Archive for June, 2014

Gay Marriage defeats tyranny of the majority–again

Posted on June 25, 2014. Filed under: Uncategorized | Tags: , , , , |

We’re happy to announce appearance #9 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as a district court overturns Utah’s ban on gay marriage:

 

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

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The Washington Redskins–no more?

Posted on June 19, 2014. Filed under: Civil Rights, Economics, Politics | Tags: , , , |

The U.S. Patent and Trademark Office has ruled (we think that’s the word) that Washington, DC’s NFL team, the Redskins, can no longer trademark that name, saying: “the term ‘Redskins’ was disparaging of Native Americans, when used in relation to professional football services”. Five Native Americans brought the case to the Patent Office saying the name is disparaging. The upshot is that the team can no longer control who uses the name or profit from its use. (The image of the “redskin” that goes along with the name is still, somehow, protected.)

The team’s owners are contesting this, and will appeal; in fact, this decision seems to have been made before and overturned by a federal district court. So there is a chance that the name will go on, and continue making money for the team.

The list of team names, from professional sports to high school, that use Native American references is very long. “Indians” is a name used by hundreds of school teams; “Chiefs” and “Braves” are second in popularity. In most cases, it seems clear that the name was chosen to represent the team’s strength and fearlessness, and was considered a shout-out to the Native Americans who possessed those qualities. Usually the image that represented the team was a chieftain in full feather headdress, or a “brave” with one feather. On the high school level, the image was usually neutral; it’s at the college and professional level that they are uniformly racist (one notes the Cleveland Indians image and the (now defunct) Philadelphia Warriors image in particular).

In the case of the Washington team, its owners have leaned heavily on the historical defense: any name that’s 80 years old must be innocent. This is an oft-used argument that we cannot make sense of. There are many words that have been around a long time that are slurs. In 1890, Webster’s dictionary listed “redskin” as a “contemptuous” term for Native Americans. That predates the team choosing it as its name. But the league is standing by it: Adolpho Birch, the NFL’s senior vice president of labor policy and government affairs, said the name is not a slur:

“The team name is the team name as it has been for 80-plus years. And what we need to do is get beyond sort of understanding this as a point-blank situation and understand it more as a variety of perspectives that all need to be addressed, that all need to be given some weight, so that at the end of it we can come to some understanding that is appropriate and reflects the opinions of all. I think that is part of the issue with the question is that it is constantly being sort of put into a point-blank, yes-or-no, yes-or-no kind of context when that’s not the reality of the situation that we’re dealing with.”

Often here at the HP we present a block quote and break it down through analysis. We’ve done it for George Washington and William Jennings Bryan. Now we will attempt to do it for Adolpho Birch:

“The team name is the team name as it has been for 80-plus years.”

—If something is old, it can’t be racist. People in olden times were not racist.

“And what we need to do is get beyond sort of understanding this as a point-blank situation and understand it more as a variety of perspectives that all need to be addressed, that all need to be given some weight, so that at the end of it we can come to some understanding that is appropriate and reflects the opinions of all.”

—Instead of the name being… black and white, as it were, it is a complex issue where everyone’s opinion has equal weight and a solution exists that will please and reflect the wishes of everyone, even if they are diametrically opposed.

“I think that is part of the issue with the question is that it is constantly being sort of put into a point-blank, yes-or-no, yes-or-no kind of context when that’s not the reality of the situation that we’re dealing with.”

—The question of the name is an issue that is usually described as dichotomous, dichotomous, dichotomous when that’s not realistic.

We can see that our analysis makes good sense of Birch’s sputtering and panicky nonsense. The answer to “is that name racist” cannot be “yes” or “no”. That’s too point-blank. Reality is that nothing is ever clear, even to people who are clear that the name offends them. In “reality”, the only virtue of Birch’s “argument” is that it puts the onus of the racism on us, the public who have sat back and accepted the racist team name for so long. For 80 years, the team was allowed to perpetrate racism, and that’s not just the team’s fault.

