Richard Delgado and Jean Stefancic: Critical Race Theory: An Introduction. New York: New York University Press, 2017. Third edition.

 

The authors begin with an everyday occurrence: When race “seems to play a part” in getting snubbed or ignored, this is a “microaggression.” The claim raises a question of knowing the mind of another. As a critically suspect white male (I observe the convention of introducing an observation with the approved formula, “As a…”), I am sometimes subjected to rude behavior. If the offender is a fellow white male, I may take this as an indication of bad behavior, a bad mood, a grudge, or some other such thing. But what if the offender is a member of some other race? Shall I suspect racism—wait, sorry, non-white persons cannot be racists in the United States or Europe, because racism is a prejudice of the dominant, so I shouldn’t say ‘racism,’ unless maybe I’m in a neighborhood where whites are not dominant, or is that itself a racist thought?—or rather racial prejudice? Similarly, if I behave boorishly towards a person of color, am I a racist or simply (as I rather suspect) a boor? These things can be complicated, although not in the minds of many of my fellow citizens, who prefer to cut such Gordian, or goading, knots in rhetorically advantageous ways. (Cutting the Gordian knot: a microaggression calling up images of nooses, lynchings? Mental note: stay away from metaphors.)

They continue with another example, a child who doesn’t want to tell the teacher where she’s “from” because she and her parents are “undocumented entrants [to the United States] who fear of being discovered and deported.” Notice “undocumented,” a judicious substitute for “illegal.” (Mental note: stay away from words.) The authors are law school professors, and it must be said that they are formidable at ‘arguing like lawyers’ on behalf of Critical Race Theory and “the critical race theory movement,” the latter “a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.” In this process of transformation, seen in such words as “microaggression” and “undocumented,” “critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” Critical, indeed, then.

The doctrine “sprang up in the 1970s” among “lawyers, activists and legal scholars” in the United States, persons dissatisfied with the moral and legal advances won by the civil rights activists of the 1960; some of these reforms “had stalled and, in many respects, were being rolled back,” thanks to “subtler forms of racism” (see “microaggression,” above) that now prevailed. Delgado, along with Derrick Bell and Alan Freeman, “put their minds to the task.” Their minds were already steeped in the thought of Gramsci, Foucault, and Derrida, stalwarts of the European Left, and, as adepts in legal reasoning, they also borrowed from the field of “critical legal studies,” which pushes the Progressivist claim that laws may be ‘interpreted’ broadly, especially if that interpretation serves the interpreter’s moral and political intention, toward the further claim that cases in law may be handled that way, too, “by emphasizing one line of authority over another or interpreting one fact differently from the way one’s adversary does.” This dovetailed well with “feminism’s insights into the relationship between power and the construction of social roles, as well as the unseen, largely invisible collection of patterns and habits that make up patriarchy and other types of domination.” Unseen! So much the better. Let political discourse ‘lawyer up’! Further, CRT borrowed from “the conventional civil rights” movement its “notions of community and group empowerment”—in a word, socialism—and from “ethnic studies” its notions of “cultural nationalism, group cohesion, and the need to develop ideas and texts centered around each group and its situation”—in two words, national socialism, although thankfully not of the Hitlerite strain.

The “basic tenets of CRT” are: racism is normal, not aberrational, but largely unacknowledged in American law, which treats everyone equally and “can thus remedy only the most blatant forms of discrimination,” but surely not anything so subtle as unseen microaggression; “interest convergence” among the dominant race, as for example when racism “advances both white elites (materially) and working-class whites (psychically)”; “social construction,” meaning that “race and races are products of social thought and relations,” not nature; “differential racism,” the practice whereby “the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market”; “intersectionality,” the observation that “no person has a single, easily stated, unitary identity” but instead embodies “potentially conflicting, overlapping identities, loyalties, and allegiances”; and finally, “voice,” the way in which writers in minority communities “may be able to communicate to their white counterparts matters that the whites are unlikely to know.” But the overarching tenet of CRT, framing all the others, is socialism. “Something inherent in the nature of our capitalist system ineluctably produces poverty and class segregation,” and that “something” is competition, with its “idea of winners and losers.” 

Not that CRT activist-transformer-thinkers do not compete with one another. There is “an issue that squarely divides critical race theory thinkers”—roughly the one that divides thinkers generally, namely the divide between ‘idealism’ and ‘realism.’ The idealists hold “that racism and discrimination are matters of thinking, mental categorization, attitude, and discourse.” As such, it is made and can therefore be unmade “by changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by which we convey to one another that certain people are less intelligent, reliable, hardworking, virtuous, and American than others.” The realists “or economic determinists,” evidently Marxists, regard racism as “much more than a collection of unfavorable impressions of members of other groups” but “a means by which society allocates privilege and status.” So, for example, “antiblack prejudice sprang up with slavery and capitalists’ need for labor,” whereas “before then, educated Europeans held a generally positive attitude toward Africans, recognizing that African civilizations”—well, actually, “North Africans,” a.k.a. Egyptians—were “highly advanced,” having “pioneered mathematics, medicine, and astronomy long before Europeans had much knowledge of these disciplines.” Aside from the fact that Egyptians made considerable use of slave labor, they were never regarded as “blacks,” and so could not be subject to “antiblack prejudice,” but no matter, CRT theorist are entitled to argue like lawyers, sure in the goodness of their cause. 

