1. See, e.g., Bush, Jonathan, “‘You're Gonna Miss Me When I'm Gone’: Early Modern Common Law Discourse and the Case of the Jews,” Wisconsin Law Review (1993): 1225–85Google Scholar (arguing that “the legal status of the Jews, and the disabilities assigned to them continued to play a role in the common law for many centuries after the Expulsion of the Jews in 1290”). Similar work might be done on the missing Muslims in Spain, the missing Huguenots in France, and other groups.

2. See, e.g., Dummett, Ann and Nicol, Andrew, Subjects, Citizens, Aliens and Others (London: Weidenfeld and Nicolson, 1990)Google Scholar.

3. See, e.g., Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992)Google Scholar. For a discussion of the U.S. see, e.g., Neuman, Gerald L., “Whose Constitution?”, Yale Law Journal, 100, nos. 3–4 (1991): 909–81CrossRefGoogle Scholar. This essay entertains such ideas as “global due process” in a world of interpenetrating nationalities.

4. See, e.g., Brilmayer, Lea, Justifying International Acts (Ithaca: Cornell University Press, 1989)Google Scholar; American Hegemony (New Haven: Yale University Press, 1994); Koh, Harold Hongju, “Transnational Public Law Litigation,” Yale Law Journal 100 (1991): 2347–402CrossRefGoogle Scholar; and Neuman, “Whose Constitution?”

5. See Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983)Google Scholar, chapter 2; Barry, Brian and Goodin, Robert E., eds. Free Movement: Ethical Issues in the Transnational Migration of People and of Money (University Park: Pennsylvania State University Press: 1992)Google Scholar; Brubaker, William Rogers, ed., Immigration and the Politics of Citizen-ship in Europe and North America (Lanham, MD: University Press of America, 1989)Google Scholar; Soysal, Yasemin Nuhoglu, The Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994)Google Scholar; and Schermers, Henry G., Flinterman, Lees, Kellerman, Alfred E., van Haersolte, Johan C., and van de Meent, Gert-Wim A., eds., Free Movement of Persons in Europe: Legal Problems and Experiences (Dordrecht: Martinus Nijhoff, 1993)Google Scholar.

6. Leading contributors are Lea A. Brilmayer, Douglas Laycock, and Gerald L. Neuman. See for example, the following works by Brilmayer, Lea A.: “Carotene, Conflicts, and the Fate of the ‘Inside Outsider’,” University of Pennsylvania Law Review 134 (1986) 1291–334CrossRefGoogle Scholar; “Consent, Contract, and Territory,” Minnesota Law Review 39(1990): 1–35; “Shaping and Sharing in Democratic Theory: Towards a Political Philosophy of Interstate Equality,” Florida State Law Review 15 (1987): 389–416; “Credit Due Judgments and Credit Due Laws: The Retrospective Roles of Due Process and Full Faith and Credit in the Interstate Context,” Iowa Law Review 70 (1984): 95; “Legitimate Interests in Multistate Problems: As Between State and Federal Law,” Michigan Law Review 79 (1981): 1315–49; “Rights, Fairness, and the Choice of Law,” Yale Law Journal 98 (May, 1989): 1277–319; “Interstate Preemption: The Right to Travel, the Right to Life, and the Right to Die,” Michigan Law Review 91, no. 5 (March 1993): 873–906; and, generally, An Introduction to Jurisdiction in the American Federal System (Charlottesville, VA: Michie, 1986). See, also, Laycock, “Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law,” 92 Columbia Law Review (03 1992): 249–337Google Scholar; and Neuman, , “Territorial Discrimination, Equal Protection, and Self De-termination,” University of Pennsylvania Law Review 135 (1987): 261–382CrossRefGoogle Scholar.

7. We shall see, below, that this paradigm of survivorship placed the rights of indigenous peoples in jeopardy in post-Civil War America.

8. A prominent early example was the Northwest Ordinance of 1789.

9. The view that comity was a matter of positive law in each territorial forum was held by Joseph, Justice Story, a member of the Marshall Court, whose Commentaries on the Conflict of Laws, Foreign and Domestic (Boston: Little Brown, 1857)Google Scholar should be read as a companion to his classic Commentaries on the Constitution of the United States, 3 vols. (Boston: Hilliard and Gray, 1833). For discussions of the importance of transnational law and its variable relation to intergovernmental agreements, see Jessup, Philip, Transnational Law, (New Haven: Yale University Press, 1956)Google Scholar; Ehrenzweig, Albert A, Private International Law (Dobbs Ferry, NY: Oceana, 1967)Google Scholar; Burley, Anne-Marie, “Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine,” Columbia Law Review 92, no. 8 (1992): 1907–96CrossRefGoogle Scholar; Burley, , “Toward an Age of Liberal Nations,” Harvard International Law Journal 33, no. 2 (1992): 393–405Google Scholar; and Burley, Anne-Marie and Mattli, Walter, “Europe Before the Court: A Political Theory of Legal Integration,” International Organization 47, no. 1 (1993): 41–76CrossRefGoogle Scholar. For a discussion of transnational public law see Harold Hongju Koh, “Transnational Public Law Litigation,” especially, part I.

10. U.S. Constitution, Art. IV, secs. 1 and 2.

11. See, e. g., McCulloch v. Maryland, 4 Wheat. 17 U.S. 316 (1819).

12. If, for example, there was a conflict between the laws of state A and state B on enforcing some aspect of slavery, it was now in part a federal question when and whether the courts in A were obliged to apply the laws of B, how far they were free to reinterpret those laws in a way that might be subsequently binding in B, and how far a distinctive body of federal law might preempt both. In practice this federal question was often decided in state courts. For an extensive recent discussion of the role of interstate comity in the development of American slavery see Finkelman, Paul, An Imperfect Union (Chapel Hill: University of North Carolina Press, 1981)Google Scholar. See also Meister, Robert, “The Logic and Legacy of Dred Scott: Marshall, Taney, and the Sublimation of Republican Thought,” Studies in American Political Development 3 (1989): 199–260CrossRefGoogle Scholar.

13. Laycock “Equal Citizens,” at 250–1. See, also, Jackson, Robert, “Full Faith and Credit – The Lawyer's Clause of the Constitution,” 45 Columbia Law Review (1945): 1Google Scholar.

14. See Lea A. Brilmayer, “Carolene, Conflicts, and the Fate of the ‘Inside Outsider,’” at 1293.

15. The exceptions were generally matters that had been fully adjudicated elsewhere. This was the meaning of the “full faith and credit” clause (Art. IV, sec. 1). See Brilmayer, “Credit Due Judgements and Credit Due Laws.”

16. Harrison, John, “Reconstructing the Privileges and Immunities Clause,” 101 Yale Law Journal (1992): 1385–473Google Scholar, secs. II and III.

17. This contrasts with the Warren-era conception of permanent minorities as “discrete and insular” groups excluded from all possible majority coalitions. On this point see Ely's use of the Carotene Products footnote to interpret the jurisprudence of the Warren Court. Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980)Google Scholar. For critical comments see Brilmayer, “Carolene, Conflicts.”

18. See Snowiss, Sylvia, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990)Google Scholar, chapters 3–4.

19. There is also, however, a countertradition of constitutional interpretation that argues that natural rights were constitutionalized through the privileges and/or immunities clauses of the Constitution. See, e. g., Justice Bushrod Washington's famous dictum on this point in Corfield v. Coryell 6 Fed. Cas. 546 (No. 3230) (C.C.E.D.Pa) (1823).

20. This is the central thesis of Harrison, “Reconstructing the Privileges and Immunities Clause.”

21. For a provocative discussion of “the possible uses of democratic theory in the inter-state context” see Brilmayer, “Carolene, Conflicts” at 1298 ff. For a comprehensive view of the terrain see Laycock, “Equal Citizens.”

22. Harrison, “Reconstructing the Privileges and Immunities Clause,” at 1442.

23. Chirac v. Chirac, 2 Wheat. 259, 269 (1817).

24. For Marshall's view of the sovereign status of indigenous peoples see, Cherokee Nation v. Georgia, 5 Peters 1 (1831).

25. The legitimacy of British (and later United States) title to its North American territory was always a troubling matter. For a frank recognition of the anomalies see Story, Commentaries on the Constitution of the United States, book I, chapter 1. For the theoretical rationale of conquest see Williams, Robert A. Jr, The American Indian in Western Legal Thought (New York: Oxford University Press, 1990)Google Scholar.

