the relocation of more than 5,000 people. Tensions between the upstate communities and the city have festered for years, primarily because New York grew to astonishing wealth and power despite a serious dearth of onsite water. Almost all the city’s water is delivered without the need for exorbitantly expensive filtration, which is a consequence of its unending efforts to protect the reservoirs from contamination and pollution. That has caused great conflict in the upstate watersheds, as New York City, perhaps the most urban and developed place on Earth, has for years used its economic power to preserve the rural nature of a poor region that is desperate for economic growth.

A River and Its Water: Reclaiming the Commons - Part 5

Fifth in a series

“We have met the enemy and he is us.”

- Pogo

A river is the ultimate commons. Its waters don’t belong to any one of us, but are held in common by all of us, for all of us. At least, that’s the theory. It has rarely been the reality. Moreover, throughout much of human history, “all of us” has meant, well, us humans. But we overlook, to our detriment, that our well-being depends on the health of literally trillions of other living organisms with whom we share the watershed.

Rivers are not simply pipes for delivering water from one place to another. They are complex and fragile ecosystems that provide a myriad of often-conflicting benefits to various claimants. Particularly over the past 60 years, scientific research has vastly expanded our understanding of rivers and their ecosystems – their hydrology and chemistry, their physical properties and biological communities. Perhaps the most profound result of this work has been to demonstrate empirically what people understood intuitively for millennia – that a stream is a dynamic system whose equilibrium depends on constant change, that it does not flow in a vacuum but is an integral part of the landscape it drains, that what happens throughout a river’s watershed determines the health of the stream, and that upstream activities determine downstream health. No part of the river’s ecosystem – not even a single organism – can be completely understood except in its relation to everything else.

Human activity is the single greatest threat to the rivers on which we depend – and our dependence on rivers is not going to change. We cannot stop drinking their waters, nor eating the food they provide. We will continue to demand the power they generate, the transportation they make possible, and the recreation they support. But we must stop reducing streams and rivers to their utilitarian functions and calculating their value solely in economic terms. It is both an environmental and an economic imperative to restore their place in the natural world so that they can both regenerate themselves and continue to provide their unique array of benefits and resources.

In place of the multi-faceted relationships people historically had with rivers, we have substituted a single determinant of their value: What can this river do for me? In our drive for economic growth, we have bent rivers to the human will. Across the globe there are now more than 50,000 large dams, which collectively have displaced 40 to 80 million people. From Louisiana’s Atchafalaya River to China’s Yangtze, we continue to impose ever-bigger engineering solutions on natural wonders we do not understand and have ceased to care much about. Nor are we safe from these solutions: In 1975 a dam in China collapsed and as many as 230,000 people died; and they will be accounting for the dead in Libya for a long time to come.

Rivers have provided us immeasurable benefits. But we are destroying them, and in doing so, we are imperiling our future. We need to step back from the brink and reconnect with our rivers. We need to understand them, not simply try to control them – to appreciate the whole of a river, not just those parts we find useful, to realize that a river is not merely a channel through which we can push water and waste, but a natural system of which we are a part. We need to awaken to the beauty of our rivers and to see clearly the forces that threaten them.

A River and Its Water: Reclaiming the Commons - Part 4

Fourth in a series

“To think of any river as nothing but water is to ignore the greater part of it."

- Hal Borland

In the early 1970s, Robin Vannote presented a novel idea to a group of freshwater scientists who had gathered from across the country at the Stroud Water Research Center in rural Pennsylvania. His idea would evolve into the “River Continuum Concept”, which forever changed our understanding of streams and rivers. As you may have guessed, both from its name and my last post, the River Continuum Concept was based on the fact that a river flows, which might seem pretty obvious to you.

“In those days,” Vannote told me many years later, “most scientists studied a square meter of water to death.” But a stream is fundamentally different from a lake: it changes constantly as it moves downstream, and it can only be understood as a continuum. Bern Sweeney, then a young graduate student at the University of Pennsylvania, vividly remembers Vannote outlining his idea. “The scientists gathered in that room were just in awe. It was a major, major event.” Part of the reason was that, in hindsight, the concept was so simple that they couldn’t believe no one had thought of it before.

From those early insights, Vannote, other Stroud Center staff, and a few university colleagues developed the River Continuum Concept, which revolutionized stream research.

During the same period, noted geologist Luna Leopold was developing a formula for understanding a stream’s physical behavior. He saw that a river’s width, depth, velocity, and temperature change constantly as the water flows downstream. More importantly, he recognized that those changes are interrelated — and because a change in one factor affects all the others, a river’s pattern is predictable.

Drawing on these physical studies, Vannote and his colleagues added a critical element to the puzzle of how streams work. They argued that a river’s biological and chemical processes correspond to its physical attributes, and that the nature of biological communities changes just as the river itself does as it flows downstream. This means that the structure of a stream’s living communities is also predictable and that the communities adapt to the particular conditions of a stretch of stream.

