Category: Bill of Rights

November 2021 round-up: attacks on academic freedom in Florida and Texas

There’s a lot to include in any wrap-up of the battle going on in the U.S. right now to make colleges and universities nothing more than weapons in the hands of Americans who want to dismantle our democracy. Through sheer chance, we began our coverage of the University of Florida on the first of this month, and that story has continued to evolve throughout November. In our November 1 post, we described how three political science faculty members were refused permission to serve as expert court witnesses during a lawsuit challenging Florida’s new voting restriction law because, as UF president Kent Fuchs put it in a written statement,

It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.

That is, UF employees will not testify against a state policy because then the state will cut funding to the university. The idea that state universities will lose funding if their faculty criticize the state is a new one, at least in the U.S., and it makes “the state” sound a lot less like Florida and a lot more like “the State”, as in “state-controlled media” or “state-controlled education”.

Reaction was swift, from inside and outside UF. The next day, higher ed reporters wrote that “Administrators denied requests from a fourth professor who had asked to participate in litigation supporting mask mandates against [the state of] Florida…

The professor, the pediatrician Jeffrey L. Goldhagen, was asked to testify and serve as a declarant in litigation that followed Gov. Ron DeSantis’s executive order that forbade mask mandates in schools as the Delta variant of Covid-19 tore through the state. Goldhagen is chief of the division of community and societal pediatrics at the University of Florida‘s College of Medicine, in Jacksonville, and a professor in pediatric palliative care. Goldhagen said he would have spoken about why masks work and why children need protection from the virus.

…Goldhagen’s case appears to contradict the university’s earlier explanation for why the political-science professors’ testimony was blocked. The campus’s president, W. Kent Fuchs, and provost, Joe Glover, wrote on Monday night that the political-science professors would be “free” to testify “pro bono on their own time without using university resources.” Goldhagen wrote in the disclosure he submitted to the university that he would not be using university resources and indicated, when asked if he would be paid more than $5,000 annually, that he would not. He told The Chronicle that administrators never separately asked him if he would be paid at all.

The very next day–November 3–it was revealed that a faculty member at another state university, Florida International University, who supported the Florida voting restriction law was allowed to testify in its favor by FIU:

Court records show that the Republican National Committee and the National Republican Senatorial Committee hired a Florida International University professor, Dario Moreno, as an “expert witness” in League of Women Voters of Florida v. Lee, which challenges the restrictive voting law.

At Florida International, a public university, administrators signed off on Moreno’s outside-employment request with little fanfare. The “Outside Activity/Conflict of Interest Form” includes no comments or feedback to Moreno — just a couple of sign-offs by his superiors. Though the filled-out form does not specify the lawsuit, it names a law firm — Shutts & Bowen — listed on the same court documents that name Moreno as an expert witness for the Republican committees.

…Moreno, who could not be reached for comment, is an associate professor in the politics and international-relations department. He has previously been paid by the Florida Legislature to defend Republican-drawn redistricting maps in court. According to a 2015 article in the Tampa Bay Times, Moreno had been “hired by the Florida Legislature to be an expert witness in defense of every GOP-drawn redistricting map since 1994.”

Uproar over the discrepancy led UF to issue a statement saying their faculty could indeed testify against the voting law, but only if they were not paid. FIU put no such stricture on Moreno as he testified in favor of the law, and he billed for 112 hours’ worth of compensation.

Where does the fault lie–with the State of Florida’s Republican-led government, which may send a message to its colleges and universities that any criticism of the government will be punished? or with those institutions, like UF and FIU, that are all too willing to accept this situation? or with the general public, which includes people who support the situation and people who do not support it, who do nothing?

Silke-Maria Warnock, a faculty member at the University of Michigan at Ann Arbor, throws down the challenge we are all facing:

It’s rarely a good sign if you find yourself wondering how to translate certain German words: Gleichschaltung,for instance, or vorauseilender Gehorsam. But reading the news out of the University of Florida, where two administrators informed three faculty members that they were not permitted to testify as expert witnesses in a court challenge to Florida’s voter-suppression laws, will send you down that road.

Gleichschaltung is the process by which institutions are brought under the control of totalitarian ideology. It is frequently rendered as “coordination” or “synchronization,” but those terms lack the terrifying connotation of switches flipped, one by one, until the same ideological current flows through every previously independent institution.

Vorauseilender Gehorsam means “obedience ahead of the command.” The Yale historian Timothy Snyder translates it as “anticipatory obedience,” and that is close enough, but it doesn’t quite capture the scurrying servility implied in “vorauseilen,” to hurry ahead.

We don’t know on whose orders David E. Richardson, dean of the university’s college of arts and sciences, rejected the request of Daniel A. Smith, chair of its political-science department, to testify as an expert witness in the voting-rights case; or on whose orders Gary Wimsett, UF’s assistant vice president for conflicts of interest, rejected the requests of Michael McDonald, who studies national elections, and Sharon Wright Austin, who studies the political behavior of African Americans, to do the same. All three faculty members had previously testified as expert witnesses against the state in other cases, and the university had never declared them to be subject to conflicts of interest.