26. Through much of U.S. history, opportunity for tribally identified individuals to acquire U.S. citizenship was determined by the treaties and statutes governing state and federal relations with their tribes. For a comprehensive discussion of recent cases and developments see Resnik, Judith, “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts,” 56 University of Chicago Law Review (1989): 671–759Google Scholar. See also, Dane, Perry, “The Maps of Sovereignty: A Meditation,” 12 Cardozo Law Review (1991): 959Google Scholar.

27. See Kettner, James H., The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978), 287–300Google Scholar.

28. For a discussion of the legal difficulties in using “denizenship” to describe the status of free Negroes in slave states before the Civil War see Kettner, The Development of American Citizenship, 320–2.

29. The Law of Freedom and Bondage in the United States, 2 vols. (Boston: Little, Brown, 1858, 1862). For a general discussion, see Meister, “The Logic and Legacy of Dred Scott,” 234–9.

30. It is worth taking some trouble to work out Hurd's argument in some detail. His precise claim is that under imperial law it was a matter of local discretion whether to presume the validity of the original sale of Africans to the Portuguese and Dutch slavers, a point that was developed in the administration of formerly Portuguese and Dutch colonies subsequently acquired by Britain. (See § 165–6,170, 243 [especially p. 321, note 1[, and 286 ff.).

31. See especially 321.

32. Kurt Lash notes that, beginning with a speech by Charles Sumner in 1853, the issues of slavery and polygamy were regarded as “twins”; that the Mormon-dominated government of Utah became pro-slavery before the Civil War in order to identify its cause with that of the South; that Lincoln himself spoke to the relation between the two issues in 1857; and that the Antipolygamy Law could only be passed (over Democratic opposition) after the outset of the Civil War. See “The Second Adoption of the Free Exercise Clause: Religious Exemption Under the Fourteenth Amendment,” Northwestern University Law Journal 88 (Spring 1994): 1106–56, notes 89, 91; see also, Laycock, , “A Survey of Religious Liberty in the United States,” Ohio State Law Journal 47 (1986): 409–51Google Scholar at 416–7. For a discussion of the reasoning of Dred Scott as applied to the question of polygamy, see Meister, “The Logic and Legacy of Dred Scott,” 242–4.

33. For a comprehensive treatment of the inadequacy of other explanations see Bush, Jonathan, “Free to Enslave: The Foundations of Colonial American Slave Law,” Yale Journal of Law and Humanities 5 (Summer 1993): 417–70Google Scholar.

34. Dred Scott v. Sandford, 19 Howard 393 (1857).

35. Cf. Rachael v. Walker, 4 Mo. 194 (1836); Scott (a man of color) v. Emerson, 15 Mo. 576 (1852).

36. The most illuminating discussions of the conceptual relations between emancipation and rebirth are by Patterson, Orlando. See especially, Slavery and Social Death: a Comparative Study (Cambridge: Harvard University Press, 1982)Google Scholar, and Freedom, vol. I (New York: Basic Books, 1991).

37. Under Dred Scott slaves could still be freed by the operation of state law in the sense that the rights of the master were no longer enforceable, but such private manumission was not to be construed as an act of naturalization.

38. Taney's legal point was in some ways a straightforward extension of that part of the reasoning of Justice Story in the fugitive slave case of Prigg v. Pennsylvania [16 Peters 539 (1842)] which denied fugitive slaves due process under the kidnapping laws of the state in which he or she was captured on grounds of federal constitutional supremacy. Taney (dissenting) would have gone further in this direction than Story, and did so in his opinion in Dred Scott.

Similar issues could arise today regarding the summary deportation of persons alleged to have entered the United States illegally. To what extent could state-created claims to due process undermine the practical ability of the U.S. government to control its own borders by deporting persons without a full judicial hearing of their immigration claims? This issue may become more pressing as federal immigration laws are modified to further limit the procedural rights of persons who may be subject to deportation or refoulement. See, e. g., Sale v. Haitian Centers Council, Inc. 113 S. Ct. 2549 at 2567 (Blackmun, dissenting).

39. This may have been doctrinal overkill; Taney could have reached the same result by arguing that, even if naturalized, the descendants of slaves were ineligible for federal constitutional protection.

40. Hurd has many specific criticisms of Dred Scott throughout his treatise, some of which are to be found in Law of Freedom and Bondage, vol. 1, 560–70.

41. Lincoln expressed the same premise in his July 4, 1861, speech to Congress, asking for endorsement of his use of the War Power to restore the Union. See Randall, John G., Constitutional Problems Under Lincoln, revised edition (Gloucester, MA: Peter Smith, 1963)Google Scholar, chapters 2–3. For a recent defense of this premise against simple majoritarianism, on the one hand, and “rights foundationalism” on the other, see Ackerman, Bruce, We the People (Cambridge: Belknap Press of Harvard University Press, 1991)Google Scholar.

42. Cf. Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992)Google Scholar.

43. from “The Fourteen Points.” in Cronon, E. David, ed., The Political Thought of Woodrow Wilson (Indianapolis: Bobbs-Merrill, 1965), 438 ffGoogle Scholar. at 445.

44. Wilson's basic principle – a corollary to Jeffersonian self-determination – is that the relative size or strength of a “people” should not affect its right to self-determination, that a sovereign people should not be expected to internalize the cost of defending its own borders. This view was, however, supplemented by a requirement that existing borders, however arbitrary or illegitimate, be preserved under the principle of uti possidetis. Wilsonian self-determination was thus not to be a basis for revising or violating whatever international borders might exist. See Franck, Thomas M., “Post-Modern Tribalism and the Right to Secession” in Brolmann, C., Lefeber, R., and Zieck, M. eds., Peoples and Minorities in International Law (Dordrecht: Martinus Nijhoff, 1993), 3–27Google Scholar, and the “Comment” by R. Higgins, 29–35. Akhil Amar develops a similar argument about American constitutional development in “Some New World Lessons for the Old World,” University of Chicago Law Review 58 (1991): 483–510.

45. See, e. g., Division and Reunion, 1820–1889 (New York, London: Longmans, Green, and Co., 1921), and A History of the American People (New York: Harper and Bros., 1902), vols. 4–5. The possibility of Northern secession was in fact an option widely considered by northern Abolitionists before the Civil War and reconsidered by some unionists in response to Dred Scott. See Paludan, Phillip, A Covenant With Death: The Constitution, Law, and Equality in the Civil War Era (Urbana: University of Illinois Press, 1975), 80–4Google Scholar. This perspective is echoed in the recent work of Allen Buchanan, who argues that it is legitimate to secede from a union that can only be preserved at the expense of liberal purity. See Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview, 1991), 34–5.

46. Link, Arthur ed., The Papers of Woodrow Wilson, vol. 11 (Princeton: Princeton University Press, 1971), 347Google Scholar.

47. One way to conceive this alternative ideal type of interstate regime would be to imagine the international system that might have resulted if the Confederacy had successfully negotiated its secession from the federal regime conceived in Dred Scott. Between the two newly independent successor states – the U.S.A. and the C.S.A. – there would have been no federal citizenship to protect an individual from discrimination when living in the other country, and no federal limitation on his own country's ability to retaliate. But the functions of the federal courts under the Dred Scott regime (and the Fourteenth Amendment system that succeeded it) would be replaced by the equal power of each sovereign people to threaten national minorities in its midst in order to protect its own co-nationals living elsewhere. This power would remain effectively equal only on the assumption that all states were somehow barred from attacks across borders in order to protect their respective peoples. What would have constituted such a bar in a partitioned United States? In the optimistic view of Southern secessionists, described at length by Wilson, it would have been bonds of culture, a common history, treaties, the rules of international law, and the threat of embargo by the British navy if the North attacked the South.

Wilson's History of the American People, vol. 4, devotes an entire section to what might have been – the political culture and the Confederacy and the contents of its constitution. (It is particularly interesting that the federal power within the Confederacy was stronger, and state' rights weaker, than in the United States.) See, also, Lee, Charles Robert Jr, The Confederate Constitutions (Chapel Hill: University of North Carolina Press, 1963)Google Scholar.

