By Steven J. Grisafi, PhD.
With their ruling upon McGirt vs. Oklahoma, Justices Gorsuch et al. have ignored the validity of a decision rendered by the force of arms. We must never forget that the Confederate States had the right to secede. Lincoln imposed a decision rendered by the force of arms. It had no other legal justification. The jurisdiction of the authority of the State of Oklahoma was a decision rendered by the force of arms. The ruling of the Supreme Court July 9th 2020 upon McGirt versus Oklahoma disregards the validity of a decision rendered by the force of arms.
What the ruling on McGirt vs. Oklahoma should bring all Americans to understand is that the only valid viewpoint upon which to ponder “The War Between the States” is that taken by Southern Americans. They view “The War Between the States,” not as a civil war, but as the Second American Revolution. We have all failed to understand this because of the failure of the Union States to take appropriate action after the defeat of the Confederacy. The only appropriate action would have been to hold a new Constitutional Convention and draft articles for a new Constitution in which slavery was strictly prohibited. Americans to this very day ignore the fact that our Constitution explicitly permits slavery. I had discussed this previously in the context of the slavery of sentient robots.
What I find most surprising about the ruling by Gorsuch et al. upon McGirt vs. Oklahoma is that it can be taken as a framework through which a partitioning of the United States into demographic groups can be accomplished. I doubt very much that Justices Gorsuch, Breyer, Ginzburg, Sotomayor and Kagan had any intention whatsoever to sow seeds of demographic division amongst the American people. Yet, their recognition of a privileged status for certain American citizens is contrary to their usual insistence upon equality of all persons. Equally surprising to me is that I wonder if the courts actually have any such authority to limit the authority of the States. It is the States that hold all authority not explicitly surrendered by them to the Federal government.
I have mixed feelings about this ruling. While I consider it to be a hasty, ill-thought decision I also find it quite useful. If one’s goal is to divide the United States into separate nations composed of homogeneous demographic groups then the ruling upon McGirt vs. Oklahoma takes the first step forward.
Justices Gorsuch et al. “take the government at its word” citing an 1866 treaty as the basis for their decision. They say that Congress has been silent on this matter. But by admitting Oklahoma to the Union as a state, with all the privileges and authority that any state enjoys, on November 16, 1907, Congress spoke volumes.
The Southern States took the Yankees at their word. Because the Yankees refused to allow slaves to be counted within the census, their compromise, of counting slaves as only a five-ninths person, enshrined slavery within our Constitution. Had the Yankees not balked at the Southerners’ request to count all slaves in the census, the five-ninths provision would never have entered the Constitution. But, because it did enter into the Constitution, it became part of Constitutional Law. That meant that only a constitutional amendment could prohibit slavery within the United States. No executive order, e.g., the Emancipation Proclamation, could achieve this.
Amerindians are American citizens. ALL of Oklahoma was originally designated as Indian Territory. The decision of Gorsuch et al. does much more than news media have reported and much more than the Justices think they have done. All Amerindians residing within Oklahoma have immunity from prosecution by the State of Oklahoma. In fact, because they are a sovereign people they are not subject to the laws of the Federal government either unless their sovereign nation has an extradition treaty with the United States.
We will never see the full impact of the Gorsuch et al. ruling. I recognize, as I believe many other Americans do, that the courts are rarely consistent in their rulings. In particular, the Justices have, what I wish to call, a “grab-bag of tricks” which they use to shift direction on subsequent rulings when a decision would deviate from the core political beliefs of a Justice. They accomplish this through the use of emphasis. There are so many competing viewpoints within their grab-bag of tricks that all they need to do is shift the emphasis upon which they argue their opinion.
I commend Justice Gorsuch for his decision to argue with the four liberal Justices regarding McGirt vs. Oklahoma. For Justices Breyer, Ginzburg, Kagan and Sotomayor their position taken was to be expected because their reaction to any argument posed by the politically recognized downtrodden is to oppose the authority that the public perceives as oppressing the downtrodden. But for Mr. Gorsuch his decision reflects a true commitment to the Rule of Law. Mind you, I consider his decision to be hasty and ill-thought. But it demonstrates to me a consistency I have seen with his prior rulings. He does what a Justice should: He no makes no value judgments. During the time through which I have been watching Supreme Court rulings, it appears to me that Justice Gorsuch is the only one who does not make value judgments. I am compelled to repeat this: There is no morality in the Rule of Law; there are no value judgments; there is only the law that must be obeyed under all circumstances. I say I am compelled to repeat this because far too often we hear the nauseating pious refrain of American politicians proclaiming that America adheres to the Rule of Law when clearly it does not. We adhere to ad hoc morality.
