Amy Gutmann: Identity in Democracy. Princeton: Princeton University Press, 2003.

 

‘Identity politics’ has its partisans. Citizens in democratic republics often organize around “ethnicity, race, nationality, culture, religion, gender, sexual orientation, class, disability, age, ideology, and other social markers,” forming “identity groups” intended to exert political influence on such regimes. Gutmann wants to understand what this means for democracy—whether such organizations are good or bad when it comes to securing “democratic justice.”

Identity groups arise whenever a regime respects individuals’ “freedom of association”; indeed, “a society that prevents identity groups from forming is a tyranny.” Many modern tyrannies have attempted to eradicate identity groups altogether, earning the pejorative title, ‘totalitarian.’ Gutmann defines democracy as a regime animated by three principles: civic equality, liberty, and opportunity. Civic equality means “the obligation of democracies to treat all individuals as equal agents in democratic politics and support the conditions that are necessary for their equal treatment as citizens.” Equal freedom means “the obligation of a democratic government to respect the liberty of all individuals to live their own lives as they see fit consistent with the equal liberty of others.” Basic opportunity means “the capacity of individuals to live a decent life with a fair chance to choose among their preferred ways of life.” In terms of democratic justice, then, identity groups “are not the ultimate source of value in any democracy committed to equal regard for individuals,” but neither are they necessarily a source of evil. “Equal regard for individuals—not identity groups—is fundamental to democratic justice.” Identity groups that regard themselves as the ultimate source of value might easily “subordinate the civil equality and equal freedom of persons (inside or outside the group) to their cause” by, among other things, denying individuals the right “to live their lives as they see fit.” 

Nonetheless, identity groups may have value in democracies. If the moral principles esteemed by the group comport with individual freedom, the group will strengthen members’ commitment to that. Also, “numbers count in democratic politics,” so individual members of identity groups will exercise more influence within the regime than they could if they acted alone. In organizing themselves this way, citizens can better secure their civic equality, their freedoms, and their opportunities. Finally, “even when identity groups do not combat injustice, as long as they do not inflict it, they can be valued and valuable for the mutually supportive relationships that they provide their members.”

Identity groups may be organized or unorganized, inside or outside government institutions, based on a chosen (e.g., an ideology) or unchosen (race) characteristic. Identity groups are not the same as interest groups. An interest group “organizes around a shared instrumental interest”; its members may not ‘identify with’ one another for any other reason. The interests they pursue precede the formation of the group; members aggregate to secure something they want. Identity group politics centers on “a sense of who people are.” Though distinct, interests and identity usually find themselves in “close connection.” “Democratic politics is bound up with both how people identify themselves and what they therefore want”; group identities and interests often reinforce one another, as seen in the civil rights movement of the 1960s. 

Although the civil rights movement sought reforms consistent with democratic justice, their enemies in the Ku Klux Klan, equally an identity group, did not. As the example shows, identity groups may or may not “impede democratic justice.” “When mutual identification entails putting considerations of group identity above considerations of justice…identity group politics is morally suspect.” This has often been the case—so much so, that critics of identity politics charge that it endangers democracy itself by discouraging compromise, encouraging sectarianism, and making too much of characteristics not chosen but imposed by accidents of birth. On the other side, partisans of multicultural politics often present themselves as “preoccupied with supporting particularistic identities and interests,” ignoring or denying “egalitarian principles” central to democracy. 

Gutmann tellingly cites James Madison on faction. Madison defines a faction as any group that opposes the public good—an interest group or, for that matter, identity group which practices and preaches injustice. In the tenth Federalist, Madison famously insists that since factions are to liberty what fire is to air, it is futile to destroy liberty in an attempt to stamp out injustice. For Gutmann, who defines identity groups not as necessarily factitious but as neither good nor bad as such, “identity politics is an important manifestation” of the liberty Madison defends. And the regime of democratic republicanism deserves defense. It is not a neutral political instrument but a way of “institutionaliz[ing] in politics a more ethical treatment of individuals than the alternatives to democracy, which range from benevolent to malevolent autocracies and oligarchies.” Therefore, “identity groups need to be assessed by the same standards that one would apply to any groups that make political claims and exert political influence in democracies.”

In her case, these standards inhere not in natural rights of individuals but in civic equality. “There is no ethically neutral place to evaluate the contribution of identity groups to democratic societies, nor would a neutral place be desirable if it were available.” Rather, the regime of democracy “can and ideally should be a deliberative democracy, offering opportunities for its citizens to deliberate about the content of democratic justice and to defend their best understanding of justice at any given time.” This, she seems to believe, makes it unnecessary to conceive of rights as natural, although they might not be historical in the ‘ontological,’ Hegelian and Marxist sense of a rationally ascertainable and predictable course of events that determines the best understanding of justice at any given time. That is, she emphasizes the deliberative or prudential dimension of reasoning, not its theoretical or (putatively) scientific dimension. She may not consider nature as anything but ethically neutral, and thus an unfit source of moral principles.

Far from being a historical determinist, Gutmann considers a “just democracy” a regime that “respects the ethical agency of individuals”; “since individuals are the ultimate source of ethical value, respect for their ethical agency is a basic good.” Such agency has two components: “the capacity to live one’s own life as one sees fit consistent with respecting equal freedom for others,” and “the capacity to contribute to the justice of one’s society and one’s world.” Political ethics in a democratic regime consists of “a public commitment to treating individuals as ethical agents,” neither as “atomistic individuals” with no social or political obligations to one another nor as cells in a larger organism, with no capacity to deliberate and to choose. Civic equality, equal freedom, and basic opportunities serve as “preconditions of a fair democratic process” but also stand as “valuable in their own right as expressions of the freedom and equality of individual persons as ethical agents.” 

For this reason, Gutmann cautions against thinking that all identities are group identities in a morally or politically relevant sense. My personality surely ranks as part of my identity, but I don’t organize a group based upon it. “Wise or foolish, careful or careless, neat or sloppy, serious or light-hearted,” I am unlikely to reach out to my fellows to organize politically on such bases. On one occasion, a frustrated assistant of President Charles de Gaulle slammed down the receiver of a telephone, shouting, “Death to all fools!” De Gaulle happened to be walking by and intoned, “Ah, Monsieur, what a vast project you propose.” Surely too vast even for the Gaullist politics of grandeur.

Gutmann devotes one chapter to each of what she considers the four main identity groups: cultural, associational, ascriptive, and religious. A cultural identity group “represents a way of life that is (close to) ‘encompassing’ or ‘comprehensive'”; in Aristotelian terms, it is a regime with the sovereignty subtracted. As such, one’s culture forms a part of ‘who a person is.’ When any person engages in democratic politics, he therefore brings his culture with him, often making claims on his fellow citizens on behalf of that culture. And the group he belongs to which organizes itself around the shared culture will give those claims more political heft. Since “democratic politics typically depends on some dominant culture that includes a common language (or languages), school curricula, occupations, ceremonies and holidays, and even architectural styles, that are not culturally neutral,” a minority culture will pursue ways to defend itself, especially if the dominant culture “is alien and therefore alienating to them.” Members will demand “equal freedom and respect” from members of the dominant culture. Yet no large, modern democratic regime can fully accommodate all claims of all the minority cultures within its territory, since democracies need citizens who can speak with one another in order “to act coherently” and to maintain political union. This begs the question, “What kind of political claims on behalf of cultural identity groups are justified in democracies, and why?”

Gutmann agrees with cultural identitarians when they assert that cultures provide “publicly important goods” to a democratic regime. “Every person needs a context of choice”; a culture or way of life provides such a context, although it also narrows it by defining the range of choices consistent with that way. The question for democrats then becomes, how narrow is that range of choice? And does a given culture “offer equal freedom to its members”? That is, “the state and the dominant public culture that it supports, both indirectly and directly, cannot be culturally neutral.” What claims made by organized cultural minorities can it accept and what claims must it reject?

As a democrat and a feminist, Gutmann respects many of the claims made by the Pueblo tribe in defense of its cultural practices. But one of those practices denies civic equality to women. A United States District Court sided with the Pueblo tribal council against Pueblo women who brought a lawsuit against the council under the U. S. Voting Rights Act and the equal protection clause of the United States Constitution. The Court ruled that “to abrogate tribal decisions, particularly in the delicate area of membership, for whatever ‘good’ reasons, is to destroy cultural identity under the guise of saving it.” Gutmann judges this “a particularly suspect argument in the context of a case brought by women to claim their civic equality as Pueblo.” The Court granted absolute sovereignty to a cultural group which denies a fundamental principle of the democratic regime which should exercise sovereignty over it in the name of that principle. “Respect for culture cannot mean deference to whatever the established authorities of that culture deem right,” although there may be prudential reasons for leaving well enough alone if “trying to resist injustice would likely be futile or counterproductive.” In the not-so-distant past, some Amerindians engaged in slavery, cannibalism, and torture; had these practices persisted into the late twentieth century, the minds of our august justices might have seen what they were arguing more clearly and, one hopes, argued differently.

“Legitimate political sovereignty needs to rest somewhere.” That being so, “what degree of sovereignty should any group be granted, and by what standards may its sovereignty be limited…out of respect for individual rights?” Gutmann answers that sovereignty seldom is, and never should be, absolute. “A cultural perspective goes awry at the start if it rests on the premise that a single culture encompasses the identity of the individuals who are its members,” as if cultures were “homogeneous wholes.” As a matter of fact, some members of every culture will “imagine beyond it” even as they use the “resources” of that culture to do so. Just as a minority culture may rightly oppose a democratic majority that makes “oppressive claims” upon it, so a democratic majority may rightly oppose a minority culture that oppresses its members, recognizing them as “fellow persons who can reciprocally recognize the basic freedom and civic equality of all persons, regardless of their gender, ethnicity, and nationality.”

“If there is a right to culture, on democratic grounds, it must be an individual right to shape one’s own identity, partly through cultural affiliations.” There is no “fundamental moral standing to a group qua group” because “once we treat a cultural group as having fundamental moral standing, we are logically led to subordinate the claims of individuals to the morally fundamental group.” Indeed, “the right to oppose cultural practices that violate basic rights is as fundamental any right within a democracy.” If Gutmann were a natural-rights liberal, this distinction would be easy to make, but because she is not, she needs to base her liberalism what might be termed cross-culturalism.  

Against Judith Butler, who accuses human rights advocates as “unjustifiably privileging a particular culture—the culture of human rights—over all others,” denying that any “external standards by which to judge any culture” exist, except “the standards of another culture,” Gutmann replies that “critics of oppressive cultural practices need not claim to stand above other cultures.” Rather, in upholding human rights, democrats in fact “stand inside cultures,” but they “stand inside many cultures.” There are democrats in ‘the West’ but there are also democrats in ‘the East,’ democrats in the United States, China, Russia, Iran, Brazil, Germany, Zaire, and partisans of autocracy and of oligarchy in all those places, as well. This is because the “rights culture” isn’t really a culture at all. It has no common language or literature, no common visual art or music, no distinguishable way of dressing, celebrating, or mourning. “Human rights doctrine is multicultural,” and “so is its rejection,” whether by Chinese or Russian today, Japanese or German yesterday. 

“Democratic standards are shared by particular cultures that can defend human rights in their own way.” There likely will be occasions when these differing ways seem to contradict one another in ways that also contradict those standards. In these instances, “democratic deliberation across cultures about the content of human rights is one way of furthering our understanding.” 

Gutmann next moves to the claims of “associational” identity groups, the kind Tocqueville esteemed as checks on majority tyranny. Membership in these is entirely voluntary. It is good for a number of reasons, among them being that they promote a political way of life, that is, a life animated by “reciprocity,” including “mutual aid.” Care must be taken to ensure that such groups do not violate “the conditions of equal freedom of association” by excluding those who wish to join them “out of prejudice.”

Gutmann affirms Tocqueville’s claim that voluntary associations have value in democratic regimes. They do indeed support liberty—specifically, the liberty of persons to “identify themselves as they themselves see fit rather than as government—or any other powerful agent in society—determines for them.”  They “are an antidote to atomistic individualism that is completely consistent with a free society.”