The work of Vannote, Leopold, and others not only upended traditional scientific thinking; it also added a crucial new approach to water and watershed policy making. Underlying the economic, social, and political factors that had dictated almost all previous water policy, they demonstrated that a stream’s geological, geographic, physical, and biological dynamics must undergird the effective management of water resources. Big engineering solutions, such as massive dams and moving channels, would give way to understanding a stream’s ecology, and politics would henceforth have to take science into account.

A river is not a static body of water, and it is more than the sum of its parts. It is a single continuum that flows ceaselessly from its source to the sea. To understand what is happening at any point along the way, you must understand both what is happening upstream and what is entering it from the land through which it flows.

The River Continuum Concept was the first unified hypothesis about how streams and their watersheds work. It dominated river studies for the next decade, and it remains, almost 50 years later, the most often-cited article on freshwater studies.

A River and Its Water: Reclaiming the Commons - Part 3

Third in a series

“No man can step into the same river twice.”

- Heraclitus (6th century BCE)

Question: What is a river?

One simple definition I found is: “a wide, natural stream of fresh water that flows into an ocean or other large body of water and is usually fed by smaller streams, called tributaries, that enter it along its course.”

On a more ethereal level, Herman Hesse describes Siddhartha sitting by a stream and discovering “one of the river’s secrets, one that gripped his soul. He saw that the water continually flowed and flowed, and yet it was always there; it was always the same and yet every moment it was new.” Or, as Heraclitus put it more succinctly over 2,500 years ago, “No man can step into the same river twice.”

That a river flows is hardly breaking news. But it’s precisely what distinguishes streams and rivers from other bodies of water and what underlies the science, history, politics, economics, and aesthetics of rivers that this series will consider.

Let’s look first at the science.*

Question: Is fresh water a renewable resource?

No. At least not in the sense that water molecules reproduce themselves. Water does recycle itself, but the total amount of water has not changed since Earth began – and 97 percent of it is salt water. Of the remaining three percent, three-quarters is locked in glaciers, which climate change is melting at unprecedented rates, or is in deep aquifers or too polluted to drink. That leaves only 0.5 percent for all the needs that all living beings – not just human beings – have for fresh water. Increasingly, there is not enough to go around. There are too many of us. We use too much of it. And we pollute it.

More questions:

• Is fresh water a commodity to be bought and sold . . . or is access to clean fresh water a basic human right?

• Who owns water?

These are critical questions, and the answers to them are not clear, even though the health of all of us and the survival of many of us depend on getting them right.

Question: Are we doomed?

Much of the world is looking to technological solutions, such as desalination. Certainly, we need to employ all the innovative technology we can. But as Bern Sweeney, my former colleague and scientific mentor, told me many years ago, desalination is not so much the solution as it is a manifestation of the problem.

But the significant and measurable improvements to stream health that came in the wake of the 1972 Clean Water Act show that watershed restoration is possible as well as necessary. We have made good progress over five decades reducing “point-source” pollution, which means we can identify its origin and entry points into a stream. We have done less well with “non-point source” pollution, which is difficult to track as it travels across the land in the form of run-off.

Perhaps no place offers more hope than New York City. Despite its growing population, the city has cut its overall water consumption by about 30% over the last 25 years, and it has put in place a system for monitoring the water at its sources, which has so far enabled it to forgo a billion-plus-dollar filtration system downstream.

The lesson is that, while restoring the commons is expensive and time-consuming, it can be done. Not to do so is to condemn future generations to fresh water that is both more scarce and less clean.

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*For much of the scientific ideas that will follow, I am indebted to a small scientific research and education laboratory in rural Pennsylvania and those who work there. I am not a scientist, but I spent many years working in various capacities at the Stroud Water Research Center in Avondale, which has become, since its inception in 1967, perhaps the country’s foremost institution for understanding streams, rivers, and their watersheds. Its scientists taught me what little science I now know. I take full responsibility for the ignorance that remains.

A River and Its Water: Reclaiming the Commons - Part 2

Second in a series

“Freedom in a commons brings ruin to all.”

- Garrett Hardin

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Readers’ views: “Thank you, Jamie, for this new blog. Water and blood, the two most mystical, magical, essential, and interesting of fluids. I would hope that, as all things seem to be coming apart, we return to our ancient and common belief – or in the current vernacular, story – that rivers are sacred.” Warren Burrows

Editor’s Note: I apologize for the redundant sentences and missing word in the first paragraph of Monday’s post. Embarrassing.

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“Picture a pasture open to all,” wrote Garrett Hardin a half-century ago in his landmark essay. His pasture, however, is no idyllic meadow where local herdsmen amicably graze their cows, but a place of impending devastation, where it’s in each farmer’s self-interest to pack as many cows as they can onto the communal grass. The resulting “tragedy of the commons,” wrote Hardin, “brings ruin to all.”

He had a point. By treating our commons as a resource to be exploited instead of a public trust to be protected, we threaten to destroy the very thing on which we depend. Nowhere is this more true than with our treatment of rivers and their watersheds, which sustain all life on earth.

