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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

I co-created Rockbridge Civil Discourse Society in 2017 and moderated the Facebook page until exiting last August. I’ve since returned, but no longer try to moderate. The following week-long conversation is taken verbatim from a comment thread branching from Robert Cook’s very accurate observation that the page had descended into “notifications reflecting insults, ad hominem, dismissing arguments instead of addressing them, and teaming into camps to oppose different perspectives. I’ve wanted to engage in this conversation–as an educator in a school district where CRT and the 1619 project is at the center of debate–but the environment on this page has not been conducive to conversation, but rather partisan politics and mud-slinging… Given the ideological diversity of RCDS, we need to consider how our interactions on this platform relate back to depolarization. I think Lincoln’s remarks on the Temperance movement in his Temperance address (attached below) speak volumes to this. If we truly are seeking understanding and depolarization, then we need to be sincere about it.”

AARON: Thanks for the reminder. I appreciate your Lincoln quotes. I would encourage everyone here to read our friend Dr. Lucas Moral’s “Lincoln and the Founding” if they are interested in understanding what Lincoln might have thought about “1619”.

CHRIS: Aaron, I’ve not read Lucas’ essay, and I also haven’t read any of the 1619 Project essays either. Have you read any of them?

AARON: I’ve read his essay and his book, “Lincoln and the Founding” (although he doesn’t specifically name “1619” in the book but the entire subject addresses Lincoln’s unwavering believe in the idea that America was founded on principles of liberty in the “spirit of ’76” and that the Fathers foresaw the eventual death of slavery. I have read excerpts from the 1619 essays but have not read them in entirely. I fully reject the premise of their foundational argument that America’s “true” founding was with the first trans Atlantic slave ship.

CHRIS: Since you express strong feelings against the 1619 Project, I think you are intellectually obligated to read at least one of the essays in its entirety and not rely on someone else’s summary and selections. I say that with no expectation that reading an entire essay will alter your opinion and I suspect you will find more to object to. But I don’t think you currently have an opinion–you have someone else’s opinion. I get tired of hearing the Project repeatedly mentioned as a GOP talking point from people who haven’t read any of it. I’m also saying this to you because I think you are one of the few conservatives on this page who would actually care enough to read it and so have the basis for formulating a legitimate opinion.

AARON: I saw that one coming. 🙂it’s a fair point. I’ve downloaded it and will accept your challenge. I’m on vacation this week and should have time to thoroughly digest it. In return, I’d ask that you at least read this Wiki on it and keep an honest open mind when reading the criticism. I’d also once again encourage Lucas’ book as he is a Lincoln expert. It’s a short read, maybe 5 hrs. 

CHRIS: Aaron, I’m out of town right now too, so no worries. How about you select one essay from the Project, and we both read it? I think Lucas’ essay is a response to one specific essay, so that might be a good choice?

CHRIS: “One crucial “1619” installment is a 7,300-word essay by Nikole Hannah-Jones titled “Our Democracy’s Founding Ideals were False When They Were Written. Black Americans have Fought to Make Them True.” 

AARON: I read “our founding ideals were false”. My copy didn’t have footnotes with references so I am taking everything she quoted from our founders as being truthful. Let me know when you want to discuss.

CHRIS: I’m about half way through. Happy to discuss at any time.

AARON: So, I’ve thought a lot about how to articulate my opinion on this essay. As you know, Facebook is a great platform for quick and pithy responses. Cleary, this is going to require more in-depth critique- especially if I’m going to portray my sincere desire to be a productive member of our society actually trying to mend the race relations. Not being an academic, I’m sure I won’t be nearly as disciplined in my line of thought as many on this page.

Firstly, I want to agree with Hanna-Jones when she says that the plight for liberty of Black’s in America is *very* much an integral piece of our “Great Experiment”. With 6,000 years of recorded history, the last 250 years of the attempt “self-government” and fundamental basic rights in USA has been an awesome advancement of human political structure. Watching America grown in it’s understanding of personal liberty is a fun experience.

Other than that, I fundamentally disagree with most everything else she presents; primarily, her narrative. When reading the essay, I was reminded of Obama’s pastor, Jeremiah Wright saying, “God Damn America” in a “sermon”. Apparently along the way of him “shepherding” his congregation, he expressed the belief that the American government developed the AIDS virus to control the black population. It’s no wonder that folks like Hanna-Jones write essays with this narrative if they’ve been sitting in the pews of someone continuing to preach these types of storylines (I have no idea if she has heard Wright’s sermons but assume that he’s not the only pastor with these kinds of storylines).

I was desperately hoping to see her end her essay by finally understanding why her father flew the American flag and that she now see’s hope that the “Stars and Stripes” symbolize the attempt for people that “even look like her” to chase after liberty and justice for all. In my opinion, *that* would have at least brought some sense that she was attempting to be a positive energy in trying to make America better. Instead, she leaves us (and now presumably our public-school children since this is going to be taught in schools) with the impression that she still thinks her father was a fool for flying the American flag. Instead, she came off as only trying to tear us apart.

I need to go right now and realize that I haven’t actually presented any official counter argument. I don’t expect you to respond to this because as of right now, it’s only my “emotional” experience to reading it. I fully expect you to have had a vastly different take.

I’ll try to formulate my best line of attack on her factual misunderstandings of our founding and *why* her narrative is false as soon as I can.

AARON: Let me make one more post to help put into context why my antenna are raised with 1619/Critical Theory/BLM and help frame my ideas as to why I’m suspicious of ulterior motives. I remember when Michelle Obama was stumping for her husband and made a couple of surprising claims. The first was the quote, “For the first time in my adult life, I’m proud of my country.” That’s an astonishing claim. Nobody claims that America is without sin but to take it to that extreme made me scratch my head. Then, even more interesting to me was her statement of, “Barack knows that we must fundamentally change America.” (Barack doubled down on the commitment when he said this, “We are five days away from fundamentally transforming the United States of America.” — Barack Obama, October 30, 2008). Things become more sharply focused when one realizes that those quotes came from 2 people that let the G.d D..n America “Reverend” be their spiritual mentor for 20 years.

I’ve mentioned several times in RCDS of my interaction with the young college grad who pulled the ad hominine attack on the Constitution with the argument a) Founders had slaves so, b) Founders were immoral, c) Founders wrote the Constitution so, d) Constitution is immoral. A few years later and I am witnessing statues of our Founders being toppled.

When I put all this together, I start to wonder if there is a coordinated attack on our fundamental ideals of a free society with limited government and equal protection – especially when I read that public schools are planning to teach the children, “Our Founding Ideals of Liberty and Equality Were False When They Were Written”. The attack, I fear, is based on the desire for collectivism and the need for redistribution. The pesky Constitution puts major road blocks on the government’s power to take property from one person and give it to another simply because some people have been blessed with more than others. I’m afraid the desire to erode the Constitution is a real threat and I bow up when I hear, “It’s a living and breathing document.”

One might argue, “but the white guy got rich off the backs of the black guy 250 years ago”…it’s a fair point but, as I’ll argue later, our founding ideals and Constitution with it’s concept of Federalism and check/balances do make the wheels of justice grind slowly but are designed to keep history’s biggest monster, Despotism, from rearing his ugly head. In my opinion, the answer for sins that happened 250 years ago is for a blind Lady Justice *today*. Giving the power of redistribution to the government is opening Pandora’s box that *will* eventually destroy “Liberty and Justice for all”. As you’ve heard me say before, what happens in a democracy when the *majority* decide it’s time for some “redistribution” into *their* bank accounts?

AARON: So, here’s my first attack on the actual essay itself. Again, I’m sure I won’t be as disciplined with my line of argument as you Phd’s but hopefully I will establish my positions albeit somewhat clumsily.

First, I think we need to put 1776 Americas into context when it comes to slavery. If you will excuse the crude metaphor, I think that the colonies were not unlike a prostitute addicted to the crack her pimp got her hooked on. Europe force fed the slave trade to the Americas as they benefited from it and very soon after our Independence from England, we began our difficult “de-tox” of eradicating it from our new nation – Our new nation that began in 1776, *not* 1619. The new “America Experiment” of a “more perfect union” that was beginning its journey of liberating man from despotism.

Let me roll out a time table for us to put things into context. 6,000 years of repeated kingdoms of tyranny in human history (admittedly with sprinkles of liberal thought) and along comes the 18th century “classic” liberalism. The colonies had slavery for 120 years before becoming a new nation- starting in 1655 (ironically the first slave in America was actually *owned* by an African American- Anthony Johnson) to our Declaration of Independence.

1776- Declare Independence

1783- War ends- America as we know it begins to be able to focus on it’s actual identity as it’s no longer all consumed with the war effort.

1787 – N.W. Ordinance prohibits slavery in the only territory the federal government owned. That’s only 4 years after the war.

1789- Our Constitution was Ratified

1808 – President Thomas Jefferson signs into law the ban on *all* importation of slaves. That’s the author of our Declaration and major contributor to our Constitution signing the law only 19 years after our Constitution was ratified. As a perspective, Bill Clinton’s term with Monica Lewinski to today’s “me too” movement has been 26 years. 19 years is *not* a long time for laws to evolve.

When Jefferson wrote our Declaration of Independence, he was not proclaiming that in the new nation’s current state, all men were going to immediately or currently enjoy the liberties he was espousing. The Declaration was setting the course for the underlying principles that the new nation would begin to govern under and confer upon its people as soon as circumstances permit. As a side note, Jefferson’s original draft of the Declaration condemned the King for, “prostituting his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce determining to keep open a market where men should be bought and sold.”

Ironically, our founding ideals of limited government with its checks and balances and concept of federalism did in fact slow the process of eradication of slavery as our founders were committed to giving the independent states a healthy voice in the laws of the land and refused to give the Executive the power to dictate by fiat.

****Hanna-Jones’s claim that protecting the institution of slavery was an impetus for the revolution is poppycock****

CHRIS: Aaron, tons of smart things to respond to here, but let me start with your big picture claim: there is a coordinated attack on our fundamental ideals of a free society with limited government and equal protection based on the desire for collectivism and the need for redistribution. And Hanna-Jones’ essay gives ulterior support to that ultimate goal.

I can’t read Hanna-Jones’ mind, just her words, but I can (mostly) know my own mind, and I know that I don’t share any such desire or am participating in any such attack. And to the degree that I can know the minds of the many many progressive friends and family members I know and have known over the decades, they don’t either. I think you’re being mislead into believing progressives want to “take property from one person and give it to another” (and my support for raising taxes by a couple of percentage points on the highest tax brackets is NOT that, especially given how tiny that increase would be in contrast to taxes from the 1950s to the early 1980s).

But I do agree with your assessment that this argument is nonsense: “a) Founders had slaves so, b) Founders were immoral, c) Founders wrote the Constitution so, d) Constitution is immoral.” But people like Hannah-Jones are NOT making that argument. I would normally just dismiss that as a strawman, but from your comments I see that you are being sincere. You think that is Hannah-Jones’ secret point and so you are arguing against it even though she doesn’t state it.

CHRIS: What’s surprising to me though is how much you and Hannah-Jones AGREE and yet you don’t seem to recognize that. I think the essay supports your claim: “our founding ideals and Constitution with its concept of Federalism and check/balances do make the wheels of justice grind slowly but are designed to keep history’s biggest monster, Despotism, from rearing his ugly head.”

