Bound, part 1: American representative democracy rejects the Dred Scott opinion for the first time
Donald Trump put Roger Taney on the ballot; and for the first time, an American political majority clearly chose to bind his power. Will the Supreme Court overturn the majority's will?
“…they had no rights which the white man was bound to respect.” — Chief Justice Roger Taney, in his 1857 Dred Scott case opinion prohibiting federal regulation of slavery. Note the word “bound” in bold.
"And when you’re a star, they let you do it. You can do anything...Grab ’em by the pussy. You can do anything." — Donald Trump, 45th president of the United States of America.
Roger Taney’s written opinion in the Dred Scott decision is the “locker room talk” of American life — an obscene, popular, declaration of dominion hiding in plain sight.
You can do anything, as long as you’re a white man doing it to a black person, Taney declared to America from the ultimate seat of unelected power. It is obvious and appropriate that we perceive the Dred Scott decision, historically, from the point-of-view of "they," the black Americans considered so "inferior" as to have no rights that white men need respect.
At the same time, the chief justice’s zeal to eliminate black Americans from American humanity and law also created a right with the power to destroy the American project altogether, for everyone.
Taney’s clearly articulated unbinding of power, never rejected by representative democracy, coiled itself like a zombie viper throughout post-Civil War American history. It lay hissing and waiting for the right personality type to reanimate it and help it strike at everyone — not just “the negro.”
And so Donald Trump did, with the eager help of most Republican party leaders.
And when you’re a star, they let you do it. You can do anything is Taney’s Dred Scott doctrine made visceral, modern, and comprehensive. Trump’s doctrine, for all his racism, is just Taney’s doctrine without the racial boundaries.
A man of the unbound
Donald Trump ran openly on his own theoretical unbinding — and that of his supporters — in 2016. A (small-d, not party) democratic majority rejected Trump in the popular vote; but the (small-r, not party) republican part of the American political system carried him to power through the electoral college.
Then Trump lived Taney’s unbinding as president.
We Americans, for once, all got to experience the sensation of great power truly raging against any binding our national institutions and character could provide. We all got to experience the sensation of menace that unequal protection generates.
Many people liked it because they perceived themselves among the unbound, the protected, and the menacing.
Moreover, American institutional leaders and owners of concentrated capital have performed and behaved quite badly for a generation at least. Indeed, any honest assessment of George W. Bush’s real world record — from 9/11 to Iraq to Katrina to the Great Recession — reveals it as far worse than Trump’s. It’s hard to blame some people for enjoying how Trump humiliated many elite “leaders” — while sucking up to others. Modern American power has lived in Roger Taney’s world for a long time; it’s just done it on the down low.
Trump ended that.
He helped a new universe of people understand through daily experience of stress what it means for power to unbind itself and subject Americans to you can do anything.
Thus, Trump forced America into a clear 2020 referendum on the maximal Dred Scott doctrine and our collective experience of mass unbinding. Last week, the most powerful voting coalition in the history of representative democracy defeated the Dred Scott doctrine. It did so clearly, but not overwhelmingly, in both the republican and democratic sense.
Will power allow representative democracy to bind it?
The question now is whether power other than Trump — the Supreme Court, the Department of Justice, local law enforcement, the military — will reinstate Taney’s right of unbinding by raw force as Trump’s crew insists, with basically zero push back from his party or supporters.
I rule nothing out; but I don’t think that’s going to happen. Joe Biden will most likely become president. Here’s why:
I do not believe for a second that anyone but the most addled minds believe anything fraudulent happened in this election. The people saying it today are lying to cover up what they actually mean: that they consider the very concept of multi-racial, multi-ethnic, cross gender democracy that can bind them as fraud. The idea of the military and the police and taxing authority under the civilian command of the Biden coalition is “socialism” or whatever stupid word you want to call it. That’s the real thinking behind what you’re hearing now.
And that, friends, is also the fundamental story of America, from 1776 or 1619 or whenever you want to start counting.
It’s a much more serious and profound problem than “sowing doubt about the integrity” of any particular election. It may kill America. On the other hand, America, as popularly imagined, has never really existed. To exist, I would argue, the country must confront and slog through this moment. America must politically repeal all of Dred Scott and have it backed up by hard power — bound to citizens that hard power also largely despises.
