The paired posts in this series were developed in connection with a workshop supported by the three-year Luce Foundation funded project “Politics of Religion at Home and Abroad,” directed by Elizabeth Shakman Hurd and Winnifred Fallers Sullivan. Read the introduction to the series here.
This is the second installment in this series of paired essays. First, Winni Sullivan looks at the US Supreme Court Case Johnson v M’Intosh, particularly looking at Chief Justice John Marshall’s opinion. Then, Cooper Harriss discusses the writings of C.E. Morgan, including her foreword to William Faulkner’s Light in August.
To read the previous posts, click here.
Note: Here is the case report for the 1823 decision of the US Supreme Court in Johnson and Graham’s Lessee v M’Intosh 21 US (8 Wheat.) 543 (1823). I suggest that you skip the Prior History, Case Summary, and Syllabus, and read only the opinion of Chief Justice John Marshall. I also suggest you read it before you read my brief comments—so you can appreciate the full force of Marshall’s rhetoric!
This lawsuit was brought to quiet title to a large piece of land in Illinois, but the 1823 opinion by Chief Justice John Marshall arguably implicates all current land ownership in North America—and well beyond.
The suit was ostensibly between the successors to Thomas Johnson, who claimed to have bought the land from the Piankeshaw Indians in 1773, and William M’Intosh, who claimed to have been granted part of the same land by the federal government in 1818 as bounty granted to soldiers who fought in the Revolutionary War. The narrow presenting question for the Court (on appeal from the district court in Illinois) was whether the first sale was valid—that is, whether the Piankeshaw had the legal capacity to sell the land—but,
“. . . the case presented a difficult conceptual problem for the Court. If the Indians were found to hold legal title to their lands, as full foreign sovereigns, the ruling would invalidate large grants of Indian-held lands made to settlers by the British Crown without tribal consent. It would also eliminate the U.S. government’s power to control the disposition of Indian lands, thus exposing Indian holdings to unscrupulous land speculators. On the other hand, a ruling that the tribe did not hold title to the lands would contradict existing treaty provisions that vowed to respect Indian property rights and potentially threaten U.S. title to large tracts of land that had been ceded to the United States through Indian treaties.” –Sarah Cleveland
The District Court of Illinois held and the US Supreme Court confirmed, that the Indians could not have conveyed title to Thomas Johnson et al. in 1773 because, in effect, after the Conquest, as Lindsay Robertson puts it, the Indians were only tenants, not owners.
There are many reasons why this opinion from the heroic age of the Court, written by Chief Justice Marshall, the author of other landmark decisions establishing the supremacy of federal law and US sovereignty, including Marbury v Madison, which audaciously claimed for the Court the power to declare acts of Congress unconstitutional, is much more complicated than this.
What are the complications?
For one thing, the case was cooked up. The litigants, all of them on both sides land speculators, had colluded to bring the suit in order to establish title. The fascinating details of this collusion have been established by a recent book based on newly discovered archives of the United Illinois and Wabash Land Companies. While they made every effort to control the litigation in their favor, scheming to find a sympathetic judge and even hiring famed orator Daniel Webster to argue their case before the Court, in the end the case was hijacked by Marshall to his own ends.
For another thing, the magisterial story Marshall tells about “the history of America,” the law of nations, the law of war and necessity, and the doctrine of discovery, belies a much more complex patchwork of land arrangements between the Indians and various colonial and state governments, as well as with numerous land speculators; the property theories supporting those arrangements were also more varied. Furthermore, Marshall was himself a successful land speculator, as many leading Americans were, as well as being involved in a prolonged and nasty political battle with Thomas Jefferson and others of his fellow Virginians, also land speculators.
Among the larger legal and political issues implicated in this case, as would become clear in the other two of the trio of Indian cases decided by the Court during Marshall’s tenure (Cherokee Nation v Georgia, 30 US (5 Pet.) 1 (1831) and Worcester v Georgia, 31 US (6 Pet.) 515, 546 (1832)), one of the fights was what would become an ongoing struggle between federal and state power. When Marshall saw how the doctrine of discovery was being used by the states in subsequent cases, he tried to take it back. He was unsuccessful because by then Andrew Jackson was president and he wanted to use the doctrine to underwrite Indian removal.