Realist/materialist thinkers further “point out that conquering nations universally demonize their subjects to feel better about exploiting them” (surely a calumny against Genghis Khan, who rather delighted in forced sexual congress with women whose men he had conquered, but the authors seldom trouble themselves with counter-examples), and that material/historical “circumstances change so that one group finds it possible to seize advantage or to exploit another,” in the process “form[ing] appropriate collective attitudes to rationalize what was done.” This might raise the question of whether the same thing might be said about realist/materialists or indeed CRT folk generally, given the circumstance of ruling that they so ardently wish for themselves.

Then again, one might well charge the Great Khan with self-interest, indeed self-indulgence, and that is another complaint. Citing research by the Emory University law professor Mary Dudziak, they charge that the celebrated ruling in the civil rights case Brown v. Board of Education merely expressed the self-interest of whites during the Cold War: “When the Justice Department intervened on the side of the NAACP for the first time in a major school-desegregation case, it was responding to a flood of secret cables and memos outlining the United States’ interest in improving its image in the eyes of the Third World.” But if so, does that mean the Supreme Court justices were thinking along the same lines, ignoring the text of the Constitution in order to further U.S. foreign policy?  Such a claim falls in line with the techniques of “revisionist history,” which, in the hands of the “Crits” (as they fondly call themselves), “often strive[s] to unearth little-known chapters of racial struggle, sometimes in ways that reinforce current reform efforts.” Sometimes, indeed.

Not that Crits are entirely satisfied with the arguments in such decisions as Brown. “Admirable” at times, “color blindness” in the law can also be “perverse,” as when it “stands in the way of taking account of difference in order to help people in need.” Working on a case-by-case basis, this is usually what judicial equity is for, but the Crits are impatient with bourgeois individualism, demanding instead that groups be addressed. “Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery.” Indeed, “crits are suspicious of another liberal mainstay, namely rights.” Rights are usually procedural, not “substantive” (meaning, a right to concrete things); they may give everyone “equality of opportunity” but fail to “assure equality of results”—another socialist aspiration against that nasty competitiveness capitalism breeds. What is more, rights “are almost cut back when they conflict with the interests of the powerful,” as when the First Amendment right to free speech is denied someone who “insults a judge or other authority figure” (order in a capitalist court being unjust at its root), or someone who “defames a wealthy and well-regarded person” (a right decidedly not curtailed when it came to former president Trump), or “divulges a government secret” (sometimes known as treason, but for the Crits there can be no treason against the capitalist state). Worst of all, rights are “alienating” in that “they separate people from each other,” saying “stay away, I’ve got my rights,” instead of “encouraging them to form close, respectful communities,” as socialists assure us they will do. But why would close, respectful communities organized along racial lines respect other communities, so organized? If social systems are constructed, then group rights are, too, and, as the authors have already advised us, what is constructed can be deconstructed. Why would one constructed community not move to deconstruct another? Or itself?

The authors quite rightly say that laws derive from a “system” or, as Plato and Aristotle have said before them, a regime. From this insight flow four criticisms of American law. First, it is based on the writings of William Blackstone, a Lockean upholder of capitalism in whom such notions as intersectionality, interest convergence, microaggressions, anti-essentialism, hegemony, hate speech language rights, black-white binary, and jury nullification (about which more, later) hold no place. Second, American law exhibits the “empathetic fallacy,” that is, “the belief that one can use words to undo the meanings that others attach to these very same words,” when prejudicial stereotypes “are embedded in the minds of one’s fellow citizens and, indeed, the national psyche.” (“Try explaining to someone who has never seen a Mexican, except for cartoon figures wearing sombreros and serapes, that most Mexicans wear business suits.” [If so, they dress better than most Anglos.]) Third, the lawyers within the American legal system often serve two masters, (for example, a civil rights lawyer may not have the same ‘agenda’ as his client, wanting to set a precedent when the client only wants to secure a benefit). Finally, the legal system moves too deliberately, with “all deliberate speed,” as the phrase goes, because it is designed to serve as a homeostatic device, “ensur[ing] racial progress occurs at just the right slow pace”—one convenient for the oppressors. 