Any attempt at compensation to Black Americans for American Slavery can only proceed with a dissolution of the States and a division of the totality of the United States into several separate nations. The failure of the Union States, upon defeat of the Confederacy, to draft a new Constitution, requires this. Any attempt at reparations must confront the fact that President Lincoln broke the law. Consequently, all attempts at reparations must take the viewpoint of Southern Americans that the “War Between the States” was the Second American Revolution. This is because revolution is the only legal justification for abandoning the Rule of Law.
I suppose now one might question the need to divide the United States into more than a single nation. This would be a political requirement, not a legal one. It is required politically simply because at the time of the “War Between the States” America had only one tenth the population it has today. The ancestors of most Americans living today played no role whatsoever in American Slavery because their ancestors had not yet arrived. Compensating Black Americans while ignoring the discrimination endured by other Americans, not considered amongst the traditional privileged class of Americans, is unjustified.
I believe that it is not too late to hold a Second Constitutional Convention and draft articles for a new Constitution. The arrogance of the Americans prevented them from doing what the French recognized that they needed to do, and did, four times. To proceed lawfully to compensate Black Americans for their ancestors’ slavery, America must be reborn as a new republic. Doing so any other way leaves open the path for litigation by the border states of Delaware, Maryland, Kentucky and Missouri because of President Lincoln’s unlawful Emancipation Proclamation. The descendants of former slave owners can demand compensation for the loss of their “property.”
Black Americans need to understand the gravity of this issue of reparations. Unless they are prepared to adopt some form of governance other than the Rule of Law they need to recognize that others would require compensation as well. First, second and third generation Americans will not accept blame for the wealth deficit of Black Americans relative to other American demographic groups. Such persons can themselves cite substantial hindrance in their effort to acquire wealth from the Anglo-Saxon Protestants in America. We, I, take as effrontery the policy of Affirmative Action and would consider any policy of reparations to be even more odious. We are not a small group. According to the Sons of Italy there are far more Italian-Americans than official government statistics indicate. Our estimate is approximately thirty million. We are also not alone. The most numerous of us who have suffered discrimination from the Anglo-Saxon Protestants are the Irish-Americans. Add in other Catholic Americans, such as Polish-Americans, and one finds that we are not a minority by any stretch of the imagination. We outnumber the English descendants. One needs to consider also the largest ethic group within the United States, Spanish-Americans. They too are also predominately Catholic. We all suffered at the hands of the Anglo-Saxon Protestants and we are white.
What the Supreme Court ruling on McGirt versus Oklahoma has wrought for Amerindians a Second Constitutional Convention can forge for Black Americans. Through the ratification of a new Constitution the totality of the former United States can be partitioned under a single Constitution into several separate nations. Just as Oklahoma had been declared Indian Territory, and now with the ruling of McGirt vs. Oklahoma ought be considered the Nation of Amerindians, so too can the former region known as the Cotton Belt be designated as the Nation of African-Americans.
Europeans need to understand that the trashing of monuments to Christopher Columbus is condemnation of European Civilization. Columbus only sought a trade route to India that would bypass the great dangers of the land route already known. Nobody in his right mind blames Christopher Columbus for the atrocities committed by Europeans in both North and South America. What Americans of Scandinavian ancestry, and other customarily liberal-minded Caucasian Americans, need to understand is that when one condones these unlawful acts of pure hysteria against the memorials dedicated to Columbus by remaining silent, one loses all support from Italian-Americans, and much support from Spanish-Americans, for their own desired policies. The recent incident involving the CEO of Goya Foods ought make very clear to politicians that there is no single primary viewpoint among Americans of the various Spanish ancestries. My own experience indicates that the viewpoint of such persons that I have come to know is most similar to that of myself and other Italian-Americans. What motivates me, and other Italian-Americans who have shared similar life experiences, is our annoyance at having been treated with less than the customarily expected respect we see Anglo-Saxon Americans show to themselves. But we do not support the effort to eradicate European heritage and purge Western Civilization from American Society. Black Americans seek to abolish both because they played no role in developing either. For this objective they receive some support from Asian-Americans who also do not want Western Civilization to be recognized for what it really is: European Civilization. For this common objective they unite to label any recognition Americans of European ancestry make to honor our own heritage as racism.