48. For a discussion of the implementation of these ideas in the interwar period see Claude, Inis L., National Minorities: An International Problem (Cambridge: Harvard University Press, 1955)CrossRefGoogle Scholar; Maier, Charles S., “Unsafe Haven: Why Minorities-Treaties Fail,” New Republic 207 (10 1992), 20Google Scholar.

49. If the civil rights of a person in any state would depend upon whether he or she was part of a “people” that had a state of its own, then peoples without sovereignty could be consigned to the status of denizens wherever they were allowed to live on the sufferance of the local majority. This was the future as “domestic aliens” that John Codman Hurd foresaw for detribalized Indians and freed slaves if the U.S. Civil War had not occurred in the aftermath of Dred Scott. Hurd, The Law of Freedom and Bondage, vol. 1, chapters 11–13 (especially pp. 434, 445), and vol. 2, e. g. at 195, note 1. See, also, Kettner, The Development of American Citizenship, 313, 319–20.

50. Jews were widely regarded as the minority to end all minorities in the Wilsonian system: in virtually every new state founded on the national principle there were new outbreaks of anti-Semitism, rooted in the need to ground citizenship on some exclusive national identity. As Hannah Arendt points out, the treatment of the Jews was merely a paradigm case of the problems of any subnational group that had no sovereign homeland: they were the quintessential non-deportable group to whom almost anything could be done during the interwar period. See The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973), chapter nine.

51. Claude, National Minorities, 9.

52. For a discussion of this point see Walzer, Michael, “Nation and Universe” in Peterson, Grethe B., ed., The Tanner Lectures on Human Values, XI, (Salt Lake City: The University of Utah Press, 1990), 507–556Google Scholar. See, also, Walzer, , “Between Nation and World,” Economist 328, no. 7828 (09 11, 1993)Google Scholar, F49; Cf. Etzioni, Amitai, “The Evils of Self-Determination,” Foreign Policy no. 89 (Winter 1992), 21–35Google Scholar

53. The philosopher Bernard Williams explains this in Wilsonian terms: “What the breakaway group claimed, after all, was the right to set up a culturally homogeneous state. This may commit the breakaway state to accepting the right of some minority to do the same thing, if they can; but if the minority cannot do that, it does not necessarily commit the new state to respect their rights to cultural self-expression, in the middle of what was precisely intended to be a culturally unitary state.” “Left-Wing Wittgenstein, Right-Wing Marx,” Common Knowledge I, no. 1, 41–2.

54. The preferred mechanisms for correcting excesses of popular sovereignty within the newly created states would be the further multiplication of states, the adjustment of borders with neighboring states, and the transfer of populations. Ethnic conflicts within states might then be superseded by international enforcement of the principle of nonaggression between them.

55. For a provocative reflection on the post-Cold War world see Enzensberger, Hans Magnus, Civil Wars: From L.A. to Bosnia (New York: New Press, 1994)Google Scholar.

56. See, e.g., Bass, Ellen and Davis, Laura, The Courage to Heal: A Guide for Women Survivors of Childhood Sexual Abuse (New York: Harper Perennial, 1992)Google Scholar; cf. Kaminer, Wendy, I'm Dysfunctional, You're Dysfunctional: the Recovery Movement and Other Self-help Fashions (Reading, MA: Addison-Wesley, 1992)Google Scholar.

57. The “Lincoln myth” and the debate over his true motives are well-discussed in Greenstone, J. David, The Lincoln Persuasion: Remaking American Liberalism (Princeton: Princeton University Press, 1993)Google Scholar, chapter 1.

58. See Hesseltine, William B., Lincoln's Plan of Reconstruction (Gloucester, MA: Peter Smith, 1963), 35—6Google Scholar. See also, Belz, Herman, Reconstructing the Union: Theory and Policy During the Civil War (Ithaca: Cornell University Press, 1969)Google Scholar. A considerable amount of reconstruction was carried out in the union-occupied portions of the Confederacy during the war (as well as in some of the border states that never seceded). The conditions imposed upon reconquered areas raised issues of constitutional significance for both sides. Sometimes these conditions were more, and sometimes less, stringent than might have been imposed once total victory was assured. See also, Scott, Eben Greenough, Reconstruction During the Civil War in the United States of America (Boston: Houghton Mifflin, 1895)Google Scholar.

59. See, e.g., Cover, Robert M., Narrative, Violence, and the Law: The Essays of Robert Cover; Minow, Martha, Ryan, Michael, and Sarat, Austin eds., (Ann Arbor: University of Michigan Press, c. 1992)Google Scholar; Wills, Garry, Lincoln at Gettysburg (New York: Simon and Schuster, 1992)Google Scholar; Amar, Akhil Reed, “The Bill of Rights and the Fourteenth Amendment,” Yale Law Journal 101 no. 6 (04 1992): 1193–284CrossRefGoogle Scholar; “The Case of the Missing Amendments: R.A.V. v. City of St. Paul,” Harvard Law Review 106, no. 1 (November 1992): 124–61.

60. See, e.g., Taylor, Charles, Multiculturalism and “The Politics of Recognition” (Princeton: Princeton University Press, 1992)Google Scholar; Minow, Martha, Making All the Difference (Ithaca: Cornell University Press, 1992)Google Scholar.

61. These two divergent conceptions of American liberalism bear some relation to the nineteenth century differences between Whig/Republicans on the one hand and Jacksonian Democrats on the other that are discussed in works such as Greenstone, The Lincoln Persuasion and Kohl, Lawrence F., The Politics of Individualism: Parties and Character in the Jacksonian Era (New York: Oxford University Press, 1989)Google Scholar. Unlike those writers, however, I do not base my interpretation on the cultural and ethical ramifications of the distinction between positive and negative liberty. Cf. Berlin, Isaiah, “Two Concepts of Liberty,” in Four Essays on Liberty (New York: Oxford University Press, 1970): 118—72Google Scholar. I agree, however, with Greenstone's general view that “although the central tenets of American liberalism are widely shared, they are interpreted in different ways. And these differences of interpretation may be of fundamental rather than secondary importance.” “Political Culture and American Political Development: Liberty, Union, and Liberal Bipolarity,” Studies in American Political Development 1 (1986): 28.

62. Peoria Speech, October 16, 1854, cited in Neely, Mark Jr, The Last Best Hope of Earth (Cambridge: Harvard University Press, 1993), p. 37–8Google Scholar.

63. This event had led many prominent refugees to immigrate to the United States. Lincoln was highly aware that the influx of immigrants had precipitated the crisis of the party system of the 1850s, although as Tyler Anbinder points out, the bulk of the immigration from Germany in the 1850s was probably caused by potato blight rather than political defeat. See Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850's (New York: Oxford University Press, 1992), 7–8.

64. In a general way, I am indebted to Wills, Lincoln at Gettysburg; Greenstone, The Lincoln Persuasion; and McPherson, James, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1990)Google Scholar.

65. Neely, The Last Best Hope, 40. Neely discusses this issue perceptively on 40–41.

66. See Hesseltine, Lincoln's Plan of Reconstruction, 92–4; For less conclusive, but more disturbing, evidence see Belz, Reconstructing the Union, 282.

67. See, e.g., Bradshaw, John, Healing the Shame that Binds You, (Deerfield Beach, FL, Health Communications, 1988)Google Scholar; Whitfield, Charles L., Healing the Child Within: The Discovery and Recovery for Adult Children of Dysfunctional Families (Pompano Beach, FL: Health Communications, 1987)Google Scholar.

68. In this context we should note that, if the Old Testament Jews constitute the first “survivor story,” the New Testament Church constitutes the first “recovery movement.” Its “saving remnant” of recovered sinners conceived itself to be a spiritual community that transcended cultural divisions and political boundaries. Political survivorship, ever since, has generally been linked to broader claims of spiritual recovery. As vehicles of spiritual recovery, survivor stories are implicitly transcendental (a church), even when they also bear the weight of demands for territorial sovereignty (a state).

69. Orlando Patterson reminds us that Paul's Epistle to the Romans uses slavery as a metaphor for sin itself, and that Paul's theology of redemption tracks the logic of the Roman law of manumission. See Freedom, chapters 18–19.