How to counter such enormities? “Critical race theorists have built on everyday experiences with perspective, viewpoint, and the power of stories and persuasion”—sometimes known as ‘rhetorical devices.’ These devices will induce “a greater understanding of how Americans see race,” an understanding in accordance with socialist regime change, one begins to suspect. The sentiment animating socialism, probably the psychological agent that (the Crits hope) will prevent the dissolution of the newly constructed regimes of the future into a war of all against all, is “empathy.” “Engaging stories can help us understand what life is like for others and invite the reader into a new and unfamiliar world.” Possibly so, but can’t tyrants tell stories, too—socialist realism, and all that? Stories also serve “a valid destructive function,” dissolving beliefs that are “ridiculous, self-serving, or cruel” but “not perceived to be so at the time.” But cannot narrative destruction work against empathy as easily as it can work for it? “If race is not real or objective but constructed, racism and prejudice should be capable of deconstruction”; if it should be, will it be, or will it only be reconstructed with the former bottom rail now on top? “Even the conservative judge Richard Posner has conceded that major reforms in law often come through a conversion process or paradigm shift” of the sort described in Thomas Kuhn’s famous book. (Even a conservative! Russell Kirk would nod in concurrence.) In politics, a “paradigm shift” is a regime change, a revolution. Currently, under the capitalism system or regime, a person deemed guilty of a crime before a judge may “not subscribe to the foundational views of the regime that is sitting in judgment of him or her.” Quite so, but what criterion, beyond “empathy”—itself an undirected sentiment, as easily directed at a Nazi as at a Communist as at a liberal—will the foundational views of the regime themselves be judged? The authors do not say. They are reduced to a historicism ungrounded by any Absolute Spirit: “law has been slowly moving in the direction of recognizing the legitimacy and power of narrative.” By their own admission, however, neither lawfulness nor power amounts to a moral principle.

Morality inheres in persons, and “because politics has a personal dimension, it should come as no surprise that critical race theorists have turned critique inward, examining the interplay of power and authority within minority communities, movements, and even selves.” The authors begin with “intersectionality,” “the examination of race, sex, class, national origin, and sexual orientation and how their combination plays out in various settings.” If politics has a personal dimension, and since the examiners in this case are the Crits themselves, it is obvious that tensions between or among those several elements (or rather “sites of oppression”) will trouble communitarians more than they trouble liberals, although any regime will regard the more extreme forms of factionalism threatening. (In some respects, the problem presents itself in its truly ineluctable form for a person of mixed race.) Crits hope that “perspectivalism,” defined as “the insistence on examining how things look from the perspective of individual actors,” will aid in understanding “the predicament of intersectional actors,” e.g., a person who is both black and a woman, Native American and homosexual. This, along with the empathy mentioned earlier, “can enable us to frame approaches that may do justice to a broad range of people and avoid oversimplifying human experience.” “Justice” remains undefined.

“Intersectionality” points to the question of “essentialism and anti-essentialism,” specifically, “Do all oppressed people have something in common,” other than their oppression? The forms of oppression vary, requiring a variety of political strategies. “This tension seems inherent in our mode of existence,” the authors wisely observe. They complain that “classical liberalism also has been criticized as being overly caught up in universals,” although they too have had recourse to (let’s call it what it is) prudential reasoning in order to act better in accordance with those “universals.” It must be said that in general “liberals” have done a better job at that than Leftists, but presumably this book is an attempt to smarten up social-change activists and theorists alike.

In their self-examination, Crits also wrestle with the question of nationalism versus assimilationism: Should minority persons work for integration within American civil society or hold themselves apart—insisting on, for example, “all-black inner-city schools, sometimes just for males, on the grounds that boys of color need strong role models and cannot easily find them in the public schools”? Nationalists “question the majoritarian assumption that northern European culture is superior,” while (it should be noted) demanding rights and benefits that look suspiciously like what northern Europeans enjoy. Nationalists often describe themselves as “a nation within a nation,” insisting “that the loyalty and identification of black people, for example, should lie with that community and only secondarily”—if at all—with “the United States.” The authors prefer “a middle position”: “minorities of color should not try to fit into a flawed economic and political system but transform it” into some form of socialism. 

In the effort to revolutionize the American regime, the authors eschew what they call the “Black-White Binary,” the claim of some black activists and academics that the experience of African Americans is the paradigmatic form of oppression in the country, “so distinctive that placing it at the center of analysis is, in fact, warranted.” Other minority groups should “compare their treatment to that of African Americans to redress their grievances.” Mexican Americans and Indians have suffered in ways not identical to those in which blacks have suffered and, more to the political point, “pitting one minority group against another” will result in the rule of whites over a divided set of victims. It can also “induce a minority group to identify with whites in exaggerated fashion at the expense of other groups,” as when the League of United Latin American Citizens “reacted to rampant discrimination against their members by insisting that society treat Latinos as whites.” Not nationalism and its corollary, “binary thinking” must be “put aside” if minorities will “work together to confront the forces that suppress them all”—a variation of the Popular Front strategy of the 1930s, revived also by some contemporary white socialists. [1] 

A further danger to socialist regime change might come from whites. After all, Critical Race Theory might inspire “Critical White Studies”—studies undertaken by whites, for whites. Whites, too, can pursue a Popular Front strategy, and indeed have done so, as such ethnic groups as the Irish, Jews, and Italians, once classified by whites as non-whites, have long been brought into the tribe. “Whiteness, it turns out, is not only valuable; it is shifting and malleable.” But “white solidarity presents problems and dangers that black solidarity does not,” inasmuch as it inclines to support the regime the authors want to get rid of. Whites are “privileged”; for example, “store clerks won’t follow them around” and “people will not cross the street to avoid them at night” (your reviewer inexplicably being an exception to those practices). Just as bad, “whites do not see themselves as having a race but as being, simply people”—another surprising revelation to this writer, who has extensive experience with whites who “see themselves” as members of both categories. 

