I. Part One: People, Places and Races in the U.S. Constitution
A. In the Beginning: The Erroneous Assumption
Were the world’s non-Western peoples indeed “less civilized” or “more primitive” than the white Europeans who began encountering them around 1492? In a very limited sense, yes, and, at the risk of suggesting that NSA’s warrantless surveillance was 50,000 years in the making, it is important at the outset to clarify to what extent the story of Western colonialism concerns the natural advantages of certain people versus certain places. In Jared Diamond’s seminal work Guns, Germs, and Steel, Diamond posits that all societies of the species homo sapiens follow a natural trajectory of organizational models, from small bands (dozens of people) to tribes (hundreds of people), to chiefdoms (which typically introduces central governance and class distinctions or rankings, with wealth transferred to the upper classes, usually underpinned by some sort of institutionalized religion), and finally, to states.[1] The more centralized and larger an organization becomes, the more advantages it has in the conquest of other people due to its ability to marshal resources. But how quickly the world’s peoples developed into more centralized civilizations was based upon certain advantages of the places they inhabited, dating back at least 50,000 years, because the first step towards civilization required a sedentary lifestyle and sufficient surplus food production to support non-food-producing members of society who could develop innovations, such as weapons and writing systems, the latter of which are particularly difficult to develop, but that then offer huge advantages, including the development of a legal system and a surveillance or intelligence-gathering apparatus.
In this regard, Eurasia had enormous prehistoric advantages over the Americas, sub-Saharan Africa, and Australia, both because only certain plants and large animals could be readily domesticated (no, you cannot ride a zebra, they bite),[2] and because such innovations, once adopted, could spread more easily along an east-west axis, which offered a consistent climate, than along a north-south axis, which did not.[3] Native Americans had never seen horses prior to their Western colonial encounter—once they did, they became enthusiastic adopters—nor did they have resistance to the germs to which Europeans had developed immunity from milleniae of living in close proximity to livestock.
These geographical factors, according to Diamond, largely explain why, by the year 1500, when European colonial expansion was just beginning,
[m]uch of Europe, Asia, and North Africa was the site of metal-equipped states or empires, some of them on the threshold of industrialization. Two Native American peoples, the Aztecs and the Incas, ruled over empires with stone tools. Parts of sub-Saharan Africa were divided among small states or chiefdoms with iron tools. Most other peoples—including all those of Australia and New Guinea, many Pacific islands, much of the Americas, and small parts of sub-Saharan Africa—lived as farming tribes or even still as hunter-gatherer bands using stone tools.[4]
Diamond was moved to write Guns, Germs and Steel in large part based on his long history of interactions with the indigenous people of New Guinea, whom he found anecdotally and on an individual level to be “in mental ability…probably genetically superior to Westerners.”[5] Noting that the modern world has been largely shaped by the “lopsided outcome” of European colonization—“[m]odern Europe is not a society molded by sub-Saharan black Africans who brought millions of Native Americans as slaves”—he notes,
It seems logical to suppose that history’s pattern reflects innate differences among people themselves. Of course, we’re taught that it’s not polite to say so in public…Nevertheless, we have to wonder. We keep seeing all those glaring, persistent differences in peoples’ status. We’re assured that the seemingly transparent biological explanation for the world’s inequalities as of A.D. 1500 is wrong, but we’re not told what the correct explanation is. Until we have some convincing, detailed, agreed-upon explanation for the broad pattern of history, most people will continue to suspect that the racist biological explanation is correct after all. That seems to me the strongest argument for writing this book.[6]
The geographic advantages afforded Eurasia over the Americas had translated into enormous technological advantages by 1492, and certainly by 1532, the year that Spanish conquistador Francisco Pizarro dramatically defeated Inca emperor Atahuallpa and his 80,000 soldiers in a day, ambushing them at the small Peruvian town of Cajamarca with a force of only 168, 62 of them on horseback. Diamond goes over these many advantages, not only with regard to physical weaponry and cavalry tactics, but intelligence-gathering as well:
Horsemen could easily outride Indian sentries before the sentries had time to warn Indian troops behind them, and could ride down and kill Indians on foot…
Spain possessed [writing], while the Inca Empire did not. Information could be spread far more widely, more accurately, and in more detail by writing than it could be transmitted by mouth. That information, coming back to Spain from Columbus’s voyages and from Cortés’s conquest of Mexico, sent Spaniards pouring into the New World. Letters and pamphlets supplied both the motivation and the necessary detailed sailing directions…
