Federalist and Fourteenth Amendment

Federalist and Fourteenth Amendment


ChickenBones: A Journal

for Literary & Artistic African-American Themes



 The Constitution was written in the 18th century, to meet the needs of agrarian colonies

on the Atlantic Seaboard. It had nothing to do with the dynamic industrial empire that had

emerged by 1886, the time of Santa Clara County v. Southern Pacific RR, which

the Lincoln-appointed, social Darwinist Justice Stephen J. Field, cited as a precedent

for corporate personhood . . .



Federalist and Fourteenth Amendment

By W. J. Moses



12 March 2012

One of my fiendishly clever African American students, who graduated in 2004 and has since received a Masters in Public Policy from Harvard, made the observation as an undergraduate, that according to Madison in Federalist #10, the purpose of the Constitution was not to promote equality, but to safeguard inequality.   

His statement blew my mind, because I was not clever enough to have put it so succinctly myself.   He had departed 180 degrees from the “New Left” interpretation, often preferred by liberals and progressives that the Constitution contains the seeds of democracy.   Well, Frederick Douglass and Samuel Ringgold Ward thought so.  Nonetheless the implications of “original intent” are ambiguous, because the Constitution as Sojourner Truth put it had a lot of little “weasels,” intentionally written in.   

My student cited Federalist #10, “chapter and verse” and not necessarily with approval, but with lifted eyebrows and a healthy respect for the spirit of American mercantile capitalism:  “The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of these faculties, is the first object of government.”  

Thus Kennedy, Alioto, Scalia, Roberts are absolutely right in Citizens United v. Federal Election Commission, and in their interpretation of the 1st and 14th Amendments. Not that the Federalist is ever the final authority, but it does give some insight into the “mind of the Founders,” or at least into Madison’s idea of “original intent.”  And his original intent was to protect inequality of wealth. 

But this is not any reason to reject original intent as the basis of sound jurisprudence.  There are better reasons.  The Constitution was written in the 18th century, to meet the needs of agrarian colonies on the Atlantic Seaboard.   It had nothing to do with the dynamic industrial empire that had emerged by 1886, the time of Santa Clara County v. Southern Pacific RR, which the Lincoln-appointed, social Darwinist Justice Stephen J. Field, cited as a precedent for corporate personhood in Minneapolis & St. Louis Railway Company v. Beckwith in 1889.  

In one sense the 14th amendment always violated “original intent,” because it granted rights to the African Americans that Justice Taney said the Founders never intended. Through judicial activism, it began to cement into place the powers of railroads, big business, heavy industry, and capitalist structure of steel, smoke, telephones, skyscrapers and everything else represented by the time of the Chicago exhibition of 1893.   Chicago was a desolate frontier log cabin, where a black Frenchman traded furs with the Indians when the Constitution was written. 

As you can see, I’m still havin’ fun, especially when I read historians like William Appleman Williams.  He gives us a very nicely sarcastic interpretation of the term “mercantilism,” and some ironic observations on Adam Smith and “free trade.”  If Williams is right, then there are some patterns of continuity between Jeffersonian agrarianism and progressive era industrial capitalism.  But these we don’t discuss, do we?  

But my position is that original intent became exceedingly “elastic” when Lincoln delivered the Gettysburg Address, which was a radical revision of “original intent” and a direct attack on Taney‘s “originalism” in Dred Scott v Sandford.  Lincoln knew what he was doing! He created a leftist interpretation of “original intent.”   But I digress….

Well not really, because I have “volunteered” to teach Constitutional History, 1787-1877 a year from now.   My chair and vice chair tell me, “Oh you already know this stuff.” Yeah but my chair is a specialist in late Roman Empire, and my vice chair is a specialist in Chinese intellectual history, and this will be my first time at age 71. 

As you can see, I have some very bright students, and at least two of the African Americans went on to Harvard either at the Kennedy School or the Law School.   The one who went to Harvard Law School wrote an extra paper for no credit on the Clarence Thomas dissent in Kelo v. City of New London.  I currently have a couple of non-black Republicans and Libertarians who have no difficulty referencing their favorite Supreme Court decisions in class.  So as you can see these young people are not to be trifled with.  They are diligent and imaginative.  

