Mudlarking for America

Founding Toddlers

Like everyone else on earth, I have fallen in love with Lin-Manuel Miranda. He is just plain adorable and extremely talented. I have the entire soundtrack to Hamilton memorized. Unfortunately, now every time I think of Alexander Hamilton (did anyone else sing that in their head?  Just me?  OK) I see Lin. It is completely disconcerting to realize that A dot Ham was not all that. In fact, he was kind of a scum. So were all the “Founding Fathers” frankly. There is a TikTok series by a creator called Blackout___ called “Why They Are In Hell” (Go check it out. It’s worth watching. The Founding Father Slander series and Redacted History podcast are also amazing.), and the founding fathers all make the list and rightly so. The more I look at the Revolutionary War, the more I realize we were not the good guys- if there were any good guys at all. But contrast that with the version of events we were taught all through school and on every Fourth of July-  “Liberty and Justice For All”, “All men were created equal”, “America fuck yeah. Here we come to save the motherfucking day”. These are all things that were said, and were used as propaganda but we never quite made it. So…..where to begin.

I’m going to get in the weeds with this one about why and where we’ve gone wrong. I understand if this is too long and complicated. If all of this history makes your eyes cross, here’s the gist-  there has been a lot of BS and we’ve strayed from what we were supposed to stand for. Page down a while to see what I came up with and what we can do about it.

Joseph J. Ellis says the founding fathers were more like brothers because they bickered and jockeyed for attention like siblings- hence the name of his book, Founding Brothers. I will take it one step further and say they were a lot like toddlers, very well educated toddlers, but toddlers just the same. Anytime they were told no, they got mad and threw a tantrum and sometimes those tantrums destroyed a lot of things. They were also extremely drunk. (If you want to see an example of George Washington’s bar tab celebrating the Constitution, click here)  Everyone met at public houses and taverns and as they got drunker and drunker they discussed the news, exchanged ideas, and sometimes went off half cocked. (Colleluori)  I mean, who really thought the Boston Tea Party was thought up by sober people?  As a child watching Johnny Tremain on the Disney Channel, I thought it sounded like good clean fun, but after some adult reflection it sounds like a frat prank gone horribly wrong. Who knew the Sons of Liberty were the Sigma Nus of their day?  I imagine I wouldn’t accept an open container from either of them.

What was the news they were getting all hot and bothered over?  Well, there were a lot of things going on. The short answer I was given in school was taxation without representation, which made the jump to all taxes being bad and equaled tyranny. This is now the basis of the libertarian party, but I digress. The slightly longer answer was to foot the price of the Seven Years War and the British tried to raise taxes using the Stamp Act and the Tea Act. The colonists had no representation in parliament and rebelled. That’s the surface of it.

The Seven Years War did cost a lot of money and the crown did want to raise it, but that wasn’t the only reason. At the end of the Seven Years War, the crown created the Proclamation Line of 1763, which said there would be no Anglo-American settlers past this line into the new lands gained from the French. This policy enraged Americans who had already bought into the Manifest Destiny ideals that filled the 19th century. (Kelly)   I’m not saying that the British were more enlightened than the Americans on this matter. They weren’t. Even the Proclamation was written specifically to avoid border skirmishes, not as some pie in the sky thought we’d all join hands and live in harmony on Turtle Island. However, they did leave the door open that Britain was willing to consider Native Americans as subjects of the crown with similar rights as the Anglo-American settlers. Ethan Schmidt wrote in Native Americans in the American Revolution, “American colonists…refused to see Indians as fellow subjects. Instead, they viewed them as obstacles in the way of their dreams of land ownership and trading wealth.” (Schmidt 32)  It angered them so much that there is mention of it in the Declaration of Independence under the abuses of King George that he took the side of “merciless Indian Savages”. (“Declaration of Independence: A Transcription | National Archives”)  Oof. In school, it was always spun that the crown refused to protect settlers against violent attacks by native tribes. But I ask you, why were the tribes attacking?  Because the settlers weren’t supposed to be there in the first place. It’s like a child burning their hand on the stove after they have been told not to touch it. The parent says, I told you not to touch it, and the child throws a fit. Only in this case, the fit is a rampage that destroys the stove. Not to say, there would not have been British encroachment into Native lands. There would have been just too many settlers coming over and too many people dying to make a quick buck at speculation, but that is a different blog post. Their track record in Australia and Canada in dealing with Native people is nothing to be proud of, but maybe, just maybe, it would have looked different and been a little less violent and destructive. 