She starts by admitting she didn’t understand her father’s overt patriotism but now she does. The essay embraces the ideals of the founding documents. “Black Americans have also been, and continue to be, foundational to the idea of American freedom. More than any other group in this country’s history, we have served, generation after generation, in an overlooked but vital role: It is we who have been the perfecters of this democracy… Without the idealistic, strenuous and patriotic efforts of black Americans, our democracy today would most likely look very different — it might not be a democracy at all.”

That compliments what you say here: “When Jefferson wrote our Declaration of Independence, he was not proclaiming that in the new nation’s current state, all men were going to immediately or currently enjoy the liberties he was espousing. The Declaration was setting the course for the underlying principles that the new nation would begin to govern under and confer upon its people as soon as circumstances permit.”

She also isn’t eliminating parts of our history but adding to it the parts that have been too ignored. She writes: “the year 1619 is as important to the American story as 1776. That black Americans, as much as those men cast in alabaster in the nation’s capital, are this nation’s true ‘founding fathers.’ And that no people has a greater claim to that flag than us.”

So while now agreeing with her father’s patriotism and reverence for the flag, she recognizes that it’s focused on the ideals of our country, and not on the flawed human beings who wrote the actual words. She writes: “The United States is a nation founded on both an ideal and a lie.” She, like you, embraces the “ideal.” But unlike you, she rejects the lie that our founders should be deified and that love of our country and its ideals must be linked to a love and respect for them as our heroes.

She writes: “Our founding fathers may not have actually believed in the ideals they espoused, but black people did… For generations, we have believed in this country with a faith it did not deserve. Black people have seen the worst of America, yet, somehow, we still believe in its best.” They persevered through the monstrous despotism of slavery and Jim Crow by believing in the ideals of the founding documents and that because of them the wheels of justice were grinding forward.

You and Hannah-Jones agree about much more than you disagree.

CHRIS: I think it comes down to this: you think toppling statues of the American founders (metaphorically and literally) is a step in toppling America and its ideals. Hannah-Jones (and I) think recognizing the undeniable fact that the founders were white supremacists (they consciously believed in the innate inferiority of black people, regardless of whether they also believed that inferiority should allow slavery) is another step in the long grinding process of actualizing our American ideals. Worse, I think (and I say this respectfully and even lovingly) your misreading of Hannah-Jones and others makes you an impediment to the ideals that you so sincerely do believe in. Hannah-Jones wouldn’t have written that essay attacking the founders if the founders weren’t falsely deified. You think her attacks are divisive. I think your false reverence is.

CHRIS: But I think likening our slave-owning founders to “a prostitute addicted to the crack her pimp got her hooked on” is a good start. Sadly, they suffered that addiction long after the pimp got himself off it (England abolished slavery in 1833).

AARON: Chris, she makes the case that, “this country was founded as a slaveocracy not a democracy”. Her narrative is a lie. It’s false narratives like this that have gotten us to the point of the psychiatrist “fanaticizing about killing all white people”. I have never “deified” our founders. I recognize their sins. They are the same sins that allowed the first slave *holder* in America to be a *black* man. They are the same sins that had the African tribes “round up” the other Africans to sell them to the traders (often to the mid-east Muslim) These are *not* sins unique to “the white guy”. This is simply a false history. 81 years after our Constitution was ratified, a black man could vote. Most likely someone was born before the Constitution was written and eventually cast a vote. Comparing the Colonies to England in the ease of which they got rid of Slavery is comparing apples to oranges. Our entire economic commerce was in need of complete overhaul in the South. Our system of governance of checks and balances and federalism compared to a monarchy makes substantial differences in this story.

CHRIS: Aaron, I agree “These are *not* sins unique to “the white guy”. But who is suggesting they are? I’m not, and neither does Hannah-Jones in the essay.

AARON: Then why no mention of the first American Slave *owner* being black? Wouldn’t that have been a great way to make sure the reader doesn’t assume she’s only attacking the white guy?

CHRIS: Yeah, I agree. An essay that welcomed white guys in by being careful of their feelings of being attacked would almost certainly be more persuasive.

CHRIS: I don’t know what exactly a “slaveocracy” is, but I think the invented word usefully points out the problem with calling a nation where so many of its members are enslaved a “democracy.” That word means: “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.” The significance of “or” is massive in this case. The US certainly has grown into an actual democracy, but I think it’s more than fair to point out that “we the people” originally meant something closer to just white, property-owning men. I take “slaveocracy” to mean something like “a democracy with slavery.” Since slavery is one of the very worst examples of the monster of despotism, I think it’s also fair to combine the two words to illustrate how they and so our early nation was contradictory. Saying that “81 years after our Constitution was ratified, a black man could vote” is also saying that for 81 years no black man could vote. And of course voting was the least of the rights black people were horrifically deprived of during those decades.

CHARLES: Aaron, well said and supported, thanks 👍

DAVID: Aaron, I’m appreciating following your and Chris’s conversation, but a quick note here. The Clinton-Lewinsky affair should not be considered the driver for the Me Too movement.

The focus of Me Too is on non-consensual (particularly including forcible) sexual behavior. What happened between Bill and Monica was an affair, but the sexual behavior was consensual. The driver instead was the experiences that virtually every (if not every) woman has had throughout their lives. You could maybe point to Ronan Farrow’s investigative reporting of Harvey Weinstein in 2017, if you want a more specific event.

CHRIS: Aaron, let my try this again:

Slavery is immoral. Slave-holding is immoral. The founders were slave-holders. So to the degree that the founders were practicing something immoral, they were themselves immoral. And they were still immoral even if they can be shown to have been less immoral than others in their time period.

The founders also wrote our founding documents which express some powerfully important ideals that Hannah-Jones overtly embraces in her essay. Are those ideals tainted by the personal immorality of the founders? Not if we divide the founders from those documents and so those documents’ ideals.

But if you believe that toppling a statue (which I don’t support) is the same as or part of toppling the ideals of the founding documents, then you are not dividing the two. You seem instead to see them as inextricably connected.

I (and I think Hannah-Jones) would like to divide them–because not dividing them incorporates the monstrous despotism that our founders explicitly participated in, which then DOES taint our founding documents as horrifically hypocritical. The only escape from that destructive hypocrisy is to divide the documents from the people who wrote them.

The founders were white supremacists. The US was a white supremacist nation for many many decades. Those facts are profoundly unpleasant but also vital to acknowledge. Hannah-Jones wouldn’t have written her essay if they were commonly accepted facts. When they are commonly accepted, her essay and the rest the 1619 Project will fade into obscurity because they will no longer serve a function.

ROBERT: Chris, speaking to the Hypocrisy point in your response here, Steven Douglas and Lincoln had a debate over whether the Declaration of Independence was Hypocritical or not. Douglass argued that if the founders intended to include African Americans in the all are created equal statement, then the founders were hypocritical. Lincoln disagreed here, and acknowledged that while the founders were slave owners, they were thinking ahead towards eventual abolition (this argument is carried throughout Lincoln’s speeches even to the cooper union speech that I referred to in this post). His argument in the debate is supplemented by his speech on the Dred Scott decision–that the founders were forward thinking, knowing that while they themselves were not perfectly enacting the founding ideals they were charting the course for their enduring pursuit to ensure them. I recommend looking at these pieces. The hypocrisy argument was used to justify slavery. Either they were visionaries looking beyond their generation–as Lucas Morel, Aaron Bruce, and myself would argue–or they did not intend to include all when they said “all are created equal” as Douglass asserted.

CHRIS: Hi Robert. To be honest, I don’t particularly care if the founders were personally hypocritical or not. While it might be an interesting historical question, their personal traits are ultimately irrelevant when evaluating the worth of the documents they wrote. So neither Douglass’ nor Lincoln’s interpretations matter much. The founders could personally be hypocrites, visionaries, and/or other things, but that doesn’t determine anything about the ideals expressed in the founding documents. To argue in defense of slavery by saying that the founders were hypocrites is to see the documents and the founders as essentially the same thing—which is exactly the opposite of my point, and I think Hannah-Jones’. Have you read her essay?

CHRIS: Robert, your point about the founders’ visionary foresight and Aaron’s parallel focus on the history of slavery in the US seem to be making the argument that our founding documents (meaning the ideals expressed in them) ended slavery in the US—not immediately, but eventually and relatively quickly. And yet slavery ended in the UK in 1833 without the aid of those founding documents, while 4,000,000 Americans remained enslaved at the start of our Civil War. Though, yes, there are definitely very “substantial differences” between the two countries and their histories of slavery, “our founding ideals and Constitution” did overwhelmingly fail to keep “history’s biggest monster, Despotism from rearing his ugly head” for those 4,000,000 Americans and so for America as a whole. The ugly head of slavery was then replaced by the ugly head of Jim Crow for another century.

Despite that, you, Aaron, Lucas, and Hannah-Jones agree about the extreme importance of those founding ideals.

CHRIS: Hannah-Jones concludes her essay:

“I wish, now, that I could go back to the younger me and tell her that her people’s ancestry started here, on these lands, and to boldly, proudly, draw the stars and those stripes of the American flag.

“We were told once, by virtue of our bondage, that we could never be American. But it was by virtue of our bondage that we became the most American of all.”

This is a woman who expresses profound love of her country and the ideals embodied in its flag.

AARON: David, tell that to Matt Lauer.

DAVID: Aaron, Matt Lauer (apparently) engaged in sexual assault. I don’t think that in any supports your conjecture that a presidential affair from decades ago was the driver for the Me Too movement focused non-consensual sexual behavior.

AARON: I’m pretty sure that it was consensual with an assistant…but whatever. Let’s not hijack the conversation. The point is that 19 years is a very small time in the development of civil laws.

DAVID: Aaron, you are again mistaken that the Clinton-Lewinsky affair was related to the Me Too movement focused on assault and other non-consensual sexual behavior. I’m not sure why you want to insist that they are related, and Lauer having affairs in addition to being a sexual assault perpetrator doesn’t change the focus the movement. Yeah, I don’t think it is a big deal, either, and I am interested in the main conversation here continuing and in hearing your responses to Chris, but I do think we should be accurate when talking about a movement like Me Too.

CHRIS: (MeToo started in 2006, but didn’t become known until used as a twitter hashtag in 20017 in response to the Harvey Weinstein scandal. The movement addresses both sexual assault and sexual harassment—so had it existed in the 1990s, I assume today’s members of MeToo would have understood the massive power difference between the President of the US and an intern to fit under the category of harassment even though the 22-year-old Lewinsky was consenting while having sex with her 50-year-old boss. Matt Lauer was fired over allegations of sexual harassment in 2017, and then afterwards he was also accused of sexual assault. Which means I agree with you both: no, a presidential affair from decades ago was not the driver for the Me Too movement; however, it is unclear that Aaron was actually insinuating that idea when he said: “Bill Clinton’s term with Monica Lewinski to today’s “me too” movement has been 26 years.” Can we keep talking about Hannah-Jones now?)

CHRIS: Aaron and Robert, are we done discussing Hannah-Jones? Or Lucas’s response to her essay? For what it’s worth, Aaron, I think your (and Lucas’s) objection to her claim about slavery is fair: “Hanna-Jones’s claim that protecting the institution of slavery was an impetus for the revolution is poppycock.”