70. See Paludan, A Covenant with Death, e.g., at pp. 79–84.

71. As England's principal suppliers of cotton, the Confederate states hoped for military support from the foreign powers that depended on it. Their strategy was in some ways similar to that of Kuwait in gaining foreign support against Sadaam Hussein's effort to reunify Iraq by force. Lincoln's decision to free the slaves, however, effectively eliminated whatever sentiment there was in England for interfering with his efforts to reunify the United States by force.

72. The specific character of the slave's experience is thus officially denied in a way that may reproduce some of the effects that we now associate with posttraumatic stress disorder, particularly depression, psychic numbing, anxiety, isolation, and hypervigilance. These symptoms are described in DSMIII, and discussed in many places. For a comprehensive collection see Wilson, John P. and Raphael, Beverly, eds., International Handbook of Traumatic Stress Syndromes (New York: Plenum Press, 1993)CrossRefGoogle Scholar. For a brief discussion see Williams, Tom, “Diagnosis and Treatment of Survivor Guilt: The Bad Penny Syndrome,” in Human Adaptation to Extreme Stress: From the Holocaust to Vietnam; Wilson, John P., Harel, Zev, Kahana, Boaz, eds. (New York: Plenum Press, 1988), 319–336CrossRefGoogle Scholar; and Swink, Kathy K. and Leveille, Antoinette, “From Victim to Survivor: A New Look at the Issues and Recovery Process for Adult Incest Survivors,” Women and Therapy 8, no. 2–3 (Summer–Fall, 1986), 119–41CrossRefGoogle Scholar.

73. The therapeutic advantages and limitations of the transition from victimhood to survival are an important dimension of the nonviolence of Gandhi and Martin Luther King. See Erikson, Erik H., Gandhi's Truth: On the Origins of Militant Nonviolence (New York: Norton, 1969)Google Scholar; Gandhi, Mohandas K., An Autobiography: The Story of My Experiments with Truth, trans. by Desai, Mahadev (London: Jonathan Cape, 1966)Google Scholar.

74. Illuminating discussions of the pairs slavery/death and emancipation/rebirth are contained in Orlando Patterson, Slavery and Social Death, and Freedom, vol. I.

75. “The survivor is one who has come into contact with death in some bodily or psychic fashion and remained alive.” Robert J. Lifton, “From Hiroshima to the Nazi Doctors: The Evolution of Psychoformative Approaches to Understanding Traumatic Stress Syndromes,” in Wilson and Raphael, eds., International Handbook, 11–28 at 16.

To identify oneself as a “survivor” is (from both a psychoanalytic and a moral point of view) to bring the idea of death into one's life in order to be reconciled to one's ambivalence about both. See Brown, Norman O., Life Against Death: The Psychoanalytical Meaning of History (Middletown, CT: Wesleyan University Press, 1959)Google Scholar.

76. “Fondly do we hope — fervently do we pray — that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bondman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’”

77. See, e.g., Hesseltine, Lincoln's Plan of Reconstruction, 76–7, and chapter 6; Scott, Reconstruction During the Civil War, chapter 12, especially 268–72. For a broader view of the views of Stevens and Sumner see Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988)Google Scholar, especially 228–39.

78. See, Mill, J.S., “On Liberty” in The Philosophy of John Stuart Mill, edited and with introduction by Cohen, Marshall (New York: Modern Library, 1961)Google Scholar; Hart, H.L.A., Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), 185–319Google Scholar, 197; and Feinberg, Joel, Offense to Others: The Moral Limits of Criminal Law (Oxford: Oxford University Press, 1985)Google Scholar.

79. Scanlon, Thomas, “A Theory of Freedom of Expression,” Philosophy and Public Affairs 1 no. 2 (Winter, 1972): 204–26Google Scholar.

80. Amar, “The Case of the Missing Amendments,” 158.

81. This may be what Guyora Binder has in mind in “The Slavery of Emancipation” Cardozo Law Review, forthcoming.

82. The Freudian literature on dominance and submission is relevant here; so too, is the Marxian literature on exploitation and material reproduction. At their root both literatures are grounded in our ambivalent desires to both dominate and submit, to both gain and lose, and the ways in which this ambivalence is perverted and exploited to allow gains and losses to flow into different “accounts.” For a further discussion of these points see Meister, , “Beyond Satisfaction,” Topoi 15, no. 2 (09 1996)CrossRefGoogle Scholar, forthcoming.

83. Both of the above quotations are from Lincoln's Second Inaugural Address.

84. According to Ernest Lee Tuveson, Lincoln's Second Inaugural Address is consistent with the abolitionist view, represented by Julia Ward Howe's “Battle Hymn of the Republic,” that the Civil War was an inevitable act of divine judgment that redeemed the American nation from the sin of slavery and allowed it to resume its millennial mission of saving the world. See Tuveson, , Redeemer Nation: The Idea of America's Millennial Role (Chicago: University of Chicago Press, 1968), chapter 5, especially 197–202Google Scholar, 206–7. Garry Wills, however, sharply distinguishes Lincoln's use of Biblical imagery, in the Second Inaugural and elsewhere, from Howe's: “Lincoln's distinctive mark … was his refusal to indulge in triumphalism, righteousness, or vilification of the foe … Nothing could be farther from the crusading righteousness of Julia Ward Howe in her ‘Battle Hymn of the Republic.’” Wills, Lincoln at Gettysburg, 183–4. For further discussion of Lincoln's distinctive use of Biblical imagery, see Wills, , Under God (New York: Simon and Schuster, 1990): 207–21Google Scholar.

85. For a discussion of the vicarious sacrifice of Christ in pre-Civil War American theology, see Douglas, Ann, The Feminization of American Culture (New York: Alfred Knopf, 1977)Google Scholar, chapter 4.

86. Licklider, Roy, “The Consequences of Negotiated Settlements in Civil Wars, 1945–1993,” American Political Science Review 89, no. 3 (09 1995): 681–90CrossRefGoogle Scholar.

87. This argument has been used in wars of empire, as well as in civil wars, and by leaders as diverse as Pericles and Hitler. See Wills, Lincoln at Gettysburg, 182–3.

88. Quoted in Dorris, Jonathan Truman, Pardon and Amnesty under Lincoln and Johnson: The Restoration of the Confederates to the Rights and Privileges, 1861–1898 (Chapel Hill: University of North Carolina Press, 1953), 37Google Scholar.

89. The discussion in this paragraph draws on Iklé, Fred C., Every War Must End (New York: Columbia, 1971)Google Scholar; Licklider, Roy, Stopping the Killing: How Civil Wars End (New York: New York University Press, 1993)Google Scholar; and Licklider, “The Consequences of Negotiated Settlements in Civil Wars.” See also Dorris, Pardon and Amnesty under Lincoln and Johnson.

90. See, e.g. McPherson, James, “Lincoln and the Strategy of Unconditional Surrender,” in Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1990)Google Scholar.

91. Williams, Bernard, Shame and Necessity (Berkeley: University of California Press, 1993), 219–20Google Scholar.

92. Mohandas K. Gandhi, Hind Swaraj (Ahmedabad: Navajivan Trust, reprinted 1946).

93. See, e.g., Bass and Davis, The Courage to Heal.

94. Cf. Brown, Wendy, “Wounded Attachments” in States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995)Google Scholar, chapter 30.

95. See Jerome Neu “Odi et Amo: On Hating the Ones We Love” in John O'Neill, ed. Freud and the Passions (University Park, PA: Pennsylvania State University Press, forthcoming).

96. This tension is reflected in the recent debate between Freudians and anti-Freudians over what weight to give to unconscious fantasy and repressed memory in accounts of childhood experiences of incest by adults undergoing therapy. The moral fervor of the debate seems to rest upon a degree of confusion by both sides about what follows from each position. For their part Freud's critics seem to assume that describing incest as a memory makes it unforgivable — and that expressing appropriate anger allows the former victim to become a survivor and break free. Freud's defenders sometimes seem to assume that, what-ever actually happened, the patient must still come to terms with her own unconscious ambivalence in order to be healed, and that the truth about what actually happened is relevant mainly for legal, rather than therapeutic, purposes. See Izenberg, Gerald N., “Seduced and Abandoned: The Rise and Fall of Freud's Seduction Theory” in Neu, Jerome, ed., The Cambridge Companion to Freud (Cambridge: Cambridge University Press, 1991): 25–43CrossRefGoogle Scholar; Masson, Jeffrey Moussaieff, The Assault on Truth: Freud's Suppression of the Seduction Theory (New York: Farrar, Straus and Giroux, 1984)Google Scholar; Robinson, Paul, Freud and His Critics (Berkeley: University of California Press, 1993)Google Scholar.

