The isolated perceiver is not the danger. The danger is what happens when she finds the others, because a perception gathered becomes a public and a public voiced becomes something that cannot be called the deviation of the isolated few.
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Ask what a woman would perceive if equipped with political philosophy, theology, law and natural philosophy.
She could perceive her position as constructed, and the construction as recent and contingent and reversible. She could perceive the religious warrants for her subordination as forensically corrupt. She could perceive coverture as a built thing rather than as nature. She could perceive the claims about her inferiority of mind as not surviving their own evidentiary standards.
But perception alone is not the threat. A single woman who perceives is one woman who perceives, and there are tested mechanisms for her: managed, dismissed, pathologized, isolated, married off, asylumed, divorced from her children, declared hysterical, called a witch.
[See THE BURWELL CURRICULUM · KATHARINE BUSHNELL]
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THE COURT NAMED IT
The most candid statement of the danger is Taney's in Dred Scott v. Sandford, 60 U.S. 393 (1857), explaining why Black people cannot be citizens. He gives a list of what citizenship would entail, and the list is a catalog of First and Second Amendment freedoms: to enter every State singly or in companies without pass or passport, to sojourn there, to go where they pleased at every hour, to hold public meetings, and to keep and carry arms.
Read it as the diagnostic it is. The danger he enumerates is not property or commerce or presence in the territories. It is movement, speech, public meetings and arms.
Which makes the opinion a confession. The Court has identified the threat, and the threat is the First and Second Amendments exercised by the populations the founding constructed itself to exclude. So the reasoning for exclusion is not that Black people fail some test of personhood. It is that admitting them would activate protections the founding had not built itself to permit.
[See DRED SCOTT]
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CRUIKSHANK REMOVED THE PROTECTION
United States v. Cruikshank, 92 U.S. 542 (1876), made the naming operational.
It arose from the Colfax Massacre on Easter Sunday 1873 in Louisiana, where Black freedmen who had organized politically assembled at the parish courthouse to defend it against an armed white force determined to overthrow the local Reconstruction government. They were overrun. A federal grand jury indicted three of the attackers under the Enforcement Act of 1870, charging conspiracy to prevent the freedmen from exercising their First Amendment right of peaceable assembly and their Second Amendment right to bear arms.
The Court reversed the convictions, holding that the First Amendment was not intended to limit the States in respect of their own citizens but to operate upon the National Government alone. The right to assemble was a matter for state law, and Louisiana had not chosen to protect it.
So the freedoms Taney had identified as the threat were stripped of federal protection at precisely the moment those populations had begun exercising them. The Colfax massacre is the documented killing. Cruikshank is what ensured its pattern could be repeated, and within a decade the Reconstruction governments were overthrown across the South, the assemblies dispersed, the voting rolls purged.
[See THE READJUSTERS · THE PERSECUTION RITE]
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THE SAME COURT, THE SAME DECADE, THE WOMEN'S CASES
Bradwell v. Illinois, 83 U.S. 130 (1873). Myra Bradwell had passed the Illinois bar and was denied admission on the ground that a married woman had no legal existence separate from her husband and could not contract.
And the exclusion is not from a profession. It is from the instrument. The bar is the institutional voice through which women could have advocated for other women, drafted challenges to coverture, and built the doctrine that assembly would need. Bradley's concurrence supplies the warrant in the phrase the law of the Creator, which is the same warrant used to authorize coverture and slavery and the racial hierarchy, doing constitutional work.
Minor v. Happersett, 88 U.S. 162 (1875). Virginia Minor argued the Privileges or Immunities Clause guaranteed women the vote. The Court held that citizenship did not necessarily imply the franchise: women were citizens, and women did not vote.
Read the two against Cruikshank one year later. In each case the Court removes the mechanism by which an excluded population's perception could become collectively operative. The freedmen cannot federally assemble. The women cannot vote. Neither can transmit perception into political effect through the channel the Constitution provides for it.
And the Slaughter-House Cases, 83 U.S. 36 (1873), had already gutted the Privileges or Immunities Clause itself, reducing the federal protection of fundamental rights against state action to a list of trivia its drafters had not been concerned with.
[See THE SLAUGHTER-HOUSE CASES · COVERTURE · FOUNDER'S THEOLOGY]
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BY 1883 IT WAS COMPLETE
The Civil Rights Cases, 109 U.S. 3 (1883), struck down the Civil Rights Act of 1875, holding that the Fourteenth Amendment did not reach private discrimination in public accommodations. State action only, and the state, after Cruikshank and Slaughter-House, was the party that had constructed itself against exactly the assembly the Reconstruction Amendments were designed to enable.
The freedmen had been excluded from federal protection of assembly, of speech, of arms-bearing, of any Fourteenth Amendment claim, and against private discrimination. Women had been excluded from the bar, from the franchise, and from the clause that would have grounded either.
Plessy v. Ferguson, 163 U.S. 537 (1896), and the Lochner line entrenched it. The First Amendment continued to exist as text and had been removed, as operation, from the populations that would have used it.
[See CONSTITUTIONAL CAPTURE · THE PSYCHIC WAGE]
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TWO OPERATIONS, ONE MACHINE
The curriculum and the case law do the same work at different points.
The curriculum operates upstream: it prevents the perceiving mind from forming, by exclusion from the disciplines that would let her perceive her position and by inclusion of the subjects calibrated to keep her useful at her station.
The case law operates downstream: it assumes the perception has occurred anyway, through whatever channels evaded the curriculum, and prevents the perceiving mind from finding company.
So the layers are backstops for each other, and the sequence is legible as a sequence. Prevent the mind from forming. If it forms, prevent it from finding company. If it finds company, prevent the company from speaking. If it speaks, prevent the speech from assembling. If it assembles, leave the assembly without federal protection, so that state and private violence can disperse it without remedy.
Which means that at this depth the operation is not primarily about race or gender as separate categories. It is about preventing assembly by the populations whose assembly would force into visibility that the order is constructed, recent, and reversible. Race and gender name the two largest such populations, and the calibration differs by population while the operation does not.
[See WOMEN'S WAR · THE ESTABLISHMENT]
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WHAT THE AMENDMENT WAS PROTECTING
It does two things at once. It protects the speech and assembly of the political community the founding constituted itself as, and it defines who is in that community, by who can exercise the freedoms it names. The exercising population is the community. The non-exercising population is outside it.
So Cruikshank is not an exception carved into the Amendment. It is a reading of the Amendment's original construction as exclusive of the freedmen. And Bradwell performs the same operation in the other register: not a denial of a woman's right to choose a profession, but a recognition that women were not among the people whose professional and political life the document was written to protect.
Which is what the perceiving woman would perceive, given the disciplines: that the Constitution she was told is hers was written for a community that did not include her, that her exclusion was the founding act, and that the protections she is invoking were calibrated against exactly her use of them.
That is what the whole operation exists to prevent her from assembling around.
[See FREE EXERCISE]
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It has not been dismantled. It has been calibrated forward.
Cruikshank was partially modified by incorporation, so the First Amendment now applies against the states, and the doctrine determining whose assembly receives protection in practice was not modified with it. Bradwell was formally rejected, and women were admitted to the bar and the franchise and the jury and the workplace.
The forms of exclusion changed. What did not change is the thing the forms were for: preventing the perceiving creature from finding sustained company with others who perceive.
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