Unless we want to believe that two different administrators independently invented the same policy from scratch and presented it in near-identical terms, we have to conclude that Richardson and Wimsett acted on orders from above. The notion that they simply anticipated such orders is, in some regards, even worse… Whether they got their orders from the trustees, the president, the provost, or from Gov. Ron DeSantis or one of his minions will emerge in due course. But no matter where the directive originated, both men should have refused to carry it out. They should instead have offered their resignations. You do not obey such commands, you do not hurry ahead to destroy your university’s reputation at the bidding of an authoritarian regime.

…The implications of the assertion that the faculty must not act in a manner adverse to the regime’s interest — “activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict for the University of Florida” — are staggering. If you are not allowed to bear witness against voter suppression in court, why would you be allowed to study the effects of voter suppression in the first place, or to teach your students about them? Such research and such teaching are not in Ron DeSantis’s interest, either, and by the logic of Richardson’s denial, any activity that is not in Ron DeSantis’s interest is not in the interest of the University of Florida.

…the university’s decision to declare itself an arm of DeSantis’s government rather than an independent institution beholden to the production and dissemination of knowledge and expertise represents an instance of Gleichschaltung that will be more difficult to reverse. It will only get worse. That it is the democratic franchise itself that is at stake in the court case in question only highlights how deep the threat is. Access to the vote is to democracy as freedom of speech is to the university: fundamental, constitutive. Democracies go bankrupt the same way everybody else does: very slowly, then all of a sudden. We are still at “slowly.” All of a sudden is scheduled for Tuesday, November 8, 2022. If Florida’s administrators have ever asked themselves how they would have acted in 1932, now they know.

The date of November 8, 2022 refers to the next election day, when Governor DeSantis is up for re-election.

Of course, it’s not just Florida. If our CRT page has taught us anything, it’s that democracy is under attack in all 50 states, and that higher ed is a much-hated target. Most recently, the University of Texas at Austin has halted a research study “on the effectiveness of antiracism training for white children”–the original “critical race theory” topic that began our own coverage of CRT.

The name of the university is different, but the attack is the same:

This follows a complaint to the Department of Education’s Office for Civil Rights that the project is racially discriminatory, among other criticism. his follows a complaint to the Department of Education’s Office for Civil Rights that the project is racially discriminatory, among other criticism.

–It’s astounding and depressing that a single, horrible argument has gained so much credibility: that teaching about racism is racist. Our first CRT page post, Truth v. Myth: Trump’s Executive Order on Diversity Education, thoroughly explores this double-speak. Teaching Americans that racism existed in the past and still exists in the present, and takes the form of white racism against non-white people in our laws (institutional racism), is, the argument goes, racist because it makes white people feel bad by assuming that they are racist until they prove themselves non-racist. It is imperative, in this argument, that no white person ever feel bad or consider whether they participate in or benefit from racism, institutional and otherwise, and the deeper, much more screwed-up message is that non-white people are racist. Non-white people assume that white people are racist, which is racist.

To be brief, in a society where racism against non-white people is deeply embedded in law and social more, every white person does indeed have to make an effort to change this situation, and remove racist laws and representations from our nation.

To return to this particular UTA story, it seems logical that if CRT is “new” and suspect, it should be objectively, scientifically tested through studies of its impact. That’s what was happening at UTA. But its opponents could not take the chance that the study might prove that white children were not damaged by learning about racism, and so have shut it down, with the university’s meek acquiesence–or its gleichschaltung:

Numerous professors are asking the university to allow the research to proceed during the internal and external reviews, arguing that UT Austin’s institutional review board previously approved the project, as did peer reviewers during a competitive internal funding process.

These professors warn that halting research due to outside complaints threatens the integrity of the study at hand and, more generally, chills free inquiry into timely subjects such as antiracism.

UT Austin “leadership’s decision to pause elements of the study based on the mere filing of a complaint, and before any assessment of whether the complaint poses a credible claim, compromises the integrity of the research and the academic freedom to conduct research and draw conclusions rooted in evidence,” 18 UT Austin education professors said this week in a letter to President Jay Hartzell and Provost Sharon Wood.

…“The leadership’s decision to pause any aspects of the study has the effect of legitimizing actions that, however unfounded, seek to suppress scholarly pursuit of truth and the advancement of scientific knowledge.”

The purpose of the study, according to a recruitment flier, is to explore “overall engagement with the GoKAR! program, as well as the potential for the program to reduce bias and increase awareness of racism.”

The study hit a speed bump after Mark Perry, a professor emeritus of economics at the University of Michigan and a scholar at the American Enterprise Institute, filed a complaint with the Dallas OCR office alleging violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race.

UT Austin “blatantly violates Title VI by illegally engaging in racial discrimination on the basis of skin color by promoting, sponsoring, offering, and marketing a discriminatory program that engages in racial segregation,” Perry wrote to the OCR. “In violation of Title VI, the University’s GoKAR! Program operates illegally and exclusively for caregivers and their 4-5 year old children who both must identify as white and illegally excludes and discriminates against and excludes non-white caregivers and their 4-5 year old children on the basis of their race and skin color.”

…Victor Saenz, chair of educational leadership and policy at UT Austin and the first of the 18 education professors to sign the letter of concern, said via email that he wanted “to clarify that we’ve been in constant communication with all levels of UT leadership throughout this review process.” The university is “working expeditiously to help resolve this matter to ensure our faculty are being fully supported.”