AARON: I suppose that I am finished…I was going to spend some more time with the line of argument about our checks and balances with federalism compared to late 18th century European governments to help explain why it might have taken longer in America to eradicate slavery other than the easy out of “our founders were more racist than Europeans.” I just read a quote from a n.y. times contributor about how she’s triggered by too many American flags…if Hannah-Jones meant to send the message that it’s ok for her to embrace the flag like her dad did, some people aren’t getting the message.

CHRIS: I guess I just don’t really understand why it matters to you or anyone else whether or not our founders were or were not “more racist”? They were racist–almost certainly less than some and more than others. So what? That fact is not relevant unless you make it relevant. I acknowledge it and move on, happy to embrace MLK’s view that “the arc of the moral universe is long, but it bends toward justice.” That bending is at least partly enabled by the ideals expressed in our founding documents. That’s fantastic and should be celebrated. So what do statues matter? They have literally nothing to do with embracing ideals. Clearly your emotional reaction to the essay (which you were smart to acknowledge in your very first comment) is evidence that some people aren’t getting her message that it’s more than okay for her and other black Americans to embrace the flag. I don’t really understand why that message isn’t getting through–because based on the passages I quoted (and which are highlighted at both the opening and closing passages), the message is overt. Maybe that’s actually the most important thing to discuss?

AARON: It matters because we want to see our nation *healed*. The false narrative that our nation was “founded on a lie” is creating *more* division. Conservatives don’t “deify” the Founders, we simply put them on their pedestal as inspiration because of their ideals that encourage to live by that standard. The vandalism of statues matter because we now have a significant number of citizenry that have been falsely taught that the systems that they have created are inherently unjust. I’m surprised that the symbolism of tearing down Thomas Jefferson’s statue is escaping you.

Yes, there are a few quotes of Hanna-Jones in the essay that give lip service to a halfhearted love of country but the general theme is embodied in this quote, “Our founding Fathers may not have actually believed in the ideals they espoused.” Chris- that does nothing to heal our nation. Two-fold- 1) it’s a false narrative, 2) even if it *were* true, the coach in me would say, “so what, quit worrying about the past and grab life by the horns *today*.”

She spoke of education in the essay and how poor whites were not educated either…that’d be “my” family tree (I certainly don’t come from rich plantation owner heritage). So what!?!? Me being jealous because someone else’s grandparents had a better education than mine does nothing to inspire me to continue pursuing excellence- it just makes me want to feel sorry for my lot in life.

Falsely pushing the idea that the system is rigged does a couple things- 1) keeps the black guy in a state of perpetual discouragement, 2) Keeps the black guy forever dependent on the handouts of Big Brother.

I’m glad to quote MLK. I think he’d be disgusted with the current Critical Theory/1619/BLM. I, like him, just want all men to be judged by the content of their character- the obvious implication… equal protection.

DAVID: Aaron, <<Me being jealous…does nothing to inspire me to continue pursuing excellence>>

I think this is mistaken. Your position relative to others matters for how likely you are to survive, what spouse you might end up with, what advantages your kids will get, etc. It would be evolutionary advantageous to have genes that made you care about how you compare with others. And, yes, our evolved feeling of jealousy serves exactly this purpose.

People get off on feeling ahead of others and have trouble with feeling behind others, and both of those motivate “keeping up with the Joneses” behavior. When people break down and just feel sorry for themselves is when they are so disadvantaged relative to others that they have no reasonable chance of not being behind.

I think it is good for people to understand how disadvantaged they are so they 1) won’t blame and feel bad about themselves for their outcomes in life 2) will be more focused on the real problem – the severe disadvantages that they and others face in our country.

I agree, incidentally, that the founding of our country was a HUGE step forward for humanity in terms of enhancing well-being. But there definitely was plenty more to be done then, and still plenty to be done today.

ROBERT: Chris, my insertion into the discussion was focused on the founders’ relation to their piece and how that is important. In that sense, my contribution was not related to the articles of focus, so it might be worth discussing the attachment of the founders in a different discussion.

Regardless, I think how the founders are viewed is less a historical question and more a philosophical one that has down stream impact upon the articles you and Aaron Bruce are discussing. I’ve been thinking about your comments a bit and here’s a not polished but structured response.

For one, Edmund Burke, the founder of modern conservatism had a tremendous emphasis on both the ideals and founders who made them. In his critique of the French Revolution in “Reflection of the Revolution in France”, he repeatedly admonishes the French for forgetting their founders’, and casting them away instead of venerating them and their principles. He then predicted the reign of terror a good few years before it happened. Conservatism as an ideology has placed importance on tradition and how that tradition was formed.

Secondly, attaching individuals to their action is a philosophical discussion in of itself. Why do we make monuments to some people, but for their actions? Stepping out of politics and into religion for a moment, to try to take Christ’s message but remove Christ is unacceptable in Christianity–granted unlike us, Christ did not sin and is the son of God. Moving back to government, politics, and philosophy, our founders spoke heavily about how we struggle with human nature, and Madison in his federalist papers acknowledge that government is the greatest reflection of human nature. From that basis, all fall short and if we were to have memorials made afterwards would have some reason for them to be removed. Either we choose to acknowledge the exceptional positive contributions of humanity or we should acknowledge no one.

Lincoln in his Gettysburg address honored the dead at Gettysburg not only because they sacrificed their lives, but because of their defense of the preservation and endurance of our founding principles.

“But, in a larger sense, we cannot dedicate, we cannot consecrate—we cannot hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it far above our poor power to add or detract.

The world will little note, nor long remember what we say here, but it can never forget what they did here.

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they here gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”

While dying on a battlefield is different from drafting the ideals those soldiers died for, is not crafting and dedicating a nation to those ideals not also worthy of those inspired by those ideals enough to defend them to their deaths? And is it not significant to recognize that the founders–particularly Jefferson–in writing those ideals considered their shortcomings as well? To have the humility to state a goal while saying you yourself fall short takes character.

Finally, yes the British did abolish slavery earlier because they had a more centralized system of government. An enlightened despot can end longstanding social ills through despotism. However, the people are then still not free. The founders as visionaries had a dilemma of a major social ill that was woven into the fabric of many states while also combating the despotism of Britain. If you read the Dred Scott speech I attached in my above comment, Lincoln accurately notes they did not have the power to solve both problems and get buy in from all the colonies. They sought to declare the right and as circumstances permitted the nation would shift in better alignment of those ideals. A change in character, particularly brought upon by oneself, takes tremendous time and effort. Declaring the rights to Life, Liberty, and Pursuit of Happiness while limiting government is the longer path to abolishing slavery. But it does prevent enduring despotism. In fact, it is the opposite model of Marxism. Karl Marx explained the Proletariat would seize the means of production, establish a strong socialist government to create equality, and then the state will wither away slowly into communism. The founders limited government and declared an ethos that the people attached themselves to and over time we have toiled hard to better align ourselves with that ethos while maintaining a limited government.

Russia, China, and other nations have taken Marx’s approach literally and they end up with neither a classless society nor freedom. Putin runs Russia and Xi Jinping runs China in defacto one party states that have a clear elites/commoners dichotomy. In contrast, while the US is still striving to uphold its ideals it has made substantial progress: abolishing slavery and removing oppressive Jim Crow era laws.

This whole 3rd point is yes, it is frustrating that America seems behind the times and slow to change. That is because we focus on finding the solution that results in growth of individual character, and not growth of government. That takes time. Much like how it took me two days to respond 🙂

AARON: thanks Robert, much better said than this ole construction guy could ever do. I appreciate your involvement in our group. Thanks for your encouragement to “be better’

CHARLES: Robert, awesome summary and, I believe, an accurate depiction of why it is so easy to be unfairly and often unjustly critical of good and great leaders and people for not being perfect enough. The fact is they did great things, the best they could, for future generations.

DAVID: Robert, I hope you don’t mind a little push-back, but I think it is mistaken of you to claim that the reason that positive changes aren’t made in the States is because “we focus on finding the solution that results in growth of individual character, and not growth of government”.

Who do you mean when you say “we”? Maybe some people look to create “growth in individual character” but other people definitely find public policy solutions (i.e. government) to be more effective. What do you even mean by “growth in individual character”? I think there would be growth in individual character if we could be more respectful of women’s decisions about carrying pregnancies to term, but I know some people would completely think the opposite of that. I think that phase ultimately doesn’t have much meaning.

Yes, your statement is a feel-good, yay-America sort of statement (which lots of people definitely like), but I don’t think there is really any data to support it. If you have good reason to think it, though, I would be interested to hear it.

ROBERT: David, by “we” at the end of my comment, I mean the US governing model’s emphasis on individual freedoms in contrast to the one party states of Russia and China. I am not talking about each and every individual.

After the Constitution was created by the Constitutional convention, Benjamin Franklin was asked what kind of government we have. His response was “a republic, if you can keep it.” The task of upholding our inalienable rights and preventing despotic government falls on the responsibility of the individual. Our Democratic Republic depends on individuals who respect the rights of all and act to preserve them. If the people do not, then government acts, risking despotism. Lincoln explains this issue in his Lyceum Address, that if people do not respect the law, if they fail to allow due process and instead act for themselves out of passion and violence, then despotism is inevitable.

So my statement is not data driven or empirical, it is qualitative–as most of my comments have been. It’s commentary and a reflection of the political theory our government was designed on. It’s really what our system of government expects us as individuals to do in order to function at its best. Unlike Russia and China’s governing models that demand obedience to the party or government through force, our model focuses on individual freedoms and utilizes federalism, separation of powers, and checks and balances. These tools allow the people to prevent government from becoming despotic, provided the people generally stick towards prioritizing our founding ideals.

DAVID: Robert, I appreciate the clarification. I think I better understand you now. So, I believe you are saying then that our governing model focuses on solutions that result in the growth of individual character (and that is why we are slow). I don’t know of anywhere in the Constitution that suggests that, and that doesn’t sound like something that would be in the Constitution, but can you direct me to any passages that do suggest that?

I don’t care about quotes from founders or former leaders because they made zillions of quotes (many that even contradict each other), and people from all sorts of different political perspectives find quotes to justify almost anything. Besides, such quotes aren’t the law of the land (that would make us slow or fast to change), only the Constitution is.

CHRIS: Aaron, Robert, and David, there’s so many important things to respond to, I doubt I can touch on them all. But first, let me start with what you said, Aaron.

Yes, of course vandalizing statues is wrong, and of course I recognize the symbolic significance. I’m certainly not calling for, or approving of, statues of any founders toppling.

Also, yes, my saying conservatives “deify” the founders is a distracting exaggeration.

But I think this is equally false: “a significant number of citizenry that have been falsely taught that the systems that [the founders] have created are inherently unjust.” That is NOT even close to the Hannah-Jones essay.

Could the fact that you hear “lip service to a halfhearted love of country” be due to your prejudice against the essay prior to reading it? You said at the start that you “fully reject the premise of their foundational argument that America’s ‘true’ founding was with the first trans Atlantic slave ship.”

But she actually writes: “the year 1619 is as important to the American story as 1776. That black Americans, as much as those men cast in alabaster in the nation’s capital, are this nation’s true ‘founding fathers.’”

And:

“Black Americans have also been, and continue to be, foundational to the idea of American freedom.”

The phrases “as much as,” “is as important,” and “have also been” are not about replacing the founders with an alternate single “true” narrative. They are about expanding our national narrative.