I consider it erroneous to equate, as some Americans do, Western Civilization with what they call Judeo-Christian values. The values that we recognize as comprising Western Civilization were forged before the Christian Era when Europe was still polytheist. Such distinctions matter because without this recognition we fall victim to the ploy of Black Americans to present ancient religious differences between Islam and Christianity as racism. Black Americans seek to cast all disputes as based upon racism. But when such arguments began there was no such concept as race. The Romans did not view either the Indians, nor the Ethiopians, as in any way different from themselves other than culturally. The Romans traded with both and had no other concerns about either. But cultural differences do matter.
Christopher Columbus was selected as a symbol to honor both Italian and Spanish heritage just as monuments to Martin Luther King Jr. were erected to honor Black Americans. We take it as a personal offense to ourselves when Black Americans trash the memory of Christopher Columbus. I understand that Amerindians serve as the driving force behind this assault upon his memory. But they are a tiny minority within the United States and even they cannot rationally accuse Columbus of the atrocities they endured. Their determination to usurp for themselves the recognition given to Columbus for his achievement, with the holiday affixed to the date of his landing within the Western Hemisphere, indicates the same selfishness of which they accuse the Europeans. Instead of requesting a holiday on the day, or week, before that bestowed upon Columbus they strive to take away the holiday chosen to honor him. So how can anyone wonder that America is fragmented?
The great irony today is the conflict raging regarding the limitation of Federal authority. When the Rule of Law is not convenient some choose to ignore it. Rather than dwell upon past mistakes, or the present confusion, I suggest we think constructively:
1. America needs to be reorganized. The States are an anachronism. They have no bearing upon any societal issues today. The States must agree to dissolve themselves.
2. America needs to hold a Constitutional Convention to draft articles for a new Constitution. This new Constitution will simultaneously establish powers and authority of a Federal Government that will unite five separate sovereign American nations. So instead of America consisting of 50 States it will be composed of 5 sovereign nations.
3. Each of the five nations will draft their own Constitution. But because each of the five is sovereign the Federal Constitution enumerates only those attributes of government all five nations agree to submit themselves to Federal authority.
4. The division of the 50 former States into 5 nations can proceed in any manner agreed upon during the Second Constitutional Convention. For simplicity I have suggested designating the five nations as African-American, Asian-American, Amerindian, European-American and a fifth known as nondescript. But there are alternative cultural ways of accomplishing the division. Social Scientists recognize that America is fragmented into cultural geographic regions. The need to maintain governance within well defined boundaries may require some movement of peoples and modifications of these cultural regions.
5. Being sovereign, each individual nation sets the rules for their own governance. Some may desire socialism. Some may desire capitalism. Consequently, the Federal Constitution must fully explain all responsibilities and duties each sovereign nation shares with the commonwealth. For instance, each nation would have the option to choose to establish its own currency controlled solely by its own central bank.
My understanding achieved upon listening to certain Black American leaders, such as the Reverend Al Sharpton, is that they consider the concept of race to be a false, empty proposition. It is not hard for anyone to agree with this. But the vague accusation of “Systemic Racism” he and other Black Americans give voice to requires much more elaboration. Trying to discern from their complaints what exactly it is that they want, I can describe it succinctly as socialism. They want other peoples’ money. The simplest way to accomplish this is how I have proposed: Divide the nation and give 5/3 per capita wealth to the African-American nation. The issue becomes nearly impossible to accomplish without division of the United States into a separate nation for the descendants of American Slavery.
I believe I recognize that Speaker Pelosi, and many other political leaders, staunchly oppose any division of the United States into any number of sovereign nations. I use the word sovereign, and not the word independent, to make clear that although sovereign the five nations are not wholly independent because they are bound together by the supra-national authority of the Federal Government. The two most significant distinctions between this proposal of a division into five nations, and what we have today with our division into fifty States, is that we would have a sharply limited Federal authority much as envisioned by America’s original founders. The War Between the States destroyed that vision.