Trump’s anarchic blatantness is both the trigger and salvation of this crucial American moment. Despite all his best efforts to suck up, his nature has placed him on the wrong side of concentrated capital and concentrated guns, which is the ultimate reservoir of true power in every society — democratic or otherwise.
Even if concentrated capital and concentrated guns loathes the voting coalition that beat Trump, which it does, it has absolutely no excuse or provocation to act in the interest of his unbinding. There is no fraud; everyone on all sides knows this. That doesn’t guarantee that concentrated capital and concentrated guns won’t act; but it makes it much much harder to do so.
Indeed, because there is no fraud, there’s going to come a dramatic moment in the next few weeks when the Supreme Court either slaps Trump down or names him king. The choice is that stark.
If the Supreme Court declares, for some made up reason, that a majority of voters have no rights that Trump or a Republican is bound to respect, no one could stop Trump from staying in power, at least not at first. If the Supreme Court just declares for some made up reason that Trump has a path to staying in power, the military and law enforcement at all levels can make it stick by force if they choose. And concentrated guns would probably kill a lot of kids who go into the streets to protest a blatantly stolen election. There are plenty of big talkers who claim to be itching to start shooting and running kids over, the governor of Florida included.
The good news? I really don’t think there are five Supreme Court justices, even on this court, ideologically and emotionally prepared to just strike down a fair, massive turnout election; declare the American idea canceled; and unleash the violence. (There may be a couple, but not five.)
More cynically, I don’t think there are five Supreme Court justices prepared to completely surrender their own power to illegally reverse a completely legal election. If they make Trump king now, he’s their king, too. They will be subject to MAGA power for the foreseeable future; and MAGA actually isn’t all great for concentrated capital and concentrated guns — 1-percenter boat parades not withstanding.
This Supreme Court, I believe, would rather arbitrate disputes within concentrated capital and guns than make itself forever subject to the whims of MAGA, the office of president, and armed security forces.
It sounds surreal to even discuss this out loud. But no political concept or institution means anything in the absence of real world power. Democracy, untethered to power, is just a distant survey. Republicanism, untethered to power, is just an advisory committee of toadies. A Supreme Court ruling, untethered to power, is just a white paper.
I’ve learned that above all things in my study of America.
At this moment, democracy is seeking to bind power; and power is at least going through the public motions of resisting with blatant lies and raw appeals to institutional force. Look that in the face and be honest about it; and let’s hope that I’ve judged concentrated capital and guns correctly. Let’s hope they’re willing to let votes bind them rather than choose violent legal anarchy.
The anti-Declaration of Independence
If I were a high school American History or Civics teacher — and perhaps I will be one day — I would organize my class around the Dred Scott decision.
I consider it the most important document ever written by official American power. It poses the defining American problem in quite direct terms and answers it with cold rejection of all abstract American ideals. All Americans should read it. It is real-world American power's most brutal and articulate rejection of the American Declaration of Independence.
I would argue it is American power's most brutal and articulate rejection of the Constitution, in both letter and intent. But that's a more complex question, related to the constitution and "originalism," a voodoo legal word that deserves its own article at another time. Dred Scott is the ultimate “originalist” decision, entirely built upon Taney’s flawed “originalist” interpretation of the constitution. But “originalists” like to somehow pretend it’s not because they’re unrelentingly dishonest, intellectually and morally.
In the real world, Taney’s Dred Scott used his interpretation of the original text of the constitution and early federal and state law to declare black Americans excluded from the protections and individual sovereignty conveyed by the constitution. It used law to exclude human beings from law — both as victims and as abusers.
That's astonishing nihilism even when it's limited by definition to "the white man" and "the Negro."
“But will you not abide the election of a [fill-in-the-blank] president?”
Taney’s Dred Scott decision and opinion have been on the national ballot once before, in the 1860 presidential election that led to the Civil War. In 1859, Abraham Lincoln gave his famous Cooper Union speech. It’s awesome. Here Lincoln explicitly calls out the Dred Scott decision’s implications for the 1860 election, addressing slavery advocates and advocates of secession directly:
Under all these circumstances, do you really feel yourselves justified to break up this Government unless such a court decision as yours is, shall be at once submitted to as a conclusive and final rule of political action? But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, "Stand and deliver, or I shall kill you, and then you will be a murderer!"