Consider all a river provides us: drinking water, electric power, irrigation, sanitation, transportation, recreation, nourishing food, intangible beauty, habitat for wildlife. Hardin describes two types of commons: ‘a food basket,’ from which people take what they need, and ‘a cesspool,’ into which they put what they don’t want. Rivers are both – and more, for people actually take the commons itself, removing ever-increasing quantities of water or diminishing its quality to the point it becomes unusable. It’s as if some of Hardin’s herdsmen crept back into the pasture after dark, dug up the grass, and replanted it in their backyards.

Meredith Sadler designed and drafted the figure.

Given all the diverse claimants to – and uses for – a river’s goods and services, is it possible to protect it both now and for the future . . . so that the commons will be passed on to future generations in the same or better condition than it was inherited from the past.

Start with the premise that (1) almost everybody needs clean fresh water, healthy wetlands, and unpolluted rivers and (2) most of us depend on economies that have long despoiled all three. To stop, or even slow, the decline is a difficult task, but it pales in comparison to trying to restore a river to its more pristine past. Just as damage was caused by a thousand cuts across time and the river’s watershed, so restoration will require tens of thousands of physical, chemical, biological, and political bandages. At the core of the matter are a river’s many constituents who continue to resist cleaning up the messes they and their predecessors have made. For them, the commons is not a public trust. It is a public trough.

The result? Almost half of America’s streams and rivers are in poor condition, particularly the smaller watersheds that provide over 70% of the nation’s water. The cause, of course, is us. For centuries people have dammed and removed more water than our rivers can replenish and have disposed of more waste, toxins, and detritus than our rivers can process. No worries, we said, everything goes downstream – until we discovered that everyone also lives downstream.

Clean fresh water is not free, and it is no more inexhaustible than a pasture’s grass. A river is not a pipe whose function is to deliver water and other products for human consumption. It is an ecosystem in which all life is connected. As the life’s blood of the watersheds through which they flow, all rivers are deeply impacted by human activities. “The health of our waters,” wrote Luna Leopold, “is the principal measure of how we live on the land.”

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Much of this post is taken from an article Bern Sweeney and I published in Waterkeeper, Jan. 27, 2021.

A River and Its Water: Reclaiming the Commons - Part 1

First of a series

“Rivers are the gutters down which run the ruins of continents.”

- Luna Leopold

The Colorado River provides water for 40 million people and is the lifeblood of some of this nation’s the most productive cropland. It stopped flowing regularly to the sea in 1960. Earlier this year, more than six decades later – and following 23 consecutive years of serious drought exacerbated by the increasing impacts of climate change – American Rivers designated the stretch of the Colorado that runs through the Grand Canyon as the most endangered river in the United States. For over two centuries, Americans have brought a variety of tools to exploit this majestic. Foresight has rarely been among them. Are we at finally waking up to the crises of our rivers?

Nor is it only a problem here. More than half the world’s rivers are seriously depleted and polluted. China’s Yellow River runs dry for two thirds of the year; the Ganges is befouled almost from its source; and the Volga annually transports 42 million tons of toxic waste to the Caspian Sea.

Streams and rivers provide the essentials of life – water and food – for all living beings. For humans, they have done much more. We have used rivers to bathe our bodies, wash our clothes and remove our waste. Rivers have irrigated our farmlands and carried in their waters the fertile sediments that create and replenish the soil itself. Rivers have made possible the inexpensive and efficient transportation of goods—and with them the social, cultural, and intellectual exchanges that have spurred the development of ideas and the spread of knowledge. Harnessing the flow and capturing the power of rivers was the source of the Industrial Revolution and the modern world as we know it.

The earliest civilizations grew on rich alluvial plains that rivers created, and to a great extent rivers defined those early communities. People venerated their rivers as the source of life. Their earliest gods were river gods. But rivers could also be arbitrary forces of destruction, and people were often at their mercy, as floods obliterated their homes, droughts withered their crops, and contaminants poisoned their water. The river brought death as well as life.

Today, despite all humankind’s spectacular engineering feats, over a billion people around the world lack access to safe drinking water – and three times that number suffer from inadequate sanitation. Diarrhea kills almost three million people each year, the majority of them infants and children. Two hundred million people suffer from schistosomiasis, an infection caused by drinking contaminated river water, and more than six million Africans have river blindness.

This series will take a wide-ranging look at rivers and their waters, examining their history, science, politics, and economics; marveling at their beauty; grappling with the issues they face; and seeking remedies at both the macro and micro levels. For if, as Luna Leopold wrote, “the health of our water is the principal measure of how we live on the land” (and it surely is), how then can we ignore Marq de Villiers’ lament that “a child dies every eight seconds from drinking contaminated water?”

American Exceptionalism: Land of Liberty, Foundation of Slavery - Last of a Series

Last of a Series

Lincoln Memorial, 2023

“. . . to bind up the nation's wounds. . .”

- Abraham Lincoln

My granddaughter, Sutton, looks outward from beneath Lincoln’s Second Inaugural.

This is the last in the series: “American Exceptionalism: Land of Liberty, Foundation of Slavery.” You can find the whole series in chronological order here.

Thank you for reading the blog and supporting me. I have learned a lot from your responses, and I have grown through the conversations. At my age, it’s hard to ask for more.

My next series: “A River and its Water: Reclaiming the Commons” will start in about two weeks. I hope you will join me.