Even groups which “reject democratic values” may be tolerated in a democracy so long as they do not inflict injustice on other persons or groups. You are free to join the International Monarchist Society (if there is one), so long as you don’t oppress anyone who is either a member or a non-member of it. A criterion for judging whether an association has overstepped this limit is whether or not a member can “exit it and still live a decent life.” Leaving the United Auto Workers imposes more hardship than leaving the American Fern Society.

Gutmann seeks a mean between the extreme of removing the freedom of association altogether by “forcing all associations to include anyone who wants to join” and the extreme of “permit[ting] all voluntary associations to exclude would-be members on any grounds.” The UAW should be entitled to discipline any member who takes bribes from an auto manufacturer in order to induce him to take a weaker position when bargaining over a contract; it should not be entitled to exclude someone from membership on the basis of race, class, gender or any other characteristic irrelevant to the democratically legitimate purposes of the organization. “Democratically legitimate purposes” are those which do not obstruct “civic equality.” 

Gutmann considers two Supreme Court cases centered on policies of voluntary groups. In Roberts v. United States Jaycees (1984), the plaintiff challenged the Jaycees’ denial of membership to women on the grounds of nondiscrimination. An association of businessmen, the Jaycees provide what she describes as a “public good,” namely “professional contacts.” Businesswomen were being denied the opportunity to ‘network’ on equal terms with businessmen. It is of course questionable whether the opportunity to do business deals in a social setting is a public good at all. It looks rather like a private good, a setting for one-on-one transactions. Be that as it may, Gutman sets down three “features of discriminatory exclusion [that] create a strong case for public intervention”: that “the exclusion must be discriminatory based on false or statistical stereotyping”—in this case, that women somehow have no interest or ability to engage in commerce; that “the discriminatory exclusion occurs in a public realm and is connected to the distribution of a public good”; and that “the voluntary association is not primarily defined by its dedication to an expressive purpose,” by which she means the expression of opinions, the restriction of which would violate the First Amendment. On the most dubious point, Gutmann claims that, according to “their own stated purposes,” the Jaycees aimed at providing and promoting the skills of “solicitation and management” as public goods, presumably meaning that they were serving the public good by those aims. If so, would it have made a difference if the Jaycees had simply claimed to promote the business interests of their members, with no rhetoric about serving the public good at all? In other words, as Gutmann rightly asks, “How broadly should we construe the realm of public goods and services?”

In Boy Scouts of America v. Dale (2000), the plaintiff objected to the Boy Scouts’ exclusion of openly homosexual boys and men from their organization. The Court upheld the Boy Scouts’ right to do so, but Gutmann argues that while homosexual behavior might be a criterion for exclusion, homosexual identity should not be. Until (for example) a homosexual man does something “that justifies denying [him his] equal freedom or civic equality,” such as committing sodomy with underage boys, he should not be barred from membership. She acknowledges a complication. “What makes the Boy Scouts case both difficult and troubling is that free identity expression is centrally at stake on both sides,” necessitating some rational “ranking” of “the competing values of free expressive association”—the Boy Scouts uphold the principle of being “morally straight”—and “freedom from discrimination.” Gutmann’s preferred solution here is to permit the Boy Scouts to continue their policy but to deny them any government support, as for example the use of public-school buildings for their meetings. Generally, “the more freedom that expressive associations have to discriminate, the less state support they should receive beyond the support of legal toleration.” She does not consider the possibility that lawsuits of this sort are intended to advance the claim that homosexuality and homosexual activity are morally straight, that the plaintiffs intend precisely to override “free expressive association,” just as she stands ready to override it in the case of the Jaycees.  

She concludes her discussion on voluntary associations by citing “an underappreciated fact.” Between 1960 and 1990, membership in such associations declined. At the same time, Americans were “becoming more tolerant by all available measures,” in their opinions and in their actions. She doesn’t seem much to mind the trade-off, although it may evidence the increased bureaucratization of American life, threatening the liberty she esteems. See Tocqueville on the perils of democratic despotism.

Things get more interesting when Gutmann turns to considering “ascriptive” identity. “What distinguishes ascriptive identity groups is that they organize around characteristics that are largely beyond people’s ability to choose, such as race, gender, physical handicap, ethnicity, sexual orientation, age, and nationality.” Every one of those categories is natural or has roots in nature. One can make choices in relation to them, but only to the extent of deciding whether to join or leave an organization centered on them in some way. One can base that choice on whether or not a particular organization is “justice-friendly.”

Ascriptive identity groups closely resemble interest groups because ascriptive identity and material interests intermingle in “dynamic interaction.” After all, “people’s interests and understanding of their interests are as identity-driven as their identities are interest-driven”; “ascriptive identities inform peoples interests.” “Even in the extreme case of someone who adopts an ascriptive identity that he had never before seriously considered as his group identity in order to make a living”—at the risk of unkindness, one may think of Barack Obama—the “identity plays a causally important and independent role in shaping how the living is pursued.”

Given the intimate bond between ascriptive identity and self-interest, ascriptive identity groups can still be justice-friendly if they “encourage subordinated individuals to organize and stand up for themselves,” admit members of other ascriptive groups into their organization, and form coalitions with other groups in pursuit of “the general cause of democratic justice.” During the civil rights movement of the 1950s and 1960s, that is of course exactly what the NAACP and other organizations did, with substantial effect. More, “there is no good reason why obligations to fight injustice should be placed first and foremost at the feet of members of disadvantaged groups.” Other justice-friendly groups should seek to join them.

By contrast, when ascriptive groups are “least successful, they create new (or deeper) divisions among the disadvantaged and convey the dangerous impression that people need only band together on the basis of their ascriptive identities and not on the basis of their common humanity or a commitment to fighting injustice whoever its victims happen to be.” The virulent response of the recent Black Lives Matter operatives to the slogan “All Lives Matter” may be taken as a case in point, and an unsurprising one, given BLM’s origins in neo-Marxism.

Just or unjust, to what extent do ascriptive identity organizations really represent the groups they claim to represent? For example, how many American women endorse the policies propounded by the National Organization of Women? Obviously, no such organization can represent the opinions of all those mentioned in its grand title. Therefore, it should “recognize a burden of representation to those individuals who are associated involuntarily with the group” by scrupulous “avoidance of injustice.” The temptation to treat members of out-groups roughly should be resisted; the temptation to deal roughly with members of their own group who do not fully concur with the organization’s principles and policies should be resisted even more. Closely related to this danger is the tendency to urge group members to “take pride” in their identity. “What sense does it make to take pride in an involuntary identity?” None whatsoever: If justice requires that I not be blamed for an identity I didn’t choose, then I cannot claim credit for it, either. Rather, “the appropriate object of pride is not the ascriptive identity in itself but rather the identity’s manifestation of dignified, self-respecting personhood, the personhood of someone who has overcome social obstacles because of an ascriptive identity.”

Given the fact that injustice “is a moral blight on democracy, and therefore on everyone’s life within it”— one “especially great on the lives of people who materially benefit from injustice but do nothing to combat it”— there is a more comprehensive form of identification than those favored by particularistic identitarians. Individuals are in fact “bound up with living in a more just society,” and should recognize “that contributing without undue sacrifice to making society more just will improve their own lives.” Without acknowledging it, quite possibly without knowing it, Gutmann here makes exactly the same kind of argument George Washington liked to make: Your interests and the interests of your country very often cohere with your moral duties. As she puts it, “our interests are bound up with our identification with other people, and our identification with other people makes us want to contribute to making our society more just.”

However her relations with America’s first president may stand, Gutmann leaves no doubt that she knows the Golden Rule: “We can perceive it to be in our own interest to contribute to fighting injustice insofar as we identify with other people, and therefore with a society that treats other people justly, as we wish to be treated ourselves.” This takes her to the interesting point I alluded to: “Humanity itself is an ascriptive identity, identification with which can serve the cause of justice.” Human beings form a natural species, to which all capable of reading her book belong. Since “democratic justice cannot leave anyone out of its reach,” it requires “identification with humanity and a commitment to justice.” Very well then. Humanity is natural. Justice is right. Put them together, and they spell out ‘natural right.’ For all her ‘deontological,’ Rawlsian gesturing, an attempt to drive out nature with a pitchfork, Gutmann finds herself brought to witness nature’s return.

Following reason, she devotes the final main chapter to revelation. Natural-right political philosophy solves the religio-political problem by permitting any religious practice that doesn’t violate natural rights. A congregation of pious Aztecs are welcome, provided that they refrain from sacrificing virgin girls to the Sun God, a ceremony violative of the natural right to life. In terms of U. S. constitutional law, this has meant free exercise of religion combined with separation of church and state, which Gutmann calls “two-way protection” of human rights. 

Her primary interest is in defining and protecting the right to conscience. This is because no more personal, no more individual aspect of religion exists. Further, conscience exists in the souls of religious and non-religious persons alike, forming a commonality (based, again, on human nature) between citizens who otherwise might find little in common. Further still, my conscience likely differs from yours, which means that if we are to live together as fellow citizens, we need to address that fact. Gutmann resolves this latter difficulty by appealing to politics as Aristotle defines it, as “reciprocity.” As an observer of democracy in the Greece of his time, Aristotle didn’t much associate reciprocity, ruling and being ruled, with that regime because in his experience the many who were poor inclined to seek unjust rule over the few who were rich. Gutmann’s modern-liberal understanding of democracy enables her to think of it more along the lines of what Aristotle calls a mixed regime, which does indeed engage in political or reciprocal rule.

“Rather than deny the truth of revelation for political purposes, democrats” of Gutmann’s persuasion “argue that revelation by itself cannot justify a coercive law because it cannot reasonably expect the public assent of citizens who have not experienced it and do not share the religious faith of those who take its dictates on faith.” What democrats can do is to acknowledge those religious truths which “can be defended by publicly accessible arguments,” suitable for democratic deliberation. “Then it is the argumentative force of a revelation, judged in nonrevelatory terms, that is doing the justificatory work for democratic purposes, not the revelation itself.” This is essentially where natural right puts the matter.

Given the fact that natural right no longer finds wide acceptance of modern liberal democracies, and especially not in universities, Gutmann appeals once again to Rawls, who “recommends the democratic ideal” because it lacks a “necessary foundation in any comprehensive philosophy” but instead overlaps “with all reasonable philosophies, where reasonable philosophies include religious ones.” Because it appeals to reason, this “ideal”—which Rawls arrives at with ‘deontological’ legerdemain—rules out fanaticism religious and secular, ‘Islamist’ and Leninist alike. “Reasonable moral faith” can be held by “religious or secular persons, so long as they are democrats”—a clever reworking of Kant’s famous sentence in his Perpetual Peace, “the problem of setting up a state can be solved even by a nation of devils, so long as they possess understanding.” True, faith “goes beyond reason, but reasonable faith is compatible with what the best methods of reasoning can deliver at any time.” And it is compatible with reciprocity, which “does not require agreement among citizens or arguments on the same secular or religious terms.”

Why Rawls, instead of Aristotle ‘all the way down,’ as the saying goes? It seems that Gutmann inclines to the Humean claim that you can’t derive the moral ‘ought’ from the natural ‘is.’ “A purely empiricist position would yield no commitment to democratic justice or to treating people as civic equals, since evidence and log alone are morally inconclusive”; “empiricism is amoral” and empiricism is the way of modern natural science. Whether empiricism suffices to understand human beings insofar as they are natural beings is a question Hume takes to have been settled.

In practical terms, Guttmann (following Rawls) doesn’t care so much whether a democracy respects “ethical personhood” as seen in conscience because conscience is taken to originate in God or nature or reason or “human individuality itself,” so long as the regime understands that such respect is indispensable to its existence. “Conscience and democracy share a fundamental premise: persons are ethical subjects.” 

