Sunday, January 28, 2024

Andrew Jackson

 Seven years ago, as Donald Trump moved into the White House, it seemed that every opinion writer was obliged to produce an essay comparing him to Andrew Jackson. People close to Trump like Rudy Giuliani and Mike Pence insisted on the comparison during Trump’s inauguration. Trump found a painting of Jackson in the

Addressing Navajo veterans of WW2 in front of that painting

White House art collection to hang over his desk. Trump visited the Hermitage, Jackson’s 1000-acre home outside Nashville, that March. He also spoke admiringly of Jackson, with his characteristic precision and clarity of language: "an amazing figure in American history—very unique so many ways.” And Jackson seemed to provide the writers a hook on which to hang a story about the beginning of a Presidency that otherwise appeared to be unprecedented.


The essays they wrote ranged from mocking to serious to fearful. Some noted that both were tall men, although Jackson was rail thin and Trump is obese. Some noted that both were considered outsiders despite their wealth. There are caveats here, because Jackson began his life as an impoverished orphan while Trump was heir to his father’s real estate fortune. Also, Jackson had actually served as a judge, and - briefly - as a Congressman and a Senator. Trump, by contrast, had never served the public in any capacity whatever before being elected President. The pundits made laughing contrasts between the military histories of the two men: Jackson was a Major General in the War of 1812; Trump attended one of those private boarding schools where they wear uniforms. Trump avoided actual military service by receiving five draft deferments, the last one for a bone spur which miraculously disappeared with the end of the Vietnam War and the beginning of the voluntary Army.


Since the 2020 election there is a new point of comparison which I have not seen mentioned. Trump keeps on shouting about how the Presidency was “stolen” from him. He and his supporters are impervious to the fact that he lost both the popular and the electoral vote to Joe Biden. (He also conveniently forgets the fact that he was elected in 2016 despite the fact that more people voted for Hilary Clinton.) In his day, Jackson, too, felt that a conspiracy denied him the Presidency in 1824. That year,  he received more popular and more electoral votes than any of the other three candidates. But because nobody had a majority, the election was sent to the House of Representatives as the Constitution requires. Congress picked John Quincy Adams. Jackson did not, however, like Trump, urge his followers to break into Congress and seize power. He just ran again in the elections of 1828 and 1832 and won both, then stepped down after two terms following the custom established by George Washington. I am afraid that if Trump gets back in, he will never surrender power.


Getting back to the pundits of 2017, the truly significant comparison they made about Andrew Jackson and Donald Trump was their racism. I will not examine Trump’s white supremacist ideology here, but it is worth taking a closer look at Jackson's.


Long before running for President, Andrew Jackson made hisreputation as an “Indian fighter.” That meant that he led troops armed with guns - US regulars, state militias and Indigenous Cherokee, Creek, and Choctaw allies - against traditionalist Creeks armed mostly with bows and arrows. He massacred about a thousand of them, then forced all the Creeks - both those who fought against him and those who fought alongside him! - to sign a treaty ceding a huge portion of their land. Anytime you see that phrase “Indian fighter” it is worth stopping to interrogate it. It usually stands in for dawn attacks on peaceful camps (Custer), burning tens of thousands of acres of farms and orchards (John Sullivan), and giving medals to buffalo hunters for destroying Native livelihoods (Phil Sheridan.) “Fighting” was often the least of it.


How about his racism as President? Jackson considered one of his greatest accomplishments to be pushing the Indian Removal Act through Congress. That law pretended to be voluntary, but it forced about 60,000 Indigenous people from 18 tribes to leave their homes, their farms, and their cemeteries, and to move west of the Mississippi. We use the phrase “Trail of Tears” to describe that removal, but it doesn’t really capture the full horror: a QUARTER of the forced migrants died along the way while under guard by the US Army. It doesn’t really capture the gross criminality of white people shooting their Native neighbors to death in their own homes then stealing the furniture - and even the flooring! It doesn’t capture the hunger of Native people whose crops were burned by white people intent on stealing their farms. None of this was voluntary.  I will return later to the historians who deny that this was genocide or a policy of white supremacy.


Jackson was also an enslaver and a human trafficker. At any given time he enslaved 100 to 150 African American people who did all the work that made him rich. But they weren't always the same people: he also got rich by buying and selling them: over the course of Jackson's lifetime about 300 different individuals passed in and out of his "ownership". Jackson admirers claim that he was “generous” with the Black people he enslaved. I will just note an ad he posted in the newspaper for several weeks in the fall of 1804 for an unnamed “runaway man,” who he described as “six-foot one, stout-made, and active.” Jackson offered a $50 reward for the man’s return, along with an extra $10 for each hundred lashes, up to three hundred. It begs the question: Generous with what?