Why did Atahuallpa walk into the trap [at Cajamarca]? The immediate explanation is that Atahuallpa had very little information about the Spaniards, their military power, and their intent. He derived scant information by word of mouth, mainly from an envoy who had visited Pizarro’s force for two days while it was en route inland from the coast.[7]
The conquistadores, however, quickly concluded that their stunning success over the heathens could only have been the result of divine will, Christianity being the institutionalized religion that governed Spain’s stratified society at the time, and that “Our Lord permitted that your [Atahuallpa’s] pride should be brought low and that no Indian should be able to offend a Christian.”[8] Back in Spain, Dominican scholar Francisco de Vitoria, was horrified as a Christian by what he was hearing from returning conquistadores about the abuses committed against the Aztecs and the Incas.[9] Nonetheless, he still operated on roughly the same assumption as Pizarro: that there was something deficient about the people of this place that allowed them to be conquered in so dramatic a fashion. Vitoria did not advance a biological or racial explanation—that was not to come until the middle of the 19th century—but he “vacillated between accepting that the Indians were fully human on the one hand, and, on the other, that they were ‘nevertheless so close to being mad, that they are unsuited to setting up or administering a commonwealth both legitimate and ordered in human and civil terms.’”[10] Eventually he developed a concept of sovereignty that
reflected both the demands of Spanish colonialism and the influence of Thomastic conceptions of natural law. Invoking natural law, Vitoria emphasized the norms of equality and reciprocity between the Indians and the Spanish. Then, he invoked natural law to deny Indians’ ability to act according to natural reason, a condition for sovereignty. Idealized natural reason became the universally binding criterion that Indians had to demonstrate in order to claim sovereignty. Meanwhile, the Spanish and European inherent entitlement to natural reason, and thus to sovereignty, was assumed.[11]
Francisco de Vitoria and Dutch legal theorist Hugo Grotius (1583-1685), who was deeply influenced by Vitoria, are regarded today as having provided the scholarly foundation of modern public international law or the “law of nations.” Together, their work became “foundational to the idea of universal law divided into two parts: a public law governed structure of diplomatic relations and war on the one hand, and a world of individual private rights that set up a global system of economic relationships on the other.”[12] Their scholarship provided much of the underpinning to the Westphalian nation-state system and concepts of sovereignty discussed below.
[1] Jared Diamond, Guns, Germs and Steel (W.W. Norton & Company, 1997), at 265-292 (chapter entitled “From Egalitarianism to Kleptocracy”).
[2] Diamond at 171-72 (noting that zebras injure more American zookeepers every years than do tigers; they have “the unpleasant habit of biting a person and not letting go”).
[8] Diamond, at 74 (describing Pizarro’s remarks to Atahuallpa upon the latter’s capture).
[9] Martti Koskenniemi “Colonization of the Indies—The Origin of International Law?”, in La idea de América en el pensamiento ius internacionalista del siglo XXI : Estudios a propósito de la conmemoración de los bicentenarios de las independencias de las repúblicas latinoamericanas, Yolanda Gamarra Chopo, ed., Institution Fernando el Catolico, 2010, 46-47. Available at https://researchportal.helsinki.fi/en/publications/colonization-of-the-indies-the-origin-of-international-law.
[10] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), at 110.
[11] Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010), at 22.
Natural law, which was the dominant framework for the understandings and discourse of law determining the scope, application, and underlying values of law—or simply legal episteme—prior to positivism, posits that the content of law is set by a transcendental normative source above states. This overarching normative framework facilitates jurists in connecting law, justice, and morality. Natural law jurists offer varying normative sources for this: nature, human nature, or religion. The transcendental quality of this understanding of law assumed law valid for everywhere and everyone. Contrary to natural law, positivism [which took hold among 19th century British imperial practices] argues that law belongs to a specific political community, such as a state. Denying the need of moral justification for law outside of the law itself, positivism reduces the morality of law to law’s contractual quality and its instrumental rational foundations. Thus, the form, not the content, validates the law. Essentially, a law is valid if it is legislated and enforced by a sovereign ruler serving the state’s utilitarian goals.
Have you read The Dawn of Everything: A New History of Humanity by David Graeber and David Wengrow? It is a different take on the arc of history.