Gratefully,

Jamie Blaine

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 15

Part 15 of this Series

America’s Lodestar

“Everybody’s askin’ that. What we comin’ to? Seems to me we don’t never come to nothin’. Always on the way.”

- Casy in John Steinbeck’s Grapes of Wrath

Contrary to many of this country’s origin stories, the first European settlers did not happen upon an empty wilderness. They landed on the edge of a vast continent inhabited by millions of people, whose land they took. They soon established on much of it a plantation system anchored in slavery, and over the next 400 years, America’s sins left a stain on the landscape – from the Trail of Tears to Wounded Knee, from Gabriel’s Rebellion in Virginia to the Pettus Bridge in Selma, from Homestead, Pennsylvania to Love Canal, New York – and beyond, to Nagasaki, to My Lai, to Guantanamo.

So, what then do we make of Winthrop’s “city on a hill”, of Jefferson’s “self-evident truths”, of Lincoln’s “new nation”, of King’s “dream deeply rooted in the American dream”? How can we reconcile their lofty rhetoric with a reality of dreadful crimes?

First, we must confront our history and own it. We cannot claim these atrocities did not happen or that somehow they don’t represent who Americans really are. The evidence is overwhelming: this is who we are. But it is not all that we are, and it is not who we have to be.

The path forward lies neither in seeking some non-existent middle ground, nor in clinging to one image of America and demonizing the other, but in forging a new synthesis that recognizes the power – and the truth – of the contradictions that have defined us from the beginning. We are a land of liberty; we were built on a foundation of slavery. We have failed in our mission from the beginning, but we haven’t yet given up on our ideals. Perhaps this is our calling . . . not to be the most powerful nation in the world, nor the richest nor the greatest, but to strive to be better than we are – to at once accept and transcend our history in pursuit of universal and self-evident truths. Although we’ll probably never get there, it’s when we cease to try that our experiment in nationhood will end.

In every century since European settlement, an American Jeremiah has stepped forward to remind us of that calling, to reproach us for our failures, and to stir us, in King’s words, to “rise up and live out the true meaning of [our] creed.” Every century, that is, but this one. In the wake of the wreckage of the last several years, it’s time for a new summons to our best selves. For it is only by embracing the whole of it – our aspirations and our failures – that we can begin the process of reconciliation. Flag wavers and flag burners – what makes America exceptional is that we are defined by both.

The term American Exceptionalism has been through many incarnations. It has been battered at home and derided abroad, but it will not go away because it says something essential about America to Americans . . . and to the world. It is not a portrait of who we are but an aspiration of whom we might become. By insisting that we live up to our country’s avowed ideals, American Exceptionalism offers the last, best hope of holding us together as a nation. It is King’s promissory note, Lincoln’s unfinished work, Jefferson’s not-so-self-evident truth, Winthrop’s city on a hill. It is America’s lodestar.

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 14

Part 14 of a Series

Newark and Detroit, 1967

"Those who cannot remember the past are condemned to repeat it,"

- George Santayana

Fewer than four years after Martin Luther King shared his dream from the steps of the Lincoln memorial, inner cities burst into flames across America. It wasn’t the first time. There had been deadly race riots in New York City in 1863, Memphis and New Orleans in 1866, in Chicago in 1919, Harlem in 1935 and 1943, Watts in 1965. Nor would it be the last. In the summer of 1968, in the aftermath of King’s assassination and with the ink barely dry on the  “Report of the National Advisory Commission on Civil Disorders,” riots again broke out in more than 100 cities across the nation.

President Lyndon Johnson had charged the commission, chaired by Governor Otto Kerner of Illinois, to investigate the 1967 riots, primarily in Newark and Detroit, and to answer three questions:

1. What happened?

2. Why did it happen?

3. What can be done to prevent it from happening again?

The Kerner Commission produced a 440-page report. It boiled down to one sentence: “Our nation is moving toward two societies, one black, one white – separate and unequal.”

It was that simple. But it was hardly new. Hadn’t that sentence described America in 1963? In 1863? In 1776? Even in 1619? The results have been devastating. “Segregation and poverty,” the commission reported, “have created in the racial ghetto a destructive environment totally unknown to most white Americans.” Ignorant perhaps, but not innocent: “white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”

Newark, New Jersey, an American City, July 12-17, 1967

I don’t believe you could find a more succinct definition of “systemic racism.” Yet, even now, half a century later, local school boards and governments are bent on eradicating those two words from curricula and textbooks across America. They want to rewrite our history precisely so we will forget what happened. George Santayana’s famous saying was clearly meant to be a warning. For those intent on whitewashing our past, particularly in our schools, it has become an aspiration. But if four centuries of American history have proved anything, it is that, unless we deal with our past openly and honestly, we will continue to repeat it.

Already we witness politicians and other pundits describe the urban unrest after the murder of George Floyd, and other police killings, as the efforts of radicals and other bad people to sow chaos and undermine the rule of law. So, it’s worth noting that 56 years ago the Kerner Commission found that the number-one grievance in the communities it studied were the practices and attitudes of the local police – who had “come to symbolize white power, white racism, and white repression. And the fact is that many police do express and reflect these white attitudes.” Unfortunately, the official response from many city governments was “to train and equip the police with more sophisticated weapons.”