Saenz’s letter to Wood and Hartzell tells something of a different story: “We are deeply concerned by the request to pause any aspect of the research. The university’s actions raise serious concerns regarding the differential treatment of research based on subject matter and viewpoint. In our experience, and in consulting with individuals who have extensive experience interacting with the [OCR] and/or expertise in academic freedom and civil rights, this is an atypical and unprecedented response from a university.”

…Referencing several critical blog posts and news articles about the study, some of which suggest that the project amounts to training, not research, [a letter from UTA faculty] says that “to succumb to political coercion, especially as it relates to scholarship that confronts anti-Black racism, white supremacy, and any other forms of oppression, compromises the central function of a public university. The university’s actions send a message that risks censoring and chilling professor speech based on viewpoint, running afoul of central tenets of the First Amendment.”

Yes, Perry is saying that a study of white children’s responses to educational materials that will help change racist attitudes about non-white people is racist because it doesn’t allow non-white children to participate–it’s segregation. Perry is deeply concerned that non-white children are not being given the chance to learn how not to be racist, perhaps against other non-white children, but given everything we have learned about this topic, it seems safer to bet that Perry wants non-white children to learn not to be racist against white children.

If only this type of university-supported attack on science, the objectivity of higher ed, and our national commitment to liberty and justice for all were truly “atypical and unprecedented”. This snowball is quickly growing and the hill it rolls down becomes steeper and steeper.

We’ll end as we always do–everyone must do their part to stop this takeover and dismantling of our democracy. Get involved in whatever legal and non-violent ways that you can, where you are, locally and nationally. Stop the gleichschaltung before it becomes a way of life.

Freedom of double-speak

We’re back once again to flag just one of the many open, unembarrassed attacks on our democracy going on right now, and it’s clear that this is not going to stop until that work is accomplished, or an equally powerful bloc of pro-democracy Americans occupy positions of authority in federal, state, and local governments, in K-Ph.D. education, and in corporations.

This time, it’s the University of Florida: three of its political science department faculty submitted requests to serve as expert witnesses in court during a lawsuit challenging Florida’s new voting restriction law. UF released a “University statement on academic freedom and free speech” on October 20, 2021, that was short and not sweet:

Recent news reports have indicated the University of Florida denied requests of some faculty members to participate in a lawsuit over the state of Florida’s new election laws.

The University of Florida has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so. It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution.

…the university’s interests as a state of Florida institution. What does this mean? One can quickly infer that it means “we don’t testify against the state government that funds us–our main interest is existing.” If we continue to browse UF Statements by Year, we see that on August 26, 2021, President Kent Fuchs included this paean in his state of the university address:

Despite the economic challenges faced by the State of Florida due to Covid, our elected officials invested even more in the University of Florida this past year, for which we are incredibly grateful.  In the past five years we are the only university in the nation to have increased the size of our faculty by 500, and this past year the Governor and the State Legislature invested additional funding in UF to further increase the size of the faculty, particularly in the area of artificial intelligence.  Although no new funds were provided for salary increases, the provost, vice presidents, and deans reallocated funds from existing budgets to provide compensation increases for both faculty and staff this year. 

So “incredibly grateful” is UF that it is paying back the favor by refusing to allow its faculty to testify against state voting policy. This inevitably leads one to wonder if that state financial support for UF was predicated on the State of Florida’s understanding that the gift would make UF (even more) unwilling to criticize any state laws. Fuchs has made no secret of his own sense of being a figurehead, saying in the same August 26 address that he could not issue a mask mandate: “I literally don’t have that power… within hours, another message would go out from someone to everyone, again saying we’ve been informed that there will be no such mandate. We’re part of the state government.”

State funding is meant to fuel the inquiry, knowledge creation, and intellectual work of a university. It’s not supposed to be a muzzle or a leash. It’s supposed to be freeing–instead of relying on private money, which is given at the whim of wealthy individuals, state universities get public funding that is regular, objective, and not predicated on the university doing what a few people want it to do. It receives public money in return for serving the public good.

If a state university will not allow its faculty to testify in a case against state policy, no matter the reason, then that university cannot logically refer people to its “long track record of supporting free speech and our faculty’s academic freedom” and vow that “we will continue to do so” when they protest this shutdown of free speech and active democratic participation. This is just more of the open double-speak that is so hard to witness, so unbelievably brazen and acceptable and, it seems, often so persuasive to the American people.

It’s what Chief Judge Beryl Howell, FDC in Washington, DC, sharply rebuked on October 28, 2021:

“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”

…Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?

“It seems like a bit of a disconnect,” Howell said – “muddled” and “almost schizophrenic.”

“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”

She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”

…”In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.”

The worst attack ever, slap on the wrist. Academic freedom, no testifying against the state. Killing our democracy, petty offense. We’re far beyond the stage of a foundation for dictatorship being laid. It’s been laid, the concrete has set, and the framing is going up. All Americans who value democracy in general, and our historic democracy in particular, need to be as active as the fascists are, to get into politics at all levels at the rates they do, to be as forceful in fighting for democracy as they are forceful in attacking it, and to stop letting anti-democratic Americans dominate policy, media, and society.

