The ATLANTIC: Liberal Supreme Court Justices Should Use Broadway Musical "Hamilton" to Retcon the Constitution
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Back in February, some readers of my Taki’s Magazine column “Alexander Hamilton, Honorary Nonwhite” were baffled by why I was devoting so much attention to a Broadway musical about a rapping version of the apostle of Wall Street and the Imperial Presidency. But time is validating my concern.

From The Atlantic, a deeply serious article by a white liberal law professor about how Hamilton the Broadway musical can be exploited to change the Supreme Court forever:

Will Lin-Manuel Miranda Transform the Supreme Court?

With the success of the Broadway hit Hamilton, Americans have been given a new version of the Founding Fathers—one that could open the door to a more liberal interpretation of constitutional originalism.


It is hard to know which was less foreseeable: that a reality-TV star with no government experience would be the Republican nominee for president or that the smash hit of Broadway would be a rap opera about the man behind the Federalist Papers. But there is a reason why the two phenomena arise at the same time, and there is a reason why that time coincides with the end of America’s first nonwhite presidency. The birther-in-chief’s campaign for high office and Lin-Manuel Miranda’s Hamilton: An American Musical speak to the same deep issues about American identity at a time when the nation’s demography increasingly resembles that of the larger world. They just approach the subject from different perspectives. One seeks to protect an America that is still mostly white and Christian against Mexicans, Muslims, and other outsiders deemed dangerous. The other is so confident in the multiracial future that it rewrites the American past in its image. …

By the way, the cheapest pair of tickets for Hamilton available via TicketMaster are priced at $2,793.96.

As I wrote in February:

A simple model that helps make much about the modern world easier to comprehend is that of a high-low tag team against the middle. As part of a time-tested strategy of divide and rule, the rich tend to push for policies and attitudes that increase identity-politics divisiveness—more immigration, more Black Lives Matter rioting, more transgender agitation, and so forth—which makes it harder for the nonrich to team up politically to promote their mutual economic interests.

You could call it: “Diverse and Conquer.”

A striking example of how identity politics turn in practice into the Zillionaire Liberation Front has emerged in the war over which Dead White Male to kick off the currency to make room for a woman: the $10 bill’s Alexander Hamilton or the $20’s Andrew Jackson. Bizarrely, the reactionary genius Hamilton, apostle of rule by the rich, is rapidly morphing in the conventional wisdom’s imagination into an Honorary Nonwhite.

As Hillary Clinton said shortly after my “Alexander Hamilton, Honorary Nonwhite” column:

“If we broke up the big banks tomorrow,” Mrs. Clinton asked the audience of black, white and Hispanic union members, “would that end racism? Would that end sexism? Would that end discrimination against the L.G.B.T. community?,” she said, using an abbreviation for lesbian, gay, bisexual and transgender. “Would that make people feel more welcoming to immigrants overnight?”

At each question, the crowd called back with a resounding no.

Back to The Atlantic:

The result of this contest will shape the future of constitutional law. If Donald Trump is elected, the Republican Party may extend its hold on the Supreme Court into the indefinite future. If he loses, the Court will have a majority of Democratic appointees for the first time since 1970. But that prospect, momentous enough on its own, understates the transformation that may be coming. To see the larger possibility, one must imagine not just a majority-Democratic Supreme Court but a majority-Democratic Supreme Court in a world after Miranda’s Hamilton.

What Does It Mean to Be a Republican?

The writing of the Constitution is part of America’s origin story. Not coincidentally, judges as well as other Americans commonly read the Constitution through their assumptions about the Founding generation. … What shapes constitutional law, however, is not the actual original meaning of the Constitution. It is the original meaning of the Constitution as imagined by judges and other officials at any given time. And how judges imagine the original meaning of the Constitution depends on their intuitions—half historical, half mythical—about the Founding narrative. If you can change the myth, you can change the Constitution.

Hamilton is changing the myth. For decades, originalism in constitutional law has had a generally conservative valence. Now, week by week, the thousands of patrons who pack the Richard Rodgers Theater and the hundreds of thousands more who listen obsessively to Hamilton’s cast album or download the viral videos are absorbing a new vision of the American Founding. And so the balance shifts. With the Supreme Court on the brink of moving leftward and Hamilton electrifying audiences from the Grammys to the White House, the lawyering class’s intuitions about the Founding are poised to change. The blockbuster narrative of this election year retells the nation’s origin story as the tale of a heroic immigrant with passionately progressive politics on issues of race and on issues of federal power. The audience is on its feet. So to all those Americans who expect original meanings in constitutional law to support mostly conservative outcomes, here is your Miranda warning: Within the foreseeable future, a jurisprudence of original meanings may fuel the most progressive constitutional decision making since the days of Chief Justice Earl Warren. Just you wait.

Just you wait, indeed.

From the late 1930s until the early 1970s, the Supreme Court was an agent of progressive social change. The justices issued landmark decisions on racial desegregation, voting rights, free speech, criminal procedure, and sex equality. The Court also authorized active federal management of the national economy, ambitious social-welfare programs like Medicare and old-age pensions, and a host of other new departures that would earlier have been thought to lie beyond the federal government’s jurisdiction. Millions of Americans saw the Court as a heroic vanguard, a symbol of American ideals on the march.