The Revolution made the Proclamation Line of 1763 null and void in any place but Canada. Again, I am not saying Canada is the model for dealings with Indigenous People because it’s not, see Residential Schools among many other things. However, they did not have the full scale wars of extermination we did. Along with this, recently McGirt v Oklahoma ruled most of Eastern Oklahoma, including most of the city of Tulsa, as being under the jurisdiction of the Creek Nation. This was in regards to a crime committed and the ruling was that the conviction of the state did not stand because it was Native land. The Supreme Court Ruled 5-4 that it was Native land, but that is being revisited because there are cries that it is “destabilizing the state”. Native Americans are appealing their convictions saying that McGirt would void it. The problem is there is nothing set up in the Creek Nation to prosecute the crimes that were fairly convicted (McGirt of the named case was convicted of child molestation so this is a terrible hill to die on). (Howe et al.)  There is also discussion of the tribes opening abortion clinics because that is legal under tribal law. The state of Oklahoma is losing their mind over this. There are some real gray areas we would have to address by restructuring a lot of laws and that is a risk. If we had done it right the first time and honored our treaties- including the Proclamation of 1763- we’d be in much better shape. Fun fact- our reservation system was used as a model by the Nazi’s for concentration camps. (Mandelbaum)  This is not a thing to be proud of, but there it is. Again, the bar is on the floor and Canada, Mexico and other European powers managed to barely hop over. We just kept digging.

And now we get to the question of slavery. It seems to worm its way into literally every piece of history about this country even before we were a country. Tellingly, most enslaved people fought for the British side. The governor of Virginia, the Earl of Dunmore, offered freedom for those who would escape their plantations and fight for the crown. Some one to two thousand people took up that charge, but there was no mass slave revolt. However, it definitely put the fear of it in slave holders. In his article for Slate, Eric Herschthal quotes Philip Fithian, who was traveling in Virginia at the time of the declaration. Fithian states, “The Inhabitants of this Colony are deeply alarmed at this infernal Scheme. It seems to quicken all in Revolution to overpower him at any Risk.”  (Herschthal)  Enslaved people worked as guides, spies, sappers, pilots taking warships around sandbars, guerrillas and even as dragoons in South Carolina, all for the chance at freedom, which they felt they had a better shot at than with the Americans. Over the course of the war, around 100,000 enslaved Africans escaped, died or were killed and tens of thousands ended up in the British Army. Thousands of freed slaves were evacuated to Nova Scotia, Jamaica and England (Schama)  Again, this was not out of some altruistic vision of racial equality of the British. It started as simply a way to cause trouble for their enemy. However, it is telling that abolition of slavery in the British Empire occurred in 1834 (Schama and Philips 61), and slavery in England itself was illegal as far back as 1772. (Ali and Siblon) Slavery was still legal in India until 1843, but it beat our record by 20 years. (Hjejle)

How did the self proclaimed Sons of Liberty feel about keeping others enslaved?  Perfectly fine, ironically. The founding fathers felt the loss of slaves personally and this led to an early draft of the Declaration of Independence to complain of King George “conscripting our slaves”, however, I guess it didn’t go with the theme of freedom so it was stricken by Congress. (Herschthal) There is also a very whiny claim in the original version of the Declaration of Independence that King George FORCED slavery onto them by bringing the first slaves to America in 1619. (“Transcript of Declaration of Independence (Rough Draft)”)  I mean, the British and other European powers did bring African slaves to the colonies, but Americans took the concept and ran with it. There was this weird dichotomy, in Virginia especially, of complaining bitterly about being forced to have slavery- while being served by slaves, in houses built by slaves, in clothes made by slaves etc.  The system itself was based on slavery.  These planters mainly dealt in tobacco in the mid South and rice in the Deep South.  Cotton had not become the main cash crop  yet, but it did the same thing.  It was extremely labor intensive, fostered terrible working conditions and destroyed the soil. To keep their wealth, the planters had to destroy a plot of land, leave it and get new and then get more slaves to work it.  It was a never ending cycle, but none of them despite their great protestations intended to do anything about it. (Goldstone) So, this clause too was stricken from the Declaration. The original if we don’t talk about it, it doesn’t exist. Everything is just fine here. Just fine. How are you?

In fact, Nikole Hannah-Jones discusses in her fantastic 1619 project essays for the New York Times (go read this now), that the revolution was launched to protect slavery. By 1776, the discussion to outlaw slavery was in full swing in Britain, which was a direct challenge to the source of wealth of most of the founding fathers. Of the first 12 presidents of this country, 10 of them were enslavers, and the other two were just racists. (Hannah-Jones) This is no surprise because then as now, the ruling class was determined by money and slaves and the plantations they worked produced untold wealth for these men, even if it was just on paper.  The sad thing was most of the southerners were in debt up to their eyeballs.  Their money was tied up in land and slaves, and woe be to anyone who let slip the veneer of fake aristocracy to downsize or gasp handle money. (Goldstone) If Britain suffered a crisis of conscience all that money and power would be gone. Take power and money from privileged white men?  Oh hell no. Give me entitlement or give me death.