In their final chapters, the authors shift to the question, ‘What is to be done?’ With respect to CRT itself, they find that it “has yet to develop a comprehensive theory of class” as a supplement to its racial analysis—yet another of their efforts to emphasize a socialist program. After all, the number of whites on public assistance exceeds the number of “people of color.” Socialists should continue to press for such “redistributive measures” as the progressive income tax, public education, and “a welfare safety net,” all now “command[ing] much less support than they did formerly” among Americans. Being advocates of a regime and not only an economic system, socialists also will address the criminal justice system, in which a substantial percentage of minority men are “enmeshed.” One way to counteract “the disproportionate incarceration of young black men” is jury nullification, ignoring the instructions of a judge at trial and acquitting a young man whom jury members consider “of more use to the community free than behind bars.” If the rule of law derives from the regime, and the regime is bad, then use to the community ought to trump the rule of law—this, despite the fact that utilitarianism is a doctrine formulated by white and indeed Anglo-Saxon males in the late seventeenth century.) But utilitarianism alone may not suffice; “one scholar, Paul Butler, proposes that the values of hip-hop music and culture could serve as a basis for reconstructing the criminal justice system so that it is more humane and responsive to the concerns of the black community.” 

After delving into laws against “hate speech”—that notoriously ‘malleable’ new crime—and laws favoring the use of “non-English speakers to use their native languages in the workplace, voting booth, schoolhouse, and government offices” (nationalism being okay, if rightly, that is, Leftishly, applied) the authors take up “CRT’s critique of merit.” Merit “is far from the neutral standard that its supporters imagine it to be,” inasmuch as scores on standardized school admissions tests “are coachable and reward people from high socioeconomic levels” who can pay coaches. Such tests “do not measure other important qualities such as empathy, achievement orientation, or communication skills”—which may be why schools seldom use them as the sole criterion for admission. It may be that the elimination of standardized tests altogether in favor of immeasurable moral virtues may help to elevate budding socialists to more prestigious schools. After all, “if one defines the objective of a law school as turning out glib lawyers who excel at a certain type of verbal reasoning, then one group would appear to have a virtual corner on merit”—a sentence that appeals to the antisemitic stereotyping to which the contemporary Left has not been entirely resistant. With empathy firmly in hand, “lawyering skills” might be redefined to include “the ability to craft an original argument for law reform”—quite likely, along the regime lines the authors prefer.

Since Crits “will need to marshal every conceivable argument, exploit every chink, crack and glimmer of interest convergence to make these reforms palatable to a majority that only at a few times in its history has seen fit to tolerate them,” one such glimmer that may be exploited in the effort to form One Big Left is globalization, which “removes manufacturing jobs from inner cities (often to other countries), creates technology and information industry jobs for which many minorities have little training, and concentrates capital in the pockets of an elite class, which seems little inclined to share it”; this “offers opportunities for minorities to form coalitions with American blue-collar workers and unions,” as “the materialist wing”—the Marxists—of CRT would predict. 

CRT Socialists face a political problem. Not only do “aggressive policing and incarceration create”—a fascinating verb selection—large numbers of “civilians who are ex-cons and unable to vote,” but minorities are, well, minorities and thus disadvantaged in democracies. Therefore, “efforts must continue to counter minority underrepresentation” in government by instituting cumulative voting, whereby voters faced with a slate of ten candidates for one office would have not one but ten votes, all of which he could “place” on one candidate. “If one of the candidates is, say, an African American whose record and positions are attractive to that community, that candidate should be able to win election.” But why? Why would those race-prejudiced, mean old white voters not do the same thing for a candidate who attracts them—unless, of course, only the black citizen gets ten votes, and the white citizen is restricted to one.

The authors conclude by confirming their intention to effect regime change in the United States toward socialism or, as they prefer to call it, “economic democracy.” They are well aware that a regime consists not only of rulers, ruling offices or institutions, and purposes, but of a way of life, aiming at “assuring that minority viewpoints and interests are taken into account, as though by second nature, in every major policy decision the nation makes.” In this, they have already achieved a substantial victory. Critical Legal Studies, CRT’s legal arm, has “embedded itself so thoroughly in academic scholarship and teaching that its precepts became commonplace, part of the conventional wisdom.” Moreover, “consider how in many [academic] disciplines scholars, teachers, and courses profess, almost incidentally, to embrace critical race theory.” “Might critical race theory one day diffuse into the atmosphere, like air, so that we are hardly aware of it anymore?” Or might it come to resemble shadow-images projected on the walls of the sociopolitical cave? Beware of metaphors.

 

Note

1. See “The Popular Front Reconstituted?”, a review of Harvey J. Kaye: The Fight for the Four Freedoms: What Made FDR and the Greatest Generation Truly Great (2016), on this website in the “American Regime” section.

 

 

 

This essay was originally published on the Constituting America website, August 7, 2023.

 

Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.

There is also a form of corruption that can occur not for private gain but for the aggrandizement of political power. The accumulation of executive, legislative, and judicial power in the hands of one person, or of one set of persons acting with a unitary will is, as Thomas Jefferson once wrote, the condition of tyranny—in effective, the privatization of public authority.