Must I explain why it is racist to believe that Black people are so different from white people that whites should be allowed to enslave them? I will note that Jackson appointed Roger Taney to be Chief Justice of the Supreme Court. Taney wrote in Dred Scott v Sandford that Black people 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. [Italics mine.] 


There are still defenders of Jackson today, and they can be found among self-proclaimed liberals, too. They raise the tired argument that “he was a product of his times.” They say we are inappropriately applying the "changed standards" of our time to a different historical period. Do they think that Black people at that time believed they were meant to be enslaved? Do they think that Jackson's unnamed “runaway man” thought so? Do they think that the Cherokee agreed with Jackson that they were "doomed to weakness and decay”? And if they argue that, well, white people at that time thought so, they are still mistaken, because there were large numbers of white people at that time who opposed both slavery and ethnic cleansing. But - more importantly - they are also making my point for me, because they are saying that the opinions of Black and Indigenous people don’t really matter when we are evaluating the standards of that time.


But I am not writing this about the open racists who want to defend an Andrew Jackson. What bothers me is the so-called “liberals” who ignored all this as long as they possibly could. Who called (and still call) Andrew Jackson a “man of the people” without asking “Which people?” 


Let's start with Arthur Schlesinger, Jr. and his 1945 Pulitzer Prize-winning work The Age of Jackson. Schlesinger may have been the essential American liberal of the 1950’s and 60’s. With former First Lady Eleanor Roosevelt, Hubert Humphrey (then mayor of Minneapolis, later Senator and Vice President), theologian Reinhold Niebuhr, Walter Reuther of the United Auto Workers, and economist John Kenneth Galbraith (his fellow Harvard professor) Schlesinger founded the Americans for Democratic Action, the organization for liberals back then. Schlesinger was also well known as a member of the inner circle for both President John Kennedy and his brother Senator Robert Kennedy. 


I emphasize Schlesinger’s liberal credentials because of the difference between the way he summarized Andrew Jackson in 1945 and the way all these political pundits did at the time of Trump's inauguration. The Age of Jackson is 500+ pages long. It contains not one mention of Jackson’s policy of Indian Removal. He does discuss the landmark Supreme Court case of Worcester v Georgia 31 US 515 (1832) No Natives were party to that case, though. Eleven Protestant missionaries had gone to work among the Cherokee Indians and the State of Georgia arrested them all for living among Natives without a state permit. The Court held that the Constitution explicitly forbids the states from making Indian policy, restricting that to the Federal government. The Court's decision is important for that precedent alone. It is also historically significant because both the State of Georgia and Jackson simply ignored the Court’s ruling and kept the missionaries in prison. But Schlesinger doesn't discuss this as a case about Native rights. Because it was about Protestant missionaries, he decides that it was a conflict between President Jackson and the mainstream churches... which somehow enhances Jackson's democratic credentials.


How does Schlesinger treat Jackson's relationship with African American people? Not at all. He can’t ignore the growing conflict in the US over slavery, but he tells us about Jacksonians who opposed Abolition on the grounds that wage workers in the North were poorly treated, too!* This is far from a discussion of Black people.


Schlesinger himself admitted this lack of attention in a 1989 reflection on The Age of Jackson in the New York Review of Books on the occasion of the 45th anniversary of its publication. Most of the article is a proud defense of his original book. But toward the end of the long article he briefly noted: “When I wrote The Age of Jackson, the predicament of women, of blacks, of Indians was shamefully out of mind.” 


Despite this professed “shame” Schlesinger could not help but try to excuse himself. He added in a footnote, “Those who condemn Jackson and his works out of hand because of his Indian removal policy should, before rushing to judgment, read Francis Paul Prucha, ‘Andrew Jackson’s Indian Policy: A Reassessment.’” Prucha’s piece, written in 1969 in the Journal of American History, was a scandalously bad apology for Jackson. It was based on what Jackson said, not what he did. Jackson claimed for example - and Prucha echoed this claim - that the Indian Removal Act was voluntary. The truth? It pretended to be, but was not in practice.


And Schlesinger's 1989 article doubled down on his defensiveness. He preceded his admission - “shameful” as it may have been - with a disclaimer: “As new preoccupations seize historians in the present, we discern new possibilities in the past. In this sense, the present persistently re-creates the past.” This is both undeniably true and irrelevant. Schlesinger was writing this retrospective in 1989, not 1945. Why was he still not concerned with “the predicament of women, of blacks (sic), of Indians”? And I must ask, why were you not concerned back in 1945?