Does the truth really matter if the patient's overall goal is to achieve reconciliation? Anti-Freudians (such as Masson) are outraged by the possibility that Freud developed his theory to cover up the truth. At least implicitly, they challenge Freudians to explain just what is wrong with the actual occurrence of incest, once we assume that incestuous fantasies are at stake in the analysis of all erotic relationships and their pathologies. (To simply answer that real incest is a “betrayal of trust” by the adult would be to beg the question of why it is damaging to begin with.) A Freudian might respond, however, that actual occurrences of incest tend to be developmentally harmful because the existing capacity of the child for unconscious erotic identification with respect to infantile aims has been manipulated and damaged by a parent-figure whose desires are all-too-conscious. There are also nonpsychoanalytic reasons why incest may be harmful. See Neu, Jerome, “What's Wrong With Incest?” Inquiry 19 (1976): 27–39CrossRefGoogle Scholar.

97. This is, of course, an oversimplification of Freud's view of sadism as a redirection of primary masochism. See, e.g., Benjamin, Jessica, The Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination (New York: Pantheon, 1988)Google Scholar, especially chapter 2. See, also, Freud, Sigmund, General Psychological Theory: Papers on Metapsychology (New York: Collier, 1963)Google Scholar: chapters 4 (“Instincts and Their Vicissitudes”), 8 (“Mourning and Melancholia”), and 11 (“The Economic Problem of Masochism”).

98. For discussions of the psychic and political economy of slavery see, e.g., Genovese, Eugene, The Political Economy of Slavery: Studies in the Economy and Society of the Slave South (Middletown, CT: Wesleyan University Press, 1989)Google Scholar, and Roll Jordan, Roll. Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974.) For a reconsideration of the moral legacy of apologists for slavery see Genovese, , The Southern Tradition: The Achievements and Limitations of an American Conservatism (Cambridge: Harvard University Press, 1994)Google Scholar.

99. For a further development of this idea see Guyora Binder, “The Slavery of Emancipation.”

100. On post-Civil War amnesties see Dorris, Pardon and Amnesty, and Charles Fairman, Reconstruction and Reunion, 1864–88. The Devise, Oliver Wendell Holmes History of the Supreme Court, vol. VI, part One (New York: Macmillan, 1971)Google Scholar, chapters 3, 15.

101. See, e.g., Weigel, George, “Their Lustration – and Ours,” Commentary 94, no. 4 (10. 1992): 34–9Google Scholar; D'Amato, Anthony, “Peace vs. Accountability in Bosnia,” The American Journal of International Law 88 (1994): 500–7CrossRefGoogle Scholar; Laber, Jeri, “Witch Hunt in Prague,” The New York Review of Books 39, no. 8 (04 23, 1992), 5–8Google Scholar; Orentlicher, Diane F., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100, no. 8(1991): 2537–615CrossRefGoogle Scholar, especially, part III on “mitigating the burden” in “transitional societies.”

102. See Belz, Reconstructing the Union, chapter 6 and 10. The evolution of Lincoln's wartime policy is summarized on 291–304; Lincoln's probable attitude toward the Sherman-Johnston peace convention is discussed on 278–9.

103. See Pion-Berlin, David, “Between Confrontation and Accommodation: Military and Government Policy in Democratic Argentina,” Journal of Latin American Studies 23, no. 3 (1991), 533–71CrossRefGoogle Scholar; Truth and Partial Justice in Argentina: An Americas Watch Report (New York: Human Rights Watch, 1991); Jelin, Elizabeth, “The Politics of Memory: The Human Rights Movement and the Construction of Democracy in Argentina,” Latin American Perspectives 21, no. 2 (Spring 1994), 38–58CrossRefGoogle Scholar; Nino, Carlos S., “The Duty to Punish Past Abuses of Human Rights Put Into Context: The Case of Argentina,” Yale Law Journal 100, no. 8 (1991): 2619–43CrossRefGoogle Scholar; Arditti, Rita and Lykes, M. Brinton, “‘Recovering Identity’: The Work of the Grand-mothers of the Plaza de Mayo,” Women's Studies International Forum 15, no. 4 (1992), 461–71CrossRefGoogle Scholar.

104. For a defense of this view see Zalaquett, José, “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,” Hastings Law Journal 43 (08 1992): 1425–38Google Scholar, especially at 1427 ff. Zalaquett points out that some trials were allowed as exceptions to the amnesties, and that in Uruguay the amnesty itself was almost repealed in a popular vote. For discussions of Truth Commissions see Hayner, Priscilla, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study” Human Rights Quarterly 16 (1994): 547Google Scholar; Pasqualucci, Jo M., “The Whole Truth and Nothing But the Truth: Truth Commissions, Impunity, and the Inter-American Human Rights System,” Boston University International Law Journal 12 (Fall 1994): 321–370Google Scholar. For a discussion of the politics of reconciliation in Brazil and Uruguay see Weschler, Lawrence, A Miracle, A Universe: Settling Accounts With the Torturers (New York: Pantheon, 1990)Google Scholar.

105. On May 17,1995 the South African Parliament established a Truth and Reconciliation Commission with the authority to document past crimes, award reparations, and grant amnesties. “Viewing Apartheid Abuses,” New York Times 144 (May 18, 1995): A4. President Mandela signed the legislation in July. Daley, Suzanne, “Panel to Investigate Atrocities of the Apartheid Era” New York Times 144 (08 27, 1995)Google Scholar: A3. For a brief discussion of the disagreements over the scope and effects of the earlier South African amnesty measures enacted between 1990 and 1994, see, Economist 331 no 7867 (June 11, 1994), 39. For a brief discussion of De Klerk's Further Indemnity Act see, e.g., Merrett, Christopher, “Amnesty by Decree,” Index on Censorship 5–6 (1993), 21–22CrossRefGoogle Scholar. Conflicts over amnesty between Mandela, and De Klerk, are documented in Facts on File (09 17, 1992), 696Google Scholar and (January 15, 1995), 39.

106. Hesseltine, Lincoln's Plan of Reconstruction, 12.

107. See Belz, Reconstructing the Union 154–166; Hesseltine, Lincoln's Plan of Reconstruction, 70–1.

108. Dorris, Pardon and Amnesty under Lincoln and Johnson, 34–5.

109. For an example, see Kellogg, Robert H., Life and Death in Rebel Prisons: Giving a Complete History of the Inhuman and Barbarous Treatment of Our Brave Soldiers by Rebel Authorities … Principally at Andersonville, Ga., and Florence, S.C. (Hartford, CT: L. Stebbins, 1866)Google Scholar.

110. The trial and its context are discussed in Futch, Ovid L., History of Andersonville Prison (Gainesville: University of Florida Press, 1968)Google Scholar, chapter 8. For an account of the evidence by one of the presiding officers at the trial, and a response to the charge, inscribed on a monument erected to Wirz, that he was “judicially murdered,” see General Chipman, N. P., The Tragedy of Andersonville: Trial of Captain Henry Wirz, the Prison Keeper (San Francisco: Blair-Murdock, 1911)Google Scholar.

111. It did not apply to the suspicion of conspiring to commit murder under which Davis was first arrested. That apparently false accusation, on which he was never indicted, reinforced Davis's lifelong refusal to seek or accept the individual clemencies that had earlier been accorded to other Confederate leaders. See Dorris, Pardon and Amnesty under Lincoln and Johnson, 302–5.

112. For discussion of the entire matter see Nichols, Roy Franklin, “United States vs. Jefferson Davis, 1865–1869,” American Historical Review 31 (01. 1926): 266–284CrossRefGoogle Scholar; Dorris, Pardon and Amnesty under Lincoln and Johnson, chapter 8; Randall, Constitutional Problems under Lincoln, chapters 4–5.

113. See MacDonnell, Francis, “Reconstruction in the Wake of Vietnam: The Pardoning of Robert E. Lee and Jefferson Davis,” Civil War History 40 no. 2 (1994): 119–133CrossRefGoogle Scholar. The two quotations from Carter are on pages 131 and 129, respectively.