That being so, how shall democracies deal with the fact that ethical subjects often conscientiously disagree with one another? How can democracy justly resolve the rational contradictions that arise from the free exercise of conscience? Guttman answers that whereas “respect for conscience is a moral good because it reflects respect for the ethical identity of persons, a respect that democratic governments cannot consistently reject,” such respect “cannot be an absolute value for democratic governments because it can conflict with other basic democratic principles such as equal liberty.” The fact that one conscience may call for war and another call for peace proves that “conscience is ethically fallible.” And so is “democratic decision-making,” which generates laws and policies individuals may conscientiously endorse or oppose. Once again, there needs to be politics, reciprocity, deliberation—mutual testing of arguments and counterarguments in the public square.

“The great challenge to democratic governments is to decide when conscientious objection should be accommodated, even though the law in question is legitimate.” One answer to the challenge would be to say ‘Never.’ Such an accommodation would smooth the slippery slope toward anarchy. The opposite answer would be ‘Always,’ or at least whenever the objector doesn’t reject “a basic democratic principle” such as civic equality or equal freedom.

The first answer would track a strict separation of ‘church’ and ‘state.’ As Locke recommended, a conscientious objector should be free to defy the law so long as he accepts the punishment established for that defiance. Gutmann considers this too harsh. “A stable democratic state can and should exempt conscientious citizens from some legitimate law and in so doing resect their conscientious objection,” and therefore their ‘personhood,’ “without harming other innocent people.” If strict separationists worry that some will fake conscientiousness in order to evade the law—a common enough occurrence during the Vietnam War—then the regime can establish boards of review requiring of the objector some plausible proof of his conscientiousness, such as “past actions and affiliations” indicating “that they hold a set of conscientious beliefs that can qualify them for the status of conscientious objector.” While “not a foolproof test”—the review board is attempting to ascertain the inner character of another human being”—it is fair enough for government work. 

The second answer, maximizing “accommodation of conscience” by the regime, would fail to “reciprocally protect other citizens of the state from the harms that can come from conscience.” Why should my conscientious objection to a war, or to war generally, result in your conscription? Those who would maximize a government’s accommodation of conscience “are reluctant to recognize is that a democratic government”—even a democratic government—cannot do that “without undermining the legitimate purposes of democratic government”—its need to defend the country against foreign attack or civil disorder, its need to collect revenues, and the like. They “do not expect conscientious citizens to support democracy supports them, by abiding by laws that are legitimate and democratically elected.” 

To avoid the tyranny of democracy over individuals, or the tyranny of individuals over democracy, one needs not a Berlin Wall of separation of church and state, or not wall of separation at all, but “a permeable wall of separation” whereby conscience and democracy limit one another. Gutmann’s democracy will “accommodate conscientious dissenters when doing so does not discriminate against other conscientious dissenters or undermine the legitimate purpose of the law,” thereby publicly acknowledging “the centrality of ethical commitments to the identity of persons, and the contribution that those commitments can make to democracy.” Such “reciprocity is the lifeblood of democratic justice.”

In conclusion, Gutmann remarks, “without ethical precepts to guide group identity, members of groups are blind and can just as easily tyrannize over others as aid them. When guided by ethical precepts, individuals can enlist group identity as a justifiable means for organizing in democratic politics.” Her emphasis on the classical understanding of regimes and of politics as ruling and being ruled in turn raises her treatment of ‘identity politics’ well above most of the other available accounts written in the past couple of decades.

Amy Gutmann: Democratic Education. Second Edition. Princeton: Princeton University Press, 1994. With 1999 epilogue.

 

Before her elevation to the presidency of Princeton University, Amy Gutmann established a reputation as a theorist of democracy, not exactly a political philosopher—one who offers an account of the variety of political regimes—but as a defender and explicator of one type of regime. As such, she argued that modern democracies should be understood theoretically and reformed practically along quasi-Aristotelian lines. Aristotle defines politics as a form of reciprocity, as ruling and being ruled in turn. He defines democracy as majority rule, a bad regime in which the many who are poor rule without restraint over the few who are rich. To prevent this, and equally to prevent the opposite one-way, self-interested rule of the few who are rich over the many who are poor, Aristotle famously advocates a ‘mixed regime,’ one whose ruling institutions require the many and the few to negotiate with one another in order to get laws enacted. The American Constitution, with its separation of powers, and its checks and balances, isn’t quite the same thing, it operates on the same principle of reciprocal ruling and being ruled.

While the American Founders established a regime of democratic and commercial republicanism upon the moral basis of natural right, Gutmann rejected this orientation, and indeed any ‘foundationalist’ understanding of the American regime, as too easily disputable, given the vastly increased and variegated population of the latter-day United States. Americans no longer share a moral consensus upon which to found their regime, she argued. Therefore, the best way to proceed is through a regime of “deliberative democracy,” “reciprocity among free and equal individuals” whereby “citizens and their representatives offer one another morally defensible reasons for mutually binding laws in an ongoing process of mutual justification.” Unlike Aristotle and the Founders, Gutmann didn’t propose institutional barriers to tyranny. What will save the deliberative-democratic regime from majority tyranny is precisely its deliberativeness. Citizens need to argue things out before the bar of reason.

Hence the need for education, indeed for political education, and hence Democratic Education. Education typically aims at strengthening students’ capacity for reasoning. Political education could do that, or it could descend to the level of propaganda in the pejorative sense of the word, instilling irrational sentiments favored by the rulers. How can the rulers themselves—in a democracy, the majority—themselves be brought willingly to the bar of reason? That is where “deliberative democracy” comes in. 

“The central question in political education” is “How should citizens be educated, and by whom?” That is “Who should have authority to shape the education of future citizens?” The “art of governing” and the “art of education” either reinforce one another or contradict one another. Gutmann is especially concerned with the political movement toward more parental control of education, as such control, taken too far, might undermine not only democracy but political life itself by allowing the political community to fall back into its constituent parts, the families that compose the nation. Such “civic minimalism” might not inculcate the habits of deliberation needed for citizenship, as education “sets the stage for democratic politics.” Because it does, democratic regimes need a theory of education consonant with the regime, lest their educational policies become impossible to assess. But that regime poses the risk of tyrannical majority rule if it eschews reasoning. Under a regime of “deliberative democracy,” citizens will, as it were, continue their education, learning about a variety of educational policies as they debate them with one another. “We can publicly debate educational problems in a way much more likely to increase our understanding of education and each other than if we were to leave the management of schools, as Kant suggests, ‘to depend entirely upon the judgment of the most enlightened experts'”—that is, upon a sort of aristocracy.

More radically, Gutmann charges that any “foundationalist” account a political regime, whether divine right, natural right, ‘utility,’ or ‘history,’ is “profoundly apolitical” because they all depend upon some pre-political insight into the character of human nature and of politics. The fact that Aristotle, the author of the definition of the definition of politics she uses, propounds a moral and political philosophy founded upon natural right, and that the American Founders, who made rather a point of government by consent of the governed, did the same, doesn’t faze her, since she argues that no one can get consent to any such foundation under modern conditions. “Only in a society in which all other citizens agreed with me would my moral ideal simply translate into a political ideal.” This being the case, only citizens’ deliberations are left to settle “what the moral boundaries of authority are.” In so doing, democracy must be “liberal” democracy in the sense that no rational way of thinking, “however unpopular,” and no minority, however despised by the majority, may be excluded from the deliberative process. A “democratic society must be constrained not to legislate policies that render democracy repressive or discriminatory.” Within those limitations, education rightly understood “include[s] every social influence that makes us who we are.” 

Against the American Founders, but also against all “foundationalists,” including Marxists, “deliberative democracy” enjoys “an important advantage”: with it, “one can arrive at a democratic theory of education without first defending a conception of human nature upon which theories of education are typically constructed.” Such attempts, Gutmann claims, depend upon a “fallacy,” the fallacy “of relying on deductions from axioms of human nature,” when “most of the politically significant features of human character are products of our education.” “If education is what gives us our distinctive character”—that is, if education is what makes us human—then “we cannot determine the purposes of education by invoking an a priori theory of human nature.” That is, education derives from the political regime under which we live; the political regime under which we live typically determines how we are educated and, by so doing, critically inflects our sense of what human nature is. Our “self-evident” truths are self-evident only to those so educated. 

This will not do. If, as Gutmann herself admits, “education may aim to perfect human nature by developing its potentialities, to deflect it into serving socially useful purposes, or to defeat it by repressing those inclinations that are socially destructive,” this begs the question of whether some regimes do this better than others and, if so, which regimes those are. That is the question of political philosophy, and it suggests the need to ascend from the realm of opinion. Gutmann hopes that the process of democratic debate will supply, if not an ascent, as sort of progress via the process of rational sorting-out of coherent from incoherent opinions. Her commitment to reason implies an unspoken “foundationalism”: that human beings are rational and political animals. Her political commitment to democracy implies that ‘the many’ can vindicate that claim, if they can be educated to deliberate together.

Toward that end, she outlines three forms of the modern state—not regimes, an issue she treats as settled, but states, that is, political communities understood in terms of their size and their degree of centralization. The first she calls “the family state,” by which she means a state in which political authority is tightly centralized, as it is in a small family. The family state “claims exclusive educational authority as a means of establishing a harmony…between individual and social good based on knowledge,” as seen in the ‘regime in speech’ designed by Socrates and his interlocutors in Plato’s Republic. Socrates justifies this authority that “all states that claim less than absolute authority over the education of children will…degenerate out of internal disharmony” because there will always be a ‘disconnect’ between the good as conceived by individuals for themselves and the good of the political community as a whole.

Gutmann sees that Socrates’ idea of justice cannot be transferred into practice, although she stops short of acknowledging that Plato and his Socrates know that as well as she does. She also sees that the education in this purely ‘theoretical’ regime extends only to the guardian class, not to the philosophers or to the artisans, and therefore lacks comprehensiveness. She rightly observes that “part of Platonic wisdom is not to assume away the problems of founding a family state, but to recognize that the process of creating a social agreement on the good comes at a very high price, and to wonder whether the price is worth paying.” Predictably, she objects to what she calls Plato’s failure to recognize that “our good is relative to our education and the choices we are capable of making for ourselves, our children, and our communities.” That is, poor Plato doesn’t see that our moral principles are ‘socially constructed.’ There is no room in her doctrine for the philosophic ascent from the cave, at least insofar as we contemplate moral opinions. 

“As long as we differ not just in our opinions but in our moral convictions about the good life”—she doesn’t clearly define the distinction between “opinions” and “convictions”—the “state’s educational role cannot be defined as realizing the good life, objectively defined, for each of its citizens.” That would depend upon how capacious an objectively defined good life for each citizen might be; for example, even in Plato’s city in speech, there are three distinct classes of people, each of which pursues a good or goods relative to their own capacities. In the American republic, at no time has the good life been identified as anything narrower than living secure in one’s unalienable rights and respecting those rights in others. Nor did the Americans’ natural-rights orientation stop Publius from expecting, as Gutmann does, that politics in a representative government tends to “refine and enlarge the public views.” All of that, on supposedly unattainable ‘foundationalist’ grounds.

