Lost Causes: Comment on Aziz Rana, the Two Faces of ...

Cornell Journal of Law and Public Policy Article 4

Volume 21
Issue 1 Fall 2011

Lost Causes: Comment on Aziz Rana, the Two
Faces of American Freedom

Nancy L. Rosenblum

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Rosenblum, Nancy L. (2011) "Lost Causes: Comment on Aziz Rana, the Two Faces of American Freedom," Cornell Journal of Law and
Public Policy: Vol. 21: Iss. 1, Article 4.
Available at: http://scholarship.law.cornell.edu/cjlpp/vol21/iss1/4

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BOOK PANEL DISCUSSION: "THE TWO FACES
OF AMERICAN FREEDOM," BY AZIZ RANA

LOST CAUSES: COMMENT ON AZIZ RANA,
THE TWO FACES OF AMERICAN FREEDOM

Nancy L. Rosenblum*

I. WHAT KIND OF WORK IS THIS? . . . . . . . . . . . . . . . . . . . . . 108
II. THE POLITICAL DYNAMIC OF DEMOCRATIC FREEDOM ..... 114

III. Two META-OBSERVATIONS: ETHICS AND HISTORY ........ 117

A few months after his defense of the dissertation that became the
superb monograph Two Faces of American Freedom,Aziz Rana sent the
members of his doctorate committee a CD. Here are a few of his
selections:

* Gallows Tree, sung by Odettal
* The Night They Drove Old Dixie Down, sung by The Band 2
* I Ain't Got No Home in This World Anymore, sung by Woody

Guthrie3
* Strange Fruit (about a hanging), sung by Billie Holiday4
* Folsom Prison Blues, sung by Johnny Cash5
The rest of the tracks are in this vein. They are all lugubrious.
They are all written in a minor key; their harmonies layer tears on tears.
They are not about unrequited love, either. They are the moans and
laments of those ground down by turns in American history-slavery,
lynching, civil war, the Great Depression, and homelessness. The
historian Salo W. Baron used to speak of the "lachrymose theory of
Jewish history."6 That description could probably apply to every people
and nation, as long as their historians are not hagiographers.

* Senator Joseph Clark Professor of Ethics in Politics and Government, Harvard
University.

1 ODETTA, Gallows Tree, on AT THE GATE OF HORN (Rykodisc 1997).
2 THE BAND, The Night They Drove Old Dixie Down, on THE BAND (Capital Records
1969).
3 WOODY GUTHRIE, I Ain't Got No Home In This World Anymore, on DUST BowL
BALLADS (RCA Victor 1940).
4 BILLIE HOLIDAY, Strange Fruit, on LADY SINGS THE BLUES (Commodore 1939).
5 JOHNNY CASH, Folsom Prison Blues, on WITH His HOT AND BLUE GUITAR (Sun
Records 1955).
6 David Engel, On Studying Jewish History in Light of the Holocaust, Maurice R. and
Corinne P. Greenberg Memorial Lecture, U.S. Holocaust Memorial Museum (Apr. 16, 2001)

107

108 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 21:107

Of course, it is wrong to think that aesthetic and intellectual
sensibilities always match; individuals are not of one piece. This music
cannot be a reflection of Rana's intellectual temper, since he also
exhibits the hopefulness of a progressive democrat. He cannot really
count as a lachrymose historian.7 He describes himself as an embedded
social critic,8 and it takes more than an iota of optimism, after all, to
think not only about how we got to be the way we are, but also to think
about how we might be better, and to find resources in a damaged past-
to find inspiration in lost causes.

We find both faces of the author in The Two Faces of American
Freedom. Rana is explicit about this duality; he will uncloak "both the
tragedy and the hope embedded in social practices and political
disagreements."9

In this comment I propose to do three things. First, I reflect on the
kind of scholarly work this book is-its genre and signature contribution.
Second, I raise a question about the author's implicit and, I argue,
ambiguous theory of the political dynamic of progressive change.
Finally, I conclude with two meta-observations about this challenging
work.

I. WHAT KIND OF WORK IS THIS?

Two Facesof American Freedom is narrative history-a form once
celebrated but more recently disparaged as "grand historical narrative."
Rana calls his work a "large-scale act of historical reconstruction,"' 0 and
it is just that. There always has been an important strain of American
historical writing that is comprehensive in its narrative arc, such as that
of Charles Beard."I Recently, we have seen a revival of grand narrative
in American history-interestingly among legal scholars like Bruce Ack-
erman.12 Legal academe has become a premier site of this renewed
ambition.13

(transcript available at http://www.ushmm.org/research/center/publications/occasional/2003-
10/paper.pdf).

7 See Aziz RANA, THE Two FACES OF AMERICAN FREEDOM 4 (2010).
8 Id. at 17.
9 Id. at 7.
10 RANA, supra note 7, at 3.
I See, e.g., CHARLES BEARD, HISTORY OF THE UNITED STATES (1921).
12 See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN,
WE THE PEOPLE: TRANSFORMATIONS (1998).
13 I speculate that synthetic narrative history is encouraged by three general turns in legal
academe: (1) from constitutional doctrine to political context; (2) from rights to constitutional
structures and the interaction of courts with other institutions; and (3) from the rise of compar-
ative constitutionalism with its emphasis not just on comparative doctrine, but on institutions
like executive power. We see this, for example, in Rana's reading of Dred Scott v. Sanford, 60
U.S. 393 (1857), or Congressional authority to designate which American territories were de-
pendent colonies. See RANA, supra note 7, at 169, 171, 279, 300.