Any of that sound familiar?
Abraham Lincoln went on to win a republican (small-r) rejection of the Dred Scott decision. He won a 40 percent plurality and enough of the electoral college to become president. But no national majority rejected Taney’s doctrine. And the concentrated capital of the southern slave power couldn’t abide even a republican repudiation of slavery’s expansion from the election of a Republican. So it went to suicidal war instead.
Thus, the Supreme Court’s Dred Scott decision caused the Civil War.
It did so by enshrining the expansion of slavery as a permanent property right that the federal government could not take away except by industrial scale violence.
But Taney’s opinion did far more than even that. It excluded human beings from law by pretending they were not human beings. It gave “white men” the right of unbinding in their relations with “the Negro.” Here is the full crucial, infamous passage from Taney’s opinion:
[Blacks] had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race....
...No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country should induce the Court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted....
That formal idea was was never fully repealed by representative demoracy, as I’ll show you in a moment, until last week.
No appeal but blood
The Dred Scott decision — and Southern slaveowner commitment to it — was so profound that a different form of popular American power, a tenuous multi-racial alliance, was forced to overturn it with a ruinous, blood-soaked civil war that American power did not want.
That reluctance accounts for why the Civil War only struck down part of the court decision: the expansion and continued existence of slavery as an economic and social system. Slavery was only a sub-section of the moral and legal territory laid out in Taney's vision of an America unbound to the rights of human beings within it.
The scope of the Dred Scott opinion is so vast that overturning it, even just on paper, took the Civil War plus three constitutional amendments: the 13th (ending slavery), 14th (equal protection of law), and 15th (voting rights) amendments.
In a bloody on-the-ground backlash, Roger Taney’s America quickly and effectively appealed much of the Civil War and Reconstruction and rejected two of the three amendments. When challenged by the democratic power of Taney’s America, the tenuous multi-racial alliance that won the Civil War did what most tenuous alliances do: it collapsed.
And the right of the white man’s unbinding was restored, by popular will and brute force. This Jim Crow backlash was so successful that only the 13th amendment effectively existed for nearly 100 years between the Civil War and late 50s-60s Civil Rights Movement.
Indeed, before the 2020 election, I think it’s obvious that American representative democracy had never peacefully ratified with votes what the Civil War won with violence.
That’s because the 13th amendment protected the white people from the concept of slavery — from its economic competition and debasement of the entrepreneurial spirit of free labor. The people and industry of the North paid an astonishing personal price to destroy the source of South’s concentrated capital, arrogance, and political power. By and large, the North did not pay that price to liberate black people. Thus, Dred Scott’s reasoning and right for power to exclude human beings from law remained largely unquestioned in America for 100 years after the Civil War. During that time, it was entirely legal for white people to murder black people; steal their property; and the prevent their votes. Neither the law nor democracy bound white power to black rights.
Efforts to enforce the 14th and 15th amendments at scale only really began with largely unpopular court orders in the 1950s. Enforcement of the 14th and 15th remain deeply controversial today. Both amendments remain the source of active, bitter dispute. Many people today who describe themselves as "conservative" talk about repealing the 14th amendment because of birthright citizenship and other elements. And voter suppression is an ongoing battle across the country, centered on defining what the 15th amendment requires. The 15th amendment — voting rights — is literally the core of the fake “dispute” at the heart of the post-election nonsense.
A large portion of the modern Republican party power structure, which is not Lincoln’s party, obviously, is actively flirting with striking it down the 15th amendment entirely by overturning the 2020 election. The John Roberts Supreme Court already gutted the Voting Rights Act, which was the most powerful means of enforcing it. The Supreme Court has the power to strike down the 15th, if it wants, because Americans have given it the power to do anything in this society.
Mitch McConnell has understood that for a long time.
Power defines who “they” is
It’s true that the text of Dred Scott limits the right of unbinding to the "white man" and his dealings with “the Negro.” But let's look at the passage again -- and play mad libs with "they," which could be anybody, and “white men,” which could also be anybody.