These words, let’s not forget, were written in 1968. How much had changed by 2020, when George Floyd was killed?

And yet, for all the anger and violence and despair the commission discovered in our inner cities, it found something else, something surprising: the rioters were not “rejecting the American system,” the report noted. Rather, “they were anxious to obtain a place for themselves in it.” As I hope this series has illustrated, that has long been so. “Black people have seen the worst in America,” wrote Nicole Hannah-Jones, ”yet, somehow, we still believe in its best.”

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 13

Part 13 of this Series

Anniston, Alabama, 1929-present

“Monsanto did a job on this city.”

- Opal Scruggs

“Thanks for these, Jamie. I would just say that “(Meanwhile, unbeknownst to the town’s citizens, a Monsanto plant had been poisoning their land and water since 1935.)” is too big of an awful story to be slotted into parentheses. I had no idea. I hope other people followed the link,” Starr Cummin Bright.

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“I totally agree, Starr. I was just checking something about Anniston, and I came across this. I’d  also never heard of it before, and while it was not on the topic, it seemed too big and too ironic to simply ignore,” Jamie.

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Anniston is the county seat of Calhoun County in northeast Alabama. Founded shortly after the Civil War as Woodstock (for the iron company of the same name), it was soon renamed Annie’s Town after the daughter-in-law of the company’s cofounder, Daniel Tyler, a former Union Army general who had surrendered his division to Stonewall Jackson at the Battle of Harper’s Ferry. His granddaughter would later marry Teddy Roosevelt. Anniston was a meticulously planned community, from which it got its nickname: “The Model City of the South.”

It is probably best known, however, as the site of the horrific firebombing of a Freedom Riders bus on Sunday, May 14, 1961, which also happened to be Mother’s Day. After stopping and disabling the bus, the KKK-led mob attacked and firebombed it and then barred the doors to prevent those inside from getting off. An exploding gas tank forced the attackers to retreat, but they beat the escaping riders with pipes, chains, clubs, and crowbars.

Just. Before he left office, President Obama designated the site “Freedom Riders National Monument.”

It turns out that virulent racism was not the only toxin in Anniston. “Once, from 1929 to 1971,” wrote Harriet Washington in A Terrible Thing to Waste: Environmental Racism and Its Assault on the American Mind,* “Anniston was a company town.” The company for almost all that time was Monsanto, the maker of such illustrious products as DDT, Roundup, Agent Orange, and PCBs. As a result, “the townspeople had the highest recorded levels of PCBs in the  nation.” In 2002, 60 Minutes declared Anniston one of the most toxic cities in America. O.J. Simpson’s lawyer, Johnny (“If it doesn’t fit, you must acquit”) Cochran, subsequently brought the largest class-action lawsuit in U.S. history. The victims got on average $7,725. The lawyers got $142  million.

In 1978 Anniston was named an All-American City. In 1979 Monsanto closed its plant. In 2022 Anniston was called “the most dangerous city in America.”

To which a reader responded: “I grew up in Anniston when the city was at its peak (1960s and 1970s). It was as prosperous a blue-collar town as any. After the '70s, however, businesses and factories started to close up, notably Monsanto . . . [which] has resulted in Anniston losing more than one-third of its population. [In 1970] it had a population about 80% white and 20% black; today the ratio is about 60% non-white and 40% white. There are two main parts of Anniston – east Anniston, which is predominantly residential, and west Anniston, where the factories, plants, mills, warehouses, and lower-income housing are/were located.”

Such paeans to the 1950s and 1960s overlook the reality beneath the white residents’ illusion of paradise – and ignore 50 years of chemical poisoning. It is that amnesia that Ron DeSantis and other Republican governors are promoting in their states’ new history standards.

It should be unnecessary to point out that the vast majority of the victims of Monsanto’s poisoning – as of Anniston’s racism – were people of color.

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Note: A technical snafu delayed publication last week. It also cut off the video of  the March on Washington fort Jobs and Freedom, which culminated in Dr. King’s speech at the Lincoln Memorial 60 years ago today. You can watch the 15-minute speech by clicking this link: https://vimeo.com/35177221.

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*Excerpted in BuzzFeed News, July 26, 2019

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 12

Part 12 of this Series

Groton, Massachusetts, February 1963

“What happens to a dream deferred?”

- Langston Hughes

In February 1963, Martin Luther King, Jr. spent two days at a boys boarding school in rural Massachusetts, where he had been invited to visit with the school’s 200 students and faculty. It was still relatively early in the 1960s civil rights movement, and on this issue the school was ahead of its time. Two years earlier, the first Freedom Riders (seven blacks and six whites) had boarded two Greyhound buses in Washington, D.C. and headed south. The farther they traveled into the Deep South, the more violent the resistance they met. Just outside Anniston, Alabama, Klansmen firebombed the bus, tried to keep the riders from getting off, and brutally beat them when they finally did. In the face of such horrendous violence and police collusion, James Farmer of CORE ended the campaign, but neither the violence would explode soon again. (Meanwhile, unbeknownst to the town’s citizens, a Monsanto plant had been poisoning their land and water since 1935.)