You also said she is “falsely pushing the idea that the system is rigged,” but her focus is entirely historical. She doesn’t say anything about today, let alone anything being rigged.

You even linked the essay to “the psychiatrist fanaticizing about killing all white people,” which would be guilt-by-association, except there is no link of association between Hannah-Jones and that psychiatrist in the news this week.

It seems this is the point that most disturbs you: “Our founding Fathers may not have actually believed in the ideals they espoused.”

But that seems self-evidently true to me. Yes, there is good evidence that, while practicing slavery, they ultimately foresaw and helped bring about the eventual end of slavery. But there’s also equally strong evidence that they believed black people to be innately inferior. Would the founders have been content with the Jim Crow America that replaced slavery? I don’t know. But abolition and equality are NOT even close to the same thing. Do you sincerely believe that they understood the phrases “all men are created equal” and “we the people” as we do today?

They were people of their time period. I’m not condemning them for that obvious fact. But I’m also not trying to erase what that fact actually means. Again, I think it’s NOT facing it that is divisive.

CHRIS: Robert, more briefly, yes, you’re right on multiple points, but some seem to move to other issues.

I trust your formidable knowledge that Burke foresaw the reign of terror, but your implied argument is that we therefore should revere our founders or face the same outcome. That is a two-hundred-year leap of logic based on a single data point. I don’t really see Burke providing much insight here.

We could also debate whether any memorials to individuals should be made, and perhaps none should—but memorials are a distant concern here, and not revering the founders (instead of the ideals expressed in the founding document) really has very little if anything to do with Lincoln honoring the war dead. Your implied argument is that not honoring the founders with memorials would be like opposing the Gettysburg Address.

Your third point is that the founders weighed difficult things and came up with the best possible balanced solution. Okay. But, again, that’s not really the question at hand. Let’s accept that’s true. They still personally profited from the grotesque despotism of slavery. They were still racists.

Why is that self-evident fact so difficult for folks to acknowledge?

ROBERT: David, as a historian contextualization is vitally important for understanding any historical document. The Constitution is itself a legal document, but it’s significance, purpose, and how it fits into the bigger picture of US history all depend on some form of context to give a greater understanding. To discount the commentary of the founders, I think, only serves to limit our understanding of the Declaration and Constitution, especially when considering how they relate to the concepts of inalienable, natural, and individual rights.

just like how in statistics, Data needs to be juxtaposed to see patterns, correlations, and in some rare cases causation. Historical documents only go so far when deprived of the context they were written in.

Case in point, the cooper union address linked in the initial post here, centers around the voting records of every signer of the constitution, concluding the vast majority believed it gave the Federal Government power to abolish slavery in the federal territories with only a small number of unknowns and 2 in opposition.

That being said, I will still respond to your question, not with quotes from the founders in their letters and speeches, but from the Federalist Papers, which were written to convince the different states, primarily the swing states of Pennsylvania and Virginia, of adopting the Constitution. Supreme Court justices across the ideological spectrum, from Ginsburg to Scalia, and from Rehnquist to Thurgood Marshall have relied on the Federalist Papers (and Anti-Federalist Papers) to better understanding the constitution as they gave the founders’ thought process in making the document. These papers will be the closest you can get to the founders explaining the constitution’s nuts and bolts and how they fit in the bigger picture.

Federalist 10 (written by James Madison) seeks to explain the structure of congress in how it addresses factions. Factions arise from every position under the sun. Our political parties are factions. The white working class would be considered a faction. Religious voters would be another faction. Any group that can have political objectives is a faction. Madison in Federalist 10 explains that in a governing system centered around freedom, factions are inevitable.

“Liberty is to faction, what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life because it imparts to fire its destructive agency.”

So the problem Madison is saying the Constitution needs to address is, since people will naturally politically group into factions and liberty encourages factions, how do we ensure factions do not infringe on the rights of others? We can’t do it by taking the rights away of particular factions that look like they have an advantage or seem undesirable, but rather by “mitigating the effects” and make it excruciatingly hard for a faction to have a lot of political power. That is the reason for the Bicameral congress. That is the reason for a Senate chosen by state legislatures an house chosen by population. That is the reason the court gets life terms by appointment and we keep that number small. That is why we have a whole separate and complicated electoral system that is the electoral college–which you, Chris, and I, I believe discussed before on how the founders had a very different view of the electoral college then how we do it today. Even if a passionate faction controls congress, it still has many layers to control before it outright dictates policy.

All of this to go back to Madison’s central message in Federalist 10. There are a lot of layers to prevent control of the government by a faction so that passion and mob rule does not hijack the system. Our governing system is not about making policies quickly. The roadblocks are actually a feature.

So how does this relate back to developing individual character? As a nation we are forced to stop, think, and deliberate on policies. National discussion takes time and helps people learn and grow when they get involved in civil discourse. Laws need the approval of a house, senate, president–unless VERY popular–and if challenged the courts, and even then if the people hated a particular law enough, they may elected a different body to congress.

In contrast, a governing system rooted in efficiently passing policy, such as the parliamentary system, or in extreme cases one party states, has less stakeholders at play in passing policy and is more likely to go with the mood of the prevailing faction of the day. Sure they may have a populist government that passes the policies that make people feel good, but there is less to prevent factions from using political power to stifle other factions.

Isn’t growing individual character an aspect of what this whole group is about? Engaging in civil discourse to understand others and help bring insight to understanding our inevitable factions so that we can be better informed participants in our system of government?

CHRIS: Aaron, Robert, and Charles, your concerns seem to focus on how Hannah-Jones and others criticize not the ideals contained in the founding documents, but the founders themselves, or, as Charles wrote, being “unfairly and often unjustly critical of good and great leaders and people for not being perfect enough.”

Instead of the founders of the US, let’s look at a very different founder of what is now considered a progressive institution that many conservatives routinely attack. Margaret Sanger founded Planned Parenthood. Sanger is feminist icon, but was also a racist and white supremacist. I’ve drawn attention to that fact multiple times myself, but it was only this April that PP did too.

Please read the attached letter by a current leader of the organization acknowledging for the first time just how “not perfect enough” Sanger was. I share this because I want to clarify that it’s not just our founders who need to look at through an unbiased lens. Perhaps seeing how a progressive organization assesses its own founder will give you a different understanding of how progressives feel the necessity of assessing all founders accurately. Just as today’s Planned Parenthood is not even remotely suggesting that its current mission is undermined by Sanger’s well-documented racism, progressives are not suggesting that America is undermined by its founders’ racism either. The undermining danger is instead NOT coming to terms with these pasts.

CHRIS: And if you won’t read the whole letter, please read these excerpts. I would very much like to hear your reactions and how this might relate to our discussion of the US founders:

“For the 11 years that I’ve been involved with Planned Parenthood, founded by Sanger, her legacy on race has been debated. Sanger, a nurse, opened the nation’s first birth control clinic in Brownsville, Brooklyn, in 1916, and dedicated her life to promoting birth control to improve women’s lives. But was she, or was she not, racist?

It’s a question that we’ve tried to avoid, but we no longer can. We must reckon with it.

Up until now, Planned Parenthood has failed to own the impact of our founder’s actions. We have defended Sanger as a protector of bodily autonomy and self-determination, while excusing her association with white supremacist groups and eugenics as an unfortunate “product of her time.” Until recently, we have hidden behind the assertion that her beliefs were the norm for people of her class and era, always being sure to name her work alongside that of W.E.B. Dubois and other Black freedom fighters. But the facts are complicated.

We don’t know what was in Sanger’s heart, and we don’t need to in order to condemn her harmful choices. What we have is a history of focusing on white womanhood relentlessly. Whether our founder was a racist is not a simple yes or no question. Our reckoning is understanding her full legacy, and its impact. Our reckoning is the work that comes next.

And the first step is making Margaret Sanger less prominent in our present and future. The Planned Parent Federation of America has already renamed awards previously given in her honor, and Planned Parenthood of Greater New York renamed its Manhattan health center in 2020. Other independently managed affiliates may choose to follow.

Sanger remains an influential part of our history and will not be erased, but as we tell the history of Planned Parenthood’s founding, we must fully take responsibility for the harm that Sanger caused to generations of people with disabilities and Black, Latino, Asian-American, and Indigenous people.

We will no longer make excuses or apologize for Margaret Sanger’s actions. But we can’t simply call her racist, scrub her from our history, and move on. We must examine how we have perpetuated her harms over the last century — as an organization, an institution, and as individuals.

We are committed to confronting any white supremacy in our own organization, and across the movement for reproductive freedom.”

AARON: The pendulum of society swings. I fear that when it swings back from the current “black only dorms”, “black only graduation ceremonies”, preference for admission based solely on the extra melanin in someone’s skin, you will have given your grandchildren ammunition that it is *acceptable* to use skin color to define who’s “more equal” and the minorities will be runnin for the hills.

I’m afraid that plenty of evidence points to the fact that essays like 1619 are being used to put a chink in the armor of the actual *ideals* of limited government, liberty, equal protection. To put in context, the Democratic party was a gnat’s hair from having an actual socialist as it’s presidential nominee (remember, his self-described defining distinguishment with Warren was, “she’s a capitalist”.) As you’ve mentioned yourself Chris, you struggled with the question on whether or not a college should be able to use skin color in their admission standards in order to artificially “help” or “hurt” people solely because of their race.

I stand by the assertion that the best path forward is a firm commitment to a completely blind Lady Justice with equal protection for everyone. We should be striving towards a color *blind* society. Instead, people like Hanna-Jones want us now, more than ever, to make sure everyone feels like the amount of melanin in their skin is the most defining attribute of their personhood. If Hanna-Jones believed in our founding ideals and was actually *promoting* them, she would have ended her essay by lambasting Harvard University for even *considering* a “black only” graduation…I have a feeling MLK would have.

In regards to Sanger and PP, I attack them because of their *ideals*. Sure, Sanger was a racist but the fundamental idea that one can kill life because it’s inconvenient is repugnant to me. I suppose someone could make a case that the reason *why* the life is inconvenient might make the act a little more or less repugnant but the fundamental ideal is primarily what I am attacking. I submit that’s exactly what Critical Theory/1619/BLM is doing with the founders and their ideals as well.

DAVID: Robert, I appreciate your thorough and detailed response. I’m going to disagree with you on how important historical contextualization is. I’m not saying that it is not important all at. It can perhaps provide some clarification when passages of the Constitution are especially vague. However, given the zillions of quotes founders made in their lives and given that each one was not of the same mind throughout their life, I think it is too easy for someone to manipulate the meaning of our founding documents by just finding some quote that goes along with what they already think, when that thought did not make it into the actual Constitution (so there has to be debate whether *one* founder’s thought at *one* point in time should tell us what our country is).

I do think, though, that it is very much of *historical interest* to understand who the founders were. But I think you are mistaken in suggesting that discounting their commentary only serves to limit understanding of our founding documents. It might do that, but it might serve to do several other things, and I would argue that it very importantly serves to prevent the meaning of those documents from being manipulated.

The Federalist Papers I do find to be more helpful, though. The quote you provided there from Madison essentially says that “liberty” is a necessary condition for factions and that we should have liberty. The quote does not make any statement about how much people will form into factions, nor whether they do so naturally (and there is actually good, modern social science on that topic). Moreover, it does not say anything suggesting how our houses of Congress are elected, life terms, electoral college, etc. (Perhaps it does somewhere else in the document?)