This is that email with the subject line that says ACTION REQUIRED. We don’t call for riots or bloodshed, which is just another thing that distinguishes us from anti-democracy activists. We call for legal action to take the place of the amazing inaction and bystandering that seems to characterize even those Americans who support our democracy.

It’s much like the latest environmental crisis: people watch it grow and grow, and they get scared, but they comfort themselves that some small group of people will fix it. Some scientist will come upon a solution. Someone will solve it. Someone else. This is partly the result of the last 150 years or so of medical and scientific exploration and development: there have been many, many times when a small group or even one individual did create or discover a cure or a solution–vaccines, non-aerosol dispensers, seat belts.

But we cannot all sit back and wait for some free individual or team to solve our national or global problems. To bring it back to American democracy, there are likely many opportunities for you, wherever you live, to take up the long, slow work of participating in local government. Wherever you live, you can join the fight to prevent anti-democratic Congresspeople from calling a new Constitutional Convention that, with the solid voting bloc formed by anti-democratic Republicans, would be sure to shred our Constitution and institute the same kind of dictatorship that other countries whose leaders have re-written their constitutions (Hungary, for example).

Never heard of the “Article V Convention” effort? Just put it into a search engine and you’ll find plenty about it–sharply divided into pro-Convention stories from right-wing orgs and anti-Convention stories from left-wing orgs.

Whatever you do, do something to defend democracy. You may be that individual or in that small group that could change things.

Why are anti-choice”heartbeat” laws unconstitutional?

We’re back with a follow-up to our post on the unconstitutional Texas Senate Bill 8 – or, as we call it, the Fugitive Abortion Act.

We had promised back in our first post to talk about how the bill, now a law, has been playing out. As expected, other states controlled by Republican legislators are gearing up to pass equivalent bills; Florida’s are working on the basically identical “Florida Heartbeat Act” – “ban most abortions as early as around six weeks, allow members of the public to sue anyone who helps end a pregnancy beyond that point and fine physicians $10,000 for each abortion they perform later in pregnancy.”

You will always hear opponents say these bills are unconstitutional. You will never hear them explain why. Is the right to get an abortion protected by name in the Constitution? It is not. So how are these laws unconstitutional? Here’s a very useful explainer from Cornell Law School’s Legal Information Institute:

In Roe v. Wade [1973], the [Supreme] Court established a right of personal privacy protected by the Due Process Clause [of the Constitution] that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In other words, the Supreme Court interpreted the Fourteenth Amendment of the Constitution, guaranteeing personal privacy, to include the personal decision about whether to end a pregnancy. It also interpreted the Due Process Clause of the Constitution to refer only to people, not embryos or fetuses (“the unborn”), sensibly acknowledging that embryos and fetuses cannot be understood the enjoy the right to due process before the law because they are not people.

This is the decision that anti-choice and anti-woman forces have been successfully working to overturn for the past 49 years. Their identification of embryos and fetuses as “children” and “babies”, even from the moment the first cell divides, has been very effective in convincing their followers that the unborn are indeed people with rights–rights that even overrule the rights of the actual people who are pregnant.

This deliberate untruth has impacted the U.S. in many ways aside from the battle to allow people who are pregnant to decide whether they should continue their pregnancy. It’s one of the foundational arguments of anti-vaccine activists who “have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue”. They are willing to infect and potentially kill actual people, including themselves, in order to claim “rights” to life for cells, embryos, and fetuses.

As we cannot state often enough, this is a prime example of the dangers of claiming that the Constitution protects “religious belief.” We’ve said it before, we’ll say it again:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public restrooms, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

People are allowed to believe anything they like, including that a dividing cell is a baby. But they are not allowed by our Constitution to enforce their beliefs through laws, for the simple reason that laws apply to everyone, no matter their personal beliefs. That’s one of the reasons why the new laws in Texas and Florida and elsewhere are so dangerous: they include the innovation of having other citizens, rather than state officials or law enforcement officers, enforce the laws by bringing lawsuits against people who seek abortions. This weaponizes people whose personal beliefs align with denying pregnant people control over their own bodies, and gives their personal feelings the power of law.

It also turns our established legal principle of “innocent until proven guilty” on its head by forcing people into court to prove that they have not had an “illegal” abortion–guilty until they prove themselves innocent, and guilty on the basis of violating someone else’s personal, religious beliefs.

This is not the America we want. It’s not what the Founders who wrote the Constitution wanted. Americans who value their natural rights as guaranteed by the Constitution have to be as active in defending them as Americans who do not value them are in tearing them down.

