American Exceptionalism or Settler Society?: Towards Post-Imperialism

What should we teach when we teach American history? Our job, it would seem, is to produce a virtuous citizenry, a people fit for self-government. As Socrates explained, the unexamined life isn’t worth living (Plato, Apology 38a), so it makes perfect sense to study the sweep of the 400 years since European powers colonized North America, including the 236 since the United States became an independent nation and the last century or so in which it became a world power and thus the equivalent of the earlier European Empires. This is the ambitious task that Aziz Rana of Cornell Law School has set for himself. The result, in 348 densely packed pages of text, is a survey of North American political, economic, legal, constitutional, and cultural developments since the seventeenth century. This is interpretive history, and, as the title indicates, it is interpretive history with bite. “The Two Faces of American Freedom” are [face one] the claim to liberty and justice for all; and [face two] the reality that throughout our history some have been, to borrow Orwell’s phrase, more equal than others.¹

Indeed, for Rana, from the very beginning American civilization was erected on a foundation of repression, with a privileged group (he calls them “settlers”) producing an ideology of freedom that included widespread dispersal of landed property, creative institutions for self-government, and eventually the assertion of greater territorial claims. This group was able to exist only because settler society wrongly expropriated the property belonging to indigenous conquered and marginalized peoples and then only flourished by assigning menial (but necessary) work to groups excluded from citizenship, including African Americans reduced to slavery and immigrants consigned to migrant or domestic labor. This is not a very pretty picture of our heritage, but the self-flagellation suggested by this challenging book is somewhat ameliorated by the constant reminder that it ought to be our task, as Americans, fully to realize the settler promise of self-rule and meaningful labor for all. Or, to be fair to Mr. Rana, it may be that he sees this undertaking not just as a task for Americans, but rather he believes that it is our duty to undo the repression of colonial regimes (many of which our leaders and our leading corporations have purportedly profited from) all over the world and to begin the noble work of tearing down illegitimate bureaucratic and corporate hierarchies everywhere.

This is inspiring and romantic, and not without a whiff of delightful nostalgia. In many ways, it’s the same set of notions put forth by the Critical Legal Studies movement a generation ago. That movement, which appeared to call for a decentralized socialism of a kind that had not yet existed,² fizzled out when the Berlin Wall fell in 1989 and when the virtues of the free market and the bankruptcy of centralized socialist economies seemed so obvious that even some American law professors were forced to take notice. And yet, perhaps the profound economic dislocations of the first decade of the twenty-first century and the apparent recent failures of the free market have made possible the resurgence of desires for central planning and redistribution by the government. Even Richard Posner, the libertarian legal intellectual who sat astride late twentieth and early twenty-first century legal academia like some colossus, published a book in 2009 questioning the wisdom of unrestrained capitalism.³

Barack Obama, who swept into the presidency on a program of hope and change in 2008, graduated from Harvard Law School at the height of the influence of Critical Legal Studies there, and his purportedly anti-colonial sentiments dovetail quite nicely with Rana’s.⁴ The Two Faces of American Freedom, is then, a marvelous tract for our times and illustrates well the occasional phenomenon of the higher reaches of the American academy operating in parallel with American politics.

There is a bit of intriguing internecine academic warfare here as well. It is possible to...