For the sake of the argument, however, we can surely stipulate that a modern state should not be as tightly organized as an ancient polis, and that attempts to do so have resulted in tyranny, sometimes called ‘totalitarianism’ in an attempt to convey exactly this point. One rival to this is what Gutmann calls not the “family state” but “the state of families.” This means placing education in the hands of parents instead of the state, and among its distinguished defenders are Thomas Aquinas and John Locke. Gutmann denies that parents can “be counted upon to equip their children with the intellectual skills necessary for rational deliberation,” although it seems that that would depend upon the parents in question—their own character, the amount of time they have available to devote to teaching. It is more likely that some would, some wouldn’t. More tellingly, she observes that children are members of both their families and their political communities, and that there is moral and civic value in bringing them into a wider range of associations and of opinions than a household can furnish. “Children are not more the property of their parents than they are the property of the state,” which gives the political community a moral interest in their education. She judges the “assumption” that parents “have a natural right” to exclusive authority over their children as “unfounded”; nor does the state have such authority. [1]

Gutmann calls the third form of the modern state “the state of individuals” or liberalism. Liberalism mixes and attempts to balance the first two forms while aiming at a morally neutral education for children. John Stuart Mill, for example, proposed public education for “the poorer classes of children” and public exams for those privately educated, with fines imposed on parents whose children fail. The exams themselves would be “confined to facts and positive science exclusively,” leaving moral education to the parents and private schoolmasters. Gutmann quite sensibly finds this approach implausible, since “even the most liberal states are bound to subvert the neutrality principle: they will try, quite understandably, to teach children to appreciate the basic (but disputed) values and the dominant (but controversial) cultural prejudices that hold their society together.” The policy of establishing a class of professional educators, persons “unconstrained by parental or political authority,” in practice would only slant their lessons toward their own ‘values,’ likely including ‘professionalism.’ Liberals who argue that “neither parents nor the state may shape the character of children on the grounds that they can distinguish between better and worse moral character, yet they may shape children’s character for the sake of cultural coherence, or in order to maximize their future freedom of choice” merely achieve logical incoherence, inasmuch as “cultural coherence” and “freedom of choice” themselves require fostering a certain sort of character in children.

Very well then. “We disagree over the relative value of freedom and virtue, the nature of the good life, and the elements of moral character.” Yet we also intend to sustain “the practices and authorities to which we, acting collectively as a society, have consciously agreed”—that is, we have given our consent to living in a regime together. That regime is a democratic republic. It will therefore be both necessary and proper to cultivate in children “the kind of character conducive to democratic sovereignty.” Children should be educated with a view to sustaining that regime. Gutmann has already defined a particular kind of democracy that she advocates, namely, “deliberative democracy.” Education in her democracy must cultivate deliberation, reasoned discourse among citizens. Deliberative democracy will establish shared authority over education among parents, citizens generally, and professional educators—really a sort of ‘mixed regime,’ to stay with Aristotelian categories. 

This will be an education in “civic virtue,” consisting of moral freedom and of “participation in the good of [students’] family and the politics of their society”—animated by the natural love of one’s own—yet also with the capacity for “critical deliberation” about the good. The authority of citizens (of the regime and of the state) will therefore have two principal limitations, limitations founded, respectively, upon the characteristic democratic principles of freedom and equality. These are non-repression (no use of education “to stifle rational deliberation of competing conceptions of the good life and the good society”) and non-discrimination (“all educable children must be educated”). Such a “democratic education is not neutral among conceptions of the good life, nor does its defense depend on a claim to neutrality,” supporting as it does “choice among those ways of life that are compatible with [the] conscious social reproduction” of the regime of democracy itself, democracy’s continuation over the generations.

On the level of “primary education,” by which Gutmann means elementary and high school education, she rejects the admonition of Noah Webster, based upon the natural-rights republican principles of the American Founding, that schools should reject teachers of “low-bred, drunken, immoral character.” “Citizens of a republic,” she intones, “must be free to disagree over what constitutes low-bred and immoral character,” although evidently not drunkenness or its ill effects on students taught by drunks, and on drunken students. She goes so far as to claim that “Webster’s prescription would require the establishment of an educational dictatorship.” It is rather more likely that it would require the establishment of democratically elected school boards charged with deliberating on the moral standards in question; if that is democratic despotism, we may need more of it. “How many, if any, thoroughly moral men and women have lived in even the best republics?” she asks, rhetorically. Well, “thoroughly” is an imposing word. We are all sinners in the hands of an angry God, are we not? But vulgarity, drunkenness, and immorality are not so difficult to ascertain. What Gutmann wants to avoid are standards of vulgarity and immorality that exist outside her favored regime of deliberative democracy. At the early grades of primary schooling, “precept and reasoning” won’t ‘take’ on students; education “must be by discipline and example,” as Webster was saying, but the discipline and example will derive from her regime, not from regimes like the City of God or the City in Speech, from divine or natural law. 

“Quite apart from its political function, children will eventually need the capacity for rational deliberation to make hard choices in situations where habits and authorities do not supply clear or consistent guidance.” Such an education will teach children “to behave in accordance with authority”—the commands issued, and the examples set by parents and teachers—and, as they mature, “to think critically about authority.” This education will also “learn how to live a good life in the nonmoral sense by teaching them knowledge and appreciation” of such matters as literature, science, history, and sports—Mill’s supposedly ‘neutral’ topics. “Fortunately, the same education that helps children live a non-morally good life often aids in the development of good moral character”; the study of science and mathematics teaches logic; the study of literature teaches “interpretative skills”; literature and history teach “the understanding of differing ways of life”; and physical education can teach sportsmanship. All of these capacities contribute directly or indirectly to the practice of deliberation in democracy. 

Gutmann wisely opposes the then-fashionable ‘values clarification’ approach to teaching morality. “The problem with values clarification is not that it is value-laden, but that is laden with the wrong values,” teaching “every moral opinion as equally worthy.” This encourages children in the false subjectivism that ‘I have my opinion and you have yours and who’s to say who’s right?’—a claim hardly conducive either to deliberation or to democracy, one that fails to “take the demands of democratic justice seriously,” one “too indiscriminate for even the most ardent democrat to embrace.” [2] Such “moral autonomy” cannot perpetuate any regime, even a democracy. A democracy will need to teach what Tocqueville calls the art of association, what Gutmann calls “the morality of association,” that is, “the willingness and ability to contribute and to claim one’s fair share in cooperative associations.” The democratic virtues can be taught, by bringing children of several religious and ethnic backgrounds “together from an early age in the same classrooms,” by “bringing all educable children up to a high minimum standard of learning,” by teaching American history “as lessons in the practice (sometimes successful, sometimes not) of political virtue, lessons that require students to develop and to exercise intellectually disciplined judgment.” Educators don’t know how to teach “the whole of virtue”—not all virtue can be taught in a classroom setting—but they can foster the virtues needed for citizens in a democracy. And, since democratic citizens have for the most part already consented to the regime of democracy, they can agree upon the principles needed for shared citizenship in that regime much more readily than they can agree upon religious or philosophic moral principles. The way in which such citizens will arrive at consensus on specific policies, the way of deliberative democracy, itself “has educational value” for parents and educators alike.

Parents, citizens, educators: “Which democratic community should determine what school policies” Who along with democratic communities should share control over what happens in public schools?” And should students themselves have any say in “shaping their own schooling”? Although Gutmann doesn’t treat ruling institutions formally, she does bring them in implicitly by considering relations among families, school boards, and professional teachers and school administrators. How shall this mixed-regime ‘democracy’ be mixed, with respect to rule over education?

To answer these questions, Gutmann imagines a school district as if it were a polis or a New England town. Such a political community will seek to perpetuate “shared beliefs and practices particular to this city-state” (such as speaking English and celebrating Thanksgiving) along with opinions and practices “essential to any democratic society.” The distinctive beliefs and practices can be maintained effectively by citizen-democratic rule over the schools. But Gutmann doubts that the second, universal set of practices, “which follow from the principles of non-repression and nondiscrimination and constrain democracy in its own name,” are likely to be upheld adequately by elected officials. That is, she doesn’t want elected school boards “to control what is taught within the classroom,” preferring to leave that to “the educational authority of teachers.” Teachers, she says, must not be forced “to profess doctrines inimical to their intellectual standards.” Indeed not, but why can they not be removed from their positions by democratically elected school boards in consultation with parents and administrators they hire? And if the answer is ‘tenure,’ then why should teachers told to teach doctrines inimical to their intellectual standards, quite likely including their ideological standards, not move to some more welcoming school district, or go into some other business altogether?

To this, Gutmann replies that in a large modern nation-state, citizens beyond the local community should have their own rightful and (always within limits) authoritative say in what is taught. Congress, for example, should be able to enact legislation upholding general educational standards those elected representatives deem needed to sustain the American regime. True, “federal and state control must not be all-encompassing, otherwise local democratic control over schools is rendered meaningless”; such extreme educational centralization would ignore “the more particular collective preference of face-to-face communities,” which large modern states cannot be. Gutmann endorses not only a democratic regime but a federal state. “At all levels of government, citizens have a legitimate interest in teaching children a civic culture; democratic politics is the proper means for shaping that culture; and primary schools are the proper institutions for teaching it.” Simple majoritarianism in democratic regimes of the sort Aristotle deplores in the Politics brings “political repression.” Federalism contributes to the refinement and enlargement of the public views in education as in other aspects of democratic life. [3]

But this avoids the question. What about the teachers? They are not democratically elected representatives of anyone. They constitute a sort of aristocracy within the democracy, a group that makes Gutmannian democracy an actual ‘mixed regime.’ She suggests “a division of labor between popular authority and expertise: democratic governments perpetuating a common culture, teachers cultivating the capacity for critical reflection on that culture,” shedding “critical light on a democratically created culture,” “uphold[ing] the principle of non-repression by cultivating the capacity for democratic deliberation.” It isn’t clear how this would be enforced, however: how teacher-ruled critical reflection or deliberation in the classroom would remain democratic. Why would teachers not seek to subvert democracy as Gutmann defines that regime? Why would they not seek to reinforce and extend their own authority by exerting influence upon the souls of their students? “Teachers must be sufficiently connected to their communities to understand the commitments that their students bring to school, and sufficiently detached to cultivate among their students the critical distance necessary to reconsider commitments in the face of conflicting ones.” Nice work, if you can find many people willing to do it.

As for student “participation” in school governance, Gutmann has little more than a cursory reference to the practices of John Dewey’s Laboratory School at the University of Chicago, a school Dewey ran for seven years at the turn of the last century. Even “the youngest students were given the daily responsibility of collectively distributing and carrying out important tasks,” although I for one would worry more about what the older students might get themselves up to do. This “embryonic democratic society” elicited “a commitment to learning and cultivated the prototypically democratic virtues among its students,” but “not because it treated them as the political or intellectual equals of its teachers,” one is relieved to learn. After all, “were students ready for citizenship, compulsory schooling—along with many other educational practices that deny students the same rights as citizens—would be unjustifiable.”

To give readers a better notion of what she means by limiting democratic authority with professional expertise, Gutmann looks at three policies that generate controversy in and around schools. They are books, civics, and sex.

On books, democratic majorities “may be acting within the range of legitimate discretion” in banning certain books from school libraries and school curricula; children are not yet fully citizens, and the right to free speech, extended to reading materials, does not extend to them as fully as it does to adults. As for the right of librarians and teachers to select books, Gutmann recommends “restructuring the process of textbook selection” by opening it to “citizen participation”; such participation, involving deliberation, would “open citizens to the merits of unpopular points of view.” “Restructuring the process rather than constraining its outcomes is likely to have the additional unintended advantage of furthering the education of adults, while they further the education of children”—adults that will include teachers, librarians, and administrators as well as ‘ordinary citizens.’

On civics, including the civics of the City of God seen in the controversy of teaching creationism as an alternative to evolutionism in public schools, Gutmann is more restrictive. In answer to the question, “Is it within the legitimate authority of a democratic community to insist that biology teachers give the theory of divine creation balanced treatment with the theory of evolution in their classrooms,” she answers with a firm ‘no.’ Biology is biology, not Bible study; as a science, biology has “standards of evidence and verification” that do not include Scriptural interpretation. Creationism “is believable only on the basis of a sectarian religious faith”; teaching it “is as out of place in a biology classroom as is teaching the Lord’s Prayer.” Science is secular, and to pretend otherwise is to violate the principle of non-repression, to inhibit scientific teaching and inquiry. 