Texas Senate Bill 8 is the Fugitive Abortion Act of 2021

Section 7 – And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

That’s Section 7 of the Fugitive Slave Act of 1850. This Act of Congress allowed states and territories of the U.S. to create commissioners to hunt down black Americans who escaped slavery and return them to their enslavers. If an enslaved person was able to reach a state that had legally banned slavery, their enslaved status was not overturned. Instead, the people of that state were forced, by Section 7, to void their own antislavery laws by helping the slave commissioners in whatever way those commissioners demanded: help them to find enslaved people, take them into custody, guard them while they awaited return to their enslaver, and turn them over to the enslaver. Preventing a slave commissioner from enforcing slavery in a free state was illegal. Helping an enslaved person hide or escape was illegal. Knowing about people who were helping or hiding enslaved people was illegal, because it was a form of “hindering” the slave commissioner. The penalty for those who hindered slavery, directly or indirectly, was a $1,000 fine (a fortune in the mid-1800s), up to six months in prison, and another $1,000 fine to pay back the enslaver the “civil damages” they experienced as “the party injured by such illegal conduct”. Since very few Americans would have $1,000 to pay the first fine, the second $1,000 would be collected “by action of debt” – that is, seizure of property and/or any other asset the person might possess.

We posted about the FSA four years ago, in September 2017 in “The 2017 Fugitive Slave Act”; that time, we were comparing it to laws making it criminal to help immigrants who are in the U.S. illegally, and turning police officers into “immigrant-catchers” just like the slave commissioners were “slave-catchers”. When you are rewarded for doing something, you will find ways to do it. When you are punished for doing something, you’ll stop. That’s how these acts work.

This September, in Part 1 of a short series, we’re comparing the Fugitive Slave Act of 1850 to the 2021 Texas Senate Bill 8. Why? Because this Bill, now law, makes it illegal for a woman to get an abortion after six weeks of pregnancy in the state of Texas, and therefore illegal for anyone to provide an abortion or, crucially, to help a woman to get an abortion in Texas after six weeks in any way. Abortion is realistically banned by this procedure, not just or primarily because not all women know that they are pregnant at just six weeks, but because

–all women are forced to make two appointments with an abortion provider, one to get an ultrasound so they can be shown their “baby” and told that they will be “murdering” it if they get an abortion, and one to get another ultrasound before the procedure;

–women under age 18 are forced to get written and signed parental approval to get an abortion; and

–only women with strong support systems, money, and flexible employers who allow time off are able to travel out of Texas to a state that does provide abortions after six weeks.

With the passage of this bill into law, it’s not just illegal to perform an abortion; it’s also illegal to drive a woman out of state to get one elsewhere, to pay for one, or, potentially, to tell a woman where she can get an abortion after six weeks. The law is purposefully vague, using the phrase “conduct that aids or abets the performance or inducement of an abortion” to cover just about anything.

Let’s do a close reading. We took the text of this Bill from the website Texas Legislature Online, which is part of the official State of Texas government website. We’re not reproducing the entire text, but letting you know which sections we’re looking at.

AN ACT

relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1.  This Act shall be known as the Texas Heartbeat Act.

–The use of the word “child” is already a red flag for subjectivity. A fetus at 6 weeks is a fetus, not a “child”. Anti-choice advocates have long used the words “baby” or “child” to describe something that could one day be a baby or child, but currently is not. From the moment an egg is fertilized by sperm, it’s a “baby”, as Section 171.201 (5) says: “‘Pregnancy’ means the human female reproductive condition that: (A)  begins with fertilization”.

Calling the Bill the “Texas Heartbeat Act” technically refers to the fact that a fetal heartbeat is detected between 3-6 weeks after fertilization. But even the language of this Bill in Section 171.201 (1) reveals what a technicality this is: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Is this what anti-choice advocates want you to think of when you hear “Texas Heartbeat Act”? No; they want you to think of a valentine-shaped heart that represents a baby with feelings and emotions.

Basically, calling a 6-week old fetus a “child” or “baby” is like calling someone you enslave a “laborer” or “worker”, as the Fugitive Slave Act of 1850 did, consistently calling people who escaped slavery “fugitives from labor.”

Sec. 171.207.  LIMITATIONS ON PUBLIC ENFORCEMENT. (a)  Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208.  No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.       

–Here the Bill leads early with its key component: it’s not being enforced by the State government. No enforcement of the Bill may be taken or threatened by anyone representing the state. Here’s the first part of that following section they refer to:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

–Texas never claimed that this Bill is constitutional. The evil genius of it is that it doesn’t have to be constitutional if the state is not carrying it out. No one working for the state government of Texas will be asked to prevent a woman from getting an abortion, or take anyone to court for having an abortion or helping a woman to get one. The state’s hands are off. It’s private citizens who will do this work. Yes, they’re authorized by state law, but this means that anyone who wants to challenge this law will have to go after every individual citizen who acts on it–which could be thousands or tens of thousands of people. No one can sue the State of Texas over it.

Pro-choice advocates will certainly take the first private citizen who acts on this law to court, and hope to work that individual case up to the Supreme Court, just like Brown v. Board of Education or Plessy v. Ferguson. But in the meantime, unknown numbers of people will continue to act on it–far greater numbers than work in Texas state government. 25 million people live in Texas. Far fewer work in state government.

This is an authorization of vigilantism, as we will see. Let’s continue that last section:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1)  performs or induces an abortion in violation of this subchapter;

(2)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(1) is clear: no abortions can be provided after six weeks. (2) is that horribly vague “conduct that aids or abets the performance” of an abortion that could cover anything. The only specific they give is that insurance companies that pay for abortion can be sued. The vanishingly small number of insurance companies that ever cover abortion will soon, one fears, be reduced to zero.