The quote also makes no mention of growth of character, which, again, is tricky because there definitely is not agreement about what character even is.

From my social science background (particularly public choice economics), here is a perspective on the efficiency of public decision-making within a democratic government (and I’m using the broad definition of democracy there, so that a republic would be a part of that definition):

You can’t have less than a 50% threshold for making a decision because no decision would ever be final (e.g. 48% could vote to switch us from policy A to policy B, then 52% would vote to switch us back to A, then 48% back to B, etc). So, 50% is the minimum (i.e. majority rule), and it is incredibly efficient. There’s no need for negotiations and the question just is, does the median voter like A better or B better?

The issue of course is that in majority rule, the majority can beat up on the minority. So, for the other extreme, why not a 100% threshold, i.e. unanimity? Then no one can be beat up on because everyone would have to agree on every decision. And, in principle, we could do unanimity — have the winners of the decision financially compensate the losers of the decision so that everyone is a winner in the end, and hence it is unanimous (this is effectively the key normative principle that underlies markets in economics; why we pay for things that people make for us).

The problem here, though, is that negotiations to get unanimity are exceptionally and prohibitively difficult. (Almost never can you get even a 100-member body to all agree, let alone everyone in a country.) So we have to settle on somewhere between 50% and 100%, and the public decision-making process from our Constitution does just that. And I would say that our Constitution does a pretty good job of finding a decent balance. We do make decisions, not as efficiently as majority rule, but definitely better than unanimity. We do have minorities (not necessarily racial) getting beat up on, but there are some good protections, too.

I definitely think the founders did a pretty good job, particularly for the late 18th century. But I think things could be better with what we have now (much better social science research for understanding human beings, better game-theoretic understanding of public decision-making, better technology for crunching numbers, etc).

For example, because of the dramatic disparities in the populations of states that we have now and also because of gerrymandering, it is something like 25% of voters can beat up on the remaining 75% (which is *worse* than the majority beating up on the minority). Again, our Constitution should be applauded for what it is, but for human well-being (what I care about 😉 ) I think improvements should be made.

(My apologies for my long tangent here, but maybe interesting nonetheless…)

CHRIS: Aaron, maybe I shouldn’t have brought up Planned Parenthood, since abortion is a massive and massively difficult topic to broach. My point was how an institution can deal with the racism of its founder, which you didn’t address or even acknowledge in your above comment. You also continue to make generalizations about “Critical Theory/1619/BLM” (saying they are “repugnant” because they “kill” the founders, which is not a metaphorical tangent worth addressing) even though you have now read exactly one 1619 essay and so you know first-hand that your claim is false. Your only shift is that you now say 1619 is “being used to” promote things you disagree with, tacitly acknowledging that those uses are missuses—though you still seem to think Hannah-Jones is to blame. You seem to judge things not by what they are, but what you think they could be used for. So instead of acknowledging the fact that the founders were white supremacists who personally profited as slave-owners and dealing with the ramifications of that fact, you want to place it out of sight because looking at it is “divisive.” If a political position requires suppressing facts because they are inconvenient, then I think that’s pretty good evidence that there’s something wrong with the political position. If you think reparations and so-called socialism are bad things, your current approach to fighting them is a strategy designed to backfire because resisting something that is true (the founders were white supremacists) will eventually and (I think) inevitably fail. So if your “firm commitment to a completely blind Lady Justice with equal protection for everyone” requires suppressing historical truths for fear that those truths could “put a chink in the armor of the actual *ideals* of limited government, liberty, equal protection,” then you are working against yourself. But if you instead stopped revering the “Founders” as secular saints and heroes and faced up to the depth of white supremacy at the time of the founding, then you would have a factually firm footing for your vision of moving forward.

AARON: I used poorly chosen words to finish my post….I didn’t mean that 1619 et al “kill” the founders…I meant that they attack the *ideals* of the founders. I specifically used the word “repugnant” when describing the murder of babies. What claim of mine is false? You have built a straw man if you think that I deny that racism has been in this world since Adam (and by obvious implication- our founders). You apologized once for saying that I deify the founders but you just said it again (secular saints). I know that they had warts. *nobody* denied that they had slaves. Just like nobody denies that it was warring African tribes that often “round them up” for the Muslims and Europeans to ship off. Just like no one denies that the first slave holder in America was a black man (if they read their history books). Just like no one denies that native Americans held other tribes captive. There’s a lot of sin to sift through in this topic.

DAVID: Aaron, I think what you should find more repugnant is making up supernatural baloney about when “life” begins so you can force women to carry unwanted pregnancies to term. I can’t believe that you think the tremendous responsibilities of parenthood are simply “inconvenient” (although I guess it depends on what type of parent you are).

AARON: David, this is the second time that you have tried to hijack Chris and I’s conversation. Start a new topic on “when does ‘science’ say life begins?”…personally, I’m currently not interested because I have my hands full with this topic. Maybe someone else would bite on it.

CHARLES: Chris, Aaron, David, great and thoughtful civil discourse, THANKS!!

I think my basic point, and it may have been supported by Chris and others, is that leaders are often mired in values and beliefs popular in their eras but they, in specific instances, rise above their documented bias or prejudice with the courage to do what is right. I think of Lincoln with the Emancipation Proclamation or Lee and Grant treating each other with respect and dignity calling for unity.

CHRIS: Aaron, I think we’ve hit a point where we’re going in circles. You continue to state that 1619 and others “attack the *ideals* of the founders” even though the one example we’ve looked at closely does no such thing. Yes, there’s certainly “a lot of sin” all around, but we are currently looking at the “sins” of the founders. Saying that others also committed terrible sins is unquestionably true, but none of those others jeopardize the ideals expressed in our founding documents if their sins aren’t reckoned with and separated from those documents.

Charles, I agree with you that Lee and Grant ended the war in a way that prevented years of protracted guerilla warfare and terrorism, and I sincerely commend them for that. I also commend our founders for the Declaration and the Constitution because they contain the core ideals of equality that our nation has continued to progress toward. I also find deep faults in many of their other behaviors which are certainly “mired in values and beliefs popular in their eras.”

So I think we are in agreement about the ideals, which is by far the most important thing. We disagree about how to preserve and further realize those ideals. It seems you (Charles, Aaron, Robert) think that revering the founders is the best way to do that. I (and many other progressives) think that that reverence is instead dangerous and divisive. So despite having a shared goal, we can’t seem to come together about strategy.

DAVID: Charles, definitely don’t forget Robert! Although we having a nice back and forth about the Constitution and the Founders, I definitely have to appreciate his deep historical knowledge and the detail he provides in his very thoughtful comments.

AARON: So, we’ve agreed that we probably shouldn’t teach our children that keeping slavery was the impetus for the revolution. Yes, we might be going in circles. You wanna tackle the next essay, “In order to understand the brutality of American Capitalism, you have to start with the plantation.” By Mathew Desmond?

DAVID: Aaron, this is at least the 50th time that you have been grossly mistaken in declaring someone else’s motives. You made a highly controversial comment, and I shared my perspective on your comment. There is no hijacking. If you didn’t want your comment to be discussed, my suggestion would be for you to not include it in the conversation.

CHRIS: Aaron, yes, I agree that keeping slavery was not the impetus for the revolution, and therefore we should not teach our children that. Do you agree that our founders were white supremacists, and therefore we should acknowledge that fact to our children?

CHRIS: Honestly, I wouldn’t mind a breather, but, yes, I’m happy to read another 1619 essay together if you would like to. But would you mind starting a new post and make an invitation to anyone on RCDS to read the essay and participate?

CHRIS: Also, would you all mind if I copy and pasted this thread into my person blog as a (significantly better than average) example of a RCDS conversation?

ROBERT: I don’t mind.

AARON: no problem

AARON: Yes, I agree that our founders were white supremacists. If we are going to assert that truth to our children, then the context *must* include all the other sins from other races that I’ve been bringing up that is part of this conversation. Part of the problem I see is that without this context, it gives the appearance that white males are *particularly* bad and America’s founding was *uniquely* sinful. Bottom line, in the 15th-18th century our world looked *very* different than it does today (even though there’s plenty of slavery in our world today).

If a child is going to hear that our Founders were white supremacists, then he needs to be told that different ethnic Africans “rounded up” the African Slaves, Asian Muslims participated, the first permanent slave *owner* in America was black, and the Native Americans also practiced slavery.

CHARLES: I do not mind as we always want to promote quality civil discourse!

CHARLES: David, thanks for reminding me of Robert as he contributed very well.

DAVID: Chris, I don’t mind at all.

DAVID: Aaron, I think your last comment here is a very good one. There should be less focus on the race of the people who did horrible things, while still condemning the terrible things that they did. I could see noting that things done by (some) European Americans caused more harm as an *outcome*, than things done by other races, but that people of every race did horrible things. (I have to reference Deborah Miranda’s book ‘Bad Indians’.) I think that would better join all of us together, regardless of race, into to a more unifying cause of stopping *all* horrible things from happening (regardless of the race of the people who do them).

CHRIS: Aaron, maybe we do agree then. The founders certainly weren’t unique, and so acknowledging their white supremacy without also acknowledging the wider context of white supremacy would be terribly misleading and I would oppose it. And if by avoiding “the appearance that white males are *particularly* bad” you mean white males are not innately worse than any other group, then I still 100% agree. But if we are talking about American history, then obviously white males have been “particularly bad.” That historical fact is unavoidable. But it would be clearly wrong to teach that factual history in a way that implied that white males, especially those alive today, are also therefore “particularly bad” or in any way innately worse or better than any other group.

AARON: We agree and I add that in the 18th century world, the Akan’s (West African tribe) were “Akan supremacists”, Aztecs were “Aztec Supremacists”. I think Asia was particularly rough with relations between differing ethnic groups like the Kasacks, Uzbeks, Persians etc. during this time as well. The “wider context” still isn’t wide enough if you only speak of *white* supremacy. The point is that it’s disturbingly dishonest if an author tries to judge man’s *past* deeds through the lens of *today’s* culture.

For example, you brought up abortion…let’s say in 200 years our culture changes and we decide that life *does* begin at conception- it becomes “settled science” and everyone is on board with it. Can you imagine how appalled the children would be reading in their history book about what we did to babies “back in 2021”? Without context, they would assume our Dr’s were complete monsters for doing that. Instead, in *today’s context* we don’t view the fetus as a human baby. Our current Dr’s don’t think that they are “killing babies”, just extracting an inconvenient lump of cells. I would like to think you might agree that *if* a current abortion Dr. today viewed a fetus as an actual living human being and still performed the procedure, you’d consider him a monster as well.

Like you, I don’t intend to make this *about* abortion…I just thought it would be a good example of something that could be visualized as one day becoming unethical. If it’s distracting then “throw it away”. I’m not interested in debating abortion right now.

CHRIS: We do agree. And if the US had been founded by Aztec supremacists, we would now have to reckon with that history and its ramifications instead. The diverse history of ethnic supremacy is worldwide and centuries deep. And you’re also right that the founders grew up believing the science (and religion) of their day that told them that Africans were subhuman. If they had understood black people to be fully human and therefore deserving of the same rights, and enslaved them anyway, then they would have been monstrous in a more extreme way. They also had massive financial incentives to perpetuate that false science (and religion), and so they started out as victims of their cultural programming, but at some point I think they also became culpable. It’s certainly true that “culture changes,” and acknowledging that fact is part of teaching history accurately. If you isolate a historical figure from their historical context and judge them exclusively by today’s cultural values, then, yes, that would be “disturbingly dishonest.” But it is also disturbing to commit the reverse dishonesty of obscuring a revered person’s past deeds because they violate today’s values.