This does not mean that schools must “sacrifice a common moral education,” since moral principles do not necessarily depend upon divine revelation to win conviction. “Public schools can avoid even indirect repression and still foster what one might call a democratic civil religion: a set of secular beliefs, habits, and ways of thinking that support democratic deliberation and are compatible with a wide variety of religious commitments.” Here, she can endorse Noah Webster’s stance: that “every child in America should be acquainted with his own country,” taught to “lisp the praise of liberty and of those illustrious heroes and statesmen who have wrought a revolution in her favor.” She still does not accept Webster’s natural-rights foundation for such knowledge and esteem, but she has no complaints about a reasoned patriotism, a love of one’s own open to criticism of one’s own with a view to improving it. The standard for improvement, however, for her remains citizen deliberation—dialectical reasoning among citizens, not ‘a priori’ principles held to be self-evident. She continues to champion the democratic regime instead of defending any one ‘ontological’ justification for that regime.

As for “sex education,” she denies schools the authority to impose it, as it “would be unwise…to lead parents to flee the public schools.” Rather, schools should offer parents the option of exempting their students from taking “such courses and rely upon the informal teachings of friends to educate those adolescents who are not themselves committed to their parents’ point of view.” After all, “one of the few things most of us have learned from experience is that adolescents learn more about sex form their friends than from their parents or teachers.”  

What if conservative or, for that matter, any dissenting parents move to withdraw their students from public schools, anyway? And what if they choose to place them in schools for morally bad reasons? For example, some Christian fundamentalists (Gutmann unfortunately fails to say “some” or “a minority of”) claim that their schools should include no black students because, according to their absurd reading of Scripture, such racial discrimination is divinely ordained. Since “Christian fundamentalists are not just members of a church” but “citizens of our society,” a society that opposes racial discrimination in schools and elsewhere, and since “to exclude anyone from an education on racial grounds constitutes an injustice by our common standards,” state legislatures may require schools operated by such persons to integrate. However, “because the requirements of racial nondiscrimination and religious non-repression conflict in this case,” legislatures are not morally required to do so, by the standards of deliberative democracy. The problem with Gutmann’s argument is that non-white students are not being excluded from “an education” by private, religious schools, however bogus their rationale for doing so may be. They are being excluded from an education at a particular set of schools; a legislature might very well cut off public funding or other direct public support of such schools, but unless a school violates the natural or legal rights of persons actually ‘in’ the school—students, staff—it is hard to see any warrant to require them to integrate, at least on the grounds of “deliberative democracy.” 

More generally, “If its main purpose is to develop democratic character, how should primary schooling be distributed?” Put another way, in terms of democracy, what is “equal educational opportunity”? Such matters as school funding and busing students to schools outside their neighborhoods for purposes of racial integration arise under framework. One answer has been “maximization”—devoting “as many resources to primary schooling as necessary, and distribut[ing] those resources, along with children themselves, in such a way as to maximize the life chances of all its future citizens.” Given the human tendency to define ‘I need’ as ‘I want,’ under this policy “the state could spend an endless amount on education to increase the life chances of children.” “Yet its resources are limited,” and it ‘needs’ to spend money on other things, as well.

A policy of “equalization” would require the state “to distribute educational resources so that the life chances of the least advantaged child are raised as far as possible toward those of the most advantaged.” Gutmann judges this feasible, if the inequalities ameliorated are limited to those which “deprive children of educational attainment adequate to participate in the political processes.” Otherwise, (for example) a school that spent extra money on a science program would be required to spend an equal amount of extra money on programs in all other parts of its curriculum, thereby running into the “maximization” dilemma.

“Meritocracy” is a third policy some schools implement—programs for ‘gifted and talented’ students, for example. This amounts to the reverse of “equalization,” and presents the mirror-image problem. Now, it isn’t that school districts will be financially overburdened with an array of ‘special’ programs but that “children with relatively few natural abilities and little inclination to learn” will receive the least resources and attention. Gutmann considers meritocratic policies acceptable only if schools allocate resources “above the threshold level.”

How to determine the “threshold level”? She offers two principles to guide educators. The “democratic authorization principle” grants to democratic institutions such as state legislatures “determine the priority of education relative to other social goods,” thus avoiding the dilemma of “maximization.” The “democratic threshold principle,” already stated, specifies “that inequalities in the distribution of educational goods can be justified if, but only if, they do not deprive any child of the ability to participate effectively in the democratic process.” Democratic institutions “still retain the discretionary authority to decide how much more education to provide above the threshold established by the second principle.”

In terms of financing the democratic threshold principle commits Gutmann to a substantial centralization of authority, inasmuch as local school districts do not enjoy equal available revenues. “More spending entails more taxing, and the tax base of local governments depends heavily on the location of businesses and affluent household, who can relocate—and often threaten to relocate—if school taxes become significantly higher than in other districts.” She judges that “the more practical—and democratically defensible—alternative is to make educational funding the primary responsibilities of states or the federal government.” Given the relative affluence of some U.S. states over others, this really means that the federal government would become the primary funders of schools, unless the Constitution were amended to permit the federal government to require richer states to send a portion of their tax revenues to poorer states. Given the obvious fact that funding always comes ‘with strings attached,’ and given the equally obvious fact that Congressional laws usually leave the details, in which the Devil lurks, to the federal bureaucracy, what centralization of school funding in the name of democracy would really mean is equalization under oligarchy. Gutmann sees this (how could she not?), conceding that “education may be best controlled and distributed locally.” Her compromise between democratic politics and egalitarian distribution of revenue by oligarchs is to limit federal funding and its oversight to “helping disadvantaged children reach the threshold.” 

With respect to racial integration, she begins by remarking that “the perpetuation of any form of prejudice is a serious problem in a democracy because it blocks the development of mutual respect among citizens, but more serious still is the perpetuation of prejudice against an already disadvantaged minority,” such as American blacks. At the same time, she concedes that many desegregation policies, such as busing, do little to assuage racial prejudice. As a result, democratic institutions are likely to resist those policies, leaving their implementation to judges who, “by virtue of their greater insulation from popular pressure, are in a better practical position than legislators to enact desegregation.” The fact that this in effect makes judges legislators doesn’t seem to concern her; she likes separation of powers so long as one separated power can take over the constitutional function of another, as needed. 

In summary: “the content of education should be reoriented toward teaching students the skills of democratic deliberation”; financing elementary and high schools should be centralized within the states; financing the education for the education of disadvantaged, including handicapped, children should be federalized. With that, she turns to considering higher education.

By the time a student reaches college or university, he should have learned “basic democratic virtues, such as toleration, truth-telling, and a predisposition to nonviolence” (it isn’t clear if she means pacifism or simply a disinclination to settle disputes with one’s fists or, nowadays, other weapons). “If adolescents have not developed these character traits by the time they reach college, is probably too late for professors to inculcate them,” she prudently observes. The university’s “primary democratic purpose” is the purpose Tocqueville proposed for aristocracies: “protection against the threat of democratic tyranny.” Universities can do this by serving as “sanctuaries of non-repression” wherein scholars’ academic freedom remains secure and the ‘academies’ themselves enjoy substantial freedom “against state regulation of educational policies.” Whereas the German universities, otherwise the models for many post-Civil War American universities, “were generally self-governing bodies of scholars who made administrative decisions either collegially or through democratically elected administrators, American universities (with few exceptions) are administrated by lay governing boards and administrators chosen by those boards.” In the American setting, academic freedom has meant freedom of professors from administrative authority. This has “made it easy for faculty to overlook their stake in defending their universities against state regulation, to overlook “freedom of the academy.” If, and only if, “taken together,” will these two kinds of freedom “help prevent a subtle but invidious form of majority tyranny”—regulation by state legislatures—without “substituting a less subtle and worse form of tyranny—that of the minority,” the school administrators—in its place.

As a matter of fact, by granting degrees needed to qualify for certain kinds of work, universities “serve as gatekeepers to many of the most valuable social offices, particularly in the professions.” That is, universities set the standards for other ‘aristocratic’ classes within the democratic regime. By what standards should universities proceed in this role? Gutmann questions the utility of utilitarian standards. “As long as they must look for measurable and commensurable values, universities that try to maximize the social value added of their students must take their signals from the job market.” There are indeed agencies that gather and publicize statistics on the earning power of each American college and university over a lifetime. But “if employers are racist or anti-Semitic, so will universities be in the guise of maximizing social utility.” At the same time, she wants to avoid the opposite view, whereby the university aspires to “the ideal of a community united solely by the pursuit of knowledge for its own sake,” which “may have made more sense where it first flourished,” in the slaveholding Athenian polis, where hard physical labor was imposed upon everyone but free men. This would exclude most citizens in America’s business-is-business commercial republic from universities; so many of us work for a living, even if we are not slaves.

As before, Gutmann’s deliberative democracy hearkens to the example of Aristotle’s mixed regime. “Is there, then, an ideal university community by democratic standards? Yes and no. To the extent that there is an ideal community, it is one whose members are dedicated to free scholarly inquiry and who share authority in a complex pattern that draws on the particular interests and competencies of administrators, faculty, students, and trustees.” Her term for this mixed regime is “principled pluralism,” which is clever of her.

How shall access to this mixed regime serving an aristocratic function within the deliberative democracy be distributed? What are the relevant standards for the admission of its temporary class of citizens, the students? Academic ability is the most obvious criterion, but the university should also seek “people who will use their knowledge to serve society well,” and that requires such moral virtues as “honestly, reliability, leadership, and a capacity to work well with others.” Character is harder to measure than test scores, but far from impossible, as she nicely puts it, “to discern.” That’s why admissions committees conduct interviews. Nonacademic qualifications for prospective students are licit, so long as they are “publicly defensible” by the standards of deliberative democracy, “related to the purposes to which the university is publicly dedicated,” and “related to associational purposes that are themselves consistent with the academic purposes that define a university as such”—that capacity to work well with others. 

When addressing the question of admissions standards in recent decades, the issue of racial quotas and of “affirmative action” inevitably appear. Universities have long favored what amounts to affirmative action, if not quotas, on behalf of alumni children, athletes, and other non-academic categories. Why not affirmative action on behalf of racial minorities, too, especially if they have been excluded in the past, or if they still face obstacles to academic achievement in primary schools, obstacles such as poverty, ‘systemic racism,’ and so forth? Over time, she assures her readers, “as our society becomes more egalitarian and the experience of being black becomes less relevant to the educational and social purposes of universities, the case that members of admissions committees make for preferring black applicants over more academically qualified white applicants will become weaker.” She wants to keep all such policies within the universities operating under the principle of “freedom of the academy” from federal and state legislative command. Legislatures might demand that universities undertake to contribute to “reparations” for past slavery and present racism, but “universities are not the appropriate, or the most effective, agents of reparations.” She does rather like racial quotas in medical schools, since the less qualified M.D.s tend to go into the less lucrative, but more needed, field of general practice, and the medical schools have oversupplied American society with specialists. For this reason, while med schools should “avoid admitting black applicants whose academic qualifications” don’t make it likely that they will “do satisfactory work,” they “would still be free to prefer black applicants who are academically qualified over white applicants who are academically more qualified.”

In her 1999 Epilogue, Gutmann addresses multiculturalism, patriotism, and cosmopolitanism. Multiculturalism calls for toleration but more, “public recognition of cultural differences.” “To teach United States history largely without reference to the experiences of Native Americans, African Americans, Latino Americans, and Asian Americans…constitutes an intellectual failure to recognize the contributions of many different cultures—and the contributions of individuals who identify with those cultures—to United States history.” While doubtless true, to leave it at that would be to commit the intellectual failure of supposing that United States history, crucially inflected by the character of the regime founded in 1776, has been primarily the work of white men—for better and for worse, but mostly for better, as will be seen if one follows the Gutmann’s own recommendation to study other regimes and states in other countries. And indeed, Gutmann herself insists that “a multicultural history should not imply—let alone claim—that competing cultural beliefs and practices are equally valuable.” Being committed to deliberative democracy, she is no cultural relativist. “The actual practice of a relatively peaceful democratic politics, with all its flaws…tends to be more conducive to cultivating mutual respect than does the actual practice of world politics.”