The failure of Marshall’s opinion in Johnson v M’Intosh to be precise about what exactly the doctrine of discovery gave to the United States, absolute ownership over Indian lands or just the right to be first among European nations in dealing with Indian nations, can be seen in retrospect to reflect what will become an ongoing tension/ambiguity about the source of authority for the United States to act internationally—whether that power derives from the Constitution or from the “law of nations.” In other words, does the federal government have inherent powers in addition to enumerated powers, and what are those powers with respect to foreign policy in particular? This question begins in the trio of Marshall Indian cases and then is raised again in the late nineteenth-century cases concerning US expansion, in United States v Curtiss-Wright Exp. Corp., 299 US 304, 318 (1936), and in the Guantanamo cases.
Marshall’s trilogy can be seen now to have established federal oversight of Indians, making them permanent dependent noncitizens, cutting out the states, but also to have made very large claims about American sovereignty. It was a bold move, a Schmittian moment of creation, if you like, one of breathtaking originary violence. Marshall’s effectiveness in transforming the world through legal words is impressive and tragic, as Lindsay Robertson notes:
Marshall’s incorporation of the discovery doctrine into the Johnson opinion led to political catastrophe for Native Americans. To Marshall’s distress, Georgians seized on the doctrine as justification for the passage of an act imposing Georgia law on the Cherokees. This action inspired Congress to pass the Indian Removal Act of 1830, and the forced migration of the eastern tribes began. When the legitimacy of the doctrinal theory underlying these acts came before the Court in Worcester v. Georgia in 1832, Marshall repudiated the discovery doctrine, but by then it was too late. Marshall’s death in 1835 and the filling of the Court with Andrew Jackson’s appointees prevented the securing of this repudiation, and the United States has inherited a legal regime dependent on their subsequent politically driven resurrection of a wrongly decided, collusive case. Perhaps even more troubling, other former British colonial states have imported the doctrine, establishing it as a baseline for indigenous relations throughout the English-speaking world.
The opinion itself is quite remarkable as a legal text. It is a masterpiece of rhetorical overreach and strategic ambiguity. There are virtually no citations to precedent. Much of the opinion is obiter dicta. Lindsay Robertson says he wrote it in a week—a week otherwise very busy, cribbing part of it from his Life of George Washington. But there is a sense in which every effort we make to diminish its power only enhances it. One sees in Marshall’s opinion the fancy legal footwork at the heart of the American project, one that claims fidelity to the rule of law and to the law of nations while acting as an outlaw—an outlaw whose justification in subjugating savages is in her claim to being Christian and civilized in a new and very special way.
Taking exception to the story told by Marshall demands attention and commitment to other ways of knowing and other understandings of living in the land.
Talk not to me of blasphemy, man; I’d strike the sun if it insulted me. –Ahab
C.E. Morgan’s foreword to William Faulkner’s Light in August augurs her own efforts to make the American novel great again, recognizable now in her own recent novel, The Sport of Kings: a sprawling, flawed, gorgeous, affective novel that proves willfully, cussedly, great—even if a precise definition of that modifier remains difficult to finger. Like she recognizes in Faulkner’s work, The Sport of Kings offers a profound examination of big themes—race, inheritance, betrayal, desire—saddling the reader with an almost unbearable excess of complicity. At the same time it offers little didactic relief. As she writes concerning Light in August, readers “are never told to change by a severe didacticism. Rather, they are prompted to change by . . . their emotional response.” Still, the question of whether change shall happen, or the degree to which it even proves possible, remains open.
Morgan’s foreword fascinates because, while it speaks in praise of literary “greatness,” through an appeal to what I take to be an unambiguous expression of American exceptionalism (she remains silent on non-US novelistic traditions), this exceptional nature, this “greatness,” remains ambivalent. In fact it gestures toward a Reinhold Niebuhrian irony that acknowledges a national greatness to derive from the necessity to come to terms through literary production with ongoing exceptional violations of such greatness—which in turn reify that greatness. And such anachronistic language! Who, in this global and transnational age, speaks of a “national character?” Who—so unabashedly—defends canon? Morgan deploys these terms to provoke and, cognizant as I am of the wrongs perpetuated by such singularity, the discomfort that uncritical expressions of US exceptionalism generate, and dubious as I remain of certain emotional intemperance of artistic discipline, I find myself solidly on Morgan’s side. How, then, to square this—what I feel, not what I ought to say—with better judgment?
This inclination cannot be separated from my own intellectual situation, having just finished one project on Ralph Ellison and on the cusp of another concerning Muhammad Ali. Ellison and Ali both share Morgan’s ambivalence toward exceptionalism. Ellison knew firsthand the outrageous violence inherent to “America,” yet he also recognized possibility in the promise of the founding documents—the Declaration of Independence and United States Constitution—without which the violence and exclusion he confronted would cease to be outrageous, settling instead into unexceptional banality. America’s promise derives from the “more perfect” prospect of knowing better. He insists upon the foolish hope that knowing better leads to doing better, to living up to standards of liberty central to the founding documents—“sacred documents” as Ellison calls them on more than one occasion.