AARON: Darn it…I thought we were going to end on agreement. No…our point of contention is that the Founders did *not* think Africans were “sub-human”. There’s plenty of evidence that they wanted to *rid* themselves of the “peculiar institution”. They knew many of the colonies were addicted to it for survival but needed to find a way to muddy through some sort of unification to stand up to the Crown. I submit that the First Great Awaking (religion) played a crucial role in our Founders developing the concepts of “life, liberty, and the pursuit of happiness”. I’d also submit that the 2nd Awaking helped lead to abolition of slavery.

Unless presented with evidence, I have a hard time believing that mid- 18th century colonial religion promulgated the idea that African slaves were “sub-human”. There’s plenty of evidence that a large population of blacks converted to Christianity during this time. Which, by the way beckons the question, why in the Sam Hill would African slaves adopt the religion of people that were literally beating them? How does one respond to the statement, “Jesus loves you” while receiving 50 lashes for not pickin enough cotton that day? Seems to me to be an amazing testimony of the supernatural work of the Holy Spirit.

CHRIS: Yeah, I’d hoped to end on agreement too. But wanting to rid themselves of their peculiar institution does not mean they believed Africans were their equals. There’s tremendous evidence that they did not. Maybe we can go down the 18th century religion path (Africans deserved to be enslaved because they were the cursed children of Ham) another time?

What might the Supreme Court have to say about my appropriation of O’Keefe’s image to create this comic strip? I remain deeply uncertain, but another recent decision could matter.

Google v Oracle is nothing like the artistic cases I discussed earlier (including Warhol’s Prince series and Fairey’s HOPE), yet the third factor for evaluating fair use, amount and substantiality of the portion used,” seems key. Here’s the passage from the decision that seems to apply:

“If one considers the declaring code in isolation, the quantitative amount of what Google copied was large…. The question here is whether those 11,500 lines of code should be viewed in isolation or as one part of the considerably greater whole. We have said that even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the “‘heart’” of the original work’s creative expression…. If a defendant had copied one sentence in a novel, that copying may well be insubstantial. But if that single sentence set forth one of the world’s shortest short stories—“When he awoke, the dinosaur was still there.”—the question looks much different, as the copied material constitutes a small part of the novel but the entire short story…. Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy….”

That could bode badly for appropriation artists, since in the case of my O’Keefe-appropriated comic, I use all of her painting, not just a portion (and so the common question of whether that portion is its “heart” is moot). Though the original painting in its unaltered form is only the first image of my sequence, like the court’s (surprisingly odd) example of a one-sentence short story, the comic strip uses the image in its entirety.

But then maybe that’s okay? The decision continues:

“The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose… In a sense, the declaring code was the key that it needed to unlock the programmers’ creative energies. And it needed those energies to create and to improve its own innovative Android systems. We consequently believe that this “substantiality” factor weighs in favor of fair use.”

So based on that assessment, could I appeal to the Supreme Court using their new precedent to argue that my comic strip had a valid, and transformative, purpose, and the original O’Keefe image was the key that I needed to unlock my creative energies to create and improve my own innovative artwork?

I have no idea.

[Here are parts one, two, three, four, and five of my previous fair use musings.]

“Cartoon” can mean a lot of things. As a drawing style, those things usually include simplification. A cartoonist takes a massively detailed real-world subject and extracts the most defining elements and reproduces them through a few well-placed lines. The cartoonist also probably alters those lines, distorting them by selectively expanding and shrinking to create shapes that evoke but don’t match the original content. How simplified and how distorted offer wide spectrums, and every artist’s personal style is its own idiosyncratic cross-point on that simplify-distort grid.  

Review: 'The Contradictions,' By Sophie Yanow : NPR
I Want You: Hanawalt, Lisa: 9781770463882: Amazon.com: Books

Look at Sophie Yanow and Lisa Hanawalt. Both are renowned cartoonists, each with recent graphic novels (Yanow’s The Corrections and Hanawalt’s I Want You) released a month apart by their publisher Drawn & Quarterly last fall, but their styles occupy very distant locations in what they show to be the vast world of cartooning.  

Yanow is a minimalist. Her protagonist—a younger version of herself in college—consists of a small repeating set of identical marks. Her eyes are the circles of her glasses perched on the tinier circle of her nose. Her mouth—sometimes a straight line identical to the straight lines that represent the stems of her glasses, sometimes a slightly curving smile or frown, and sometimes just a perplexed dot—does all of the work of expressing her limited emotions. Her body is even more geometric, elbows and knees often at right angles or undifferentiated in the straight lines of her straight limbs. The proportions are pleasantly odd too, her head a little too small, her torso a little too big, though not so exaggerated that she departs from a feeling of improbable naturalism.

The Contradictions by Sophie Yanow review – on the road with a raging bore  | Comics and graphic novels | The Guardian

The rest of Yanow’s world obeys the same simplified laws of reality. Some settings are evoked by even fewer lines, each the same unaltering thickness as the frame lines surrounding them. Yanow doesn’t draw a single crosshatch in her entire 200-page memoir. Either a shape is opaque black or empty white. Her layouts are equally consistent: six squares arranged in three rows of two. The few variations (white spaces replace panels during the final train ride home and when Yanow is finally alone and decompressing) are some of the most evocative moments in the memoir.

Hanawalt is a maximalist. Her protagonists—many of whom have animal heads but human bodies—consist of intricate patterns of fur and clothing, offset by comparatively sparse but equally intricate shapes that define their surroundings. Her crosshatching is often meticulous, giving realistic depth and texture to the characters’ exposed heads and limbs and so intensifying the surreal effect. When Hanawalt leaves the interior of shapes unshaded, the pages resemble absurdist coloring books wonderfully inappropriate for humans of any age.

Lisa Hanawalt's I Want You – The Brooklyn Rail

Where Yanow champions blocky consistency, Hanawalt wanders through multiple layout variations. Some pages are single images, some are partitioned into single-line frames, other into gutters, and still others are entirely open-framed. Her rendering style roams just as freely, from thin-lined black to gray washes to opaque grays. While most of her lines are sharply precise, a few pages feature thicker looser art, as if an uncredited guest artist dropped by. Most are clearly Hanawalt-esque, though unexpected undertones of Shel Silverstein and Phoebe Gloeckner stroll through too.

Hanawalt’s free-roaming styles are well-suited to her collection, which (as her bird-headed cartoon self explains in the introduction) compiles her pre-animation (BoJack Horseman, Tuca & Bert) minicomics from 2009 and earlier. Though some characters recur (She-Moose and He-Horse get top billing), most are an anonymous cast of oddball humans and half-humans muddling through early 21st century existence. Though Hanawalt’s humor makes things a little more surreal (list of invented dances, instructions for pretending to jack-off while driving, things you can do nightmarishly wrong in grocery stores), but the baseline reality is uncomfortably familiar.

Though Yanow’s reality is explicitly real—The Contradictions documents a European hitchhiking trip she took while studying abroad—its unrelenting layout and style norms suggest the confused rigidity of her younger self as she struggles to navigate a paradoxically unpredictable world. Where Hanawalt is inventing a hybrid world in order to reflect on ours, Yanow’s younger self seems trapped in her own 3×2 gridded mindset which inaccurately partitions her experiences. She is a quietly unreliable visual narrator, unaware that her mismatched traveling companion and their awkward inability to relate is the source of her gently tragic disconnection.

The Contradictions by Sophie Yanow review – on the road with a raging bore  | Comics and graphic novels | The Guardian

Both cartoonists are drawing self-portraits, Hanawalt indirectly, Yanow explicitly. Their bodies and so their sexualities are part of their imagery. Yanow’s twenty-year-old self is openly gay, but she does not seem especially at ease with that fact—or possibly with any facts about herself. Though there is no overt sexual tension between her and her kleptomaniac anarchist friend Zena, the rules of plotting imply it, even as Yanow’s rules of representation stifle the possibility through a kind of visual asexuality. The characters seem lost inside the flat geometry of their clothes and bodies. The genre is coming-of-age, which Yanow quietly thwarts by allowing her cartoon self so little room for growth.

Hanawalt, however, is overt in her twenty-something sexuality. Where Yanow seems incapable of recognizing let alone expressing physical desire, Hanawalt’s title declares it as organizing principle. There are a few explicit sex acts (penis hula hoop, sexy real estate brokers, children’s dinosaur porn), but the grainy texture of animal fur surrounded by delicately patterned clothes implies what otherwise goes undrawn. Hanawalt’s half-humans are animals all the way down. We all are. Though she sometimes channels the sexual exuberance of Julie Doucet or Fiona Smyth, Hanawalt’s surreal bodies are also horror-tinged, often vomiting inexplicable clumps of noodles or baby chicks. The most disturbingly powerful sequence is She-Mouse’s visit to a surreal abortion clinic.

Despite their considerable differences in genre, style, and character temperament, Yanow and Hanawalt explore the same inexplicable underworld of longing, Yanow from the terrifying entry point of her twenties, and Hanawalt from the ravaged exit point of hers. Wanting and contradiction abound in both.

The fertile mind of 'BoJack Horseman's' Lisa Hanawalt hatches the surreal  'Tuca & Bertie' - Los Angeles Times
Congrats to Sophie Yanow and James Kochalka for Their Eisner Wins! – The  Center for Cartoon Studies The Center for Cartoon Studies

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I now have statistical evidence to support the claim: “Third time’s the charm.”

The Spring 2021 iteration of Leigh Ann Beavers and my Creating Comics course has produced the strongest batch of student comics yet–and that was already an impressively high bar. I would like to take a little of the credit, but it really comes down to the talent in the room. Look for yourself. Our library featured a row of poster-sized pages for the Spring term festival:

And here’s a closer look at some individual pages:

Arden Floyd:

Audrey Dietz:

Everett Heebe:

Gabriela Gomez-Misserian:

Grace Williams:

Jessy Xu:

Katie Cones:

Lauren Newton:

Maddie Brazil:

Mitchell Roberts:

Naila Rahman:

Nayongi Borthwick:

It was also the first time Leigh Ann and I used our own textbook–which was odd for me, but apparently pretty effective. Of course now we want to scramble the whole syllabus and reinvent a new comics wheel, mainly just for the fun of it. I can’t wait to see what our Spring 2023 students create.

These are one-page, abstract comics from the students of ARTS-ENGL 215, a hybrid creative-writing/studio-arts course called “Making Comics” that I’m co-teaching again this spring term with my co-author Leigh Ann Beavers.

Nayongi Borthwick:

Naila Rahman:

Mitchell Roberts:

Maddie Brazil:

Lauren Newton:

Katie Cones:

Jessy Xu:

Gabriela Gomez-Misserian:

Everett Heebe:

Arden Floyd:

Grace Williams:

Audrey Dietz:

Leigh Ann and I discuss abstract comics briefly in our textbook Creating Comics, which was published in January. If we ever get to make a second edition, we have so many new student illustrations to highlight!