The pundits writing about the incoming President Trump described Andrew Jackson as a racist genocidaire and slave driver. Was that merely a reflection of “new preoccupations”? Or was that view still being contested by self-described liberals, even in this new millennium? Were even those pundits ambivalent about the central importance of Jackson's racism? To answer, I want to look at how some other historians have looked at Jackson.


In 1891, Theodore Roosevelt wrote a sketch on Jackson for the Chautauqua Review. The 34-year old Roosevelt was then mainly known as a historian. His works on The Naval War of 1812 and The Winning of the West were well received by academics and the public. He had served three years in the New York State Assembly, but he had not yet headed up the New York police. He had not yet worked in the Department of the Navy, led a volunteer cavalry regiment, nor been Governor of New York. If Roosevelt already believed then that he would soon be President, he was definitely the only one who did.


Back to Andrew Jackson. Roosevelt wrote that Jackson loved horse-racing, cock-fighting, and games of chance. He wrote that when Jackson moved to Nashville in 1788 it was populated by “Indian fighters**, game hunters, and frontier farmers” whom he approvingly describes as “a manly race.” And he noted of Jackson’s reputation as a brawler that “Duels and street fights were at that time the recognized methods whereby gentlemen expressed their discontent with one another.” 


Roosevelt already liked to think of himself as a “tough guy.” He had boxed while he was an undergraduate at Harvard. He was also fond of retelling the story of three boat thieves he and two of his employees captured on the Little Missouri River in North Dakota. I am absolutely compelled to note that the then-27-year old Roosevelt, like any Gen Z Instagrammer today, brought along a camera to document this adventure. I am including this photo of him (left, in buckskins) guarding his prisoners with a double-barreled shotgun. I am charmed by the presence of a buffalo skull in the photo. I absolutely believe that he had one of his employees, perhaps the same one who

Theodore Roosevelt, left, guarding his captives.

took the picture (no selfies with wooden cameras and glass plates!) place it in the frame to make for a more exciting picture. I am also compelled to remember that Donald Trump also likes to think of himself as a “tough guy” despite the fact that long before he had a Secret Service detail he already traveled with a body guard to protect him. In any case, Roosevelt also tells us that when Jackson had “discontent” with Tennessee governor John Sevier, “each had such a reputation as a fighter that the other was a little bit cautious.” I read that to mean that “gentlemen” only engaged in street fights and duels with men they were confident of beating.


A second historian who later became President assessed Jackson, too. When he wrote his 1893 work, Division and Reunion: 1829-1883, Woodrow Wilson was a professor at Princeton University. I have to conclude that he agreed with Roosevelt’s view of “a manly race” because he applauded: 


the capacity of the English race to combine the rude strength and bold initiative that can subdue a wilderness with those self-controlling habits of order that can build free and permanent states.


A little flowery, to be sure, but the same general conclusion. He wrote of Jackson’s move from North Carolina to Tennessee that:


he had been obliged to eke out a shabby livelihood by saddle-making and working in the fields; had preferred horse-racing, cock-fighting, rough jests, and all rude and heedless sport to steady labor.


Wilson may have been less complimentary than Roosevelt about Jackson’s enthusiasms, but he definitely listed the same ones.


What impresses me about both of these is how we only see enslavement and ethnic cleansing in the background, the unspoken tasks of a “manly race” that “can subdue a wilderness.


But this is not a mere artifact of a less enlightened time. Let’s take a look at some contemporary historians who still consider themselves liberals. Princeton Professor Sean Wilentz, for example, never disappoints. He has staked his considerable reputation on joining the most backward politicians in attacking Nikole Hannah-Jones’s 1619 Project. Wilentz's critique hangs almost entirely on a single point in Hannah-Jones’s introductory essay.*** That one point certainly fails to justify Wilentz’s wholesale denunciation or his keeping company with racists and fascists like Florida Governor Ron DeSantis. It also demands that we ask ourselves what his underlying objection is, other than the fact that Nikole Hannah-Jones is a journalist and not a PhD historian.


This is about Jackson, though, so let’s take a look at Wilentz's defense of Jackson in his 2006 Rise of American Democracy: Jefferson to Lincoln. Wilentz acknowledges that Indian Removal was at the center of Jackson’s plans, but complains about the way it is now characterized. I cannot quote him directly, because the writing is so convoluted,**** so I'll paraphrase: Historians today who criticize Jackson for genocide think he overturned the "ethical community" the United States was before he became President. I don't know where he is getting this stuff. Someone must have said something like it, but it is definitely a caricature of the views of his academic rivals. Moreover, it looks to me like a piss-poor defense of killing 15,000 men, women, and children while driving them a thousand miles from their homes.