You may be asking at this point, where is the burden of proof? How can anyone prove that someone “aided or abetted” in an abortion in any way? It’s just hearsay–I can go to court and say “I know that Person A drove Person B to get an abortion” or, worse, “I know that Person A encouraged Person B to get an abortion,” or even “Person A knew that when Person B left the house that day they were going to drive out of state to get an abortion and didn’t try to stop them.” There’s no end to the dystopian nightmare that is made possible here.

This law also makes someone guilty until proven innocent, which is the opposite of the legal principle the U.S. is founded on. If Person A is sued, they are forced to appear in court and argue that they are innocent. The Bill refers to someone in this situation as the “defendant” and the person who sued them as “the claimant”, and never was the word “claim” so accurately and awfully used. No one making a claim against someone will be thrown out of court, and every groundless case will have to be heard–and the “defendant” will pay all the legal fees if they are found guilty, and the state will pay all the legal fees if they are not, as we see here:

[3] (b)  If a claimant prevails in an action brought under this section, the court shall award:

(1)  injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

(2)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

(3)  costs and attorney’s fees.

So if Person X takes Person A to court and wins, Person A is first made incapable of repeating their crime (“injunctive relief” is a court order that demands that someone stop doing something), and Person X, the Claimant, gets “not less than” $10,000 for each abortion performed or “aided and abetted” by Person A, and the court will pay for Person X’s court costs and attorney’s fees. Person X, of course, pays their own costs and fees.

Remember how the Fugitive Slave Act guaranteed $1,000 to anyone who turned in someone hindering a slave commissioner? And put the hinderer in jail, and made them pay another $1,000 so they couldn’t do it again (injunctive relief)? Just add a zero to the Texas law and we’ve got the same situation, except that in 1850 the person found guilty paid the reward to the person who had turned them in. Now, it’s all taxpayers in Texas. Everyone, regardless of their stance on abortion, is helping to prosecute people who provide or “aid and abet” abortion.

(d)  Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

–There’s a statute of limitations of four years on suing someone for providing, aiding or abetting abortion. We’re surprised it’s that short. Why fear that memory or hearsay or “claims” will be harder to prove with passage of time? Concerns about proof don’t seem to trouble anyone who wrote or passed this Bill.

Sec. 171.212.  SEVERABILITY.      

(c)  The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

–This is surprisingly frank. The Texas state legislature would have passed last word of this bill, “irrespective of the fact” that any part of it “were to be declared unconstitutional or to represent an undue burden.”

Part of this lack of concern for constitutional law comes from their deviant removal of enforcement from the state to the private citizen–again, it doesn’t matter if the law is unconstitutional if the state is not carrying it out (even though the state is, of course, carrying it out by allowing cases to be heard and punishing the courts if they don’t hear the cases).

But the larger part is that this is meant to be read as a brave, moral stand against the immorality of abortion. Even if the whole world tells us we’re wrong, the lawmakers say, we know that we’re right, and we stand by it. This wrapping oneself in morality is very selective in the U.S., and seems mostly to occur when right-wing politicians go against something liberal politicians support.

It’s also almost always about life-or-death stands that are fairly meaningless: support our troops by funding weapons and wars, because they’re fighting for our freedom… but don’t give military personnel a living wage, safety from rape and/or abuse based on sexuality, good life and health insurance, easy access to quality mental or physical health care, or good housing.

Here, it’s don’t “kill” an unborn “child” because that’s “murder”… but once that child is born, do nothing to fund early childhood education, school breakfasts, mother and infant health care, affordable and safe day care, after-school programs, or anything else that will help that child live a good life. This is not being “pro-life” but “pro-birth”.

People who ban abortion are almost always “pro-birth”. They want huge governmental involvement, investment, and protection for stopping abortion, and zero of the above for helping all children thrive, regardless of race, religion, first language, income, sex, sexuality, etc. They usually follow pro-birth laws with measures designed to prevent exactly that kind of level playing field for the children they insist be born, from segregated schools to gay “conversion camps” (aka torture centers).

There’s no room for this in a democratic nation. The history of the United States is one of incrementally increasing democracy, of getting closer to liberty and justice for all. Making a Christian position against abortion the law for all Texans, and, one day, for all Americans, is a violation of our founding principle of separation of church and state. Un-American oppression and disregard for the Constitution, vigilantism and sexism, have no place in our nation. Religious belief is not protected by the Constitution, as we’ve noted before:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

Laws like the ones passed in Texas, and getting closer to passage in many other states, define one specific version of Christianity as “religious belief”, and seek to make it the state (and national) religion. That’s not what we’re supposed to do in America.

Next time, details of how the law is playing out in Texas–and beyond–and a primer in why these anti-choice laws are unconstitutional.

BLM protests are patriotic

We’ve noticed this week that one of our posts–The Boston Tea Party and a tradition of violence–which we posted back on November 21, 2011, has been getting a lot of traffic. We wonder if this is connected with people searching for historical justifications or damnations of public protest currently taking place in America. Let us say unequivocally that nonviolent protest in the name of liberty and justice for all is one of the greatest acts of patriotism that any person, anywhere, including the United States of America, can make. Black Lives Matter protestors are patriotic Americans desperately trying to save this country from those un-American citizens who would turn it into a race-based dictatorship.