At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible, which had taught them that corruption begins with the human heart, that sin persisted in each of them, however they might succeed in suppressing it. Each man was properly wary of the American people, his colleagues, and himself.

They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “the long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.

George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt or tyrannical rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”

In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.

When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and views of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.

These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertain by Law—federal law—and “paid out of the Treasury of the United States.”

George Mason of Virginia expressed no concern about corruption in the form of salaries, but corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depend.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial post as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”

Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”

Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.

For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.

The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which is elected,” be appointed to any such office (emphasis added).

But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justice, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointment might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-Federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.

The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and tempering. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.

Tim Hornbaker: National Wrestling Alliance: The Untold Story of the Monopoly That Strangled Pro Wrestling. Toronto: ECW Press, 2007.

 

Professional wrestling in the United States began in the circuses and traveling carnivals of the nineteenth century, with who knows what mixture of competition and hoax. In Germany, staged matches were firmly in place by the 1880s, so it is unlikely that Europe’s American cousins trailed less than a generation behind, if that. Whatever its provenance, the early pros had to know how to wrestle for real, not only how to put on a show. If your opponent decided to ‘shoot,’ try to beat you when he was supposed to lose, you needed to be able to defend yourself and your reputation. For this reason, the best-trained performers learned ‘hooks’—potentially crippling, always painful holds that could save them if, well, a situation arose. 

Along with boxers, wrestlers became sports celebrities late in the century—John L. Sullivan the boxing champ in the 1880s, Martin “Farmer” Burns the wrestling champ in the 1890s. Burns trained Frank Gotch, the first American claimant to a pro wrestling ‘world’ championship in 1905. Gotch reportedly enjoyed inflicting pain on his opponents, whether the match was a contest or a show. By the time of the Great War, the top promoter in the United States was Jack Curley, a.k.a. Jacques Armand Schmuel, headquartered in New York City and allied with Midwest promoters Billy Sandow and Tony Stecher in the wrestling “Trust.”  Such a dangerous business cried out for reform, which began in the Progressive era in the person of Ed “Strangler” Lewis.

Robert Herman Julius Friedrich took his ring name from a famous wrestler of the previous generation, Evan “Strangler” Lewis. The new Strangler was managed by Billy Sandow, a.k.a. Wilhelm Baumann, trained by Joe “Toots” Mondt. A finer group of German-American lads could scarcely have been assembled, and, whether intentionally or not, they broke from Curley’s Trust and followed their countrymen’s tradition by gathering “a stable of grapplers who followed [Sandow’s] orders.” Those who chose not to conform were quickly schooled to the contrary by the ‘policeman,’ John Pesek, “a shooter beyond compare,” who “simply could not be beaten.” In the first half of the 1920s, the “Gold Dust Trio,” as the sports journalists of the day named them, dominated the industry with short, fast-paced matches that kept the marks coming back for more. In the Strangler, pro wrestling had found its Babe Ruth, its Jack Dempsey, as sports became part of the entertainment and mass media industry of that decade.

Alas, the boys outsmarted themselves. A popular University of Nebraska football star, Wayne Munn, looked like money to the boys. They arranged for him to win a spectacular upset match against the Strangler in 1925, planning to promote a return match that would make all parties to the deal a boatload of money. The deal went down in Kansas City, with Munn next undertaking a national tour of championship bouts while, for his part, the Strangler kept on the heat by refusing to relinquish his diamond-studded championship belt, prompting a sham court case, well publicized by the cooperative journalists of the day. The flaw in the plan was Munn’s lack of shoot-wrestling experience. One of his opponents on the tour was Stanislaus Zbyszko, a veteran wrestler who had taken a fall for Munn in the past. But in April, Zbyszko crushed the hapless footballer in Philadelphia, and it transpired that Jack Curley was behind the double-cross.

In an attempt to bring a touch of order and (it was fondly hoped) respectability to the game, the National Boxing Association established the National Wrestling Association in 1930, headquartered in New Orleans. This organization competed with the American Wrestling Association, which had been founded a couple of years earlier by Boston promoter Paul Bowser. Curley allied with Lewis and eventually formed a new version of the Trust in 1933. A year later, he installed the photogenic Jim Londos as champ. Lewis, half-blind from trachoma, did the job, although even then he could have mauled the diminutive Greek hero. 

After Curley died, in 1937, promotional wars continued, with more double-crosses and title changes. By 1940, the dominant promoters were Tom Packs of St. Louis, head of the National Wrestling Association, whose ‘world champion’ was Bill Longson, and Bowser, who installed Frank Sexton as his champ. Bowser was the more influential of the two because he had connections with more state athletic commissions, which had designated the ‘world’s champion’ since 1930. Annoyed at the National Wrestling Association’s secondary status, other Midwestern promoters, notably Sandow and Maxwell Baumann, broke with the Association and founded the first entity called the National Wrestling Alliance in 1941, putting their headquarters in Wichita, Kansas and naming Roy Dunn, a legit amateur wrestler (a former Olympian, in fact) as their champion. A couple of years later, Des Moines promoter Paul “Pinkie” George appropriated the National Wrestling Alliance name for his own promotion, naming his own champion. Partnering with Wichita promoter and wrestler Orville Brown, he expanded the new Alliance to Minneapolis and Omaha. By 1944, Brown himself was the Alliance champion. As Hornbaker duly notes, a champion was whomever a promoter or consortium of promoters called a champion.