Wilentz is not alone among supposedly liberal historians. Professor Robert Remini of the University of Chicago was probably the preeminent 20th-century historian of the Jackson era. He produced a three-volume biography of Andrew Jackson, among many other works. What does he say on the subject of Indian removal? In his 2001 book, Andrew Jackson and his Indian Wars, Remini argues that Jackson was not an Indian hater, not trying to hurt them, but was rather trying to save them from the “inevitable annihilation” they would face if they remained in the East. This argument insists that while the US Army was easily powerful enough to carry out an ethnic cleansing against Indigenous people it was completely impotent to protect them against their greedy, murderous White neighbors. Remini wrote: 


It needs to be remembered that removal was never just a land grab. That is too simplistic an explanation. Jackson fully expected the Indians to thrive in their new surroundings, educate their children, acquire the skills of white civilization so as to improve their living conditions, and become citizens of the United States. Removal, in his mind, would provide all these blessings.


Like Francis Paul Prucha above, Remini accepts Jackson’s public pronouncements in defense of his policy and takes them more seriously than he takes the policy itself. And he returns, again and again, to this (imagined) “inevitable annihilation.” Here is just one example:


Given the greed of whites for Indian territory and their insatiable demands that would only accelerate in the coming years, and given the fact that the two races could not and would not "intermingle" or live side by side, Jackson felt he had no choice but to insist on removal as the only means of preventing conflict and Indian annihilation. As "hard and cruel," as the policy was, wrote one contemporary a short while later, it "is now universally felt to have been as kind as it was necessary.”


Describing the Trail of Tears as “kind” really stretches belief. But I also have to say that everything in the first part of that passage was just as true seventy years later when the Sooners started invading what was then formally called Indian Territory and what is now eastern Oklahoma: the same “greed of whites for Indian territory,” the same insatiable and accelerating demands, the same racism. Watch Martin Scorsese’s Academy Award-nominated “Killers of the Flower Moon” for just one small episode of the murderous white land grab in Oklahoma. 


But, despite that, the truth is that the Cherokee are still with us, not annihilated. I have to repeat that: annihilation was not inevitable, for the Cherokee, or the Creeks, or the Choctaws or the Chickasaws, or the Seminoles whose removal was the aim of the Jackson Administration. Not for the Apache, not for the Lakota, not even for the Delawares, who Remini claims (p.55) were already annihilated in the 1830’s when Jackson was creating the policy of Removal, allegedly to “protect” the remaining Native people. Remini, writing at the turn of the 21st century surely knew all this. So why is he blinded to it in his writing? 


I quoted Schlesinger earlier where he explained why each new generation of historians discovers something new in the past, why they are still writing new histories of the American Revolution and the Civil War, new biographies of Grant and of Hamilton. Schlesinger wrote that “The present persistently re-creates the past.” And that is true. But what got me going on this Trump-motivated assessment of Jackson is the persistence of a certain line of defense. It is a thread that appears beginning with the intellectual defenders of Jackson in his own time, the Orestes Brownsons and George Bancroft’s who populate Schlesinger’s The Age of Jackson. It is a thread that continues through the historical work of Theodore Roosevelt and Woodrow Wilson, to Schlesinger himself and beyond, to Robert Remini and to Sean Wilentz.


This is the thread that describes Andrew Jackson as a “man of the people.” One must ask “Which people?” because he was certainly not a man of the Black people or the Native people. It is the thread that characterizes Jacksonian Democracy as expanding democratic right. The truth is that the right to vote was given to white men who weren't property owners. But at the exact same time the rights of Black people were constricted. Before the Jackson era, most Southern states did not bar literacy among Black people, slave or free. Before the Jackson era they did not require free Black folk to leave the state or bar Black people from holding religious services without the presence of a licensed white minister. Even Carl Degler’s 1959 high school textbook in US History acknowledged (in a footnote, of course) that the right to vote was extended to the propertyless simultaneously with withdrawing it from free “Negroes.” And Degler puts no adjective before the word “propertyless.” His default person is white and a man.


And at the exact same time, Jackson was restricting the rights of Native people. He abrogated treaties which the Constitution itself defines as the law of the land. He seized their treaty-defined properties. He seized their very bodies without any justification of law and moved them thousands of miles from home, killing many on the way.