Even after the revolution at the Constitutional Congress, slavery was protected and preserved. It is interwoven in the very fabric of the Constitution, however hard they tried to hide it. Six of the 84 clauses of the Constitution directly deal with slavery and five more have implications for slavery hidden in the the protections for property. (Hannah-Jones)  What was the most valuable property these men had?  Other human beings in the form of slaves. They outlawed the transatlantic slave trade in 20 years on one hand and empowered a militia to put down insurrections by slaves and forced other states to where slavery was illegal to turn over escaped slaves to their former “masters” on the other. This was part of something that has been termed the Dark Bargain because it allowed slave holders enough time to “breed up” slave numbers so that the transatlantic trade would not be necessary. (Goldstone) I think we can all imagine the horrors that entailed and I just threw up in my mouth a little bit. Even as this was heralded as good for equality it was too little too late. Enslavers could still buy and sell people who were already slaves, do the aforesaid “breeding” (vomit), and basically own other human beings. After 1807, new slaves from Africa were sent to Cuba and then “processed” as if they were born on a plantation and sent to the United States. This was the case of the people on the Amistad, who argued their case to the Supreme Court and won (Constitutional Rights Foundation).

Even as the founders defined slavery as a “hideous blot”, “repugnant” and “evil” (Jefferson, Washington and Madison respectively), none of them moved to fix it (Constitutional Rights Foundation). In fact they did all they could to shore it up in their personal lives, see Washington and Ona Judge (Knepler and Cooper), and Jefferson and Sally Hemmings ( Editors). This attitude bled over into their creation of the United States government. It was very much a don’t look behind the curtain kind of freedom. If you did, you’d see the ugly underbelly of America.

But the slaveholders of America had a problem- most citizens of the new republic lived in free states and 93% of slaves lived in the South. During the Constitutional Convention, when drawing up the plans for the legislative branch of government they threw an absolute fit at the plan to have representation based on population. Even with the three fifths compromise, which allowed the South to count enslaved persons as worth three fifths of a person in population counts, they were vastly outnumbered. They pushed hard for a governing body that gave equal representation to every state no matter what the population, essentially diluting the representation of thousands of people from higher population states. Why?  Because most these higher population states had made slavery illegal. Again, this did not mean it was a utopia of racial equality. It absolutely wasn’t, but people of color could have basic freedom and own property, which would qualify the men to vote. It was likely that these policies would be voted in for the country as a whole and would undercut a significant source of wealth for the white men of the South. Cue the tantrums. All of this led to what is called the Great Compromise, which created the bicameral congress we have. The House was based on population, and the Senate would have 2 representatives no matter what the population. (Hannah-Jones)

The thought was that the vote of the populous would at least be represented with the House, but even that got diluted in time. The number of representatives in the House was capped at 435. (“The Permanent Apportionment Act of 1929 | US House of Representatives: History, Art & Archives”)  This happened in 1920 because rural states were losing representation to more urban states. The fight between these two factions grew so heated that the House failed to reapportion itself, or change its number based on the new numbers from the census, after the 1920 census. The House was further hobbled by the Permanent Apportionment Act of 1929, which capped the number of representatives in the house to 435 which was based on the 1910 census. This makes us the 192nd out of 193 countries in parliamentary representation. (DeSilver) So even the People’s House, where representation was supposed to be the most direct, was diluted. Between that and the electoral college, the two branches of government we have control over we really don’t.

This also affects the ultimate dilution of power- the electoral college. Even saying it gives me a bad taste in my mouth and I want to spit. A state’s electoral votes are equal to their congressional delegation. A state that is underrepresented in Congress is under-represented in the electoral college. (New York Times Editorial Board)  Never mind that, the electoral college’s existence is simply an extension of this dilution of democratic power. Even James Madison, the Father of the Constitution, admitted that the South was whiny because one third of the population of the south was enslaved and could not vote. Even with the compromises they had- the Great Compromise and the Three Fifths Compromise- the slave holders were still not satisfied. The Electoral College was ostensibly created as a fail safe switch in case there was a demagogue. Except that it has done the exact opposite by diluting the popular vote (looking at you, Trump). The Electoral College had baked in advantages to holding slaves- more representation with fewer votes. The Election of 1800 is a grand example and gave slaveholder Jefferson the edge against abolitionist Adams. The Adam Presidency had its own problems (Treason and Sedition Acts anyone), but for his sins Adams was anti-slavery. There was an electoral tie, which threw it into the House and the wheeling and dealing handed Jefferson the presidency (thanks A dot Ham). To quote Yale Law’s Akhil Reed Amar, Jefferson “metaphorically rode into the executive mansion on the backs of slaves.”  Even after the fix of the Twelfth Amendment, the Electoral College consistently breaks along racial lines. I digress…. (Codrington and Waldman)