[Blacks, Jews, gays, women, non-property owners, conservatives, liberals, centrists, Democrats, Republicans, Greens, Libertarians] had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which [anyone] was bound to respect;
The right of unbinding is never limitable. When you successfully declare, "nothing in law binds me," in relation to something, then, eventually, nothing but raw force or your own personal restraint will bind you in relation to anything.
Power will ultimately decide what it considers “white” and who it considers “the negro” — or whatever term of definition it needs. That's the most lasting malignant innovation at the heart of Dred Scott: liberation from binding is enforceable and moral by the government. By state power itself. Unbinding is a legitimate form of governing, sanctioned by the Supreme Court.
As long as unbinding was limited to Americans vulnerable to the power of majority, as long the president did not openly declare himself unbound, there was no real need for the majority to confront the lingering popular power of Taney’s opinion and the Dred Scott opinion.
After all, mass incarceration is for other people.
Trump’s great insight
And then came Trump, who understood in his bones the popularity of unbinding. That’s his great talent as a politician. Indeed, the fundamental “ideology” of Donald Trump’s entire presidency was — and continues to be — "[insert name here] had no rights which Donald Trump was bound to respect."
When I look at Trump, I see a person who, if it struck his fancy and he saw he could get away with it, would happily rape any member of my family. He would steal anything I own. He would skip out of any contract or commitment made to me. And he would cheerfully have me dismembered alive with a bone saw like our Saudi Arabian allies did Jamal Kashoggi.
In short, I see a person given great power with no internal or moral restraint. None. In my view, no person and no issues of public good exist for Trump independent of Trump's immediate gratification. I see no ideology — none — but predation. If he lived in Lakeland, I would give him as wide a berth as possible with my presence and my money. He is unique in this compared to all American public figures I have ever perceived. Indeed, he is unique among most people I have ever met.
Paradoxically, this is a great political advantage to him in modern America because of its uniqueness and authenticity.
There are few people who can match the authenticity of Trump's awful humanity. I will wager that no one — supporter or detractor — doubts that Trump is the same person in public and in private. I certainly don't. I would not want to be his spouse or child any more than his employee or constituent.
Trump is not a phony, in the way most politicians are, even though he never stops lying and is endlessly corrupt. That's one of those spectacular human contradictions that bend people's minds. And yet, everybody should reckon with it. It's the most likely reason that the American people and political system chose to give this much power to a person so completely defined by unbound indulgence and lack of restraint.
Unbinding is a drug
Most of us, myself certainly included, sometimes (or often) fail to live with the restraint that we would like our communities or families or voters to see. Anger or alcohol or sex or greed or a million other motivators overcome our best selves. That shames us; and it makes us hypocrites at various times in our lives. I know it has made me one.
Trump is different from us in that he makes no effort and recognizes no human obligation to live within moral restraints. I suspect he's never felt the sensation of moral shame. So it's hard to call him hypocritical because he's completely indifferent to hypocrisy. Indeed, I would say that aggressive hypocrisy is fundamental to his trolling.
There is no person alive whose rights Trump feels bound to respect — unless that person has the power to personally impose the binding. Because Trump recognizes no human binding to his fellow citizens, he's never really trying to weasel out of binding, even when he's trying to weasel out of it. That's his chief political and popular virtue.
Some people imagine this as strength; but it's not. He's quite easily bound by people he considers more personally powerful than he is. And he tends to crumble into whining when directly confronted by people less powerful. As I’ve said many times, people should never confuse power with strength.
In fact, I suspect his racism and "grab 'em by the pussy" approach to women mostly reflects a predatory sense that minorities and immigrants and women are more vulnerable in this society and thus easier targets. Trump has a predator’s talent for sensing vulnerability. "Pussies" have no right he is bound to respect; because none has bound him yet. And he makes no pretense otherwise. That’s why MAGA loves him. Unbinding is a drug-like experience.
The American people have repeatedly embraced that high over the course of our history; as the Supreme Court did in Dred Scott. But Trump is the first president since maybe Andrew Jackson to so openly declare himself unbound. He is pure meth for the American unbinding habit.
But like all addictions, unbinding can become all consuming. And it’s never, ever limited only to those folks you imagine to be your enemies. Or those people who annoy you. It’s the ultimate dragon to chase.