So when historians say that Jacksonian “Democracy” extended the right of people the unspoken words are “white” and “male.” This is not anachronistic thinking; this is not me imposing the standards of today on people in the past. First, it is not anachronistic because women, and Natives, and African Americans all resisted this at the time. And they were joined in that resistance by some white men.


But, importantly for the purpose of this essay, it is also not anachronistic because there are so many people even today who are content to see Black, Asian, and Indigenous people; women, immigrants, and gay people; as other… whether that just means less human or the full Taney: “having no rights which a white man is bound to respect.” And I say “so many people” not “so many white men” intentionally. Because the logic of racial capitalism and of white supremacy is that it enlists white women and white gay men against Black people, Black people against immigrants and Natives and Black women, Natives against Black people and against their own women.


I am glad that so many pundits in the press, writing about Donald Trump on the occasion of his inauguration  recognized Jackson’s racism as central to his role in US history. But I have to look, too, at the persistent view, even in their columns, that he represented “the people.”


I will end by repeating the question: Which people?



* If you are interested, Schlesinger also discusses the Nullification Crisis. This was a moment during the Jackson administration when South Carolina decided they didn't have to obey Federal laws they didn't like, in particular a tariff on imported goods. What does this have to do with Black people? you ask. States like South Carolina, whose economies were based on forcing enslaved Black people to raise crops like cotton were dependent on purchasing manufactured goods from elsewhere. They especially liked English and French imports and resented paying tariffs on them.That Jackson rejected South Carolina's nullification of Federal tax law doesn't make him an opponent of slavery. It is far from making him a friend to African American people.


** There's that phrase again.


***  Wilentz has published a 15-page defense of his position titled “The 1619 Project and Living in Truth.” The entire tone of it paints him as a lonely liberal battler against extremism and the lies told by both the left and the right (by which he means anti-racists and racists) He acknowledges, sort of, that his objection to the entire project is a single claim in Hannah-Jones’s intro. She wrote that the American battle for independence was largely motivated by the fear that the British would emancipate the enslaved African Americans. This may or may not have been a contributing factor. Certainly Jefferson wrote in the Declaration of Independence that King George had "excited domestic insurrections amongst us" by which he probably meant the British offering freedom to enslaved people who took up arms against the rebellious colonists. I'll say that it may have been one cause.  Even Nikole-Jones has since said that it may have been an overstatement. And what of the rest of their introduction? Wilentz's  grudging words on the subject are: “There was nothing else in the keynote essay quite so egregious as its discussion of the American Revolution.” And he offers what is, at best, a backhanded compliment to the project as a whole: “The ensuing individual essays were for the most part better, although the quality of historical research and reasoning varied considerably from contribution to contribution.” (I could say the same of Wilentz’s work.) But he hides his actual objection, maybe from himself, in a brief statement later on the page. The 1619 Project, he complains, promotes the view that “America has not really struggled over the meaning of its egalitarian founding principles: those principles were false from the start, hollow sentiments meant to cloak the nation’s reliance on and commitment to the subjugation of Black people.”


**** "Jacksonian Democracy's first crusade, aimed, the critics charge, at the "'nfantilization' and 'genocide' of the Indians, removal supposedly signaled a momentous transition from the ethical community upheld by antiremoval men to Jackson's boundless individualism. Jackson's democracy, for these historians - indeed liberal society - was founded on degradation, dishonor, and death. Like all historical caricatures, this one turns tragedy into melodrama, exaggerates parts at the expense of the whole."







 


Wednesday, January 17, 2024

Fletcher v. Peck

My 11th grade US history teacher was popular with some of my classmates. She was young, petite, and very serious. After I graduated she married another very serious young faculty member, a biology teacher who taught some of my friends. I wasn’t a fan of Ms. F. She had a habit of outlining various truths on the blackboard, for example “the four causes of the Civil War” and then expecting us to regurgitate them on her exams. There was an unspoken emphasis on the word “THE” because I lost points on those exams for combining two of her ideas into one, adding ideas of my own, and most definitely for leaving one or more of her ideas out of my essays. 


There were definitive correct answers for surprising questions. During a unit on the early Republic Ms. F asked us to organize and present a debate on Jay’s Treaty (on which more later) which was the subject of great controversy in 1794 when it was negotiated and signed. That controversy was in some part responsible for the division of the United States into political parties. I really wanted to participate in that debate because I had some strong opinions based on what I read in our textbook, but I was not chosen. My disappointment didn’t last long, because, immediately after the debate, Ms. F told us what the correct answer was, (Jay’s Treaty was good) accompanied as always by four reasons why which she wrote on the board. We were expected to copy this and repeat it on the next exam. I wrote my own assessment on that test, which differed on every point from hers, and received no credit, of course.