114. Justice to victims may, of course, come in other ways, such as the achievement of meaningful majority rule in South Africa.

115. See Matsuda, Mari, “Public Response to Racist Speech: Considering the Victim's Story.” in Words that Wound: Critical Race Theory, Assaultive Speech and the First Amendment, ed., Matsuda, M., Lawrence, C., Delgado, R., and Crenshaw, K. (Boulder: Westview, 1993), 17–52Google Scholar.

116. See Meister, “Beyond Satisfaction”; Wendy Brown, States of Injury.

117. Not surprisingly, the Bible is the source of both models. In the Old Testament, the Children of Israel are sojourners who forge a new identity as survivors under the leadership of Moses. Having lived in bondage in a strange land, they make the transition from cult to nation to covenantal state where their survival becomes the basis of another story. This transformation has the character of both a journey and a return. The survivorship and national renewal of the Jews enables them to conquer the indigenous Canaanites who must live like sojourners in the land of their birth. Cf. Walzer, Michael, Exodus and Revolution (New York: Basic Books, 1985)Google Scholar, and Said, Edward, “Michael Walzer's 'Exodus and Revolution': A Canaanite Reading,” Arab Studies 8, no. 3 (Summer, 1986), 289–303Google Scholar. Exodus is not, however, our only canonical text of survivorshp. The Aeneid is an effort to portray the founding of Rome as a survivor story.

118. See Meister, “Beyond Satisfaction.”

119. For an illuminating comparison of the Jewish and Black “diasporas” see Gilroy, Paul, Black Atlantic: Modernity and Double Consciousness (Cambridge, Harvard University Press, 1993): 205–12Google Scholar. See, also, Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983)Google Scholar; Hobsbawm, Eric and Ranger, Terence, eds., The Invention of Tradition (New York: Cambridge University Press, 1992)Google Scholar.

120. Refugees are different from ordinary sojourners or ordinary immigrants. By their own movements they manage to avoid some of the burden of guilt that comes when victims identify with persecutors in order to survive in the same place. As refugees, their claim is not necessarily to be sovereign somewhere, or to return to their “homeland,” although some may be fortunate enough to have such options.

As suggested above, refugees are most likely to gain haven when significant elements of the local majority can identify with them and participate in the creation of a new myth of common survival. Of course not all local majorities are willing to accept the new identity implied by the adoption of refugees for whom they were not responsible (consider the Palestinian example). And not all countries willing to accept refugees are based in any obvious ways on pre-existing survivor stories – Sweden, for example, is not.

121. See Hartz, Louis B. et al. , The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada, and Australia (New York: Harcourt, Brace and World, 1964)Google Scholar.

122. For a general discussion of these issues outside the North American context see Mulgan, Richard, “Should Indigenous Peoples Have Special Rights?” Orbis 33, no. 3 (1989), 375–88Google Scholar.

123. See Bestor, Arthur, “State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846–1860,” Illinois State Historical Society Journal 54 (Summer 1961): 117–80Google Scholar; and Bestor, , “The Civil War as a Constitutional Crisis,” American Historical Review 69, no. 2 (01 1964), 327–52CrossRefGoogle Scholar.

124. For a discussion of this and other issues surrounding Dred Scott, see Meister, “The Logic and Legacy of Dred Scott.”

125. Here Lincoln merely expressed the view of many antislavery Northerners who feared that Dred Scott would lead to further judicial decisions nationalizing the enforcement of slavery. For a convincing argument that these fears were plausible see, Finkelman, An Imperfect Union, chapter 10. See also, Finkelman, , ed., Southern States in Free State Courts: The Pamphlet Literature (New York: Garland, 1988), series 1, vol. 3, pp. 509–693Google Scholar.

126. 16 Wall 36 (1873).

127. The exception was Wynehamer v. People, 13 N.Y. 378 (1856) in which a state prohibition law was struck down as an abridgement without due process of law of the constitutionally protected property rights of distillery owners. Wynehamer was decided while Dred Scott was being reargued, and may have influenced Taney to refer (at 450) to the due process clause of the Fifth Amendment in striking down the Missouri Compromise as a violation of individual property rights (as well as the sovereignty of the state that had established them). J. C. Hurd gives explicit consideration to, and rejects, the analogy between Wynehamer and Dred Scott in The Law of Freedom and Bondage vol. 1, paragraph 512, note 1 and paragraph 520. For further discussions of Wynehamer and Dred Scott as precursors of the doctrine of substantive due process, see Corwin, Edward, “The Basic Doctrine of Constitutional Law,” Michigan Law Review 12, no 4 (1914): 247–76CrossRefGoogle Scholar, and Corwin, Edward, “The Dred Scott Decision in the Light of Contemporary Legal Doctrines,” American Historical Review 17 (10 1911), 52–69CrossRefGoogle Scholar.

128. The discussion in this section is adapted from Meister, “The Logic and Legacy of Dred Scott,” 249–51. For more recent treatments see Harrison, “Reconstructing the Privileges and Immunities Clause” and William Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, (Cambridge: Harvard University Press), 156–74.

129. My interpretation of the relationship between these two cases is indebted to Duncan Kennedy.

130. 109 U.S. 3.

131. Dred Scott v. Sandford, 19 Howard 393 at 583. Justice McLean made a similar observation at 521.

132. The Civil Rights Cases at 27. Cf., also, Dred Scott v. Sandford, 19 Howard 393 at 582.

133. The Fourteenth Amendment made birth or naturalization the sole bases of U.S. citizenship, replacing the premise underlying Dred Scott that federal citizenship was a benefit conferred mainly through citizenship in a state, and that the power of Congress to confer citizenship was limited to foreign citizens and indigenous tribes. Under the Fourteenth Amendment a state was required to extend citizenship on an equal basis to all persons born or naturalized in the United States who resided within its borders. Having established birth or naturalization as the basis of federal citizenship, and residency as the only legitimate criterion of state citizenship, the Fourteenth Amendment went on to forbid the states from discriminating against their internal minorities based on identities and interests that were largely unspecified in the text. The Fourteenth Amendment, which took effect in 1868 constitutionalized the main provisions of the Civil Rights Act of 1866 protecting freedmen from newly enacted legal disabilities (the Black Codes) in former slave states. This step was deemed necessary, in part, because Dred Scott, which had been effectively disregarded when Congress banned slavery in the territories during the Civil War, was not repudiated by the Supreme Court and might have been invoked to challenge the constitutionality of statutes conferring federally protected rights on former slaves and their descendants.

134. …[N]ineteenth-century usage concerning political participation confirms the close connection between privileges and immunities and civil rights: neither was thought to extend to political rights, such as voting or serving on juries. Political rights were commonly distinguished from civil rights, and only a subset of the citizens had the right to participate politically … Most Republicans agreed that neither civil rights nor privileges and immunities included political rights, and legal usage generally appears to have reflected this approach.” Harrison, “Reconstructing the Privileges and Immunities Clause,” 1417.

135. The Slaughterhouse Cases 83 U.S. 36 at 73 (Miller, J.).

136. The exception was Texas, which delayed enactment. In several states the effect of the Black Codes would have been to apply harsh vagrancy laws to those Negroes whose conditions of labor no longer resembled those of slavery.

137. See Fairman, Reconstruction and Reunion, 1864–88, 110–117.

138. Harrison, “Reconstructing the Privileges and Immunities Clause,” 1388–9.

139. For a fuller discussion of this point see Meister, Robert, Political Identity (Cambridge, MA: Blackwell, 1991), 119–22, 151–220Google Scholar.

140. These matters lie outside the scope of this paper.

141. See Meister, “The Logic and Legacy of Dred Scott,” 255–60.

142. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963); Califano v. Webster, 374 U.S. 398 (1963).

143. See Meister, Robert, “Discrimination Law Through the Looking Glass,” Wisconsin Law Review 4 (1985): 937–88Google Scholar.

144. See Meister, “The Logic and Legacy of Dred Scott”; Harrison, “Reconstructing the Privileges and Immunities Clause”; Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine.