After the war, back in St. Louis, a former sportswriter named Sam Muchnick began a promotion in competition with Packs, with support from Stecher and Sandow. He was successful, and in July 1948 Muchnick, Stecher, Sandow, Brown, and Chicago promoter Fred Kohler met in Waterloo, Iowa, founding a third entity called the National Wrestling Alliance; the Pinkie George organization remained intact but allied with the larger organization. Brown was its first champion, thus giving some continuity to two of the “Alliances.” By the end of 1948, the Alliance had members in twenty states, including Ohio (Al Haft in Columbus) and Michigan (Harry Light in Detroit) to its membership, thus forming a strong Midwest, though as yet hardly ‘National,’ organization in rivalry with the National Wrestling Association. Muchnick was elected president in September 1950, a position he held for more than two decades. Muchnick was that rarity, an honest and trustworthy promoter, proving once again that in the kingdom of the blind the one-eyed man is king.

The National Wrestling Alliance compact stipulated that each promoter would, in the words of the by-laws, “run his existing territory as he sees fit without the interference of any other member.” The promoters agreed to mutual aid in terms of sharing talent, including the recognition of one heavyweight champion and one junior heavyweight champion, whose appearances would be distributed “so that each member receive[s] equal benefit in showing said champions” in his territory. The Alliance members would “act as their own commission to police wrestling,” whereby a wrestler suspended in one territory would be suspended in all territories. Each territory had several promoters, with only the top promoter as a member of the Alliance; he was also the ‘booker,’ that is, the person who sent wrestlers under contract to ‘his’ promoters for their local shows.

Less materially but far more entertainingly, the incorporation documents also included among its purposes the intention “to enlighten and direct public opinion with regard to the relation between professional wrestling and public welfare”—as if there could ever had been so much as a tincture of doubt—and to “promote good will between members of this association with state athletic commissions”—a mission rapidly accomplished, inasmuch as money talks—and “to promote fair play, sportsmanship, and a high standard of competition and interest in the wrestling profession.”

Meanwhile, Packs sold his promotion to wrestlers Lou Thesz and Bill Longson (both of whom had worked as champs for him), who were backed by Canadian promoters Frank Tunney (Toronto) and Eddie Quinn (Montreal), rivaling Muchnick in St. Louis. An initial meeting between the two groups ended in stalemate, but in July 1949 Thesz gave in, joining the NWA and quickly becoming its heavyweight ‘world champion,’ since Brown had been seriously injured in an automobile accident. Tunney and Quinn joined soon afterward, as did promoters in Los Angeles (Johnny Doyle, who gave the world Gorgeous George), San Francisco (Joe Malcewicz), and Honolulu (Al Karasick). Billy Wolfe, who controlled the principal stable of women wrestlers, also joined. The organization gained an important inroad in the northeastern U. S. when Toots Mondt of Pittsburgh joined; Mondt had the contract with Antonino Rocca, the star of Madison Square Garden shows since the late 1940s, a venue Mondt had booked since the beginning of that decade. Rocca exemplified a new sort of pro wrestler. He couldn’t wrestle much, for real, but within a well-disciplined promotion, that didn’t matter, since no one would shoot on him. (Although in one match Thesz disgustedly dropped him on his head, just to send a message.) This enabled Rocca to enliven the sport with spectacular but utterly ineffectual maneuvers like dropkicks, which his opponents ‘sold’ to the audience as devastating aerial strikes.

With forty members leasing ruling territories from New York to Honolulu, the NWA now had some real nationwide heft. Competitors were, of course, unwelcome. “Controlling the best talent in the business was the key in shutting down independents. Members used contracts to tie up wrestlers and the threat of suspension by state athletic commissions to keep their athletes in check,” and the athletic commissions, seldom offended by offers of cash, “limited the number of licenses issued to prospective bookers or promoters” and reserved the best arenas for NWA members. Even so, a stubborn challenger could still be countered. In such cases, “members united and sent their top grapplers to the [NWA] promoter engaged in the conflict,” and President Muchnick made sure that the champ would visit the territory for more than his usual allotment of dates. As supplementary measures, “verbal and physical threats were not unheard of.” 

All of this coincided with the rise of television. The small, black-and-white screens conveyed boxing and wrestling better than they did the more complicated team sports. Fred Kohler had put a weekly show on a local station, debuting in July 1946, proving that a TV show could be used to promote shows in the big arenas. With NWA backing, he built an empire within the empire, taking his shows national in 1949 by distributing them on the Dumont Network. Although he used Thesz, he also established his own champion, crowning the current NWA junior heavyweight champion Verne Gagne as the “United States Heavyweight Champion,” a title Kohler invented. He soon allied with Mondt and Madison Square Garden promoter Charley Johnston, never stepping outside the limits of the NWA but prospering beyond any others within it, until he lost his arrangement with Dumont in 1955 and his contract with its local affiliate, two years later.