110 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 21:107

forces in democratic politics today-for example, Social Security and
senior citizens. 21 Insofar as they organize in defense of universal bene-
fits and services, their participatory efforts simply are not reducible to
warrant special interest.

Comprehensive narrative history is also marked by drama, with op-
posing forces of good and evil. The drama takes a particular shape
when, as here, the forces in conflict are presented as inextricably tied
together. Thus, we learn that the unique American ideal of democratic
freedom "entailed" imperial frameworks. 22 We learn that popular mobil-
ization and direct control over political and economic decision-making
"gained strength" from practices of subordination. 23 We learn that
projects of territorial expansion and judgments about who counted as so-
cial insiders "generated" accounts of liberty.24 As a result, unraveling
the forces can be a monumental political task-not doomed to failure,
but clearly requiring more than the victory of one side over the other.25

A second characteristic of grand narrative histories is that they are
proudly oppositional. They stand above or astride the standard histories.
Sometimes that is the result of the judgment that standard histories are
simply wrong, and that the errors have damaging consequences. These
histories produce illusion, paralysis, or preservationist impulses, as in the
hagiography of founders that Rana confronts. Alternatively, narrative
history is opposed to standard accounts that are correct in picking out an
essential feature of the story, but misunderstand it. For example, they
might recognize that America is expansionist, but not see America as an
empire, and thus they miss how the United States constitutionalized con-
quest.26 As Rana tells it, historians miss the fact that In re Debs27 was an
explicit, domestic application of the imperial prerogative, used to con-
front industrial strife.28 Finally, opposition, grand narrative history
claims to repair the fragmented nature of standard histories. They con-
tain pieces of the story, but the threads are not woven into a comprehen-
sive account. For example, American anti-statism is typically seen as
grounded American individualism, so that it appears in a negative, un-
productive political light.29 However, set in the fuller context of
America as a settler empire, Rana sees anti-statism as an episodic attempt

21 See, e.g., AMERICAN ASSOCIATION FOR RETIRED PERSONS (AARP), http://

www.aarp.org/ (last visited Sept. 8, 2011).
22 See RANA, supra note 7, at 108-11.
23 Id. at 7.
24 See id.
25 See id.
26 See id. at 107.
27 158 U.S. 564 (1895).
28 See RANA, supra note 7, at 223-25.

29 See e.g., HENRY DAVID THOREAU, THOREAU: POLITICAL WRITINGS (Nancy L. Rosen-

blum ed., 1996).







114 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 21:107

between insiders and outsiders.61 Rana explains this subordination of
immigrants to naturalized citizens in terms of "American republicanism,"
not simply in terms of racism or nativism. 62

II. THE POLITICAL DYNAMIC OF DEMOCRATIC FREEDOM

My second set of observations has to do with the dynamic of pro-
gressive politics in The Two Faces ofAmerican Freedom. When I was in
college, I read Frances FitzGerald's America Revised63 on changes in
teaching American history. I thought of it here because it seems to me
that Rana intends his narrative history to be pedagogical and not just an
intervention in professional academic debates. He sees history as ideol-
ogy and inspiration. He presents his book as a resource for democratic
politics.

Rana reinforces his drive to produce history and theory for use in
democratic politics through his immersion in contemporary political the-
ory. Most importantly, it is a counter to the distance theorists explicitly
impose between regulative ideals and political practice. One dominant
strain of democratic theory today is "deliberative democracy." 64 At least
in its first incarnations, this theory gave pride of place to argument and
reason-giving under restrictive conditions designed to filter out inequali-
ties. Its concerns were in defining the parameters of justification in de-
mocracy that could support political agreement, rather than organization,
mobilization, and institutions. Although deliberative democratic theo-
rists have turned their attention increasingly to institutions, their focus is
still on providing reasons and reaching agreement. 65 In contrast, Rana
wants to bring democratic theory back to the dynamics of actual men and
women making political history.

So his history is for us and for use in democratic politics. His
model is the Populists who "embodied the most sustained effort since the
Revolutionary Era to imagine how social conditions could be made com-
patible with freedom as self-rule." 66 As I see it, he has several tasks.
First, he must disabuse us of the associations we typically have with
Populism, including the foul odor of xenophobia and violence abroad.
Rana does this by pointing to the two faces of settler empire as embodied

61 See id. at 340.
62 See id. at 12-14.
63 See FRANCES FrrzGERALD, AMERICA REVISED: HISTORY SCHOOLBOOKS IN THE TWEN-

TIETH CENTURY (1979).
64 For a discussion of the theory of deliberative democracy, see generally John Bohman

& WILLIAM REHG, DELIBERATIVE DEMoCRACY: ESSAYS ON REASON AND POLITICS (1997).
65 See id.
66 See RANA, supra note 7, at 177.