After spending last month discussing the ambiguous boundaries of appropriation art and what may or may not count as fair use (parts one, two, three, and four), this week is the first in a series of experiments appropriating a work of art and transforming it into a comics sequence. I assume the final image would not violate copyright law, but I’m uncertain about any of the middle ones. More importantly, is Picasso’s untouched original transformed simply by the change in context? Sadly, the only way to find out is to be sued by Picasso’s heirs.

Is this copyright infringement?

The image on the left is the February 2002 cover of Sports Illustrated featuring a photograph of model Yamila Diaz-Rahi taken by Jeff Bark. The image on the right is the May 2003 cover of Sojourn No. 22 drawn by Greg Land. The second image is presumably derived from the first, probably by tracing the first with a stylus to transfer the tracing to a computer program digitally.

I’m not sure what the statutes of limitations on copyright law are, but the Sojourn publisher, CrossGen, went out of business in 2004, perhaps leaving no one to sue if Greg Land produced the image made-for-hire, meaning CrossGen purchased the copyright. Since Jeff Bark was employed by Sports Illustrated who presumably purchased his work outright too, he may or may not have grounds to sue. The image is of Yamila Diaz-Rahi, so she presumably would have grounds, and since CrossGen doesn’t exist, perhaps she could sue Greg Land directly.

Of all of those potential legal battles, I’m not aware of any actually occurring. No one sued anyone. Why not? Even if CrossGen were still in business and Diaz-Rahi, Bark, and Sports Illustrated were aware of the potential infringement immediately after the publication of Sojourn No. 22, I still suspect no one would take any legal action because Land’s use of the Bark photograph would be protected by fair use.

Even though the new image was created as part of a commercial product (and so not exempt due to purpose), “the amount and substantiality of the portion used” probably does not exceed the vague limits suggested by previous court rulings (which I’ve been describing obsessively for the past three posts).

At what I previously described as the micro-level, the second image uses none of the raw materials of the first image directly (which makes it dissimilar to Warhol’s Prince and Fairey’s HOPE). But at the macro-level, the gestalt effect of the new image clearly replicates the source. To paraphrase the Second Circuit Court of Appeals: “the degree to which Bark’s work remains recognizable within Land’s, there can be no reasonable debate that the works are substantially similar.”

And yet, I’m guessing, not similar enough, since it triggered no lawsuits. And neither has Land’s other equally derivative artwork:

And Land is hardly alone. The practice of comics “swipes” originates long before digital tracing made it even easier. Fred Guardineer copied N.C. Wyeth’s 1919 The Last of the Mohicans illustration for Action Comics No. 8 (January 1939).

And Batman co-creator Bob Kane was a notorious swiper, usually of other comics artists.

Comics artists also swipe from themselves. Neal Adams reproduced his cover for Superman No. 243 (October 1971) for his cover of Jonah Hex No. 91 (June 1985).

Since DC published both, copyright infringement wasn’t possible. But what about when an artist swipes his own work after moving from one company to another, as John Byrne did between Marvel and DC?

This is distinct from “homages” where the point is to evoke the original:

Including across publishers:

So why are comics seemingly exempt from U.S. copyright law? The short answer is they’re not. But the law requires lawsuits, and if no one alleges infringement, the law is moot. So the more relevant question may instead be: why is it so rare to sue a comics publisher for copyright infringement?

Returning to the first example, I think sometimes it has to do with the degree of transformation. In addition to variously altering the physical content of Bark’s photo, Land uses an image of a real person in order to depict a fictional person. I’ve never read Sojourn, but here’s a synopsis of No. 22:

“The quest continues as Arwyn ventures deep into the desert wastes of Oudubai, but her deadliest enemy may not be the sand, the heat or the troll pursuers dogging her every step. The greatest danger may well come from one of her own companions – a thief who has designs on the very Fragments Arwyn carries.”

I’m guessing, based on the faux mid-eastern veils that Land drapes on Diaz-Rahi, that the image is of the “thief” from “Oudubai” (I’m not going to plunge into an Orientialist critique right now, so I’ll just say that Land’s use of porn for his superheroine swipes may not be his greatest shortcoming). That’s very different from the infringement case that started this now four-part sequence of posts, where Warhol used an image of Prince to create an image of Prince:

That seems to be a self-evidently bad idea, since a primary point of appropriation art is its transformative quality.

According to New York Times art critic Blake Gopnik, the ruling against Warhol “had the effect of declaring that the landmark inventions of Duchamp and Warhol — the ‘appropriation’ they practiced, to use the term of art — were not worthy of the legal protection that other creativity is given under copyright law.”

While the ruling concerns me too, Gopnik performs a rhetorical sleight-of-hand by implying that Warhol’s Prince and Duchamp’s Fountain are essentially alike. They’re not. Duchamp took a urinal, turned it on its side, signed it, titled it, and placed it in an art exhibition, thus transforming it through a change in context that altered the nature of the object itself.

A urinal became a sculpture.

The equivalent for Warhol’s Prince would be if Warhol took a urinal and transformed it into a somewhat different urinal.

Which now makes me rethink my own self-portrait. If my photograph (okay, it’s a Zoom selfie) had been used by another artist without my permission, would I have the basis for a successful lawsuit?

The fact that I still don’t know the answer to that question is evidence that U.S. copyright law is in need of some serious clarification.

[This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

Last week I looked at two pixilated versions of the same Miles Davis cover art photograph. I think the first likely violates copyright, and the second would fall under fair use.

Why? Because, unlike the Prince, Obama, and Soglin examples discussed two weeks ago, the differences between the mid-range pixilation image and the original involves more than just simplification. The remaining details are also distorted in relation to the corresponding areas in the original. The size of units in ratio to the size of the object that the units combine to represent may matter. Once the size of the pixel-like squares is greater than the regions from the original that they represent, the squares become the primary element of composition. The resulting effect combines simplification with exaggeration.

The squares in the image that triggered the lawsuit are akin to paint strokes. They are the micro-level units that combine to create the gestalt effect of the macro-level image. I suspect the nature of smaller units doesn’t matter matter legally because resemblance occurs at the macro-level. This image, for example, has no representational relationship to its source material:

But when viewed at a different size/distance and within a larger image context, it resembles and so represents my right eye:

If I were suing myself for copyright infringement of only my right eye, I suspect I would lose.

Micro-level units matter when their qualities become dominant, including the macro-level effects they create in combination. Look at three pixilated Miles Davis hands:

The first is from what I identified as the first likely fair-use version of Baio’s Davis series last week. The middle is from the image that triggered the lawsuit, and the last is from the source photo. All three are made of pixels, but only the first two are considered “pixel art,” which is a misleading term since each large square is made of multiple identically colored pixels arranged in the shape of a significantly larger square to produce the effect of an enlarged pixel.

I also suspect that the top hand would not resemble a hand out of context, while the other two would be more identifiable. That could matter legally. The pixels that combine to suggest the qualities of Prince’s, Obama’s, and Soglin’s faces are essentially identical in the source images and the adapted images.

Fairey’s HOPE does involve some alterations, but the effect does not alter a primary experience of resemblance between the original and the adaption. The more pixilated Davis image moves into different terrain.

It moves into the top right of my four-area self-portrait by combining both simplification and exaggeration. Though there may be cases when an image that only simplifies its source is protected by fair use, I suspect the region generally is in legally dicey waters.

That leaves one area, the top left: exaggerated but not simplified.

And that, not coincidentally, describes my Prince art:

This is also helpful for discussing process, which is often in focus during court cases. And process differentiates actions (performed by an artist) from effects (experienced by viewers). I suspect viewers experience the Prince image as though it were hand-painted by an artist who was looking at the Goldsmith photograph as a visual reference. It wasn’t. The process is similar to Baio’s pixilated Miles Davis series.

I began with a digital version of the photograph, slightly pixilated after enlarging. I then selected a mouse-scribbled jigsaw shape, copied it, and pasted it imperfectly over the original so as to duplicate content along certain edges and obscure other content at opposite edges. I did this multiple times with multiple jigsaw shapes, while periodically saving works-in-progress:

After I settled on a final version in Word Paint, I opened the document in Adobe Illustrator, and saturated the colors, performing a final copy and paste in Word Paint to combine areas.

Although the “raw material” is still entirely the original photo, the final effect is different from Warhol’s adaptation because the placement of the duplicated material exaggerates certain areas, creating caricatural-like facial features. Even though my authorial intent wasn’t initially parody, parody arguably emerged during the process. Regardless, I suspect the resulting macro-level resemblance between my image and its source is sufficiently distant to fall under fair use due to the range of distinguishing exaggerations.

There is still some gestalt resemblance, since the question of infringement wouldn’t come up otherwise, but despite a process that uses the source as digital raw material, the two images bear almost no similarities at the micro level. Looking again at only right eyes reveals fundamental dissimilarities and so presumably no plausible infringement:

Distinguishing between micro-level units (such as paint strokes and pixels) and macro-level effects (experienced only when viewing an entire canvas) is similar to the differences between words and paraphrasable content. Copying words verbatim is a form of plagiarism, but it is still possible to plagiarize without reproducing any words. Ideas are copyrighted, not just the words that constitute them. If I express essentially the same idea (or gestalt image effect) using entirely different words (or paint strokes), I’m still potentially plagiarizing.

Look at the pixilated “Kiss” again. It’s taken from the 2015 film Eadweard about the 19th century photographer Eadweard Muybridge. The film recreates many of Muybridge’s images, including the moment represented in my hyper-pixilated “Kiss.” Since the film uses entirely different actors, the micro-level “raw materials” are unrelated to the actual individuals who appear in Muybridge’ work, but were Muybridge’s photographs still copyrighted, the film recreation would likely be an infringement. My “Kiss” could potentially infringe on both the 2014 film and the original 19th-century images–except that the level of simplification and exaggeration is so extreme, resemblance is minimal. The image is much more about its style (because of the size and shape of micro-level units) than its representational content.

And look at my second self-portrait again. Although the emergent “new expression, meaning or message” seems less prone to parodic effects, I suspect the complete dissimilarity at the micro-level and the partial dissimilarity at the macro-level would place the second image within fair use:

But I could be wrong, since the courts have yet to establish any clear standards, and decisions keep establishing contradictory or ambiguous precedents. Although the 2nd Circuit of Appeals recently warned judges to “not assume the role of art critic,” until the judiciary develops the necessary expertise of art criticism, fair use will remain in legal chaos.

[Spoiler Alert: This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

Last week I looked at three court cases where an artist used a copyrighted photograph to create a new work: Warhol used a Goldsmith photograph of Prince to create the Prince Series, Fairey used a Garcia photograph of Obama to create HOPE, and a group used a photograph of a Madison Mayor to create a t-shirt mocking him. A judge ruled Warhol was protected under fair use, but the ruling was overturned on appeal. Fairy settled out of court (after falsifying evidence which led to a separate conviction). And a judge and an appeals court both ruled that the mayor t-shirt was fair use.

Although the Second Circuit warned judges to “not assume the role of art critic,” some grounding in visual analysis might be helpful. To start, here’s a self-portrait I created for my forthcoming book The Comics Form: The Art of Sequenced Images (Bloomsbury 2022).

I analyze the representational relationship of an image to its source according to two poles, exaggeration and simplification, producing four combinations: 1) the bottom left corner is an actual photograph, so it is unsimplified and unexaggerated; 2) the bottom right corner is adapted from the same photo by erasing everything but the minimum lines needed to represent a face, so it is simplified but not exaggerated; 3) the top left corner is adapted from the same photo by variously expanding and rearranging details, so it is unsimplified and exaggerated; and 4) the top right corner is drawn using roughly the same number of lines as the image below it and with roughly the same degree of distortion as the image beside it, so it is simplified and exaggerated. 