Thesz proved a highly successful champion for the NWA. He had been trained in his native St. Louis by a shooter named George Tragos, then further by Strangler Lewis, so he could actually wrestle, lending credibility to the exhibitions and guarding the title against any wrestler bold enough to try to grab the title for himself. (Once established, he had the NWA hire Lewis as his traveling manager, exhibiting a sentiment, gratitude, that seemed a bit eccentric to his colleagues. Lewis was good for business, too, having mastered the art of publicity during the Roaring Twenties.) The very size of the NWA brought a new challenge, however. The bigger it was, the fewer times the champ could tour any one territory, and the more exhausting his schedule became. As usual, arrangements were made. In 1955, Thesz and San Francisco favorite Leo Nomellini staged a match with an intentionally ambiguous finish, thus enabling Nomellini to be billed as world champ in that city, Thesz everywhere else. Injured in 1956, he lost to Tunney’s Toronto hero, Whipper Billy Watson, another relatively trustworthy soul, who readily lost a return match once Thesz had recovered. In 1957, he lost a match by disqualification to Eddie Flynn’s top draw, “The Flying Frenchman,” Edouard Carpentier (a.k.a. Weczerkiewicz)—yet another dodge to split the title, since Thesz could claim that a DQ loss was no ticket to the championship and Flynn could bill his local boy as the ‘real’ champ. Thesz relinquished his title to one of the few wrestlers he respected, Dick Hutton, a former NCAA champion. Verne Gagne’s U.S. title had rubbed Thesz the wrong way, and the other major star of the period, Buddy Rogers, had not only jumped from Thesz’s St. Louis promotion to the fledgling NWA before Thesz did but had the temerity to joke about Ed Lewis in front of Thesz, a few years later. Thesz blocked both of them from becoming the NWA champ.

All of this might strike the casual observer as monopolistic, in light of the venerable Sherman Antitrust Act. “Although the monopolistic practices of the NWA were not yet on the radar of government officials, it was just a matter of time.” Corruption of state athletic commissions had been routine for decades, but corruption coming from a traceable, centralized source eventually raised some eyebrows. By the mid-1950s, there had developed a sufficiency of disgruntled promoters and wrestlers to enable U.S. Department of Justice investigator Stanley Disney to begin building a case, starting with L.A.’s Doyle, who had quit the organization in 1954. That old trouble-maker, Stanislaus Zbyszko, also got in touch with the Antitrust division; “his disdain for the Alliance’s methods were well known,” and he went to the extreme of writing an article exposing the theatrical character of the genre, although the limited circulation of The Man’s Magazine, where the article appeared, made the publication in itself unthreatening to the industry. But by June of 1955, Muchnick was interrogated by Disney on NWA business practices. “One thing Muchnick sought to avoid was a public proclamation, either by the Department of Justice or in a federal courtroom, that wrestling was a scripted sport,” which might “demoralize the fans,” “sinking the industry.” That never happened, but Disney did issue a memorandum recommending a grand jury investigation, “elaborat[ing] on a conspiracy of 38 bookers in controlling specific territories, browbeating promoters into dealing with Alliance associates, the sale of towns, discrimination, price fixing, and systematic blacklisting.” He additionally recommended a civil case, resulting in United States of America v. National Wrestling Alliance, which resulted in a consent decree ordering the NWA to “cease illegal practices.” For his part, President Muchnick generously admitted that some members of the organization had, well, “deviated from the true purposes of the organization, and that some corrections should be made.” This enabled him to admit no wrongdoing while agreeing to reform. In an especially fine turn, he named Doyle as one of the delinquents. Congressman Mel Price of East St. Louis, a Muchnick ally, may have been influential in limiting the Justice Department to the consent decree, and Hornbaker also suspects United States Senators Everett Dirksen of Fred Kohler’s Illinois and Estes Kefauver of Tennessee of intervening. (Upon the occasion of Dirksen’s death, many years later, the conservative writer William F. Buckley, Jr., claimed that the only thing the senator really cared about was getting the marigold designated as the national flower—a manifest calumny, as this shows.)

The real effect of the investigations was that a reformed NWA was no longer an especially effective NWA. Its members had less incentive to stay in it and independents were less intimidated by it. The most significant secessionists were Verne Gagne, who formed the American Wrestling Alliance, centered in Minneapolis—a lucrative promotion that endured for three decades—and (as it turned out, much more significantly), Vincent McMahon.

McMahon’s family had been involved in sports promotion since the early years of the century. Brothers Edward and Roderick “Jess” McMahon promoted baseball and boxing after graduating from Manhattan College, with Jess promoting the Jack Dempsey-Jack Sharkey fight in Madison Square Garden, one of the major sports events of 1927. He also promoted wrestling in the New York City area. Son Vincent, born in 1914, moved to Washington, D.C., after serving in the Coast Guard during World War II, managing the Turner Arena, the main wrestling venue in the city. He bought the territory from NWA affiliate Joe Menendez in 1952 and began producing TV shows on the local Dumont Network affiliate, four years later. The matches were syndicated to the Dumont affiliate in New York, and “Wrestling from Capitol Arena” (as McMahon renamed Turner Arena) became a popular weekly feature on Channel 5 until the mid-Sixties. Philadelphia-based promoter Ray Fabiani ran opposition shows at the Uline Arena, featuring Buddy Rogers, the top ‘heel’ performer in the business, but McMahon won the ‘war’ and the two promoters became allies. Rogers would prove instrumental to McMahon’s eventual plans.