We at the HP are taking part in Black Lives Matter protests nightly in our towns. It’s the very least we can do to fight against those who want an end to America as a land of liberty and justice for all.

The U.S. is founded on the Third Article of the Bill of Rights added to our Constitution, which says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peaceful protests (“assemblies”) which demand change from our government (“petition the government for a redress of grievances”) are not just some kind of inheritance from the past. The right to peaceful protest against injustice is fundamental to our form of government, and our rights as citizens.

Gradually since the 1980s, and the presidency of Ronald Reagan, we’ve built a harmful paradox in America: the government is at once “the problem,” and needs to be utterly dismantled so people can be free of taxes and laws they don’t like; but at the same time, people who protest publicly against the government are ridiculed or threatened as dangerous outliers.

To be frank, it’s a specific kind of protestor who is threatened as un-American: the non-white, non-male, non-Christian, and/or non-straight protestor. As racist, sexist, and homophobic people attempt to make white straight Christian male the definition of “American”, the only American who has the right to protest because he’s protesting all those other “non” people, we find that neo-Nazi marchers are basically unopposed by police while everyone else (the “nons”) are met with military-level shows of force.

These anti-“non” protestors usually claim that they are the majority and therefore have the right of tyranny over everyone else. This claim grows in ferocity as white men steadily slip into the minority of the U.S. population, and is transformed into a call for oligarchy–government by the minority, oppressing the majority.

Just two months after the birth of this blog, in May 2008, we posted the first version of our tyranny of the majority post, in which we pointed out that our three-part government is set up specifically to prevent tyranny of the majority by empowering the judiciary to protect and uphold the rights of minority citizens. We’ve reposted this almost a dozen times since then, as gay marriage was legalized in individual states, and as Americans were heard wondering why the courts “pass laws” they don’t like. America is not an oligarchy. It’s a democracy. That’s the torch you must accept as it is passed to you if you want to claim that you are patriotic.

So when we see people searching out our post on the riots that characterized pre-Revolution Boston, we feel uneasy because we fear that our condemnation of those riots will be used to condemn Black Lives Matter protests. It should not be. Here’s why.

As we put it in our post,

When you read about the events leading up to the Tea Party, you quickly become a little uncomfortable with the readiness of Bostonians to physically attack people and destroy their property as the first means to their ends.

…This willingness to use violence got mixed reviews from patriot leaders. Some felt it was justifiable because it was in protest of an unfair government. Others felt it gave the patriot cause a bad name, and attracted lowlifes who weren’t fighting for democracy. All of them knew it had to be carefully managed to keep it under control: at any moment a mob nominally in the service of colonial leaders could become a force that knew no loyalty and could not be controlled by anyone.

It is certainly unsettling for modern-day Americans to read about the tactics our ancestors were ready to use when they believed themselves to be crossed. Mob violence is not something we condone today, and so much of the violence in colonial Boston seems to have been based not in righteous anger but in personal habit and popular tradition that it’s hard to see it as truly patriotic.

Patriot leaders like Samuel Adams knew they would have to keep violence out of their official platform,  disassociating the decisions of the General Court from the purveyors of mob violence. The Tea Party would be a triumph of this difficult position.

The problem with pre-Tea Party Boston was that it relied on mob violence–people tearing down the houses of men who they felt were unjust, throwing bricks at them, pouring hot tar over their naked bodies and covering them with feathers, then forcing them to run through the streets or be beaten. That is mob violence. Those are acts of revenge. They do not further the cause of justice. They can never be actions taken in the name of justice.

Public protest is different from mob violence. Public protest can be violent or non-violent. Violent public protest is just one half-step above mob violence, because it cannot be controlled in a way that promotes justice. It is about revenge, not change.

Non-violent public protest is, by its very nature, controlled to force change rather than take revenge. Building are not burned, people are not beaten. It is the ultimate in democracy, and a legacy given to Americans by their Founders.

Unfortunately, there are always low-lifes who attach themselves to a non-violent protest, wait until it is peacefully ending, then start looting and throwing smoke bombs and forcing violence. Some do this to further their own ends of looting and/or expressing their contempt for human suffering and individual liberty. Some do it to make the protestors–the “nons”–look bad. People who have contempt for, and fear of, liberty and justice for all infiltrate the crowd to destroy the movement.

Those who protest against racism, sexism, homophobia, and religious bigotry are patriotic Americans, and the true inheritors of the American Revolution.

Freedom of religion is not protected by the Constitution

We’re rerunning this post in light of the many ministers in the U.S. who are disobeying the quarantines in place to stop the spread of the COVID-19 virus by holding religious services of more than 10 people–in some cases, many more.

One example may stand for many: in Los Angeles, Rodney Howard-Browne held a service in his Protestant Christian mega-church and, when arrested for showing “reckless disregard for human life… complained of ‘religious bigotry.’ The church maintains that the right to assemble in worship is a fundamental freedom that cannot be abridged even in an emergency, and cites early American religious dissidents, including Baptists and Quakers, as examples of the religious persecution that the nation’s founders would have found intolerable.”