I bring all this up to give some context to the view of history that we were taught. It was the era of what came to be called “consensus history” which I will describe as the view that the US has been wonderful from the beginning and defined by internal unity, not conflict. Yes, there were shortcomings to American democracy, but our essential goodness led to step-by-step rectification of those blemishes: voting rights were extended to men without significant property and - much later - to women, slavery was abolished, and the country grew in size and power.


Generally speaking, our study of the major decisions of the Supreme Court followed that  same narrative path, that the Promise of America unfolded stepwise with the Court’s recognition of what that promise entailed.


One early decision interested me greatly because it seemed to defy elementary common sense, although our textbook and Ms. F both described it as a great step forward. Fletcher v. Peck, 10 U.S. 87 (1810) was the first time the Court declared a state law unconstitutional. We were taught that it upheld the sanctity of contracts and that it meant that business people could trust that the United States would be a safe place to invest.


The background meant that it was a real test because the original contract was beyond ethically questionable, it was corrupt in the extreme. When the US became independent the boundaries of the 13 new states were, let’s say, uncertain. Virginia, for example claimed what became the states of Kentucky, Ohio, Indiana, Illinois, Michigan, and Wisconsin, along with its own west, which seceded to become West Virginia during the Civil War. Georgia, which is the subject of Fletcher v. Peck, claimed most of what is now Alabama and Mississippi. In 1795, expecting that they would soon by ceding that territory to the United States, the Georgia State Legislature sold that land, which it called the Yazoo District, to land-speculation companies for a little over a penny an acre, which was a ridiculously low price even then. The territory was significant, larger than the entire State of Georgia is today. And every member of the legislature either were shareholders in the companies, or received bribes for their votes, or both. The scandal was so great that almost every one of them were kicked out by the voters in the next election. And the new legislature immediately repudiated the sale, going so far as burning the original law in public. And that original sale, which I have no problem calling fraudulent, is the sacred contract that the Supreme Court chose to call inviolable.


The speculators who created and benefited from the law expected Congress to support them. Congress did not, so they appealed to the Supreme Court. The Court’s decision upheld the original sale. The Court concluded that the State of Georgia had a right to sell the land and so the thoughts the legislators were not relevant. The language of the Court made this simple:


The Legislature of Georgia, in 1795, had the power of disposing of the unappropriated lands within its own limits.

In a contest between two individuals claiming under an act of a legislature, the Court cannot inquire into the motives which actuated the members of that legislature. If the legislature might constitutionally pass such an act; if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit between individuals founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the law.

When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.

A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed.

A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States.


To sixteen-year old me, this looked a lot like Hamilton’s 1790 assumption of the US debt. Much of that earlier debt was issued to soldiers of the Continental Army instead of pay. Finding it worthless, the Revolutionary veterans passed it off to speculators for pennies on the dollar, many of whom were members of HamiIton’s personal circle. Hamilton, as Secretary of the Treasury, ensured that those speculators be paid at full face value. The argument was both that the desperate veterans had betrayed a lack of trust in their own country, and that - in any case - the US could only be assured that its bonds would be purchased if whoever the holders might be at maturity were paid back. 


Like that debt assumption, this decision benefited financiers and speculators over the people of Georgia, who I, at the time, believed were the ones being defrauded.


From 1974 to 1999 I taught US History, among other things, to my high school students. I cannot remember ever teaching Fletcher v. Peck. So far as it established the Court’s power to overturn laws it deemed unconstitutional, I was always more interested in Marbury v. Madison, 5 U.S. 137 (1803) which came first and seemed to me to show how Justice Marshall could be slick in asserting power for the Court (which the new President, Thomas Jefferson, opposed) by overturning a law that Jefferson didn’t like anyway and which didn’t require him to do anything he didn’t want to. 


And here, twelve paragraphs in, is where I finally begin to arrive at my point, which is not about Ms. F nor how 16-year old Rick disagreed with her. It is foreshadowed, though, by that phrase about who I believed at the time was being defrauded. Because when Edward Baptist published The Half Has Never Been Told: Slavery and the Making of American Capitalism in 2014 it upended so much of what I thought I understood. Especially the importance of the enslavement of African people and their descendants to the development of American finance capital. And, as you will see, that turned out to be only one thing. Because I believed that Fletcher v. Peck was about contracts. It never occurred to me that it was about race. It never occurred to me that it was about enslaving Black people. And it never occurred to me that it was about robbing, dispossessing and removing Indigenous people.