In February 1963, Selma’s “Bloody Sunday” was still two years away; Michael Schwerner, James Chaney, and Andrew Goodman, who would be murdered in Philadelphia, Mississippi in June 1964, were very much alive; as were Addie Mae Collins (age 14), Denise McNair (14), Carole Robertson (14), and Cynthia Wesley (11), who would die that September in the rubble of Birmingham’s 16th Street Baptist Church; Addie's sister Sarah still had both eyes.

On Saturday evening, when he spoke to the whole school, as well as members from the surrounding community, Martin Luther King had just turned 34. It was an extraordinary talk, filled with the sonorous cadences of the Baptist church into which Dr. King had been ordained. I was 18 years old, and I’d never heard anything like it. And I have never forgotten it. I learned later that the speech we had heard was an early version – a kind of rehearsal, really – of one he would give six months later on the steps of the Lincoln Memorial.

August 28th, 1963, Looking out from the Lincoln Memorial

He spoke to 250,000 people who had come for the March on Washington for Jobs and Freedom. A little more than five years later, on the evening of April 4, 1968, Martin Luther King, Jr. was assassinated as he stood on the balcony of the Lorraine Motel in Memphis, Tennessee. He was 39 years old.

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 11

Part 11 of a Series

Washington, D.C., 1963

“I have a dream.”

- Martin Luther King, Jr.

Everyone at Gettysburg knew whom Lincoln meant by “our fathers” at the beginning of his talk; it was far less clear whom he meant by “the people” at its end. A century later, Martin Luther King, Jr. set out to clarify that. Looking out from the steps of the Lincoln Memorial, across to the Washington Monument and the Capitol beyond, he did not speak of a city on a hill, but of 350 years of slavery and repression, of the enslaver’s whip and the terrorist’s rope. He reminded 250,000 freedom marchers how far short of its rhetoric America has always fallen.

Yet we remember his speech, not as “The American Nightmare,” but as “I Have a Dream” – and not just any dream, but “a dream deeply rooted in the American dream. . . a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’” It was still, as Langston Hughes wrote, “a dream deferred” – in King’s words, a “promissory note” on which America has defaulted. “Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’” We must not, however, “wallow in the valley of despair,” he told his listeners of all races and walks of life. We must build together a city on a hill.

This, it seems to me, is the core of American Exceptionalism – not that America is – or has ever been – exceptional, but that we strive to be; not that the American people are better than others, but that every so often someone comes along and says, “we can be better than this.” Despite what Lincoln said at Gettysburg, that “the world will little note nor long remember what we say here,” it is, in fact, the words that we remember, and it is our collective failure to live up to them that brought Lincoln to Gettysburg and King to the Lincoln Memorial. Neither man said, “This is not who we are,” a mantra that has acted for centuries as an absolution for our worst behavior. On the contrary, they said, this is who we are – but it is not who we have to be.

The powerful have long manipulated the concept of American Exceptionalism, insisting that it explains the superiority of this nation. But it is the outsiders – from Emma Lazarus’s “huddled masses yearning to breathe free” to Raphael Warnock’s 2021 Senatorial victory announcement in Georgia that “only in America is my story even possible” – who have most intensely believed in it . . . and who, on the strength of that belief, have given it its true meaning.

O, yes,

I say it plain

America never was America to me,

And yet I swear this oath —

America will be!

- Langston Hughes

If there is a greatness to – and a hope for – this country, it is in those words.

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 10

Part 10 of a Series

“Let America be the dream the dreamers dreamed.” 

- Langston Hughes

Today’s post is an exchange with an old friend that got me thinking about both the substance of this series and how to make it more interactive. I have had several personal responses from readers that have challenged me to think more deeply and more clearly, and I’d like to create with this blog a thoughtful conversation as much as a monologue . . . although given the state of social media interactions, perhaps I should be careful what I wish for.

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“A point I was going to make the other day if we had more time to talk is that, in my mind, it is a mistake to characterize slavery as a distinctly American social phenomenon. It was for all practical purposes a universal phenomenon: This was driven home to me a couple of years ago when we were in Sicily and toured Syracuse. There, one of the most impactful sites we visited were the massive salt mines within the ancient city walls. Who inhabited the salt mines for hundreds of years? The ancient Greek inhabitants’ slaves from around the Mediterranean world.

“To note this is not to diminish the problematic legacy of slavery in the U.S. in all its current forms, but it argues against any particular blame of our ancestors for its existence on our shores. Similarly, our ancestors don’t deserve particular blame for American women not being allowed to vote until the 20th century. On both scores, we’ve evolved, and the content of that continuing evolution is the stuff of our eligibility to still be considered ‘exceptional.’

“I don’t buy the ‘Land of Liberty, Foundation of Slavery’ juxtaposition because it suggests that the latter is as significant as the substance and spirit of the former. Not close in my mind: It is the former which overcame the latter and which energizes the continuing effort to erase slavery’s legacy.”

