It is not surprising that an era that saw the creation of much of the America that we know—its mass political parties, sustained capitalist growth, individualistic creed, modern labor, feminist and moral reform movements, and formalized racism—witnessed intense moral controversy. The Jacksonian period posed in its starkest form what Edmund S. Morgan has called the central “paradox” of American history—the “marriage” of slavery and freedom, each of them expanding by leaps and bounds, each doing so increasingly within its own sphere. This was a time when many Americans were seized, as never before, with an intensely self-seeking and accumulating spirit. It was also a period when Americans' collective national mission, suffused with benevolent dreams of “righteous liberty and opportunity that would surpass all worldly limits,” was frequently invoked, sometimes in support of the claims of interest and law, and other times in ways that challenged authority justified purely in terms of selfish interest, positivistic application of the law, or coercive force. All this is to say that in the epoch from the end of the War of 1812 to the eve of the Civil War, moral dispute among different groups of Americans—parties and factions, classes, races and the national minorities, vested and emerging interests, masters and slaves, men and women—was often ferocious.

In the countless conversations about U.S. immigration policy that I have had with Mexican Americans of varied backgrounds and political orientations, seldom have my interlocutors failed to remind me that “We were here first,” or that “This was our land and you stole it from us.” Even a moderate Mexican American politician like former San Antonio Mayor Henry Cisneros sounds the same theme in a national news magazine:

It is no accident that these regions have the names they do—Los Angeles, San Francisco, Colorado, Montana.…It is a rich history that Americans have been led to believe is an immigrant story when, in fact, the people who built this area in the first place were Hispanics.

On 26 July 1990, President George Bush signed an ambitious new civil rights law at an emotional ceremony held on the South Lawn of the White House. Passage of the Americans with Disabilities Act (ADA, PL 101–336) brought civil rights protections for people with disabilities to a level of parity with civil rights protections already enjoyed by racial minorities and by women. What accounted for a Republican administration enthusiastically endorsing a sweeping civil rights law that might benefit as many as 43 million people? Briefly put, historical traditions within disability policy that in turn reflected broader trends within social welfare policy between 1950 and 1990 allowed the ADA to be portrayed in conservative terms that were congenial to a Republican administration.

While William Gienapp pushes some points further than I would, most of what he writes about Charles Sellers's The Market Revolution is well taken. For even a distinguished senior historian, present attitudes and ideologies generate the taxonomy into which the past is inserted. This is unfortunate because there is so much in Sellers's book that is incisive and instructive, particularly to someone who is not a political historian. No one to my knowledge has integrated the social and political history of the Jackson era with the story of the unmistakable “market revolution” that occurred in such a detailed, generally consistent, and enjoyable fashion.

There has been a general unwillingness in the profession to grapple seriously with the arguments of Charles Sellers's The Market Revolution. This is unfortunate, for Sellers's book demands close scrutiny because it raises important questions about the significance of the Jacksonian era, the relationship between public policy and democracy, and the fundamental purpose of history. In their helpful comments, Herbert Hovenkamp and Iver Bernstein challenge directly very few of my criticisms of the book. Silence may or may not be acquiescence, but I see no purpose in repeating my arguments. Since after several weeks of trying Sellers abandoned his attempt to write a response, readers can read his book, my critique, and Hovenkamp's and Bernstein's comments and make up their own minds.

Comparing European and North American policies with respect to “civil rights” is a difficult exercise for two reasons. First, it is important to emphasize that Europe and the United States are not political entities of a same nature. Granted, the fact that the nations that today comprise Europe are heirs of common history explains in part the similarities in their political behavior and distinguishes them as a group from the “New World.” Yet in the American case, despite the country's federalist structure and the existence of fifty states within the Union, we are dealing with a single nation, endowed with a central government capable of generating policies that are valid throughout the territory. Such is not the case with Europe. As is well known, the European continent is divided into two sharply contrasted spheres. On the one hand, there is the East, thrown into confusion by the devastation of communism and mired in a profound economic crisis. On the other hand, there is the West, comprised of nations that share a level of economic prosperity comparable to that of the United States but which do not form a single political entity. At present, the European Economic Community includes only twelve European states; the remaining countries, such as Switzerland, Sweden, and Austria, have yet to become members. In this essay, the question of “civil rights” will be examined specifically in light of those countries that already belong to the EEC.

In the 1960s and 1970s, when the judicial rights revolution was in full swing in the United States, poverty lawyers and allied legal scholars urged the courts to add to the expanding catalog of constitutional rights certain social and economic rights—to housing, education, and a minimum decent subsistence. The advocates of welfare rights were not deterred by the absence of pertinent constitutional language. After all, if the Court could find a right to privacy in the “penumbra” of the Bill of Rights, who knew what else might be discovered there? Those efforts to constitutionalize what were historically matters of legislative discretion had only partial success. The Supreme Court did hold that, once government grants certain statutory entitlements such as welfare and disability benefits, the recipients have a constitutional right not to be deprived of those benefits without procedural due process. The Court declined, however, to find that the entitlements themselves were constitutionally required.