The center of the crime of slavery, to me, had been the theft of people’s lives and labor. I knew - and taught - that unpaid labor enriched the white people who bought, branded, and beat their Black neighbors and even their own Black kin. I also knew and taught that slavery enriched the whole United States. The coerced cotton crop accounted for more of the country’s gross production than all other products put together. But I mistakenly thought of the domestic trafficking of Black people as incidental to that production, a westward movement that was driven by the way the drivers of enslaved people had impoverished the soil of their own land. Baptist's book recentered domestic human trafficking as an essential source of profit, as a foundation for financial markets, and as an essential marker of whiteness, of what it meant to be a white man. 


What does this have to do with Fletcher v. Peck, you ask? I will quote Baptist at length:

For although coffles got no closer than Pennsylvania Avenue to the room in which John Marshall read out his 1810 decision in Fletcher v. Peck, their chained footprints walked all over the case file. The technical issue before the Court was whether the Georgia state legislature could overturn a contract of sale into which a previous session had entered. Marshall and the Court ruled that the people of Georgia could not overturn the sale. The contract might have been accomplished by bribery. It may have contravened the will of the majority of white Georgians. But the sale to the investors’ land companies was a sale of property all the same, and property rights, by the chief justice’s interpretation of the contract clause of the Constitution, were absolute. The people who invested in the company—mostly New England money-market types and bankers—should be repaid from the sale of the land, which was now held by the federal government. 

Baptist acknowledges that Chief Justice Marshall never mentioned slavery in his decision. But, Baptist asks, “If the people of Georgia couldn’t overturn a contract born from obvious corruption, how could a legislature or any other government entity take slaves away from owners?” 


And take a closer look at the financing, too. This is really hard to fathom and I had to read it - along with related passages about the Panic of 1837 - multiple times (multiple times!) before I could wrap my head around it. The Yazoo land:

was now being sold by the federal land office in Huntsville to purchasers who typically relied on credit. By the end of 1818, the land office had dealt away almost 1 million acres, which officially brought in $7 million. But speculative purchasers, including Andrew Jackson, James Madison, and the chief employees of the local land office, paid only $1.5 million up front. Of that amount, $1 million was in the form of scrip that the federal government had given to investors who had received compensation after the 1810 Fletcher v. Peck decision. Thus government-supplied credit had financed 93 percent of the cost of the land in the valley before Rives - money that would have to be repaid from sales of cotton not yet planted by slaves not yet bought

Francis Rives, being a Virginian who rode into Huntsville, Alabama in January, 1819, at the head of twenty-some Black people who he had marched - in chains - 670 miles from Southampton County, Virginia. This means that the same bank credit, underwritten by the US government, that financed the purchase of land in Alabama and Mississippi financed the purchase of the enslaved people who would enable the borrowers to pay back all those loans. Do you wonder why people who have inherited all that wealth don’t want anybody to learn this history?


And that is not all. That land was sold by Georgia before it was owned by Georgia! It is not just that the territory was disputed. It is not just that Georgia sold it on the eve of ceding it to the United States to create the territory that became Alabama and Mississipi. Georgia sold it while it was still occupied by the Creek, Choctaw, and Chickasaw Nations and while they still retained legal title! We don’t just use the term “speculators” for those initial purchasers because they were speculating that the land would be worth something. We call them speculators because they were speculating that the United States would assert legal title to those lands, not just sovereignty, and that they would then use the full power of the United States Army to actually fight the Indigenous owners and drive them - in the case of the Creeks - 760 miles from Fort Mitchell, Alabama to Fort Gibson, Oklahoma. 


Native Rights attorney Walter Echo-Hawk discussed this in his 2010 In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. And Fletcher v. Peck isn’t even one of his ten worst; it just serves as introduction for Johnson v. M’Intosh 21 U.S. 543 (1823), which is even more egregious. Reading Echo-Hawk I discovered that Fletcher was actually a feigned case: the attorney for the speculators, having failed to convince Congress, invented a fake land sale to convince the Justices that an honest purchaser, in all innocence, had purchased land from one of the people the original Georgia legislature sold to. The attorney for the speculators selected the “purchaser” who would bring suit against his clients. He also arranged for that “plaintiff” to be represented by an attorney who was a notorious drunk. (Chief Justice Marshall actually postponed the hearing a few days so that attorney could dry out.) He brought in as co-counsel Joseph Story, one of the speculators who stepped down from the House of Representatives to protect his financial interests in the Yazoo lands and who would, within the year, be appointed to the Supreme Court himself! It is also worth mentioning that Chief Justice Marshall was himself a speculator in western land.