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I agree that slavery and degradation have been around probably forever, and when you write of Syracuse, I think also of Sparta, whose treatment of its own people, the despised helots, seems cruel even by that city state’s gruesome standards.\

It is also true that North America received a small fraction of the total slave traffic. In the almost 350 years of the transatlantic slave trade, 12.5 million Africans were seized and put on ships. Almost two million died during the brutal “middle passage”. The vast majority of the survivors were shipped to the Caribbean and Brazil, with 5.5 million going to the latter alone; 388,000 were put ashore in North America. Yet on the eve of the Civil War, there were about 4 million slaves in the United States,

Still, I think several things set the United States apart:

• The creation of a potent theory of racial superiority to justify slavery. Racial prejudice and subjugation are hardly unique to us, but we created a complex legal and philosophical justification for it, one that “Dred Scott v. Sandford” sought to implant in the Constitution.

• The theory of racial inferiority went beyond justifying the subjugation of people; it defined them as subhuman. Slaves were property.

• In the years before the Civil War, the argument developed that slavery was not only good for white people, it was also beneficial for the slaves themselves. That argument is still alive, as Ron DeSantis recently demonstrated. (It is also a variant of the “White Man’s burden” European nations used to justify their empires.)

• What I didn’t learn in high school was the enormous profitability of the slave economy and its role as the foundation of the industrial revolution. “What distinguished the United States from virtually every other cotton-growing area in the world,” writes Sven Beckert in Empire of Cotton, “was the planters' command of nearly unlimited supplies of land, labor and capital, and their unparalleled political power. . . .It was on the back of cotton, and thus on the backs of slaves, that the U.S. economy ascended in the world."

• Interestingly, Utilitarianism, the dominant and democratizing philosophical school of the mid-19th century, which is often summarized (however inexactly) as  optimizing “the greatest good for the greatest number,” was adopted by apologists for slavery, who pointed to the immense wealth a relatively small number of slaves produced for the rest of the country.

• Nor did abolition and emancipation end the matter. Jim Crow laws, sharecropping measures, prison work gangs, segregation, intimidation, lynching, and more kept Blacks suppressed.

• In the end, though, I think that what made American slavery so different from slavery elsewhere is that it refuted the “self-evident” truths that had given birth to the nation.

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 9

Part 9 of a Series

Gettysburg, 1863

“A new birth of Freedom”

- Abraham Lincoln

Four score and seven years after the Second Continental Congress issued its Declaration, Abraham Lincoln stood on a field outside Gettysburg, Pennsylvania, 140 miles almost due west of Philadelphia, and evoked that “new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” He had not come to tell his listeners how great America was, but to urge on them the “unfinished work” that was required to give “this nation . . . a new birth of freedom.” When he looked out across the battlefield, he saw, not a city on a hill, but a burial ground holding more than 3,500 graves, over a quarter of them unmarked.

The most deadly and destructive war in American history bore bloody witness to the Declaration’s tragic contradiction. And so, President Lincoln came to Gettysburg to venerate the dead and to encourage the living to persevere with the war. But Lincoln came also to affirm the dream. He spoke to a divided and exhausted nation – and he spoke to the world. We can be better than this, he said, despite more than two centuries of evidence to the contrary. We must rise above the carnage of this place, not only to honor those buried here but to ensure that they will not have died in vain.

As in so much of Lincoln’s writing, there is in this speech a tinge of sorrow, a sense, not so much of America’s accomplishments, as of her failure to live up to her possibilities. Here was an American politician standing on the battlefield where American troops had won the decisive battle of the war, not to fatuously proclaim his country’s greatness but to call on it to achieve the ideals on which it had been founded.

If there were any doubts about what those ideals encompassed – and why the war was fought – Lincoln made that clear less than four months later in his Second Inaugural Address. “These slaves [one eighth of the country’s total population] constituted a peculiar and powerful interest. All know that this interest was somehow the cause of the war.”

The war was not fought over states’ rights under siege from the federal government, as many in this country still would have it, nor was it about an agrarian South trying to defend its way of life from an industrial North, nor about a culture of practical Yankees trying to subjugate a culture of romantic Cavaliers. The war was fought over slavery. And it would not – it could not – end until slavery was abolished forever.

At the outset of the war, Lincoln had said that the Union was fighting, not to end slavery but to halt its expansion. The war, as horrific as it had turned out to be for both sides, had changed that – not so much for Lincoln, who had believed it all along as for the nation – whom he told in his Second Inaugural that, “if God wills that it continue until the wealth piled by the bondsman’s two hundred fifty years of unrequited toil shall be sunk and until every drop of blood drawn with the lash shall be paid by another drawn with the sword as was said three thousand years ago, so still it must be said, ‘the judgments of the Lord are true and righteous altogether.’”

Note: I’m grateful to my friend, David Yeats-Thomas, for this important corrective to Monday’s post: “Great series, Jamie. Would it be complicating your point to note that the 15th Amendment’s right to vote for all citizens still left half the population without the right to vote?”

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 8

Part 8 of a Series

Two Americas, 1860

“And the war came.”