Ali famously takes exception to American exceptionalism in the 1960s, refusing military induction on racial and religious grounds, paying dearly with the prime years of his career and becoming a pariah to many among the American public. Yet, this very act of exception-taking in the 1960s becomes the ground for his sanctification as an “exceptional” American later in his life and certainly at the time of his death. The reasons for this remain varied and complicated, but it bears out, in short, the ironic sensibility at the heart of the exceptionalist myth for Ali (as for Ellison). Like Morgan notes tautologically that, “One reads Huck Finn to understand America, and when one strives to understand America, one reads Huck Finn,” exceptionalism has become both “part of” and “indispensable to” whatever it is we might deem “American experience” or even a “national character” (again, such Unum) to be. As Morgan claims, and as Ellison and Ali would be quick to concur, a sense of exceptionality, a myth of greatness, may be all that separates “America” from the “mad constellation of differences unified just barely by a handful of common concerns” that it actually is.
Novels bind together this exceptionally fragile unity. One rationale for the uniqueness of the American novel holds that the genre itself emerges at the same time “America” does (Don Quixote predates Jamestown by only two years, for instance) and flourishes with the American experiment (beginning in the eighteenth century). Herman Melville and Nathaniel Hawthorne’s great novels emerge a decade before the Civil War, offering serious rejoinders to an age that no longer took original sin seriously—even as debates over slavery, what some call the American original sin, augured bloodshed. One source even names these novelists the “true” theologians of their time, surpassing the more sanguine Henry Ward Beecher or Charles Finney. This point derives from the epistemological crisis that novels address—“how the external social order is related to the internal, moral state of its members,” as Michael McKeon puts it. Articulated differently, while we cannot know the relationship between a society and the moral standing of its constituents, novels give us a space to work out what these correspondences might be—versions, to be sure, of Mark Twain’s distinction between who we are and who we say we are—public and private selves, identities at home and abroad contained by nationalist myths.
I want to emphasize two points here: First, novels qualify as “theological.” Riffing on Anselm, they seek understanding through the provisional stylization of reality, acting generatively, speculatively, and not shying away from matters of ultimacy. Novels concern themselves with the kind of significant specificity that theology offers within the category of religion. At their best, as Morgan claims in the foreword to Light in August, novels should not offer didactic positions but, rather, appeal to hard-fought imaginative representations of reality that aspire to and construct broader political comprehensibility. Second, the “great” iterations of this theological function among so-called American writers appeal to the kind of American exceptionalism reflected by Ellison and/or Ali: not uncritical aggrandizement but insisting, rather, that the central irony (some may say tragedy) of “America” rests in the notion that its potential (“who we say we are”) renders the reality (“who we are”) unbearable. Great American novels qualify as “great” because they bring the full brunt of this reality to the fore. As “novels,” they offer literary ritualization of McKeon’s internal moral state of its people. As “American” they do so through recourse to race, violence, and (re)memory (Light in August, The Sport of Kings, Beloved), the ship of state (Moby-Dick, The Adventures of Huckleberry Finn), or notable disjunctures between appearances and reality (Invisible Man). Certainly, reader, you may supplement this list.
Moreover, Morgan’s words prove prescient at a time when American “greatness” filters through Trumpism’s noxious tributaries of inscrutable malice—the logical, if carnivalesque, extension of uncritical exceptionalist legacies in the postwar era. Toward these ends the late election, framed by presumptions of returning to such greatness, makes clear that to sneer at or abjure American exceptionalism effectively abandons this theology to its fundamentalists. Refusing to engage carries significant consequences. Those who would resist such abandonment, or who even seek to correct the political climate it has wrought, will not find “the answers” in Great American Novels. There are no answers, only horizons. Sounding the distance between internal moral condition and external social order, Great American Novels provide the unbearable evidence of just what such gods require. Indeed, the novels ambiguate and ironize this reality, providing rhetorical and dramatic laboratories for the hard work of resistance—Ali as the fighter who wouldn’t fight; a man rendered invisible by his most visible attribute. Sources such as these bear new urgency for the taking of exception that the exceptional age we now confront demands.
For more from C.E. Morgan, read this interview with her from Commonweal.
To read the other posts in the series, click here.