posted 13 March 2012

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The Constitution and Slavery—Frederick Douglass—March 16, 1849—The North Star—Before entering upon a discussion of the main question, it may be proper to remove a misapprehension into which Gerrit Smith and Robert Forten seem to have fallen, in respect to what we mean by the term, “strictly construed according to its reading,” as used by us in regard to the Constitution. Upon a second reading of these words, we can readily see how easily they can be made to mean more than we intended. What we mean then, and what we would be understood to mean now, is simply this—that the Constitution of the United States, standing alone, and construed only in the light of its letter, without reference to the opinions of the men who framed and adopted it, or to the uniform, universal and undeviating practice of the nation under it, from the time of its adoption until now, is not a pro-slavery instrument.—TeachingAmericanHistory

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Autobiography of a Fugitive Negro: His Anti-slavery Labours in the United States, Canada, & England—Samuel Ringgold Ward, b. 1817—Chapter 5—As the abolitionists saw the Churches were trampling under foot the fundamental principles of Christianity, touching slavery, so they saw the Government and the political parties to be false to their own sworn principles of freedom and democracy. They departed from the constitution, which was made “to secure the blessings of liberty,” and which ordained that “no man shall be deprived of liberty without due process of law.” The Whigs denied the faith of their revolutionary fathers, whose Whiggism was but another name for self-sacrificing love of liberty. The Democrats, claiming Jefferson as their father and boasting of his having written the Declaration of Independence, hated nothing so intensely as Jefferson’s writings against slavery—and that very Declaration of Independence, when, among “ALL MEN” in it declared to be entitled by God to the unalienable right to liberty, Negroes were said to be included.

Both professed to be admirers of the great Washington; but neither of them, like him, coveted the opportunity of using his political power against slavery in his native State. What the abolitionists then demanded, and now contend for, is the simple application of the principles of the Declaration of Independence to the black as well as the white, and that the former should share the benefits secured by the constitution as well as the latter. Believing just what the Declaration of Independence says, that the right of man to liberty is unalienable, they hold that no enactments, no constitutions, no consent of the man himself, no combinations of men, can alienate that which is by God’s fiat made unalienable.

They agree with England’s greatest living jurist, Brougham, that the idea that man can be the property of man is to be rejected as a “wild and guilty phantasy”: neither overlooking nor neglecting other great questions with which governments and parties have to do, they make their basis principle the unalienable right of man “to life, liberty, and the pursuit of happiness.” It was to the promulgation of these political principles, and of those religious principles to which I referred in the preceding pages, that, as an agent of the New York State Anti-Slavery Society, it was my duty and my pleasure to devote myself. This duty brought me into contact with all classes of the enemies of the cause—made me familiar with all the different objections urged against it on the one hand; and it gave me the ever-to-be-remembered pleasure of meeting all classes of abolitionists, profiting by their suggestions, accepting their hospitalities, rejoicing in their sympathies, and sharing their devotions. A truer, a more discerning set of men, America does not hold. They are fully alive to the issue before them.

They see that, if the principle be admitted that a black man may be legally, righteously enslaved, so may any other man; that slavery is altogether regardless of the colour of its victims: that its encroachments upon the right of petition, the freedom of the press, the freedom of speech—its whipping, tarring and feathering, and lynching, white abolitionists at the South—its enslavement of the light-coloured children of white men–its unscrupulous, insatiate demands, nature, character–all make it the enemy of any and every class opposing it, willing to jeopard and to destroy the liberties of any whom it can crush as its victims. They see that the real political issue is, not whether the black man’s slavery shall be perpetuated, but whether the freedom of any Americans can be permanent.—DocSouth

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Samuel Ringgold Ward (October 17, 1817 – c. 1866) was an African American who escaped enslavement to become an abolitionist, newspaper editor and Congregational minister. He was author of the influential book: Autobiography of a Fugitive Negro: his anti-slavery labours in the United States, Canada and England, written after his speeches throughout Britain in 1853. It enabled him to raise funds for the Anti-slavery Society of Canada where many escaped slaves from the USA were arriving in the 1850s. Samuel Ringgold Ward was born into slavery in 1817 on Maryland’s eastern shore but fled as a child with his parents in 1820 to New Jersey and soon relocated to New York in 1826. Once settled, Ward’s parents enrolled him in at the African Free School. . . . Samuel Ward’s visit to London was, he considered, at a most fortunate time for his fund-raising endeavour, because: “of the twofold fact that Uncle Tom’s Cabin was in every body’s hands and heart, and its gifted authoress was the English people’s guest. For anti-slavery purposes, a more favourable time could not have been chosen for visiting England”. As Samuel Ward further explained, “When Mrs. Stowe arrived in England… the book from the one side of the Atlantic, the address (by James Sherman) from the other side… awakened more attention to the anti-slavery cause in England, in 1853, than had existed since the agitation of the emancipation question in 1832.” 