Because of the Senate, the slave holders could successfully hold off any attempts to make strides in ending slavery or preventing its spread because those bills could not make it past the Senate without being significantly diluted. Even with those opposing slavery had the majority, the minority could hold them off with a little maneuver called the filibuster. This was the temper tantrum to end all temper tantrums, introduced by A dot Burr when he was vice president. Yes, that same Aaron Burr from the musical. The talk less, smile more guy. Unfortunately, he led others to threaten to talk a whole lot more and it’s caused a million problems. 

In fairness, the concept of talking a bill to death has been around since the days of the Roman Republic and apparently Cato the Younger was quite good at them. (Goodman and Soni)  Hamilton obliquely referenced the filibuster in Federalist Papers number 22, “If a pertinacious minority can control the opinion of a majority … [the government’s] situation must always savor of weakness, sometimes border upon anarchy.”  The Founders never specifically spelled out a filibuster because they were well read in classical history and recognized the whiners that went before them- the Romans. Game recognize game. (Goodman and Soni)  Unfortunately, Burr left the door open for the modern filibuster as we know it through a procedural vote.

All of this was ferreted out by Sarah Binder, a political scientist from Brookings. So Burr heads back to the Senate, just after killing Hamilton in a duel and being indicted for it. He informs the Senators that he has been reviewing the procedural rule book and in his role as presiding officer he felt there were some superfluous rules. The one he pointed out in particular was the “previous question motion”, and he requested that it be removed. The Senate agreed and it was dropped from the rule book. Before this the rule books for the House and the Senate were exactly the same, and both included the “previous question motion”. This allowed a filibuster to be ended with a simple majority of votes, in modern times this is 51. With this rule gone, there was no way to stop a filibuster. (Binder) 

No one figured this out until 1837, and from that moment on the filibuster temper tantrum was off and running. It became the favorite tool of Southerners to keep any reform of slavery away from the executive, and then it became a wonderful way to prevent reconstruction and any repeal of Jim Crow laws. It was used to prevent civil rights laws, election law, nominations, even appointment of Senate officers. It was out of control until 1917, the cloture rule was put in place to end this but because of obstructionism a deal to get a supermajority, or two thirds vote, instead of a simple majority to end the filibuster. (Binder)  In the highly partisan world of today’s political party, the minority can wield that threat like a hammer and keep anything they don’t like by basically yelling like a spoiled child.

The judicial branch did not do black people any favors either. Even though Brown v Board of Education did overturn Plessy v Ferguson, which set the doctrine of separate but equal, the Dred Scott decision was particularly awful. In this decision, Chief Justice Roger Taney stated that a black person “…had no rights which the white man is bound to respect.”  The Dred Scott decision was effectively overturned by the 13th and 14th amendment to the Constitution, but people like Mike Huckabee like to say it’s still a force in law today. (Richardson)  According to him, due to Dred Scott, black people have no rights under the Constitution even now. Explains a lot. 

All of these things combine to make a perfect storm. A lot of people made their fortune on the backs of the enslaved- not only the government but specific companies. Slaves were traded on Wall Street. Even after the abolition of slavery, there is a litany of companies that have made billions off of the slave trade. (Thomas) There is another TikTok creator, mag_the_historian  (yes, I have learned more about black and indigenous history from TikTok than from school. I don’t know what that says, but it’s true. Go watch these creators, they are amazing), who discusses companies that made significant profit off slavery. This included individual politicians as well as the US government itself.

Big breath. After this waterfall of words is there anything in there worth saving?  I picked out a few key things, and they aren’t exact quotes. I’m going to paraphrase for the modern ear. All people are created equal. Full stop. No qualifiers for race, gender, sexual orientation, anything else anyone wants thrown in. All the pages above really only deal with race- and the experience of two races in particular. I haven’t even touched on the discrimination based on sex, gender identity, sexual orientation, or other races besides Native and Black. That’s kind of scary. Looking back, the Founders may have said equality, but they sure as hell had their fingers crossed behind their backs. 

However, we are in the here and now so if we make “All people are created equal” one of the main tenets of America, how do we support that?  What are clear changes we can make to make this a reality for everyone. I have ideas.