The main attraction in the New York-Philadelphia-D.C. area was Antonino Rocca. Allying with Toots Mondt, who had Rocca signed to a contract, “McMahon devised a strategy to rule wrestling in the Northeast, partnering with Charles Johnston, his nephew Walter Smallshaw, and matchmaker Kola Kwariani, who controlled Madison Square Garden and other smaller venues in city.” McMahon and Mondt supplied the wrestlers, and with both Rocca and now Rogers in the stable, the New Yorkers had little choice but to play. The first McMahon-Mondt card in the Garden, in February 1957, drew the biggest crowd for any sports event in 25 years—without Thesz in the main event, it might be noted. This earned Mondt status as co-promoter with Johnston, and McMahon replaced Kwariani as matchmaker. Rocca, who was in the main event, was “the biggest wrestling attraction in New York since Jim Londos,” headlining every card there until January 1961. That the fans were suitably engaged may be seen not only in the attendance figures, but in the riot that occurred at the November show in 1957, when Dick the Bruiser and Dr. Jerry Graham committed acts of manifest felony against Rocca and his tag team partner, Edouard Carpentier, leaving the crowd no righteous choice but to engage in prompt citizen action. Rocca next teamed with the young Miguel Perez, the first Puerto Rican star in the territory, to defeat ‘brothers’ Eddie and ‘Dr.’ Jerry Graham in another record-setting show held in January 1959. (Jerry explained his doctorate by claiming alternatively, a B.S. in psychology from Arizona State or, only a bit less impressively, by saying “I’m a tree surgeon.”)

With a second weekly television show, beginning in February 1959, McMahon could reach fans from Canada to Virginia, giving him “unparalleled leverage” in the industry, with a roster of some fifty wrestlers remitting booking fees to Capitol Wrestling. The organization earned as much as fifty percent of the gross in the shows its wrestlers worked. McMahon used his influence to have Buddy Rogers obtain the NWA championship in 1961, and since he’d had Rogers under contract since the previous year, he made sure the champ headlined his own shows on a regular basis. This displeased the other Alliance members, and when they moved to take the belt from Rogers (Thesz was tapped, for the sixth time), McMahon simply dropped out of the Alliance, forming the World-Wide Wrestling Federation in 1963 and ignoring the title transfer. The story line had Rogers winning an “international tournament” in Rio de Janeiro, a city Rogers in fact never saw in his life. McMahon also co-founded a Cleveland-based promotion, unknown to WWWF fans, wherein Rogers passed his title to Dory Dixon. McMahon took care not to break relations with his former colleagues entirely, continuing business dealings with many of the NWA promoters.

In his main territory, he had plans that didn’t include a major role for Dixon. Rogers suffered from a heart condition; although he was one of the top attractions in the country, he would have to be replaced. Rogers’ health condition was carefully concealed, not only from the fans but from the several state athletic commissions, which would have barred him from appearing if they had known about it. It is not inconceivable that money changed hands. Be that as it may have been, necessity led to the decision that would make the WWWF the most successful company in the industry: on April 17, 1963, “The Italian Strongman,” Bruno Sammartino, defeated Rogers in Madison Square Garden, a match that lasted only 47 seconds. (Incensed at having been passed over, Rocca started his own promotion, using workers from promoter Jim Crocker’s Charlotte-based territory, but the enterprise went bust in a year or so.) The difference between Cleveland and the Connecticut-to-DC corridor was simple: Cleveland’s fan base consisted of a high percentage of African Americans, who would buy tickets to see the Jamaican-born “Calypso Kid,” Dory Dixon. On the East Coast, however, the fan base consisted of a high percentage of Italian Americans, who had supported the now aging (and alcoholic) Rocca (and, indeed, the lumbering ex-boxer Primo Carnera before him); they now exulted in the triumph of their new hero over the detested heel, Rogers. Sammartino went on to become the biggest box-office attraction in wrestling, until Hulk Hogan came along, under much-changed promotional circumstances, twenty years later. By then, McMahon the Elder and his partners had sold their stock to McMahon the Younger, Vincent K. McMahon, the first promoter to establish wrestling as ‘sports entertainment,’ abandoning the claim that it was a competitive sport. It was a bold and potentially risky move at the time, but the revenues almost immediately spoke for themselves.

As for the NWA, it has never regained its dominance, although for a time the billionaire showman Ted Turner owned it and offered some competition to McMahon. Many people don’t know that it still exists, after many permutations. McMahon the Elder himself rejoined it in 1971, although his son jettisoned the partnership for good, twenty-two years later. 

Professional wrestlers are the true American gymnosophists. When called upon, they could speak with words and not merely bodies, deploying a variant of the ‘carny’ code they called ‘kayfabe’—which means ‘be fake’ in carny. But as Hornbaker’s well-researched book shows, they had nothing on their employers when it came to the arts of legerdemain.