Ward, having met Mrs. Stowe at the house of Rev. James Sherman next door to his Surrey Chapel on Blackfriars Road, in May 1853, was invited to stay at the ‘Surrey Chapel Parsonage’ along with Mrs Stowe’s husband, the Rev. Dr. Stowe, and brother Rev. C. Beecher, for three weeks. . . . Samuel Ward’ success enabled the Anti-slavery society of Canada to finance its work in support of escaped slaves from the USA, and in the following year, 1855 Ward published his influential book recounting all that he had achieved. The proceeds enabled him to retire to Jamaica. . . . Samuel Ringgold Ward died in 1866 after spending his last eleven years of life as a minister and farmer in Jamaica.—Wikipedia

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Sojourner Truth—Abolitionist, evangelist, and feminist, 1797?-1883—”Now I hears talkin about de Constitution and de rights of man. I comes up and I takes hold of dis Constitution. It looks mighty big, and I feels for my rights, but der aint any dare. Den I says, God, what ails dis Constitution? He says to me, “Sojourner, dere is a little weasel in it.”—AmericansWhoTell theTruth

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Thought of Today—Power that works for righteousness—Finally, there is, somewhere in the Universe a “Power that works for righteousness,” and that leads men to do justice to one another. To this power, working upon the hearts and consciences of men, the Negro can always appeal. He has the right upon his side, and in the end the right will prevail. The Negro will, in time, attain to full manhood and citizenship throughout the United States. No better guaranty of this is needed than a comparison of his present with his past. Toward this he must do his part, as lies within his power and his opportunity.

But it will be, after all, largely a white man’s conflict, fought out in the forum of the public conscience. The Negro, though eager enough when opportunity offered, had comparatively little to do with the abolition of slavery, which was a vastly more formidable task than will be the enforcement of the Fifteenth Amendment. —Charles W. Chestnutt

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Back in New Hampshire, Romney Strays From Debate Night Bet—Emily Friedman—11 December 2011—Asked whether he would like to see term limits, [Mitt] Romney said he would—for both Senators and members of Congress. “The vision of this country I’m sure in the mind of the founders was that we would have citizens’ legislatures. If you look at the great early leaders of this country and they went to Washington served and then went home. Wouldn’t that be nice?” he said. “It seems some people go to Washington to serve the people and then they stay to serve themselves,” he said. Romney said one of the reasons he is running for president is because he believes voters want “someone who comes from outside Washington.” “I’m not a creature of Washington,” Romney said. “I haven’t been in Washington as a politician, and I won’t stay in Washington when my term is over,” he said. “I will go home. I love Lake Winnipesaukee a lot better than I like Washington, I’ve gotta tell you.”—abcnews

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Hillary: The Movie is a 2008 politicized

documentary about United States Senator and Presidential candidate Hillary Clinton. It was produced by Citizens United. The film was scheduled to be offered as video-on-demand on cable TV right before the Democratic primaries in January 2008, but the federal government blocked it. The blocking of the film’s airing was the subject of the court case Citizens United v. Federal Election Commission.

In early 2008, the case, known as

Citizens United v. Federal Election Commission was brought to the United States District Court for the District of Columbia. This court sided with the Federal Election Commission (FEC) that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.

The Supreme Court docketed this case on August 18, 2008, and heard oral arguments on March 24, 2009. A decision was expected sometime in the early summer months of 2009. However, on June 29, 2009, the Supreme Court issued an order directing the parties to re-argue the case on September 9 after issuing briefs on larger issues. The court ruled 5-4 in 2010 that spending limits in the McCain-Feingold act were unconstitutional, allowing essentially unlimited contributions by corporations and unions to political action committees. This was one of the most controversial rulings of the term.—


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Citizens United v. Federal Election Commission


Justice Kennedy’s majority opinion found that the BCRA [2002 Bipartisan Campaign Reform Act] §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The Court considered the financing of Hillary: The Movie to be protected speech. Justice Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice Kennedy also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs. The Court overruled

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled the part of McConnell v. Federal Election Commission, 540 U.S. 93 (2003), that upheld BCRA’s restriction of corporate spending on “electioneering communications.” The Court’s ruling effectively removed the limit on the amount corporations and unions can spend on “electioneering communications.”

