Excerpt from The Culture of Make Believe

John Marshall (p. 11)

From chapter "Uncovering"

In 1823, U.S. Supreme Court chief justice John Marshall wrote a decision remarkable for its candor about a subject we would all generally prefer not to acknowledge: The means by which the United States government, and more broadly EuroAmerican culture, took possession of this continent. By now there can be few who still believe the continent was empty when the Pilgrims and other colonists landed here, or that, for whatever reason, the original inhabitants—the Indians—held no prior claim to the land. To this day, the federal government admits that 33 percent of the land mass of the continental United States was never ceded by treaty, and, therefore, is held illegally. How, then, does the government, and once again more broadly do we nonnatives, justify possession of this land?

Here’s what Marshall had to say about it. In a case called Johnson V. M’Intosh, Marshall declared that “discovery gave title . . . which title might be consummated by possession.” He reasoned, “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.” Translation: If conquest forms the basis for your community—if your community would simply not exist without it—conquest cannot be questioned.

He was explicit: “However this . . . may be opposed to natural rights, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.” He also said, “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be.” Let us translate this as well: If an entire system is based upon an injustice, the Supreme Court can do no other than to codify this injustice into law. To translate it further, and perform a perhaps forgivable anachronism: To kill one Indian may or may not be a “hate crime”; to dispossess an entire culture may “be supported by reason, and certainly cannot be rejected by Courts of justice.”

***

What is a hate crime? What is hatred? What, for that matter, is a crime? When discussing hate groups, why do we so often constrict our vision to include only the most absurd, the most grotesque, the most individual or small-scale of crimes? Why not go after larger targets? What about hatred or exploitation that is systematic, that is codified, that hides behind the screen of law, religion, philosophy, science? Certainly the Nazis cloaked their hatred of those they decreed untermenschen—less than human—in the language of science: eugenics, crazed biological determinism cohabiting with social Darwinism. And what about hatred masquerading as economics?