So it can only be hoped that a district court does not overturn this latest ruling, and that a point-blank rebuke to the league’s and the team’s “complex” defense of a “contextual” racial slur is taken down.

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The World Wars on the History Channel; or, all in one and one subbed in for all

Posted on June 4, 2014. Filed under: Historians, Truth v. Myth, What History is For | Tags: , , , , , |

Hello and welcome to part 2 of our short, indeed two-part series on the History Channel’s new series The World Wars. In the first part of our mini-series, we looked at the shortcomings of both “great man theory” history and misogyny. Here, we focus on a main theme of Episode 1 that we can’t quite live with: the radicalization theory.

We are told repeatedly that Hitler was radicalized by his experiences serving as a private in WWI. The same claim is made about Mussolini, but not as often, as he only makes two brief appearances. Both men, but especially Hitler, saw brutality, random violence, pointless and awful death, and other horrors of war, and then Hitler had to suffer through his country’s defeat and surrender (or, as he saw it, its sure victory and inexplicable surrender). All this changed him from an anonymous putz to a demonic fascist.

The problem with this is twofold: first, millions of soldiers had the same experience of the horrors of war but did not turn into monsters; and second, war horror is not a logical explanation for what Hitler became and did. Many men wrote about their horrible experiences in the war afterward. They all suffered in the same way Hitler did. Many of them questioned the social and political status quo, and gave up on religion. But they did not all become fascists overthrowing governments and using murder to establish power. So to repeatedly show Hitler taking in the horrors of war is not adequate as an explanation of his evil. There was something about Hitler’s mind and character that allowed him to drift into fascism, and while that something was present before the war, it really flowered after the war.

The best part of Episode 1, which is really well done, is the sequence after the war showing Hitler begging for work from the army and being sent to monitor a podunk political leftist group, mostly just to get him out of the army’s hair, and sitting there at the meetings, defensive and wary, until he begins to be drawn in, correcting the speakers’ arguments and becoming a leader. The response of the men at the meetings is very natural: here is a man who wants to stand up for Germany and assert its virtues and innocence of war guilt at a time when the whole world is making Germany a pariah among nations. Here is a man who has patriotism and confidence—two things that were very scarce in Germany after WWI—who makes us feel good about our own personal participation in the war and status as war veterans. He’s not suggesting holocaust at this point. He’s just asserting the right of Germans to be proud of being German. At that point, that was a radical but not morally repellent stance. It’s clear that Hitler progressed from this neutral status to his warped plans for a bigger and better Germany that involved the goals of patriotism driven to an illogical extreme of imperial conquest and genocide.

What shaped Hitler was not so much the war as its aftermath. If he had been selling fascism in the trenches he would have been rejected. But in the 1920s, there were men and women who were ready for radical ideas, and willing to be radicalized, as a sort of wild pendulum swing from overwhelming shame to unthinking pride, and all of it based on national identity turned into racial identity. Hitler was not interested in fascism in the trenches, and not even thinking about it when he first attended the political meetings. But he got the idea from the times after the war, and then his personal chemistry and mindset allowed him to take it to undreamed-of levels.

So we’re not buying the idea that The World Wars episode 1 so consistently urges on us, that it was war that made Hitler. It was peace: Hitler was radicalized by a peace he could not accept. If the war made Hitler, it should have made tens of thousands of Hitlers, all over the world, in England and France and the U.S., and perhaps Belgium in particular. Fascism should have swept the world and become the dominant form of government. There should never have been a WWII. Japan was on the Allied side in WWI, experienced no fighting on Japanese soil, suffered few causalities, and should therefore have been safe from fascism after the war. But that was not the case. The fascism that characterized the 1920s and 1930s was a force many decades in the making that was set free to grow in the despair and political chaos and opportunism of the postwar period.

We end our analysis of The World Wars here; we can’t hang on for two more episodes. But if you watch them, let us know. Send a comment and tell us what happened. We’re indebted to an HP reader for recommending we watch Episode 1. (The History Channel is not really on our radar, as it is rarely devoted to history.) We’d love to find out that the series improves, but we’ll leave it to you to let us know.

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