In justifying the ruling, the majority announced that the First Amendment must protect corporations and individuals with equal vigor. The majority argued that the First Amendment does not tolerate prohibitions of speech based on the identity of the speaker. Because corporations are groups of individuals, the corporate form must receive the same free speech privileges as individual citizens. Likewise, the majority argued that independent expenditures are a form of speech, and limiting a corporation’s ability to spend money also limits its ability to speak. One of the main changes to First Amendment law, announced by the majority, was the expansion of corporate rights recognized by the Court.—


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Justices, 5-4, Reject Corporate Spending Limit—21 January 2010—The McCain-Feingold law contains an exception for broadcast news reports, commentaries and editorials. But that is, Chief Justice John G. Roberts Jr.

wrote in a concurrence joined by Justice Samuel A. Alito Jr., “simply a matter of legislative grace.”

Justice Kennedy’s majority opinion said that there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory would allow Congress to suppress political speech in newspapers, on television news programs, in books and on blogs.

Justice Stevens responded that people who invest in media corporations know “that media outlets may seek to influence elections.” He added in a footnote that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.

On its central point, Justice


’s majority opinion was joined by Chief Justice


and Justices


, Thomas, and



. Justice Stevens’s dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.

When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds. The court could have ruled that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law. Thursday’s decision rejected those alternatives.

Instead, it addressed the questions it proposed to the parties in June when it set down the case for an unusual second argument in September, those of whether Austin and McConnell should be overruled. The answer, the court ruled Thursday, was yes.

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice


wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”—


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William Appleman Williams Papers, 1877-2011


Timeline for William Appleman Williams

1959—Williams publishes

The Tragedy of American Diplomacy

, his most popular book.


will run through three editions in the next two decades, expanding by over 100 pages in the process. In it, Williams expounds upon his view of a U.S. foreign policy oriented primarily toward the twin goals of gaining entry into previously-closed foreign markets and maintaining a hegemonic status quo in markets already accessed. Williams suggests that this approach assumed tragic dimensions in part because of the grievous socio-economic consequences that arose out of policies that the U.S. government intended to be democratic and socially-uplifting in nature. Though largely overlooked in its first printing, Tragedy becomes an important book to a growing segment of scholars seeking to understand the roots of the turbulent 1960s. A 1972 survey of the Society for Historians of American Foreign Relations reveals Tragedy to be the greatest influence upon the teaching of 38 out of 182 respondents, the largest single group by far.


The Contours of American History

is published. Though less-influential than




is considered by many contemporaries to be Williams’s most original work. The book widens the scope of Williams’s economic interpretation of American foreign policy to include the entirety of U.S. history. In Williams’s view, mercantilism was the economic basis of what he considered to be the last genuine American community. With the rise of industrialism and, later, laissez-faire capitalism, the spirit of community in the U.S. had dissipated, leading to the rise of a host of domestic traumas. Through this prism, Williams defines, for example, the American Civil War as largely an effort to save a fledgling empire at any price. Echoing the claims issued in


, Williams sees twentieth-century foreign policy as primarily oriented toward protecting the interests of corporate elites.—



Agrarianism & Empire—3 January 2011—William Appleman Williams. The Roots of the Modern American Empire (1969)— Thesis: (italics his) “The expansionist outlook that was entertained and acted upon by metropolitan American leaders during and after the 1890s was actually a crystallization in industrial form of an outlook that had been developed in agricultural terms by the agrarian majority of the country between 1860 and 1893.” In Williams’ account, the desire to expand agricultural markets pushes what is ultimately American expansionist foreign policy. In the early 19th century, this takes the form of Adam Smith’s “tension and antagonism between the metropolis and the country.” (103) Britain is the metropolis in this case, and the whole US is the “granary and slaughterhouse” that feeds it. As America grows, Williams says the farm sector’s export focus remains a prime mover of expansionism. Although William Jennings Bryan claimed “agriculturalists were as truly businessmen as their metropolitan counterparts,” Williams says he did not convince them he could improve conditions for their business. (404) Williams concludes that both the “agricultural expansionists” and the urban leaders who appropriated their ideas failed to “maintain an operating balance between the expansion of freedom and the expansion of the marketplace” because “the overwhelming majority of farm businessmen shared the more conservative views of the dominant metropolitans. Indeed, they had generated and shaped that outlook. And, for that matter, many of the reformers soon acquiesced or assented.The result was an overpowering imperial consensus that defined freedom in terms of what existed in America; or, in its most liberal form, in terms of what Americans sought for themselves.” (450)—


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William Appleman Williams [1877-2011] was a historian known for his sharp critiques of American foreign policy. A graduate of Kemper Military Academy in Boonville, Missouri, and later of the Naval Academy in Annapolis, he served as an officer in the Pacific during World War II, receiving an honorable discharge and a Purple Heart at war’s end. He went on to the University of Wisconsin, where he took his Master’s and Ph.D. degrees in history. Before coming to Oregon State University in 1968, he taught in Madison, in the process establishing the “Wisconsin School” of diplomatic history.

