Theorizing American Freedom

Authors

Anthony O'Rourke, State University of New York at Buffalo Law SchoolFollow

Abstract

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's text, structure, or interpretive doctrine? Aziz Rana's The Two Faces of American Freedom provides an occasion not only for reflecting on these questions, but also for exploring how deeply they are interrelated. Rana's project is a "large-scale ... historical reconstruction" of the relationship between ideas of freedom and exercises of foreign power in American constitutional history (p. 2). This reconstruction draws upon settler colonial studies, a burgeoning interdisciplinary field that previously received little attention from constitutional theorists, to examine the extent to which the early American idea of freedom was predicated on a policy of territorial expansion and elimination of indigenous populations. "[M]ost of the American experience," Rana provocatively contends, "is best understood as constitutional and political experiment in . . . settler empire" (p. 3). More specifically, Rana argues that a robust but racially exclusionary idea of freedom predicated on whiteness-a concept he calls "settler freedom"-gave rise to a constitutional structure that allowed for aggressive territorial expansion and domination of "outsider" groups, while offering a guarantee of self-rule and political participation to Anglo-American "insiders." This concept of freedom, Rana contends, was ultimately eradicated from our constitutional structure in the twentieth century, replaced by an understanding of liberty that was more inclusive, but in some ways far less substantive, than its predecessor.

Recommended Citation

Anthony O'Rourke, Theorizing American Freedom, 110 Mich. L. Rev. 1101 (2012).
Available at: https://repository.law.umich.edu/mlr/vol110/iss6/11