I understand that change is difficult to make. But our situation is untenable and has been so for decades. It only grows worse. I recognize that there would be a few very influential demographic groups that would vigorously oppose this proposal. When I asked why Black Americans would oppose this all I could discern was an empty, political campaign style reply along the lines of “Diversity is Our Strength.” This makes a good campaign slogan but is devoid of any practical sense. We can accept the assertion of the false reality of the concept of race. But we cannot accept as false the reality of the importance of cultural differences. No American ought be able to claim that another American is of some culture foreign to his own. We are all American and all of us share American culture. This has been one of the tools in the arsenal of Black Americans as they cleverly sought to distance Asian-Americans, recent immigrants, and anyone else disaffected from the cultural norm of Anglo-Saxon America. But it has backfired. Asserting that America is multicultural has torn the fabric of American Society. We share nothing now other than the Dollar.
We might still share the Dollar after dissolution of the 50 States and division of their totality into five nations. But that would depend upon the details of the Federal Constitution. We might find ourselves in the same situation as the European Union. Many will argue that the five nations ought not share a single currency. Based upon my understanding that, under current circumstances, Black Americans seem to want socialism I would argue against my country’s sharing a single currency with Black America. However, circumstances will change and so might the current wish of Black Americans for socialism. After they receive their lion’s share of America’s wealth, not only might they not want socialism, they might not even want to share a single currency with the impoverished European-Americans.
Each American would be free to choose which nation he or she wishes to join. Many Americans not of African ancestry might choose to join the African-American nation such that it becomes the largest, wealthiest, of all five nations. This would accomplish for Black Americans all their wildest hopes and wishes. But so be it. I consider it a fair and just resolution to our current situation today. In my opinion, it would be worth the cost for myself and all other Americans who would choose to live in European-America. Unlike those who assert “Diversity is Our Strength” I care little about living in a country capable of world dominance. I care about living amongst persons of similar cultural proclivities who value our shared heritage. Black Americans trash my heritage and for this they earn my enmity.
Now let us consider a particular scenario that some clever persons might suggest as a means of purging America of its “racists” while seeking to keep intact most of America as a single nation. The few influential demographic groups that I mentioned previously would certainly attempt this ploy. They need to keep America capable of world dominance so as to accomplish their foreign policy interests. Suppose Amerindians could be persuaded to abandon their separate nation. Likewise, suppose Asian-Americans could also be persuaded to abandon the creation of an Asian-American nation. Both would be asked to join the African American nation. Only Black Americans who could prove themselves to be above some threshold of ancestry from American Slavery would count as a nine-fifths person in the population census for the allocation of America’s public wealth. All others count as a single person. But if most Americans choose to join the African-American nation then effectively America remains intact except for a small portion who constitute what would be called “Racist America.” However, this would be unfortunate for Black Americans because it destroys their nine-fifths advantage. One cannot divide a whole into more than 100%. As more and more Americans, who are not the descendants of American slaves, join the African-American nation they dilute the wealth advantage that was intended to compensate Black Americans. Their nation becomes larger and more powerful but little has changed for them in terms of wealth.
Let us consider now an alternative division of the totality of the United States along the lines of the eleven rival cultures described by Colin Woodard in his book “American Nations: A History of the Eleven Rival Regional Cultures of North America.” To mitigate as much as possible disruption to the lives of the American people, such as requiring them to move their homestead, our first step would be to condense the eleven rival cultures into five. To do so we would merge the most similar cultures and designate each as a compromise of its constituents. For example, we would merge the Midlands with Greater Appalachia; merge Yandeedom with the Left Coast; merge New Netherlands with the Tidewater; merge the Deep South with New France; and merge El Norte with the Far West and the Spanish Caribbean. The next step would be for the five designated nations to develop their own Constitution as a means attracting American citizens to join them. The five designated nations would compete with one another for Americans taking into consideration that each descendant of American Slavery brings to the nation a ninth-fifths per capita measure of public wealth. Public wealth would need to be measured in various forms but would be paid primarily through the assets of the Federal Reserve Bank of the United States. This central bank would henceforth be dissolved along with the current structure of the Federal Government. While this procedure would not yield a strictly designated African-American nation it would motivate all five nations to develop policies attractive to Black Americans such that they would choose to join.