During his career he was a Distinguished Fulbright Scholar at the University of Melbourne and, in 1979, was elected President of the Organization of American Historians. He retired from OSU in 1986 to his coastal home at Waldport, Oregon. On March 6, 1990, Williams died at the age of 69. Nine years later The Modern Library named his volume, The Contours of American History, one of the 100 Best Non-Fiction Books Written in English in the 20th Century.

William Appleman Williams was a prolific and influential writer. His revisionist works—particularly The Tragedy of American Diplomacy (1959)—challenged prevailing views of American history, deploring the United States as an imperialist power forcing its economic and ideological will around the globe. Hailed by Eugene Genovese as, “the best historian the Left has produced in this country,” the genially combative professor termed himself a radical, isolated from the center of American intellectual life. He was particularly critical of US foreign policy, especially America’s role in the Cold War and in Vietnam. In the estimation of Gore Vidal, Williams was, “the best school teacher who ever taught history in Oregon.”


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The Gettysburg Address—Gettysburg, Pennsylvania—19 November 1863—Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow— this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.—


posted 13 March 2012

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Civil War Letters—Union and Confederate Soldiers’ Letters / Civil War Letters—A Confederate Soldier’s Letter

Civil War Letters—Introducing the Letters  /  Civil War Letters—A Black Union Soldier’s Letter

Lincoln, Race, and the American Presidency Chandra Manning: What This Cruel War Was Over Book TV

 Chandra M. Manning on Soldiers and Slavery: Part 1 / The Permanence of Racism (1992)

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1493: Uncovering the New World Columbus Created

By Charles C. Mann

I’m a big fan of Charles Mann’s previous book 1491: New Revelations of the Americas Before Columbus, in which he provides a sweeping and provocative examination of North and South America prior to the arrival of Christopher Columbus. It’s exhaustively researched but so wonderfully written that it’s anything but exhausting to read. With his follow-up, 1493, Mann has taken it to a new, truly global level. Building on the groundbreaking work of Alfred Crosby (author of The Columbian Exchange and, I’m proud to say, a fellow Nantucketer), Mann has written nothing less than the story of our world: how a planet of what were once several autonomous continents is quickly becoming a single, “globalized” entity.

Mann not only talked to countless scientists and researchers; he visited the places he writes about, and as a consequence, the book has a marvelously wide-ranging yet personal feel as we follow Mann from one far-flung corner of the world to the next. And always, the prose is masterful. In telling the improbable story of how Spanish and Chinese cultures collided in the Philippines in the sixteenth century, he takes us to the island of Mindoro whose “southern coast consists of a number of small bays, one next to another like tooth marks in an apple.

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The Persistence of the Color Line

Racial Politics and the Obama Presidency

By Randall Kennedy

Among the best things about The Persistence of the Color Line is watching Mr. Kennedy hash through the positions about Mr. Obama staked out by black commentators on the left and right, from Stanley Crouch and Cornel West to Juan Williams and Tavis Smiley. He can be pointed. Noting the way Mr. Smiley consistently “voiced skepticism regarding whether blacks should back Obama” . . . The finest chapter in The Persistence of the Color Line is so resonant, and so personal, it could nearly be the basis for a book of its own. That chapter is titled “Reverend Wright and My Father: Reflections on Blacks and Patriotism.”  Recalling some of the criticisms of America’s past made by Mr. Obama’s former pastor, Mr. Kennedy writes with feeling about his own father, who put each of his three of his children through Princeton but who “never forgave American society for its racist mistreatment of him and those whom he most loved.”  His father distrusted the police, who had frequently called him “boy,” and rejected patriotism.

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The White Masters of the World

From The World and Africa, 1965

By W. E. B. Du Bois

W. E. B. Du Bois’ Arraignment and Indictment of White Civilization (Fletcher)

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Ancient African Nations

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posted 13 March 2012




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This is a Make-or-Break Moment for the Middle Class  Avoiding Phony Religiosity, Listening to Him (Obama)   Chronicling Mitt’s Mendacity

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