I suspect no judge would question the legal legitimacy of a simplified and exaggerated image (top right), and I suspect any judge would find an unsimplified and unexaggerated image to infringe on copyrighted image (bottom left). That wasn’t always the case though. Roy Lichtenstein duplicated a section of page 3 from the 1963 comic Secret Hearts No. 83 drawn by Tony Abruzzo. Since Abruzzo was employed by Arleigh Publishing, which was owned by DC, DC owns the rights to the Abruzzo image, which Lichtenstein used without permission or attribution. I’m not sure what the statutes of limitations are on copyright infringement, but Lichtenstein’s are well past the half-century mark.

Sticking to this century, a court ruled against Richard Prince for using 30 photographs taken by Patrick Cariou in collage works in 2011. But then in 2013, an appeals court ruled in Prince’s favor, finding that 25 of Prince’s transformed images fell under fair use. The two parties settled the remaining five images out of court, including Graduation:

The appeals course was uncertain whether Graduation fell under fair use because it and the other four questionable works “do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a ‘new expression, meaning, or message.’”

Prince’s In the Garden is one of the 25 works that did not infringe:

Setting Prince aside (because how and how much an image or an image part changes meaning contextually is a wide open subject), the legally contestable and analytically confusing areas of my four-mode self-portrait are the remaining two squares (top left and bottom right).

Most of the above examples fall into the second category, simplified but no exaggerated. Warhol (for both the Prince and Marilyn series), Sconnie Nation, and Fairey removed considerable detail from their source photographs, but did not alter (or in the case of Fairey, altered minimally) the remaining details. The images (as far as how they relate to their raw material) are therefore simplified and unexaggerated. The adaptors also added details (mostly non-realistic colors), but those additions combine with but do not directly alter the details that remain from the sources.

The question then in each of those court cases is how much simplification (removal of detail) crosses the threshold of fair use?

Andy Baio asked the same question when he was sued in 2010 for using a photograph of Miles Davis taken by Jay Maisel. The photograph originally appeared on the cover of the 1959 Miles Davis album Kind of Blue, and Baio used a pixelated version of the image for a “retro videogame music” tribute album he produced titled Kind of Bloop.

Baio believed he was protected by fair use: “With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements.” The pixilation also matches the purpose of the album: “to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph? It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.”

But litigation is expensive even when a defendant wins, and the risks of losing can be financially catastrophic. Baio settled out of court. He also asks on his blog: “Where would you draw the line?”

The question is difficult to answer in part because the law doesn’t consider under what condition an image is viewed. Consider this abstract grid of multi-colored squares:

If you’re looking at a computer screen right now, move a few yards back. If you’re looking at your phone screen, just extend your arm and squint. Or look at the identical image when reduced in size, and you’ll see why I titled it “Kiss.”

A low-resolution image looks low resolution only when viewed at sizes large enough (or distances great enough) to reveal the distortions produced by the low resolution. If you stand far enough away from Banksy’s Cardinal Sin, pixel-like squares on the face of the statue will look a normal face.

Courts often allow thumbnail reproductions (2003 Kelly v. Arriba-Soft, 2006 Graham Archives v. Kindersley), but even though a postage stamp is smaller than a square inch, the 2010 Gaylord v. United States ruled that the postal service needed the sculptor’s permission to reproduce an image of the Korean War veteran’s memorial. That’s presumably because thumbnails are low resolution, and stamps are high resolution—though you may need a magnifying glass to notice.

Pretending there’s a legal standard for “under what conditions” that accounts for image size and viewer distance, I wonder how Baio’s question applies to Goldsmith’s photograph of Prince. Though any digital enlargement is pixilated, the effect can be so mild that it goes mostly unnoticed:

At the other extreme, when the pixilation is so great the face is no longer recognizably Prince, we should be safely in the zone of fair use.

It’s the middle region that’s ambiguous and so legally treacherous.

With Baio’s examples, I think the first four images likely infringe on copyright, and probably the next two as well.

I think the last four likely fall into fair use, and probably the remaining middle two.

Compare that first (according to me) fair use image to the original and to the one that Baio actually used:

Why draw the line there?

I’ll try to explain that next week.

[Spoiler Alert: This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

That’s an image of Prince. I made it. How exactly I made it I’ll talk about later (because process may or may not matter legally), but I “used” a 1981 photograph of Prince taken by Lynn Goldsmith:

Is my use of Goldsmith’s photograph “fair use” or am I violating copyright law? It’s a basic question that lacks a basic answer. As a starting point, the relevant portion of the legal code, 17 U.S. Code § 107, has been law since 1976:

“Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

While all four factors matter, I’m setting aside all but the third (though for sake of argument, let’s say my above image of Prince is of a commercial nature even though this blog clearly isn’t). The question then is: what “amount and substantiality of the portion used” falls under fair use? The answer is difficult to determine because the precise meaning of those words is interpreted by judges case by case.

Sometimes size seems to matter. The 1989 Love v. Kwitny ruling denied fair use after the defendant published half of an unpublished manuscript, while the 1991 Wright v. Warner sided with the defendant after the biographer quoted no more than 1% of Richard Wright’s unpublished letters. A lower judge suggested a 10% standard in the 2014 Cambridge v. Patton, which was struck by an appeals court in favor of case-by-case flexibility. That makes sense since the issue is more than objective quantity. In the 1982 Roy Export v. CBS, the defendant was not permitted to use 75 seconds from a Charlie Chaplin film in part because the selection included “the ‘gems’ of Chaplin’s motion pictures.” Similarly, the defendant in the 1997 Los Angeles News Service v. KCAL-TV lost on appeal because “the use was substantial even though KCAL broadcast only 30 seconds of the four minute, 40 second Videotape [of the Rodney King police beating] because it was the heart of the work.” But in the 1996 Monster v. Turner, the court allowed a biographical film on Muhammed Ali to use 41 seconds from a boxing match, without regard to whether the selection was “the heart of the work” or not.

For the 1994 Campbell v. Acuff-Rose Music (2 Live Crew sampled “Pretty Woman”), Justice Souter emphasized “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Because the something new that 2 Live Crew added was parody, the case speaks mostly to the first criteria (purpose), establishing a Supreme Court precedent for evaluating fair use.

Let’s say I did not intend my Prince image as a parody (though given the degree and effect of the distortions I could claim it is), but as a non-parodic work of visual art. The question then is whether that further purpose, the image’s differences in character, and its altered expression, meaning, and/or message is sufficiently furthered, different, and altered to be protected under fair use.

I chose Goldsmith’s photograph because Andy Warhol used it in 1984 when commissioned by Vanity Fair to create an original work depicting Prince. Vanity Fair licensed use of the photograph from Goldsmith’s agent as a “source photograph” attributed to Goldsmith when Warhol’s work appeared in the magazine. Warhol later made additional images, called the Prince Series, which came to Goldsmith’s attention when one was featured on the cover of a tribute magazine to Prince after his death in 2016. The tribute magazine licensed the image from Warhol’s estate, and Goldsmith was not attributed or compensated.

In 2019, Judge Koeltl ruled: “The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”

That ruling was appealed and overturned in 2021 by the U.S. Court of Appeals for the Second Circuit. Evaluating the third factor, they concluded: “the degree to which Goldsmith’s work remains recognizable within Warhol’s, there can be no reasonable debate that the works are substantially similar.” The judges also admonished the lower court to “not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.” They instead directed courts to “examine whether the secondary work’s use of its source material is in service of a ‘fundamentally different and new’ artistic purpose and character, such that the secondary work stands apart from the ‘raw material’ used to create it.” 

Though I agree with the appeals court that “it is entirely irrelevant to this analysis that ‘each Prince Series work is immediately recognizable as a ‘Warhol,'” Koelt’s point might rest in how ‘Warhols’ contrast and so are distinct from “realistic photographs” like Goldsmith’s. But even when read charitably, Koelt’s judgment is overruled and a new criteria established: if the “raw material” used in the creation of an image remains recognizable, then the image is not protected by fair use (except in special cases, including parody).

That could be a problem for the Warhol estate, since some of the most famous and expensive Warhols apparently are not protected either.

The raw material of Warhol’s numerous “Marilyn” paintings is a photograph taken by Eugene Korman to be used as publicity for the 1953 film Niagara. Korman was employed by 20th Century Fox, who, based on The Andy Warhol Foundation v. Goldsmith, could sue the Warhol estate for financial compensation (Orange Marilyn sold $17.3 million in 1998) control of Warhol’s artwork.

For his Obama political poster HOPE, Shepard Fairey used a photograph taken by Mannie Garcia while covering a press conference for the Associated Press. The Associated Press sued Fairey and the two settled out of court in 2011. (Fairey later pled guilty to fabricating evidence that he had used a different photograph.)

Since the very different purpose of HOPE was to help Obama win the 2008 Democratic primary, factor one (purpose) seems especially significant. Looking only at the third factor though, the degree to which the raw material of Garcia’s photograph remains recognizable is similar to the Warhols.

But Warhol Foundation v. Goldsmith is not the only precedent. In the 2014 case Kienitz v. Sconnie Nation and Underground Printing, the circuit judges ruled in the opposite direction. The defendants downloaded a photograph from the Madison, Wisconsin city website and to use for a t-shirt design ridiculing Mayor Peter Soglin.

The appeals court upheld the lower court’s ruling that the image was protected by fair use. Though they felt “the most important usually is the fourth (market effect),” the third factor, “the amount taken in relation to the copyrighted work as a whole—has much bite in this litigation.” They write:

“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a snapshot taken on the street.”

The court’s description is odd. Only in a hyperbolic sense does “only the smile remain” from the source photograph. Though it’s technically true that “so much of the original’s detail never had a chance to reach the copy,” the amount of detail in the low resolution version is highly significant. It’s also true that the defendants could have taken a snapshot of Soglin on the street and used it as their source material, but they didn’t, and whatever “effect” that hypothetical image might have had seems irrelevant. More importantly, there is considerably more “left” than “a hint of Soglin’s smile” and “the outline of his face.” And most importantly, it seems highly questionable whether the t-shirt image only contains content “which can’t be copyrighted.”

If outlines and hints of features can’t copyrighted, then the Picasso estate cannot control rights to many of the artist’s drawings:

Outlines of faces and hints of their features also describe cartoons. Can the following not be copyrighted either?

What about outline-defined logos?

This would seem to relate to the Los Angeles News Service v. KCAL-TV decision which rejected fair use because the duplicated portion of a videotape “was the heart of the work.” In terms of single-image representation, some details always matter more than others, so “the heart” would presumably refer to only those areas that make portrayed faces recognizable. Yet Warhol Foundation v. Goldsmith and Kienitz v. Sconnie Nation draw opposite conclusions. While the amount of detail contained in the Warhol and the t-shirt appears objectively similar, the two panels of judges described them as diametrically different. For the image of Prince, “there can be no reasonable debate that the works are substantially similar,” but for the image of Mayor Soglin, what remains of the original is so scant it “can’t be copyrighted.”

I began this post expecting it to run my usual 1000-word range, but I'm close to doubling, with apparently lots more to go. So more next week ...


[Spoiler Alert: This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

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