145. Amend. XIV, sec. 5.

146. It implies that cultural difference is ideally a basis for territorial self-government, or since this is not possible, for the recognition that you cannot be judged by the standards of normality imposed by others. Although this anticolonial paradigm might seem on its face to embrace the desirability of multiculturalism, it rests, as we have seen, on the assumption that, ultimately, all individual rights are based on the collective right to exclude or dominate “other” cultures in the name of preserving one's own. Among many intellectuals today, imperial domination is taken as a paradigm of all injustice, and every expression of cultural difference is asserted as a residue of a thwarted right to be ruled by one's own people.

147. For further discussion see, Meister, Robert, “Review of The Partial Constitution,” Political Theory 23 no. 1 (02 1995), 182–95CrossRefGoogle Scholar.

148. For a suggestion that this may have been part of the original intent see Morais, Nina, “Sex Discrimination and the Fourteenth Amendment: Lost History,” Yale Law Journal 97 (05 1988), 1153–72 at 1159CrossRefGoogle Scholar.

149. D. W. Griffith's The Birth of a Nation tells the “survivor story” of the South. The works of post-Civil War Southern historians, such as Ulrich B. Phillips, contributed to the aura of the tragedy surrounding the “lost cause.” See, Stampp, Kenneth M., The Peculiar Institution: Slavery in the Antebellum South (New York: Knopf, 1956)Google Scholar, chapter 1; Genovese, The Political Economy of Slavery, chapter 3.

150. And also state antimiscegenation laws that were later struck down in Loving v. Virginia, 388 U.S. 1 (1967).

151. See Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 1CrossRefGoogle Scholar.

152. Further research is needed to determine how far other constitutional departures of the Warren era were based on similar rationales. To what extent, for example, was the so-called “revolution” in criminal procedure based on an image of Americans, especially blacks and Hispanics, as survivors of “police states,” and to what extent was it based on neutral principles that would be extended to anyone living apart from his or her “people?”

153. See, e.g., Guyora Binder, “Did the Slaves Author the Thirteenth Amendment?”

154. Frontiero v. Richardson, 411 U.S. 677 (1977). Nina Morais, “Sex Discrimination and the Fourteenth Amendment: Lost History.”

155. Prewar abolitionist sojourners and postwar slave survivors had both been denied rights in Southern states that the Fourteenth Amendment was enacted to protect. See Binder, , “Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History,” Yale Journal of Law and Humanities 5 (Summer, 1993): 471Google Scholar; Binder, “The Slavery of Emancipation”; and Lash, “The Second Adoption of the Free Exercise Clause: Religious Exemption Under the Fourteenth Amendment.”

156. See Dudziak, Mary L, “Desegregation as a Cold War Imperative,” Stanford Law Review 41, no. 1 (11 1988): 61–120CrossRefGoogle Scholar; Bell, Derrick, “Brown vs. Board and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980): 518CrossRefGoogle Scholar.

157. The work of Mari Matsuda is particularly notable in this regard. See, e.g. “Public Response to Racist Speech: Considering the Victim's Story”; See generally, Matsuda, Mari et al. , eds. Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment; MacKinnon, Catherine A., Only Words (Cambridge: Harvard University Press, 1993)Google Scholar. Cf. Gates, Henry Louis Jr, “Let Them Talk: Why Civil Liberties Pose No Threat to Civil Rights,” New Republic 209 no. 12–13 (09 1993): 37Google Scholar.

158. See Amar, “The Bill of Rights and the Fourteenth Amendment,” at 1260–2.

159. See Amar, Akhil Reed, “The Bill of Rights as a Constitution,” Yale Law Journal 100, no. 5 (03 1991): 1131–210CrossRefGoogle Scholar; Amar, , “Some Comments on ‘The Bill of Rights as a Constitution’” Harvard Journal of Law and Public Policy 15, no. 1 (Winter 1992): 99–112Google Scholar; Amar, , “Anti-Federalists, The Federalist Papers, and the Big Argument for Union,” Harvard Journal of Law and Public Policy 16, no. 1 (Winter 1993): 111–18Google Scholar; and Amar, “The Case of the Missing Amendments: R.A.V. v. City of St. Paul.”

160. Cf. Brook, Jacobus Ten, Equal Under Law: Antislavery Origins of the Fourteenth Amendment (New York: Collier Books, 1965)Google Scholar. For an important earlier discussion of the role of the civil rights struggle in First Amendment jurisprudence, see Kalven, Harry, The Negro and the First Amendment (Columbus: Ohio State University Press, 1965)Google Scholar.

161. See Amar, “The Bill of Rights as a Constitution,” 1155 ff. Amar is not opposed to the conception of public secularism that Warren Court liberalism drew from the Establishment Clause. He rather argues that most of the current applications of the Establishment Clause against the states could have been better justified under the Equal Protection clause of the Fourteenth Amendment. See Lash, “The Second Adoption of the Free Exercise Clause,” for a view of Reconstruction that supports the incorporation of the Free Exercise Clause under the Fourteenth Amendment.

162. Everson v. Board of Education, 330 U.S. 1.

163. Engel v. Vitale, 370 U.S. 421 (1962), Abington v. Schempp, 374 U.S. 203 (1963), and Lee v. Weisman, 112 S. Ct. 2649.

164. See, e.g., Lamb's Chapel v. Center Moriches, 113 S. Ct. 2141 (1994), Widmar v. Vincent, 454 U.S. 263 (1981); Mergens v. Westside Community Schools, 496 U.S. 226. These cases hold that governments may deny religious groups access to a public forum only if all other private groups are likewise denied access.

165. Ford v. Manuel, 629 F. Supp. 771; Bell v. Little Axe Ind. Sch. Dist, 766 F. 2d. 1391; Quappe v. Endry, 772. F. Supp. 1004.

166. Gitlow v. New York, 268 U.S. 652 (1925) states in dictum that First Amendment “freedom of speech and of the press” are enforceable against the states under the Fourteenth Amendment. This is a “Red Scare” case arising in 1919, the immediate aftermath of World War I and the Russian Revolution. The Speech Clause is finally “incorporated” in Fiske v. Kansas, 274 U.S. 380 (1927) and the Press Clause in Near v. Minnesota, 283 U.S. 697 (1931).

167. This was a controversial war following a period in which the United States had experienced unprecedented levels of immigration from countries on both sides. Some of these immigrants were dissidents, even revolutionaries, against their former governments, and some would be reluctant to take up arms against a former homeland, believing we had entered on the wrong side.

168. Hand would have required proof that there was also intent to subvert. See Masses Pub. Co. v. Patten, 244 F 535 (1917).

169. See, Amar, “The Bill of Rights and the Fourteenth Amendment,” 1215 ff.

170. The 1844 experience of the Northern abolitionist Samuel Hoar in South Carolina is sometimes cited to make this point. See Harrison, “Reconstructing the Privileges and Immunities Clause,” note 305.

171. See Meister, , “Journalistic Silence and Governmental Speech: Can Institutions Have Rights?”, Harvard Civil Rights-Civil Liberties Law Review 16:2 (Fall 1981): 319–76Google Scholar at 373–6; cf. Amar, “The Case of the Missing Amendments.”

172. Nor would not matter in the case of Nazis marching through Skokie — a well-off Chicago suburb inhabited by a large concentration of Holocaust survivors — whether the demonstration was a protest by an unpopular minority in Chicago politics (the Nazis) or a further act of persecution of an oppressed minority in world history (the Jews). See generally, Meister, “journalistic Silence”; cf. Meister, Political Identity, part II.

173. In a recent article, Akhil Amar has taken a similar view. Treading carefully through the hate speech debate, he argues that government protection of private hate speech involuntarily imposed upon blacks could be banned under both the Thirteenth and Fourteenth Amendments, which authorize courts to consider the broader effects of the private enslavement of one person by another. See Amar, “The Case of the Missing Amendment,” at 156–61.

174. See Sunstein, Cass, The Partial Constitution (Cambridge: Harvard University Press, 1994)Google Scholar; Sunstein, , Democracy and the Problem of Free Speech (New York: Free Press, 1993)Google Scholar; and Robert Meister, “Review of The Partial Constitution.”