But the center of this is the Court’s willingness to discuss the validity of the sale of Native lands that the Natives themselves had never yet transferred, land on which they had their farms and homes, land on which their towns were built. In some cases it was land worked by African American people who had been enslaved by wealthy Natives. Marshall never addressed Indigenous land ownership of the Yazoo in Fletcher v. Peck, any more than he addressed the issue of slavery. He didn’t get to it until 1823, in Johnson v. M’Intosh.


This was another fake case, arranged by the same attorney who arranged Fletcher v. Peck. This time, though, he not only chose both plaintiff and defendant, he also hired his opposing counsel. But that is a side issue. So is the fact that, in this later case, Chief Justice Marshall actually had a personal interest in the lands in question, ie, he was one of the original speculators! It is his decision that matters. Echo-Hawk wrote of Marshall’s decision:

Similar to disclaimers in the slave cases, Marshall began the inquiry into the nature of Indian landownership by saying his analysis cannot examine “principles of abstract justice,” nor could the Court question rules by which property is acquired. This is judicial code for “something very unjust is about to happen.”

I’ll spell it out briefly. Because land thefts and “purchases” by private individuals had brought chaos and bloodshed to the western frontier even before the Revolution, the British government had outlawed them. That policy was continued by the US government after independence. But Marshall then turned that into the right of the US government to dispose of the Natives’ land at will. He claimed that England possessed that right simply by having “discovered” the land(!) and that it had now passed into the hands of the United States. Echo-Hawk explains that:

the discovery of Indian land by Europeans operates to transfer legal title from the Indians to the government, according to Marshall. This title was variously described by the Court as the “fee,” “absolute title,” or the “absolute ultimate title,” and the Indian right was described as a “right of occupancy” or “right of possession,” which could be extinguished by the government through purchase or conquest.

This was not spelled out in Fletcher, but it clearly underlies that fact that an entire argument about a territory larger than the State of Georgia, and which was still occupied by Native peoples in 1810, could be the subject of a Supreme Court case in which the Native inhabitants never received legal counsel or even a mention. 


I want to review:

  • The original Yazoo land transfer was of land claimed by Georgia, but occupied by Indigenous peoples
  • That sale was made by a legislature knowing that it was going to have to transfer the territory to Congress (and did, immediately after)
  • The sale was made at a price that was transparently and dramatically below market value
  • The legislature that made the sale was made up of individuals who were either purchasers or bribed by the purchasers or both
  • The people who purchased that land, whether immediately or in the secondary market, had no interest in the land itself except as the source of windfall profits to the eventual purchasers
  • Those eventual purchasers didn’t have money to actually buy the land, but were heavily subsidized by means of cheap Federally-backed credit
  • The only way they would be able to repay those loans was not by farming the land themselves, but by enslaving and coercing other people (Black people) to farm the land
  • They didn’t have the money to purchase enslaved people either, but were able to secure credit by using the land (which was already the subject of a speculative loan) as collateral!

A part of this story is how a “fact” of US History takes on so many different forms as you shine different lights on it. 16-year old me learned from my textbook about the conflict among white people over the Yazoo Purchase. I saw no reason to look back until I read Edward Baptist and Walter Echo-Hawk on how a Court case like Fletcher v. Peck can be about people who aren’t mentioned in the briefs, arguments, or decisions, and who are neither present in the Court room or represented by attorneys. 


I promised to returned to the Jay Treaty, the one Ms. F asked us to debate and then told us was the right choice, regardless of how controversial it may have been in 1794. When I was sixteen I felt that this treaty was an effort by wealthy Federalists to ally the US with the British monarchy instead of revolutionary France. True, the treaty forced England to give up its interior forts, but they had already promised to do that in the Treaty of Paris, which secured US independence in 1783. But there is always another light to shine. Now I’m reading Ned Blackhawk’s 2023 book The Rediscovery of America: Native Peoples and the Unmaking of U.S. History. He explains how those interior British forts - at Detroit, Mackinac, Niagara, Oswego, and Toledo - provided a counterbalance to US military and economic power that allowed the Native people of the area some defense against predatory white settlers who wanted to murder them, displace them, and steal their land. With a British military presence they were able to demand that the Ohio River be a northern boundary to the United States. Without those forts, US government promises and treaties meant nothing.


This has been a discussion of case law. It has been a discussion of how history can be hidden even while being taught. I want to return to some of the underlying issues that explain why even that history is being made illegal.