If all people are equal, their vote should count the same. We need to remove the dilution of democracy. I’ve put this in order of easy to hard:

Repeal the Permanent Apportionment Act of 1929. Make the House more representative by increasing the number of representatives. The framers had a baseline of 30,000 constituents per representative. Currently, we are at a ratio of up to three quarters of a million people per representative. There is no way one person can accurately reflect the will of that many people at once. Districts with high representative to constituent ratios are more prone to voting as lobbyists dictate. (New York Times Editorial Board)  There is push back that we need less government not more, but a way to make it more palatable is to follow the formula of more mature democracies. Apparently, most legislatures are roughly the cube root of the national population. (Taagepera)  I do not get this, but it holds true. We were following this pattern fairly well until 1911. Putting this rule into effect,  would have increased our House of Representatives to 593 members in 2018. Article 1, section 2 specifically sets a cap at one representative per 30,000 people. Therefore, we’d have to have a smart math person to check it out to make sure we are in check. I can tell you for sure we are out of balance the way things are right now. I will be revisiting this concept when I touch on the political party situation so watch this space.

Remove the filibuster or reinstate the “previous question motion”. The minority should not be allowed to prevent the will of the majority. The Senate procedural rules are not sacrosanct. We should not give up all forward progress on the altar of “we’ve always done it this way.”

Pass the John Lewis Voting Rights Act and the Freedom to Vote Act. The John Lewis Voting Rights Act would reverse the gutting of the 1965 Voting Rights Act by a Supreme Court Decision in 2013. States with a history of voter suppression would have to get DOJ preclearance to mess with state voter laws. Other changes to voting laws in any state, such as relocating polling places and imposing strict voter ID requirements, would also be subject to preclearance. The Freedom to Vote Act would just make it easier for people to vote in general by making election day a federal holiday, allow no excuse mail in ballots, early voting two weeks prior to election day, make voting more accessible to those with disabilities and make voter registration easier. And most importantly outlaw partisan gerrymandering. (Naylor)

If our votes look the same, then it’s going to be easier to pass laws to get people to be treated the same under the law. This opens the door to many policies that have broad popular support, but don’t seem to make any headway in legislation like student debt reform, health care reform and legalization of marijuana. At the very least, our legislature would reflect the population it is supposed to represent more accurately.

Get rid of the Electoral College. I will never stop saying this. I know it will take a Constitutional Convention and that is nigh unto impossible, but it is just the biggest bullshit process we have. It undermines the whole underpinning of democracy. It needs to go forth with. At the very least, revised so it is done by Congressional district instead of by state. I haven’t thought that all the way through, but it is an interesting proposal.

Either get rid of the Senate or reduce its power to an advisory board like the House of Lords in the UK. This takes changes to the Constitution and no one wants to crack that hood, but it needs to be done.  In fairness, Jefferson said in a letter he thought we should redo the Constitution every nineteen years so each generation could “repair” it, so we are extremely overdue. (Stephanopoulos)

But not all equality comes from laws. We live in a material society. Native American and People of Color have missed a significant portion of generational wealth. Steps need to be made to remedy this-  reparations and the Land Back movement. 

For people who have ancestors who were enslaved, this is a simple matter of work done and payment received. The bulk of American wealth was built on the back of a free labor system. Their descendants should profit from that as well as be given restitution for years of their lives lost. There is precedent for this as Ronald Reagan gave a formal apology and $20,000 to the families of Japanese Americans who were put in internment camps. (Yoshida) Reparations should come from both the US government and the companies that profited from the sale of other humans. 

The Land Back movement is a bit more complex. When I first saw Native Americans talking about Land Back, I got worried I’d have to give up my house, but that is not what it means at all. As defined by Bud Turner in his article, “The Land Back movement advocates for a transfer of decision-making power over land to Indigenous communities. The movement does not ask current residents to vacate their homes, but maintains that Indigenous governance is possible, sustainable, and preferred for public lands.” (Turner)  This would be turning over the care and maintenance of land to the tribes that were originally on that land. The United States has broken every treaty it ever had with the Native Tribes. We need to honor those- let them make the decisions about pipelines, waterways and land maintenance. (Turner)  Responsibility of the land needs to go to people who will actually care and do what’s best for it. Small steps have been taken both in California by returning 2,325 acres to the Maidu people, and by paying the voluntary Shuumi Land Tax to the Ohlone people. Similar initiatives are sprouting up all over the country. (Turner)

I’m not crazy enough to think all of these ideas are going to get traction and be done. They should be, but that is beside the point. However, if we could pick off some of the easier on the list significant strides could be made to getting to that first pillar of what we are supposed to be.

Works Cited

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