To this she adds some entirely sensible cautionary paragraphs about any multiculturalism that attempts cosmopolitanism. Schooling lasts for a couple of decades, at most. That is “too short a timeframe in which to teach everything.” And to focus on “domestic history and politics” enables us to become citizens who pursue “justice, not only within but also beyond [our] country’s borders.” A moderate “republican patriotism”—the love of our country but also the love of its decent regime—can dampen the fires of nationalism.

It is in Gutmann’s ‘politics of recognition’ that the difficulties inherent in her eschewal of natural right show themselves. Deliberative democratic education takes nourishment from “a commitment to equal respect for persons,” for their “equal dignity and civic equality.” But a commitment is an act of will, not of reason. What makes human beings respectable? What gives them their dignity? If not nature or God, or both, what? When she writes that even “republican patriotism does not full respect the basic liberty of persons,” what is this if not a tacit admission that she needs something like a theory of natural right that endows persons with a moral claim to such a “basic liberty”?

In her “deliberative democracy,” Gutmann has constituted a sort of egalitarian Burkeanism, a Burkeanism of the ‘Left.’ As such, it surely towers above the current educational fevers, which are egalitarian without being either deliberative or democratic. Whether it can suffice to lower those fevers remains to be tested.

 

Notes

1. Accordingly, Gutmann dislikes the ‘voucher’ system, whereby parents dissatisfied with the local public schools are permitted to use tax monies to pay for private education. She prefers to improve public schools. That would be a very good thing, although it is also a long-range thing, and parents cannot be expected to wait for public schools to improve during the decade-and-a-half it takes to bring a child through primary schooling. The competition might even spur bad schools to become better.
2. See Paul Eidelberg and Will Morrisey: Our Culture ‘Left’ or ‘Right.’ Lewiston: The Edwin Mellen Press, 1992.
3. A variation of federalism might even be applied within schools themselves in order to counter bureaucratic sclerosis in the larger public schools. Gutmann endorses a policy outlined by Ernest Boyer, who would “organize large schools into several smaller ‘schools-within-a-school,'” a structure which would bring administrators closer to the teachers and students they minister to. This, she hopes, would “prevent educational bureaucracies from destroying professional autonomy while creating the potential for more local participation in the making of school policy.”

 

 

 

 

 

 

 

Jeffrey Ostler: The Plains Sioux and U.S. Colonialism from Lewis and Clark to Wounded Knee. Cambridge: Cambridge University Press, 2004.

 

At the end of this history, Jeffrey Ostler lays his political cards on the table: “The beginning of the twenty-first [century] holds the possibility of an end to economic and political colonialism and the reemergence of fully sovereign Indian communities in Sioux country and throughout North America,” a possibility that will require “non-Indians to recognize the legitimacy of Native aspirations and to alter powerful structures that continue to constrain their realization.” Specifically, respecting the Lakota Sioux, this would mean return of the Black Hills territory in South Dakota. Although a 1980 Supreme Court decision offered monetary compensation for “the United States’ theft of the Black Hills,” the Sioux rejected this offer and demanded the land itself.

This, then, is a political history not only in the ordinary sense—an account of struggles over who rules a land and a people—but a work of political advocacy. Should the Black Hills and other lands formerly ruled by American Indians be returned to their full control? Are such “Native aspirations” in fact legitimate? Ostler provides substantial information to his readers, enabling them to make their own independent judgments, irrespective of the rhetorical nudges he delivers along the way.

He begins with the Louisiana Purchase, the centerpiece of President Jefferson’s policy of extending the “extended republic” of the United States. Jefferson called this an “empire of liberty,” meaning the self-government of American citizens in territories that would ascend to the status of states in the Union, not mere colonies subordinate to a metropole—as the British regime had regarded its American holdings. According to Ostler, this was scarcely an empire of liberty, at least not for all, inasmuch as it defined citizenship as white and male. He is mistaken. There was nothing in the United States Constitution that so defines American citizenship, and as Thomas G. West has shown, free blacks and some women were entitled to vote in some states. [1] According to Ostler, the “theorists of the American nation” thought “that the United States embodied principles that demanded universal adherence,” such as property rights held by individuals. This, too, isn’t exactly true. The Founders held it to be self-evident that the rights to life, liberty, and the pursuit of happiness, including the right to hold property, inhere in individuals by nature; their regime aimed at securing those rights. But they recognized that many peoples throughout the world faced serious impediments to doing so. Unlike the Americans, they had no experience in self-government at all; more profoundly, the truth of natural human equality of rights were not self-evident to them. On the contrary, persons living in many regimes had not conceived of the idea of ‘rights’ or even of ‘nature’ at all. Their ignorance of nature and of rights did not mean that nature and the rights endowed by its Creator did not exist; their ignorance did mean that they did not know that government should secure such rights or, in some cases, they did not know how to frame such governments. 

Ostler claims that the Founders believed that “Indians had no right to continue wasteful and inefficient uses of land or to perpetuate barbaric social and religious practices once civilization made its demands.” This is a somewhat garbled statement of John Locke’s argument, with which the Founders did indeed concur. Locke contends that no people has the right to continue wasteful and inefficient uses of land; this contentious, it should be remarked, is shared by ‘environmentalists’ today, although they define waste and inefficiency rather differently than Locke does. To defend the Indians’ claims, Ostler eventually cites the predictions of contemporary Indians that modern attempt to conquer nature, initiated by Europeans, must fail, and that Indians’ ways of using the land, supporting small human populations, will soon be vindicated. The prediction, brandished by many ‘Whites’ today as well, remains to be realized. As for barbaric social and religious practices, the Founders would never say that they became morally wrong “once civilization made its demands”; they were always wrong, but for millennia human beings hadn’t known that. “Thus,” Ostler writes, “although U.S. policy recognized Indian tribes as nations with limited sovereignty and made treaties with them, American leaders envisioned nothing less than the eventual extinguishing of all tribal claims to land,” as distinguished from property rights, which can be individual, corporate, or political. That is, the Americans intended to extend a modern state in addition to a commercial republican regime.

To do so, the Indians would need to be “assimilated.” As Ostler sees, “assimilation was antithetical to racial thinking, since it presumed that Native Americans possessed the same innate mental and moral capacities as Europeans.” Their “ways of life were inferior”—their regimes and their tribal organizations—but not their natural rights and abilities. Unfortunately, this judgment of political inferiority became “lined to increasingly systematized theories of racial classification and hierarchy.” Exactly so: the same abandonment of natural right theory for ‘race science’ or ‘race theory’ also bedeviled the cause of slave emancipation, which the Founders had championed. This may be seen in the writings of John C. Calhoun and the many other advocates of perpetuating the enslavement of African Americans. According to the new generation of “American elites,” Indians “were an inferior race that was inevitably destined to perish,” even as the European Americans were ‘manifestly destined’ to triumph. ‘Manifest Destiny,’ a historical claim, began to replace self-evident rights discovered in nature. But that is tantamount to saying that many among the second and third generations of Americans abandoned the philosophic, theological, and legal principles of the Founders.

“Early American imperial thought, then, denied the necessity for colonialism in the sense of rule over others. Settlers would move west, but, in sharp contrast to the colonies under the British empire, they would enjoy the same freedoms as eastern citizens,” forming states legally equal to the original thirteen. “Nor, according to American theorists, would expansion require permanent rule over subjugated people.” Rather, Americans expected “to exercise very moderate forms of authority over temporarily enclaved Indian communities,” preparatory to “the larger process of dispossession and absorption.” Things didn’t work out that way in practice because United States citizens “consistently overstated their capacity to subdue armed resistance and severely underestimated the pervasiveness of non-violent Native resistance to dispossession and assimilation. Consequently, building an empire of liberty required the conquest of Indian people as well as the systematic and enduring exercise of power over subjected Indian communities.” Our own contemporaries will recognize this as the problem of regime change or revolution. The Founders solved it by making war against—killing or exiling—American colonists loyal to the British Empire and its regime. The United States Congress to an important degree failed to solve it when it attempted to ‘reconstruct’ or revolutionize the oligarchic regime of slaveholding plantation owners in the South. President Washington had met with some success in this strategy respecting the Five Civilized Tribes of Amerindians in the deep South, but the local populations, especially in Georgia, undermined his policy a generation later, leading to the infamous ‘Trail of Tears.’ It is noteworthy that the major struggles pitted whites against whites. That is because these were regime struggles first and foremost, not simply struggles over ‘race.’

Often, even usually, American Indians “clung tenaciously to community and tribal affiliations,” even as they reconfigured them, adapting to changing circumstances. “They refused to accept assimilation, refused to go away.” This was nowhere more evident than in the plains of South Dakota, among the Sioux. 

President Jefferson sent Merriwether Lewis and William Clark to explore the northwest tributaries of the Mississippi River, especially the Missouri River. There they encountered the Sioux, with whom they quarreled; the Sioux demanded more gifts of tribute than the explorers were willing to part with. The Sioux generally had found Europeans unimpressive, having dealt with French, British, and Spanish traders for years. They themselves were relatively recent arrivals to the area, having lived there “probably no more than two generations,” since the early 1700s. From Minnesota they had moved west, “using guns acquired through trade” to displace the Omaha, Otoe, Iowa, Missouri, and Ponca tribes. By Lewis and Clark’s time, the westernmost groups of Sioux “had acquired horses and were becoming a buffalo-hunting people.” In subsequent decades, “the Plains Sioux waged intermittent war against Kiowas, Crows, Shoshones, Assiniboines, and Skidi Pawnees to gain access to new hunting areas, and by 1850 their population numbered about 15,000, ruling “much of the vast region between the Platte and the Yellowstone.” That is, the Sioux had their own strategies of empire and regime change.

It is worth pausing to consider this information, as it rather spoils the moral foundation of any Sioux claims to the Great Plains. The tribes they displaced in the eighteenth and nineteenth centuries all had prior claims to the land. Most had arrived there because they had been driven from their previous lands by more powerful Indian nations. It should come as no surprise that human beings in North America acted more or less as human beings did in Africa, Asia, Europe, and South America: fighting over territory with no particular respect for natural right, an idea discovered by philosophers, not warriors. Like the Americans later on, they practiced a policy of assimilation, capturing women and children in attacks on other tribes and ‘adopting’ them.

Knowing that such facts damage his case for the Sioux, Ostler is at pains to tell us that “unlike European Americans,” the Sioux “did not divide the world’s people into the civilized and the primitive and imagine an inevitable and total triumph of the former over the latter,” and had no “ideologically articulated commitment to an empire that would encompass the entire continent.” Nor were their incursions “planned very far in advance,” centrally coordinated from a distant capital. Of course, all this means is that the Sioux, unlike the people of the United States, lacked ‘modernity.’ They had no modern state and little in the way of modern technology, except for the guns they obtained from Europeans. Their imperialism was less impressive than that of the Americans because they lacked the population size, political organization, and technological power of the Americans. They were surely no less intent on grasping for power over the land, and no less successful until the bigger fish swam along. This doesn’t mean that the Sioux have no legal claims to territory on the Great Plains; in the course of the nineteenth century they signed treaties with the Americans, and the Americans violated them more than once. But to say that they enjoy some sort of moral advantage over the ‘Whites’ is rather silly. Ostler wisely attempts no formal argument on that point. 

Ostler deftly sketches the political organization of the Sioux nation. They consisted of seven groups they called the Seven Council Fires. The Council wasn’t “a political entity” but rather “an identity based on a shared language, culture, and history,” its internal relations characterized by fluctuating alliances, rulers, and locations. Each of the Council Fires was in turn divided into oyate, “a term that can be translated as tribe, people, or nation,” and each oyate “consisted of several tiyospayes or bands of a few hundred people linked by kinship. “There is little evidence of large multiband councils before the 1850s.” Each band had a chief who could be removed by the people. The total population of Sioux increased dramatically in the nineteenth century, doubling between 1850 and 1880. 