- Abraham Lincoln

In a series focused on America’s four defining documents, it may seem odd to spend so much time on the contrasting views of Frederick Douglass and Roger Taney. But the 1850s ended with the Civil War, which was then, and remains today, the fundamental challenge, not just to the  legacy of American Exceptionalism, but to the survival of the nation itself. Douglass and Taney confronted the country’s elemental paradox: that we are a land of liberty built on a foundation of slavery. They read the same texts and admired the same authors. Both even argued that the founding fathers were great men and brave men who must be taken at their word. Yet they laid out two visions of American and its “peculiar institution” that were polar opposites.

“We hold these truths to be self-evident,” the founders had declared, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

That is so, said Frederick Douglass. Therefore, the slave must be a free man.

That is so, said Roger Taney. Therefore, the slave cannot be a man.

On one thing, though, Douglass and Taney agreed: there could be no compromise on this issue.

“The right of property in a slave,” wrote Taney, “is distinctly and expressly affirmed in the Constitution.”

“It is not light that is needed,” said Douglass, “but fire.”

The Civil War nullified the Dred Scott decision, and the post war government quickly overturned it. The 13th amendment (1865) abolished slavery; the 14th amendment(1868) declared that “all persons born or naturalized in the United States . . . are citizens of the United States;” and the 15th amendment guaranteed the right to vote to all citizens, regardless of “race, color, or previous condition of servitude.”

But Dred Scott’s most enduring legacy has proved far more difficult to overcome. For the decision is rooted in a doctrine of Black inferiority that continues to be embedded in far too much of our culture. Taney’s racism is overt, unapologetic, and pervasive. The Civil War and the new amendments could end slavery, make Black people citizens, and, at least theoretically, give them the right to vote. But no constitutional amendment could ever undo the damage of a decision that not only extolled slavery but wrote systemic racism into the Constitution itself.

In the end, Frederick Douglass left the most important legacy of all. As outsiders have done so often throughout our history – and as Martin Luther King, Jr. would do over a century later below the Lincoln Memorial – Douglass grounded his fiery condemnation of America firmly in America’s own principles. The Constitution, he argued, “interpreted as it ought to be interpreted . . . is a GLORIOUS LIBERTY DOCUMENT.”

The Dred Scott decision called forth America’s most reprehensible demons. Frederick Douglass appealed to what Abraham Lincoln would later call “the better angels of our nature.”

American Exceptionalism: Land of Liberty, Foundation of Slavery - Part 7

Part 7 of a Series

Washington, D.C., 1857

“The Constitution of the United States recognizes slaves as property.”

- Roger B. Taney

We ended last time with Frederick Douglass’ syllogism on slavery:

• Every person thinks slavery is wrong for them.

• A slave is a person.

• Therefore, slavery is wrong for every person and must be abolished.

Enter, three years later, Roger B. Taney, Chief Justice of the United States, with a syllogism of his own:

• The Constitution protects a private property.

• A slave is not a person but an article of private property.

• Therefore, the Constitution protects, not the slave’s non-existent person, but the slaveowner’s property.

The case was Dred Scott v. Sandford. The plaintiff was an enslaved Black man who had been owned, bought, and sold for his entire life. Because he had lived for a time in a free state (Illinois) and a free territory (which later became the state of Wisconsin), Scott argued that he had in the process become a free man. He sued for his and his family’s freedom, and after years of legal meandering, including decisions in his favor, the case arrived at the Supreme Court.

The result was not just a fatal blow to the hopes of Dred Scott and his family, it was a disaster for all Black Americans and, indeed, for the whole nation.. Having proclaimed that a slave was not a man but another’s man’s property, Taney went on to declare that not only current slaves, but all descendants of slaves, were not persons before the law. “No one of that race had ever migrated to the United States voluntarily,” he wrote erroneously; “all of them had been brought here as articles of merchandise.” Consequently, no Black person, “whether they had become free or not,” can be a citizen of the United States or the state in which they reside.

For good measure, the court’s majority declared null and void any law that sought to limit a slaveholder’s absolute control over his property. It upheld the Fugitive Slave Law, which required that all escaped slaves be returned to their enslavers, regardless of where they had been captured. And it asserted that the Fifth Amendment – one so many people are pleading in Washington these days – forbids, in addition to self-incrimination, taking a person’s “life, liberty, or property, without due process of law.” Since slaves were property, Congress had no authority to limit slavery anywhere in the United States, including in its territories. In the opinion of this court, the sanctity of property was in no way modified by the fact that the article of merchandise happened to be physically, if not legally, a person.

Hailed by the Southern States, the Court’s 7-2 decision led directly to the Civil War three years later. Since then, Dred Scott v. Sandford has been widely considered the worst decision in the history of the Supreme Court. Recently, conservatives have disparaged it for legislating from the bench, in their eyes, the worst judicial sin of all.

But Taney does no such thing. Rather, he grounds his thinking firmly in both the Declaration of Independence and the Constitution, and he notes that, although popular opinion on the slavery issue may have become more liberal over time, that is not a matter for the court. “The Constitution,” he wrote, “must be construed now as it was understood at the time of its adoption. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day.”

If such reasoning sounds familiar, it should. For it’s precisely the narrow, strict-constructionist position favored by the current majority on today’s Supreme Court.