The binders of MAGA
MAGA binds people with its capacity to inflict mass stress. Whether you’re doing the afflicting or being afflicted, MAGA makes people feel. Nothing creates loyalty or resistance quite like intense feeling.
Thus, the mass experience of MAGA stress has built a new, tenuous multi-racial Civil War coalition, particularly around women. I wrote this on Election Day as part of an essay I called “Introducing the most powerful coalition in the history of representative democracy.”
I think this is the first time in American history that an ethnically-cohesive political minority has needed to openly and at very large scale use menace, rigging of courts, and raw power to hold off a diverse American majority. When those things have happened in the past, they tended to have wider popular support, target a narrow and vulnerable population, and happen in isolated and confusing settings. Think Tulsa or Rosewood or Ocoee etc. The 1920s massacres were popular among the white power structures and voters who carried them out.
This is different. No American political force has ever openly attempted to wipe out this many votes -- hundreds of thousands -- already cast. No political force has been so willing to disenfranchise even its own supporters if they happen to fall into a grouping of votes likely to go to the opposition. No political force has ever projected this much open physical menace toward its opponents at this scale. No minority American political force has so openly forsaken any attempt to win over a majority, rather than simply menace it into submission.
Thus, for the first time in American history, I would argue, a broad swathe of (largely white) people who have never before felt real political and social menace at scale, feel it today. It's compounded by the indifference to life that MAGA has projected throughout the COVID era.
They've been forced to participate in a civil war they never knew existed -- or at least never felt.
That new coalition just delivered the first ever clear political rejection of Roger Taney’s concept of unbinding, with women of all types and black Americans at the tip of the democratic margin spear.
Joy or horror?
“My god, we just voted to repeal Dred Scott,” is a phrase that can inspire joy or horror, depending on how you perceive the word just.
I would have been horrified at age 35, when I understood America differently. Today, I tend toward joy, tempered with a tight gut. That’s because my understanding of where we are in the pursuit of American ideas has changed quite radically in the last 15 years. This happened well before Trump emerged to confirm my perceptions.
Creating this annotated chart of voting rights expansion, incarceration rates, and murder rate proved pretty crushing to my illusions about my country. It’s a pretty concise visual image of what “they had no rights the white man was bound to respect” means in the real world of the 20th and 21st century.
That’s why I see Tuesday’s outcome, the first majority democratic rejection of Dred Scott in American history, as an extraordinary step forward that opens up a world of long-term possibility.
If we can keep it.
Part 2 of this will wait until it’s clear if Trump will leave office and surrender power.
He and I were elected on the same night in 2016. And it looks like we’ll go out together; but I’m not ready to count that chicken yet. The next essay will be different if power does not bind Trump and his supporters to defeat than it would be otherwise.
In the meantime, here's an article I wrote shortly after my 2016 election exploring the vertigo of sharing victory with Trump — a victory I won for many of the same reasons he did. Those reasons included America's generally inhumane education policies, championed by the clueless moneyed elite of both parties.
My 2016 essay was seeking to soothe, rather than inflame, divisions. Unlike Trump, I ran on binding myself to every element of my community through its public schools. Key excerpts:
I can tell you that I do not believe in total political war. I will meet with the local political establishment anytime, anywhere in public to work together toward restoring a humane educational experience. That could start this weekend if we decided to. But I will challenge that same establishment with every public tool I possess if they choose not to participate. I am tired of them hurting our kids and the people who serve them.
I looked a hell of a lot of Trump voters in the eye and told them their children mean everything to me as human beings. I meant it. I meant it then. I mean it now. I ask them something in return: do you mean it about other people’s kids? If you do, we can accomplish much together. But understand, many of your neighbors believe that’s an open question today. And they have reason to…
…Sixty percent of Polk County voters chose the least cynical campaign ever run in this place. We won in every community, among every race, class, and achievement level. Every precinct but one. That’s what a humane future can look like if we fight for it. And make no mistake, humanity has to be fought for one human at a time. It does not emerge from spreadsheet cells. I would love for Polk’s political and business establishment to join us.
Polk County’s unbound forces of concentrated capital lied about that essay, dismembered fingers of it, and used it successfully as a short-term weapon in the 2020 election.
We’ll take a look at that — at the abyss of perceptions concentrated capital exploits — and what binding each other across the abyss requires for official power and relationships.