That is, the organization of the Sioux resembled the ancient European societies described by Aristotle and Fustel de Coulanges, societies predating the establishment of poleis or ‘city-states,’ much less the modern state. Their religion also resembled that of many other peoples of antiquity and indeed of today. According to the Sioux, the Wakan Tanka rules the world. Although this term has often been translated as ‘God’ or ‘Great Spirit,’ it is no creator-God, nor is it a person. Wakan Tanka refers to “the spiritual powers of the universe,” immanent in all things, not holy or separate from them. In moving to the Great Plains and “becoming a Buffalo Nation,” the Sioux believed themselves to be a people favored by the Wakan Tanka. “They continually reminded people of their dependence on the life-giving powers that suffused the world.” This amounts to a sort of Hegelianism without rationalism, and Ostler duly notes the tendency among some nineteenth-century Americans to abandon the Founders’ natural-rights Christian rationalism for newly fashionable historicist Christian rationalism, a democratized and Christianized Hegelianism. This is indeed an ideational difference, drawn from radically different sources, but not so much of a moral difference, when you come right down to it. By 1846, Missouri Senator Thomas Hart Benton could win applause by intoning that the “White race” was obeying God’s command to “subdue and replenish the earth.” In the eastern United States, Indian “tribes that resisted civilization met extinction,” and the same fate would hold for the Indians of the West. It seems that the Sioux had held similar opinions of the peoples they had defeated, lacking only the political and technological means to enforce them so successfully.

Avid for modern “weapons, ammunition, metal tools, clothing, decorative ornaments, sugar, coffee, clay pipes, blankets, and tobacco,” the Sioux began “willingly hunt[ing] more bison than necessary for subsistence” in order to provide the Americans with robes and hides. “Hunting bison for the market was one of many causes that contributed to the decline of bison populations in the 1840 and 1850s.” The Sioux also traded furs for alcohol, which led to some violence, but this was not widespread among them. The Americans brought with them not only tradeable goods but smallpox; it must be said, and Ostler does say, that before the disease had spread they inoculated many of the Sioux. In all, “Plains Sioux in the 1820s and 1830s had little reason to think Americans would pose a serious threat.” Even in the 1840s, the increasing numbers of Americans they saw were only passing through to points west, and they could be charged fees for their consumption of game, grass, and timber. 

However, in that same decade such diseases as cholera and measles, along with smallpox, increased. The Sioux may have regarded these epidemics as forms of magic inflicted upon them by the American travelers or as punishments inflicted by the Wakan Tanka for transgressions of taboos and improper performance of rituals. However, the main pressure was political. By midcentury, the Americans (who had substantially increased their southwestern territories by defeating Mexico in the 1848-49 war) began to attempt to settle Plains tribes into reservations, a move preliminary to assimilation into American civil life. The Fort Laramie Treaty of 1851 “specified the territory of each tribe and called for intertribal peace,” the latter having been scarce enough for many centuries. The Plains Indians “recognized the right of the United Sates to establish roads and military posts within these reservations and pledged to respect the passage of emigrants” in exchange for U.S. annuities to the tribes for the next fifty years. To distribute these monies, the United States government placed officers at “agencies on or near each tribe’s reservation.” As Ostler admits, “It is difficult to know for sure what the Sioux understood they were doing when they signed this treaty,” but in any event it “failed to take into account…the decentralized and voluntary character of Plains Sioux political organization.” The signers “did not necessarily represent all the bands within these oyate, and they certainly did not represent other oyate.” 

Understandably, a series of wars followed, beginning in 1854 and lasting into the 1890s. At the same time, Americans attempted to change the regime of the Sioux much as Washington had done with the Five Civilized Tribes, decades earlier—exhorting them “to take up the plow” instead of their (relatively recent) way of life based on hunting bison. This policy was enforced primarily by government annuities, the manipulation of which gave government agents considerable sway. But the military side of the policy intensified in the 1860s, when the eastern Sioux, still in Minnesota, thought to rebel against Minnesota settlers when the vast majority of U.S. forces were engaged in the Civil War. It didn’t work; the Americans pushed the eastern Sioux onto the Plains and in 1863 the U.S. military pursued, intending “to subjugate the Sioux once and for all.” After the Civil War, General William Tecumseh Sherman led a larger force into the region, but without much success. The Sioux had honed their own military skills for decades while fighting rival tribes on the Plains; the U.S. Congress wanted to cut funds for the Army in the wake of the Civil War; Reconstruction in the South required about 20,000 soldiers there; and many of the former Abolitionists now turned their attention to the suffering of the Indians at the hands of corrupt agents in the Office of Indian Affairs. Army officers, led by the decidedly unsentimental General Sherman, faced off against these “Indian lovers,” as they styled these Christian reformers. They would frustrate one another for the next three decades, but not to the advantage of the Sioux.

President Grant attempted to resolve the matter by establishing the Indian Peace Commission, which consisted of four civilians and three army officers. Some Sioux signed treaties proposed by the Commission, others did not. And once again, even the Sioux tribes that signed the treaties may not have fully understood them. True to their longtime intention of changing the regime of Indian tribes and nations, “the words of [the principal] treaty were designed to erase Sioux ways of life” by encouraging agriculture and by privatizing communal lands. Such militants as Crazy Horse and Sitting Bull refused to sign any treaty at all. The geographic center of military resistance to the United States formed between the Yellowstone and the Black Hills; “if the U.S. army tried to invade the region it would face a formidable alliance of all northern Plains Indians still willing to fight.”

In so organizing, the militant Sioux did exactly what European monarchs had done in the sixteenth century. They “attempted to create new forms of centralized authority to resist a sustained invasion”—something along the lines of a modern state—with Sitting Bull as “War Chief—Leader of the entire Sioux nation.” Sitting Bull soon faced the same troubles as the kings of England and France had experienced. “Sioux decision-making processes remain would remain decentralized” and political union “was difficult to sustain.” The North American equivalent of feudal lords would have their say, as indeed the American equivalents of such lords, based on the plantations of the South, had had their say in Congress in the decades before the Civil War. This notwithstanding, the militants “had ample cause to think they could prevail.” Large herds of bison remained in the region they ruled; up to now, they “had an impressive record of avoiding destructive engagements and checking the American advance”; and “they had reason to think that the spiritual powers of the universe, accessible through ceremony and proper moral behavior, would continue to assist them.” Materially, militarily, and spiritually, they seemed to themselves well-armed. The four main U.S. government agencies for the western Sioux “could do little except try to persuade and cajole Indians to take up farming or wear ‘civilized’ clothing.” Assimilation had not advanced much.

One agent, J. C. O’Connor, realized that agriculture wasn’t the best use of the Great Plains, anyway. The Plains were home to the bison. Bison are herd animals, not vegetation. “Furthermore, since Indian men were used to ‘the chase,'” O’Connor reasoned, “and were ‘little inclined to farming operations,’ stockraising was a good match to ‘their habits.'” Quite likely so, but it was too little, too late, and too many other government agencies preferred to keep the non-militants among the Sioux dependent upon the annuities the agents dispersed or withheld. What is more, American cattlemen saw the same thing O’Connor did, moving to occupy prime grazing lands. And the Black Hills also held its real or imagined attraction to Americans, when small amounts of gold were found there. But “the Plains Sioux looked upon the Black Hills as the center of their land, indeed, as the very heart of the earth.” Yet claims of sanctity for land have never held any weight in American courts, whether animated by theories of natural right or of historical progress. The regime clash therefore continued and intensified. 

Thus “the Grant Administration’s peace policy began to wane.” It hadn’t produced peace, for one thing. With the defiance of Sioux militants, “Americans who had once favored a policy of kindness were losing patience,” even as the Reconstruction of the South was losing favor. The Panic of 1873 produced tension among workers and capitalists in the cities, farmers and capitalists in the countryside. It seemed to many Americans that they had reunified the country in 1865 only to see it threatened again in the late 1870s. To relieve these civil-social pressures in the heavily populated East, Grant hoped to induce young men to make their fortunes in the West. He sent a commission to the Sioux, offering to buy or lease the Black Hills for the substantial sum of $100,000 per year, but the Sioux would have none of that. The strategy worked up by his administration was clever: allow Americans to continue their movement into the Black Hills while withdrawing U.S. troops; wait for Indian attacks upon the miners, which “would provide a pretext for a final conquest of the northern militants.” “The government would demand that the agency Sioux sell the Black Hills at whatever price it decreed and threaten to starve them if they refused.” After that, the overconfident Sitting Bull and his militants could be crushed.

A famous setback occurred in June 1876, when General George Armstrong Custer led his men to disaster at Little Bighorn. The Great Sioux War had begun. Just as the Sioux underestimated the Americans, the Americans had underestimated the Sioux—as peoples ruled by opposing regimes so often do, and indeed had done in the previous decade, during the Civil War. In September, a U.S. delegation told the Oglala Sioux that if the refused to cede certain lands to the Americans, “Congress would cut off their ratios, the army would punish them, and the government would take the Black Hills anyway.” Only about ten percent of the adult male Oglalas signed (the treaty supposedly framing U.S.-Sioux relations had stipulated seventy-five percent), but the commissioners were satisfied. Obviously, most of the Sioux were not, and the war was on. It didn’t last long, and although the Sioux and their Cheyenne allies killed far more Americans than Americans killed Indians, the Americans’ superior manpower numbers told in the end. However, the Indians did win peace with the United States, along with the “freedom from fear and hunger” peace entailed. The settlement also ended “the ravages of intertribal warfare,” as the United States would serve as an arbiter of any disputes that arose among the Plains Indians. 

As happened many times, the United States soon reneged on one of its promises under the peace agreement, whereby it pledged to establish an agency in the northern section of Sioux territory. The American leverage over the Sioux now derived from the threat of moving many of them out of the Great Plains. Some Sioux chiefs were sufficiently intimidated by this prospect to break with Crazy Horse, the tribal chief of the northern Sioux, who demanded that the Americans fulfill their promise. Initially, the Americans temporized, but eventually Crazy Horse was arrested and imprisoned; he died in American custody. “By the late 1870s, the Sioux had become a captive people.”

Within the new terms of their political life, the Sioux continued to negotiate with the Americans, and at the highest levels. In September 1877, worried about the Americans’ intention to move them ‘temporarily’ off their now-reduced land to a location along the Missouri River, a delegation of chieftains met with President Rutherford B. Hayes. They cited the effects of alcohol in those riverboat towns, Chief Red Cloud saying there was “too much whiskey there”—a line that appealed to Hayes’s wife, an ardent temperance warrior. They appealed to the universal sentiment of patriotism, Chief Spotted Tail saying that “the country I live in is mine,” and I love what is my own. Hayes assured them that the move was only for the winter, necessitated by the threat of starvation caused by the decline of game in the territories set aside for the reservation. You must learn to become farmers, he said. With a sense of the importance of public opinion in a republican regime, the Sioux leaders next turned to the media—specifically, a reporter for the New York Herald—telling him that supplies could indeed be shipped from the Missouri to the agencies supplying Sioux populations. Returning to the White House the following day, they engaged in a bit of political theater, costuming themselves in American clothes, thereby “dramatizing their willingness to change.” Hayes remained obdurate. By now, after the stinging defeat at Little Big Horn, the American public “favored a policy of dealing firmly with the Sioux.” Under those circumstances, Hayes intended to show no weakness.

Where, then, did the regime change strategy stand at this point? “Many Sioux leaders were genuinely willing to ‘become like the white man,’ though only in the limited sense that they wanted to prosper and were willing to incorporate certain elements of American ways of life to do so.” ‘Yes’ to schooling in the English language, given the “practical advantages” of knowing it; ‘no’ to full assimilation. The dwindling bison population weakened Sioux attempts at preserving their way of life, however, as did their consequently ever-increasing dependency upon the U.S. government for their supplies. Even here, the regime difference surfaced, as the government wanted to give them only processed meat, which prevented the Sioux from using hides and other parts of the slaughtered animals for making their traditional clothing, shelter (specifically, bison hides for tipis), and ornaments. U.S. agents aimed at getting the Sioux to disperse over the prairie on farms—forming the Prairie equivalent of a Jeffersonian yeomanry—and thus diluting the tribal institutions and habits of the Sioux regimes. The Sioux prudently resisted. For example, at one settlement they took the new building materials and constructed houses along streams, “thus creating elongated villages.” And “indeed, the relative permanence of houses would make it more difficult for the government to atomize Oglalas in the future.” A regime is more than an arrangement of physical elements, and U.S.-imposed rearrangements of those elements could be reworked to preserve the old ways of life. They adapted to the disappearance of the bison by hunting other game, including elk, deer, and pronghorn antelopes not only for food but for the hides, antlers, and bones the Americans had tried to block them from obtaining. [2] Increasingly, the American agents saw J.C. O’Connor’s point, that herding cattle made more sense on the Great Plains than farming did, although Sioux kinship-based communalism continued to resist thoroughgoing adoption of American-style individual property rights.