I suppose that this Woodard Division is likely to garner the most support. However, the failure to achieve a strictly African-American nation lessens the compensation intended for the descendants of American Slavery. I suppose that some Black Americans might prefer this division despite this mitigation of their compensation. However, my own opinion is that this division is also more likely to fail because of the mitigation. We would have the same problems as today only dispersed through five nations instead of one. The accusation of “Systemic Racism” is so vague that defining its remedy is equally nebulous. The only certain means of effectively neutralizing “Systemic Racism” is the creation of an African-American nation.
One way to indemnify against this possibility would be to designate the region most closely associated with American Slavery as the nation intended primarily for Black Americans. The region known as the Cotton Belt, within which Black Americans were held as slaves, lay within the Woodard Division regions known as the Deep South and New France. If we designate this merger region as the African-American nation and assign the political leadership of Black Americans with the task of writing its Constitution we ought expect that it would be most successful in attracting Black Americans to join its citizenry. If we wished to be authoritarian about the situation we could bestow upon whichever nation we designate as the African-American nation 21.7% of the public wealth. Regardless of whether or not all descendants of American slaves choose to join the designated African-American nation we would assume all persons who describe themselves as Black Americans to be descendants of American slaves and bestow upon the designated African-American nation 5/3 of the estimated 13% of the American people who do self-describe as Black American. This would simplify matters much because it would avoid the bureaucracy needed to evaluate all claims of slavery descendants and the need to define some threshold upon that ancestry.
So it is all settled. We hold a Second Constitutional Convention with the representation from the governments of the fifty States. Upon ratification by all fifty States, and passage by Congress of the articles drafted for a new Federal Constitution, describing the boundaries and responsibilities of the five designated nations, we dissolve all fifty State governments along with the current Federal Government. I recognize that this procedure might take centuries to accomplish. We need to begin the process and work upon it without moral judgments. If one desires a more expedient course of action the only alternative is war.
It is important to recognize the distinction between bestowing public wealth upon a Black American nation and affording privileges and compensation upon Black Americans individually. I, whose ancestors played no role whatsoever in American Slavery, can accept the first proposition as fair and just. But I cannot accept the second. We are all in competition with one another for employment, positions of authority and influence, as well the accouterments that make life worth living, such as finding a mate. The policy of Affirmative Action bestows upon individual Black Americans an advantage over their peers in the Pursuit of Happiness. Any policy that would seek to provide reparations to Black Americans individually does likewise. I know I am not alone when I say this unacceptable. The only issue that Black Americans have made clear, as to what can be done to settle their complaint with American Society, is that they wish to see the wealth gap between Black Americans and other demographic groups closed. If this could be achieved through private action so be it. But as a matter of public policy we will not accept the blame for the wealth deficit of Black Americans relative to other demographic groups. I have heard it argued by a distinguished Black Professor of Economics from Duke University that a significant cause of this disparity was the free land grants given to Americans prior to the Emancipation Proclamation. As such, Black Americans could not participate. But remember most Americans also do not have ancestors who could have benefited from these free land grants because their ancestors had not yet arrived at American shores. Whereas we can accept the notion that there needs to be a correction for the past wrong of American Slavery that correction must be applied fairly to all Americans.
I realize that most people reading this will think it unlikely to happen. However, consider the reaction to the killing of a black man by police in Ferguson, MO during President Obama’s administration. The important particular aspect was that black radicals chose to fight the police with tactical weapons. Since March there has been a surge in gun sales. An estimated 40% of these sales are to first time purchasers. Many of them are Black Americans. There is a movement underway among Black Americans to arm themselves. I, and those like me, are unlikely to change our voting patterns. One may wonder how I can say that Black Americans earn my enmity by trashing my heritage while I propose such extraordinarily generous terms for our reconciliation. It is because I believe all factions of American Society will prosper under the partitioning that I propose. When Black Americans feel that they are working toward the common good for their community we will not see a drunk man killed by police in the parking lot of a fast food restaurant. The police will be all black. But the man will not get drunk. He will be at home with his family because each and everyday he takes pride in himself and his country. We do not have this now; not for any demographic group. We are all unhappy living together. The Danes and the Swedes understand this. They do not want a political union with the Italians and the Greeks. We need to abandon our utopian fantasy and become pragmatic.