175. This is different from suggesting, as James Forman, Jr., does, that the racial equivalent of the Establishment Clause would require government to be somehow nonpartisan in its official speech. See his “‘Driving Dixie Down’: Removing the Confederate Flag from Southern State Capitols,” Yale Law Journal 101, no. 2 (November 1991): 505–526. For the origin of Forman's conception of a political version of the Establishment Clause, see Yudoff, Mark, “When Governments Speak: Toward a Theory of Government Expression and the First Amendment,” Texas Law Review 57 (1979): 863–918Google Scholar; Kamenshine, Robert, “The First Amendment's Implied Political Establishment Clause,” California Law Review 67 (1979): 1104–53CrossRefGoogle Scholar. For a critique of Kamenshine and Yudoff, see Meister, “Journalistic Silence.”

176. Kozinski, Alex and Volokh, Eugene. “Commentary: A Penumbra Too Far” Harvard Law Review 106 (05 1993): 1639–57CrossRefGoogle Scholar. It is interesting that Kozinski and Volokh implicitly take a post-modern view of the plasticity of metaphorical thinking, and hence regard it as unsuitably arbitrary as a basis for legal argument.

177. The general nature of the causal claim to be examined is, however, relatively clear: that in threatening the collective myth of survival a new “stressor” has caused the former victim to unconsciously reenact the original traumatic experience and to regress to the unsuccessful mechanisms of defense against it. These might include repetition-compulsion, anxiety, intrusive imagery, and exaggerated startle-responses. Note that the causal claim is not, for example, that a racial epithet repeats the harm of slavery – as “stressors” there is a world of difference between the two. The claim is rather that the racial epithet causes a harmful regression to the defenses against the unresolved trauma of slavery – harmful directly to the mental health of the former victim, and also because of its indirect effect on the behavior of the victim and others.

178. Similar duties have already been recognized, in limited contexts in regard to “hostile-environment discrimination” in the workplace. To implement this duty there must be some regulation of overtly abusive speech directed against individuals, although, as Volokh notes, such regulation may have already gone beyond what the First Amendment should permit. See Volokh, Eugene, “Freedom of Speech and Workplace Harassment.” UCLA Law Review 39 (08 1992): 1791–1872Google Scholar.

179. MacKinnon, Catherine A., Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979)Google Scholar.

180. MacKinnon here conflates merely pretending to be engaged in what is, arguably, the sexual oppression of women with pretending to pretend. For an elaboration of this argument, see Meister, Robert, “Vigilante Action Against Pornography: The Symbolic Destruction of Symbols,” Social Text (Fall 1985), 3–19Google Scholar. Cf. MacKinnon, Catherine A., Feminism Unmodified: Discourses on Life andLaw (Cambridge: Harvard University Press, 1987)Google Scholar, part III.

181. See, e.g., “Linda's Life and Andrea's Work,” in MacKinnon, Feminism Unmodified.

182. For a suggestion of this kind see Amar, “The Case of the Missing Amendments,” at 159–60.

183. MacKinnon, Only Words, 3.

184. Onuf, Peter and Onuf, Nicholas, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (Madison: Madison House, 1993), especially 95, 117, 161–2Google Scholar.

185. The memory of the German atrocities is a major factor that distinguishes the “Lincolnian” outcome of World War II from the “Wilsonian” outcome of World War I: the second time around Europe survived and recovered by shouldering and sharing a burden of German guilt that was potentially unbearable.

There is no single thinker who has articulated the pervasive role of the survivor story in the logic of European Recovery. Certainly, George C. Marshall took a Lincolnian stance after World War II, but his Harvard Speech is not the Gettysburg Address – it contains too much realpolitik and anticommunism, and too little language of sin and redemption. The principal architects of post-war European recovery – figures such as Jean Monnet and Robert Schuman – were also Lincolnian in spirit, if not always in words (although the same can be said of Lincoln himself). In their Harvard addresses commemorating the Marshall Plan, both Willy Brandt and Richard von Weizsäcker came closer to articulating its meaning for European union and recovery than Marshall himself. But to my knowledge there is no public figure who has articulated a full alternative to Wilsonian internationalism by connecting what I have called the Lincolnian paradigm to global politics. See, Hoffman, Stanley and Maier, Charles, eds., The Marshall Plan: A Retrospective (Boulder: Westview Press, 1984)Google Scholar; von Weiszäcker, Richard, “The Marshall Plan” (Harvard Commencement Address, June 11, 1987), in Speeches for Our Time (Washington DC: Johns Hopkins University Press, 1992)Google Scholar.

186. The works of Baruch Kimmerling and Meron Benvenisti are particularly instructive here. See, especially, Kimmerling, and Migdal, Joel S., Palestinians: The Making of a People (New York: Free Press, 1993)Google Scholar and Benvenisti, , Conflicts and Contradictions (New York: Villard Books, 1986)Google Scholar. For further background see the following: Kimmerling, , A Conceptual Framework for the Analysis of Behavior in a Territorial Conflict: The Generalization of the Israeli Case (Jerusalem: Hebrew University of Jerusalem, Leonard Davis Institute for International Relations, 1979)Google Scholar; Kimmerling, , Social Interruption and Besieged Societies: (the Case of Israel) (Amherst: Council on International Studies, State University of New York at Buffalo, 1979)Google Scholar; Kimmerling, , Zionism and Territory: The Socio-territorial Dimensions of Zionist Politics (Berkeley: Institute of International Studies, University of California, 1983)Google Scholar; Kimmerling, , The Economic Interrelationships Between the Arab and Jewish Communities in Mandatory Palestine (Cambridge, MA: Center for International Studies, Massachusetts Institute of Technology, 1979)Google Scholar; Benvenisti, , Israeli Censorship of Arab Publications: A Survey (New York: Fund for Free Expression, 1983)Google Scholar; Benvenisti, , The West Bank Data Project: A Survey of Israel's Policies (Washington, DC: American Enterprise Institute for Public Policy Research, 1984)Google Scholar; Benvenisti, , Demographic, Economic, Legal, Social, and Political Developments in the West Bank: 1987 Report (Boulder, CO: Westview Press, 1987)Google Scholar; Benvenisti, , with Abu-Zayed, Ziad and Rubinstein, Danny, The West Bank Handbook: A Political Lexicon (Boulder, CO: Westview Press, 1986)Google Scholar.

187. See, generally, Weiler, J.H.H., “The Transformation of Europe,” Yale Law Journal 100, no. 7–8 (1991): 2403–83CrossRefGoogle Scholar.

188. For Africa see, Horowitz, Donald J., Ethnic Groups in Conflict (Berkeley: University of California Press, 1985)Google Scholar.

189. As Hans Magnus Enzensberger points out, the Pax Atomica suspended these logics in some places for a time, partly by turning many local conflicts into truce lines in a global cold war and partly, perhaps, by raising different questions of survival. See Civil Wars, 14.

190. For the basis of caution see, e.g., Ruggie, John Gerard, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization 47 no. 1 (Winter, 1993): 138–74CrossRefGoogle Scholar; Mann, Michael, “Nation States in Europe and Other Continents: Diversifying, Developing, Not Dying,” Daedalus 122 no. 3 (Summer 1993): 115–40Google Scholar.

191. The current international system originated in a Thirty Years' War (really a series of civil wars) between Catholic and Protestant “Internationals” that emerged in the aftermath of the Reformation. The Peace of Westphalia of 1648 based local religion on territorial sovereignty, and marked an end to the period of European military and political alliances based on religion. The early modern system of states – combining sovereignty, territorial exclusivity, and confessional uniformity – was to a significant extent a response to the collapsing internationalism of the medieval Catholic world. That aftermath of that collapse produced its waves of sojourners and survivors – often victims of religious persecution –until religion partially gave way to nationalism as the basis of allegiance to the territorial ruler, and also as a new basis for territorial “cleansing.” See, e.g., Gross, Leo, “The Peace of Westphalia, 1648–1948,” in Falk, Richard A. and Hanrieder, Wolfram, eds., International Law and Organization (Philadelphia: Lippincott, 1968)Google Scholar; Hinsley, F. H., “The Concept of Sovereignty and the Relations between States,” Journal of International Affairs, 21 no. 2 (1967): 242–52Google Scholar; Holsti, Kalevi J., Peace and War: Armed Conflicts and International Order, 1648–1989 (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholar, chapter 2. For a brief description of the transformation brought about by the Thirty Years' War see, Rabb, Theodore K., The Struggle for Stability in Early Modern Europe (New York: Oxford University Press, 1975)Google Scholar, chapter 8.