The character of the American regime itself was changing, complicating matters further. Notions of ‘Manifest Destiny’ and ‘race science,’ which galvanized some Americans prior to the Civil War, were now coalescing into the frankly historicist constellation of doctrines whose advocates (often temperance and civil service reform advocates) were beginning to call themselves “Progressives.’ These “theories of social evolution” fed into thinking about Indian policy, further exaggerating hopes “that assimilation could be accomplished with relative ease.” “The key” to this enterprise “was to establish the proper environment and, as proved the case in many of the Progressives’ efforts, schooling was sculpted edge of that key, indispensable to unlocking the door to ‘change.’ “Armed with certain knowledge of their own superiority, boundless optimism in humanity’s plasticity, and unflappable confidence in their ability to direct social evolution, the ‘friends of the Indians’ launched the most comprehensive and sustained assault on Native ways of life in U.S. history.” Ostler finds the exemplar of the Progressive mindset in Richard Henry Pratt, who persuaded the U.S. Army to use abandoned military barracks in Carlisle, Pennsylvania for a school dedicated to ‘modernize’ Indian children. Pratt had the children’s names Anglicized, their hair cut, their behavior regimented in military drills and enforced by corporal punishment (seldom used by Indian parents). His intention was to return the students to the reservations, where they could work to reform their people. It didn’t work. Returning students were out of place, and “by the late 1880s, assimilationists were wringing their hands over the ‘relapse problem,'” as the Sioux clung to their guns and religion. Ostler himself wrings his hands over this American attempt at “cultural genocide”—a rather inflammatory term for regime change—but the Progressives of course did not restrict their ambitions to the ‘Red’ peoples. Whites, too, were to undergo regime change animated by progressive-historicist principles in many ways antithetical to natural-rights constitutionalism.

Regime change had been, and would have continued to be, difficult enough without the intervention on Progressives. After viewing a performance of the Sun Dance, a U.S. observer told Chief Red Dog, “Our grandfathers used to be like yours hundreds and thousands of years ago. Now we are different. Your religion brought you the buffalo, ours brought us locomotives and talking wires.” True enough, but what did that signify to Red Cloud? He preferred the buffalo. Such “heathenish dances,” along with polygamy, reluctance to send children to American schools, and giving away annuity goods seemed wicked to the Americans but not to the Sioux. Attempts to convert the Sioux to Christianity were equally futile, as they inclined to think of Jesus as one god among many, another bearer of spiritual powers, a new way “to obtain spiritual power.” Sioux religiosity wasn’t founded on doctrine but on practice; any practice might be tested for its effectiveness, and if it worked it worked. 

Depending upon Indian chiefs, yet attempting regime change many chiefs didn’t want, the Americans floundered. They never found the right balance of persuasion, inducement, and coercion. Their efforts did exacerbate factionalism among the Sioux, who divided into those who wanted some form of regime change, those who wanted to go through the motions, and those who wanted to resist.

Of the latter, Chief Sitting Bull was among the most recalcitrant. “The most experienced” U.S. Indian agent in western Sioux country, James McLaughlin, had enjoyed some success in winning over some of the previous hostile Sioux tribes. Sitting Bull was another matter. McLaughlin found him “a stocky man, with an evil face and shifty eyes, pompous, vain, and boastful.” The American nonetheless attempted to show him the advantages of the American regime by taking him to St. Paul, Minnesota. Sitting Bull despised the place, and the people who lived there. “The whitemen loved their whores more than their wives,” he sneered; they dressed them better and treated them more affectionately. They disrespected their own president. He was, he told a newspaper reporter, “sick of the houses and the noises and the multitudes of men,” telling a missionary lady that he would rather “die an Indian than live a white man.” Having observed the saloons of St. Paul and the abuse of alcohol on the reservations, he lamented, “With whiskey replacing the buffaloes, there is no hope for Indians.” At one point, Ostler pauses to deplore the fact that Americans hadn’t yet acquired the “cultural pluralism” of anthropologists like Franz Boas, going so far as to claim that the Sioux were farther along the road of toleration. But evidently not.

Sitting Bull, who by now had fled to Canada, welcomed the remnants of Crazy Horse’s people to the land of exile, where he intended to reconstitute the Sioux nation under its traditional regime. Back in the United States, the less militant Sioux bands continued to have difficulties with the Indian Office, which ignored President Hayes’s guarantees and placed its agency along the Missouri River in order to save money on transportation of supplies. Yet another U.S. commission was sent to find facts, and even one of its number conceded that the Sioux chiefs were right. The agents were making a liar out of the President. Pressures were building. As for Sitting Bull, his people suffered from harsh Canadian conditions. He returned to South Dakota in July 1881, surrendering his weapons to the United States and soon joining a ‘Wild West’ show in which he was featured along with Annie Oakley, whom he took on as an adopted daughter. He made good money, giving most of it away to needy Sioux.

As in Georgia in the 1820s, so in South Dakota in the 1880s. While the federal government in Washington continued to cast around for a formula which would make regime change work, governors and other American settlers in the territory began to push for further land acquisitions. This provoked both the Sioux and the American Progressives. The issue stalemated until the end of the decade, when Congress passed the Dawes Severalty Act, whereby the Sioux could exchange more land for monetary compensation, and the United States Supreme Court ruled against tribal sovereignty in United States v. Kagama. “Against enormous pressures, the western Sioux had managed to create a unified opposition against land cession, only to see this shattered.” 

Many of them turned to a self-styled prophet, a messianic figure named Wovoka, who had been born about three decades earlier in Nevada. Wovoka reported having experienced an apocalyptic dream vision in which “God”—Wakan Tanka, in the form of Jesus—told him that if the Sioux performed a certain dance “at intervals, for five consecutive days each time,” the Whites would disappear from Sioux lands and the Sioux would reunite with their ancestors now living in another world. This was the origin of the Ghost Dance, which seized the imagination of Sioux desperate for the renewal of their way of life. After all, “if whites were the bearers of a superior way of life, how could they have rejected and killed God’s Son? By pointing out that Europeans had killed the Messiah” in his previous manifestation and then having him claim Indians as his chosen people, Wovoka and his followers hoped to reverse the flow of power. The moral powers of the universe would no longer support the strong.” The Ghost Dance would precipitate this true regime change, without the violence that had proven futile against American might.

Ostler notes that “most Plains Sioux never even saw a Ghost Dance, let alone danced in one.” As usual, the nation factionalized into those who regarded the prophecy, and the policy it recommended, as true and those who took it as rubbish. Typically, “bands with a history of strategic cooperation with U.S. officials generally rejected the Ghost Dance,” and the only bands “seriously to consider the Ghost Dance were those with a history of direct resistance to the reservation system.” Many Ghost Dancers imagined that their dresses and shirts would make them invulnerable to American weapons, in the event of any attempt to suppress the movement by force. 

The federal government was not amused. In “the largest military operation since the Civil War,” a substantial U.S. Army force moved against the militant tribes. Army officers had continued to believe that the civilians had botched the job of governing the Sioux, and President Benjamin Harrison signed off on the expedition, worried that the forces on the ground couldn’t protect the American settlers against what he mistook for a potentially violent uprising. Ostler speculates that Harrison may have recalled his father’s victory over the Tecumseh movement in 1811 in the Battle of Tippecanoe; on more solid ground, he points to the still fresh memories of Custer’s Last Stand. At any rate, “because there was no real evidence that the ghost dancers threatened settlers’ lives, the decision to send troops arguably violated Article I of the 1868 Treaty, which states that the ‘Government of the United States desires peace, and its honor is pledged to keep it.'” Obviously, Harrison and the Army officers thought they were keeping the peace, but it is quite likely that they overreacted, with bloody consequences.

“Before the military campaign began, between 4,000 and 5,000 Lakotas were living in Ghost Dance camps. A month later there were no more than 1,300 people at the three remaining Ghost Dance sites,” including Sitting Bull’s band. The threat of armed force, added to the manipulation of food supplies, discouraged the majority, who returned to Indian Agency territory. Poised to attack Sitting Bull’s position at the Standing Rock Agency, the Army halted at the news that Sitting Bull and several in his inner circle had been killed—some “would say murder[ed]”—by Indian agency police sent by his now-enemy James McLaughlin to arrest him. The remainder of his band fled. A few days later, as the Ghost Dancers at another site retreated toward the agency territory, Army troops intercepted and attempted to disarm them. Ostler judges that had the Army officers allowed them to return “without interference, almost certainly the massacre [at Wounded Knee] would not have happened.” (Unfortunately, he steers his narrative into ‘postmodernist’ territory. Quoting a report written by the captain of the Army detachment, who recounts that he found one “squaw” who was “moaning”—pretending to be ill—while concealing a “beautiful Winchester rifle” underneath her and another who “had to be thrown on her back” in order to recover the gun she was hiding, Ostler describes such language as “sexualized,” the stuff of “a rape fantasy.” One might suppose that the ensuing massacre was evidence enough of atrocity.) 

In his conclusion, Ostler tells of the continued practice of the Ghost Dance among some of the Sioux people. “In recent years, Indians have seen the increase in bison populations and the revival of traditional cultural and religious practices as at least partial fulfillment of the Ghost Dance’s potential.” More, “to many Native people,” not only the Sioux, “it is abundantly clear that western civilization will inevitably collapse under the weight of its technological madness and moral bankruptcy,” fulfilling “Wovoka’s prophecy.” That remains to be seen. Such ‘prophecies’ have been issued before. 

On the legal front, in 1980 the United States Supreme Court affirmed Sioux claims that the United States obtained the Black Hills illegally, ordering monetary compensation for the loss. This the Lakotas refused to accept, calling the Black Hills sacred land, never to be sold. Thus the regime struggle continues. ‘Sacred land’ isn’t a category under in the American regime and its constitutional law. There is tax-exempt real property owned by religious organizations which have sanctified it to their own satisfaction, but such property continues to be understood in American courts as a natural and civil right, not a sacred thing. To recognize land as sacred would be to abandon natural and constitutional right, returning to the feudal conceptions of right and of law held by the European aristocrats to whom Tocqueville compared the Indians.

As for Ostler’s political agenda, he cannot be accused of harboring aristocratic leanings. Since the collapse of the Soviet Union, the American Left has propounded a fake cultural pluralism or relativism, predictably at the service of socialist-egalitarian sentiments. The communalism of the Sioux and other Amerindian nations appeals to them. Perhaps most of all, the prospect of breaking up the American Union with the hammer of ‘multiculturalism’ seems to them the best prospect for advancing their ideological interests. Readers who see this will adjust their sights to his rhetoric while learning a lot from the real research he has done. 

 

Notes

1. Thomas G. West: Vindicating the Founders (Lanham: Rowman & Littlefield, 1997).
2. Ostler points out that the Sioux might well have adapted to farming life because their hunting habits were relatively recent, concurrent with their arrival on the Great Plains. “Although Plains Sioux people (especially men) often spoke scornfully of farming as something inimical to their identity altogether (and, at best, women’s work), most could have easily found ancestors only a generation or two before with extensive horticultural experience.” When they lived near the Missouri in the late 1700s, they grew crops, and the eastern Dakotas and Arikaras had grown corn for many generations.