By the way, remember how the Times Square theater district flourished in the 1970s from the Miranda ruling and other liberal Warren Court decisions? Remember how 42nd Street was the happiest place on earth after liberalism got done with it? Here’s Times Square ten years after the Warren Court’s Miranda v. Arizona decision:

And here’s what Times Square looks like recently after 20 years of law-and-order mayors of New York City:

Somehow, I suspect the upcoming Hamiltonized Supreme Court will find some Constitutional penumbra exception to keep Times Square looking like Lin-Manuel Miranda’s in 2016 rather than Travis Bickle’s in 1976. After all, it would be a betrayal of Alexander Hamilton’s legacy for rich New Yorkers to be inconvenienced. But for you flyover folks in Ferguson and Dubuque, just you wait …

… But the complete explanation for the difference in liberal and conservative attitudes toward originalism is broader, and one big part of that broader framework has to do with race. The Founders were a cohort of wealthy white men, many of them slave owners. …

But this liberal take on original meanings was never able to tap into the full power of old-time originalism, because the greatest cache in American constitutional culture lies, for all its faults, in the generation of 1787. …

One cannot know in advance how deeply a Broadway musical will change American intuitions about historical narrative. But it is hard to overstate the preliminary indications. Hamilton is a Pulitzer-Prize winning production whose cast album has gone platinum faster than any album in the history of Broadway. The music is blow-the-roof-off amazing, with both the musical-theater crowd and the leading lights of hip-hop exclaiming hosannas. The audience is not just listening; it is rapt. In cooperation with the Rockefeller Foundation, Hamilton’s production company has staged special performances for tens of thousands of students in New York City’s public schools. Soon, a collection of touring companies will bring the show to audiences across the country. If art can change ideas—and of course it can—then it does look like a new vision of the Founding is ready to rise up.

As a weapon of social change, Hamilton is trained directly on the intuitions that previously made the Founding the differential property of conservatives. In part, this is a matter of the substantive political values that Miranda’s protagonist represents, both on the structural issue of federal power and on currently salient social issues like immigration. But Hamilton’s larger enterprise is exploding the politics of racial memory that have, in recent decades, made liberals queasy about embracing the Founding too closely. On that score, Hamilton attempts nothing less than regime change. Not in the sense of replacing the president with a different president, but in altering the way that Americans—of all races—think about the identity of the republic.

The show takes barely 30 seconds to establish its perspective on this issue. In the opening sequence, half a dozen nonwhite rappers take turns contributing verses to an introduction of the title character. … Hamilton does something new. The same African-American actor who announces, in the play’s first minute, that this story will neither hide slavery nor deny its brutality also refers immediately to the white-man title character as a “brother.” Hamilton, announces the nonwhite cast communicating in a paradigmatically nonwhite genre, was one of us. Not because of some bizarre claim that the first treasury secretary was actually not a white man. But because we see him as ours. (The next rapper calls Hamilton “our man.”) …

The audience sees a company of modern Americans—mostly African-American, and entirely nonwhite—rapping out an origin myth for the $10 Founding Father, who is their brother, even as they invoke the horror of slavery.

My impression is that genuine rappers, as opposed to Broadway chorus boys, are more into the $100 Founding Father, because he’s on the Benjamins.

… It aims to give nonwhite Americans today access to the cultural power of the Founding by showing that black people can own the characters of men who owned black people—and that they can do so without either muting their own blackness or overlooking the evils of the past. … It aims to let nonwhites feel ownership of the Founding, not by offering nonwhite historical figures with whom to identify but by creating conditions in which a black American today, as a black American today, can identify with Washington, or Hamilton, or even perhaps with Jefferson, villain though he be.

When it comes to the less-famous characters, the play may even succeed in the remarkable feat of getting the audience to imagine 18th-century white men as black men, perhaps without realizing that they are doing so. …

And who is to say whether what the show does for less-famous characters today is a harbinger of what it, or its successors, will do for Washington and Jefferson in the future? The leading Founders are already figures of myth. That’s precisely what makes them potent in the rhetoric of law and politics. How people imagine mythical historical figures is at least as much a function of their own mental maps as it is a function of dispassionate history. As long as the mental maps of Americans feature deep social cleavages on the basis of race, the historical fact that the Founders were white will figure in citizens’ images of Washington and Jefferson. But in a future America, one that was thoroughly multiracial and egalitarian, a nonwhite image of Washington might be no more jarring than dark-skinned images of Jesus have been among nonwhite Christian populations around the world. At that future juncture, the argument that Hamilton misrepresents the 18th century would be like the argument that originalism is a bad way to make most constitutional decisions. As a matter of intellectual analysis, it’s a pretty good point. But it’s a complex and inconvenient point, and it is unlikely to withstand the power of a good story. Hamilton tells a pretty good story, with thumping good music to help it along. By the time you leave the theater, maybe even Washington is a little bit brown. Or at least, maybe one of the images of Washington residing in your brain is a little bit that way.

… The question is then not whether Hamilton does justice to the past by depicting it accurately but whether Hamilton builds justice in the present by reallocating the ownership of the republic.

To put the point more cogently: “Who controls the past controls the future; who controls the present controls the past.”

Broad public absorption of Hamilton’s vision would not replace a false picture of the past with a true picture. It would replace one false picture with a different false picture. In scholarship, that substitution would not be an appropriate aspiration. But in the politics of national identity, the practical alternative to the reigning myth is never a careful historical understanding. It is always some other myth.

The success of Hamilton’s project would mark an inflection point in the politics of American memory. … But if Miranda’s frame replaces Marshall’s, or even just competes with it, then white liberals can be less ambivalent. Surely white liberals can lay as much claim to the Founders as their nonwhite allies do. … And when liberals appropriate the Founding, they will emphasize both consciously and subconsciously those sources that can be made to do work for liberal causes in modern constitutional law. Some of those causes will coincide with the politics of Hamilton, or those of Hamilton, or both. Others may not. But we can be confident that the meanings that liberals give to the Founding, once they are inclined to play the game of originalism, will be liberal-leaning meanings. What matters is who tells the story.

As Lenin liked to say, the central questions in politics are always “Who? Whom?”


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