This argument is so convoluted it takes time to disassemble. First, Howard-Browne and the many other Christian and Jewish religious leaders who have flouted the quarantine orders in the U.S. are actually applying the First Amendment correctly: as we explain in detail below, it protects the physical assembling of people to publicly worship in a building. This is rare. Most Americans believe that the FA protects religious belief (it does not, as we explain below).

But after that, the church’s argument goes off the rails. The right to physically assemble for worship can indeed be temporarily suspended to save lives during a pandemic. Forbidding public worship does not prevent people from practicing their religion. They may have to do it remotely, via Zoom, or privately at home, but they are still allowed to be Christian, Jewish, Muslim, or whatever religious identity they possess. No one is telling them that their religion itself is not allowed–just their religious assembly. Temporarily.

Referencing the Baptists and Quakers is meant to tie their 17th-century persecution to the megachurches’ situation, but the megachurches are not being persecuted, so it doesn’t hold.

Later in the article, this statement appears:

Legal experts say that while religious groups generally have wide latitude to worship under the 1st Amendment and state-by-state religious freedom laws, rules shutting down worship are legally sound if they apply across-the-board to all types of group meetings.

This is true. The FA protects gathering to worship, but temporary suspension of all religious assembly to help curb a pandemic is the kind of good sense the Founders practiced and would appreciate. It is a general ban, not one directed only at Christians, and to challenge it goes against biblical teaching, by Jesus and Paul in the New Testament, that Christians should obey the rules their governments create. Christians always forget that teaching when it doesn’t suit them, while remembering it with a vengeance when it does (when demanding that immigration laws be enforced, for instance).

Fighting a temporary ban that’s meant to save lives should not make one “proud to be persecuted for the faith like my savior,” as minister Tony Spell in Baton Rouge claimed. They’re not being persecuted for their faith. No one is preventing them from believing in Jesus. They are simply being asked to suspend in-person worship for three months. A strong faith should be able to withstand such a minor setback.

Here’s the original post:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We all recognize this as the text of the First Amendment of the Constitution. Most of us put it into our own words as “the First Amendment protects freedom of religion.” But it does not. It protects freedom of worship, which is very different.

What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means—how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

We were glad to hear someone get this in a radio interview last week. The article starts badly, with the author saying

The question under current debate is what it means to “exercise” one’s religion.

If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed.

The first two examples are clearly not worship. They are expressions of religious belief. Only the latter is worship, concerning what happens in a house of worship. The article continues:

One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.

Again, doctrine is belief, not worship. Marriage being between a man and woman only is a belief, not a form of worship. Doctrine cannot be protected by our federal government. The article talks many times about “freedom of religion” clashing with “freedom from discrimination”, and that’s why: when you enforce belief, you enforce discrimination because belief can reach out beyond a religion to impact others while worship can’t. Put it this way: there’s no form of Catholic worship that impacts non-Catholics because non-Catholics aren’t in Catholic churches trying to worship. But there are forms of Catholic belief that impact non-Catholics, because non-Catholics will be impacted by them without ever setting foot in a church. Gay non-Catholics will be discriminated against by anti-gay Catholics if being anti-gay (a belief) is enshrined as a form of worship, and thus given protection by the First Amendment.

“Exercising” one’s religion means worship, plain and simple, and exclusively. It’s a literal word: you exercise (move)  yourself physically to do something to worship God.

So Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, is completely wrong to say “We may not like the claim of conscience, but you know, we don’t judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.”

Americans may have a “right” to do “what they feel they must do according to their God”, but only when it comes to forms of worship. One political charter, like the Constitution, could not possibly protect all “values” and all “feelings” about what is right, because they will naturally conflict. And the Constitution does not deal in feelings, but in political rights.

Now here’s where the article gets good:

…Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.

“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”

Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.

“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”

Bishop Curry gets it! He realizes that “worship”—getting up and going to church and not being stopped—is what is protected. “My freedom to worship is protected in this country”; that is correct. We were really gratified to hear him say this.

Then to have his opponents say that having “only” freedom of worship isn’t good enough is very telling, because they come right out and say they want freedom of belief—if only for themselves. They want to “exercise their faith every day of the week”? They have that right in the Constitution. What they really want is to “challenge the principle of absolute equality for all”; that is, they only want freedom of belief for themselves. Anyone whose beliefs clash with theirs should be shut down.

To say as Carlson-Thies does, that “equality wipes out rights” would be laughable if it weren’t so dire an example of double-speak destroying our democracy. Equality is “rights”. They are one thing. Our guaranteed equal rights give us… well, equality. How can guaranteeing everyone’s equal rights destroy equality?

His final statement tells us the truth: he wants to get rid of freedom of worship (“in church”) and put in freedom of belief (“in life”). But only for himself, and his beliefs. All others that clash with his would have to be discriminated against.

We need more Currys in this country, who understand that no democratic government committed to equality of opportunity can protect freedom of belief because that is the opposite of democracy. It is anarchy. Beliefs will always clash. The federal government cannot uphold any one set of beliefs over another. If equality feels like oppression to some people, we need to help them resolve that struggle. That’s the American way.

Happy Fourth of July 2019!

We’re reposting this piece on the Declaration of Independence in honor of the day:

 

Danielle Allen, a professor at the Institute for Advanced Study in Princeton, NJ, has come to the conclusion that the most famous line in the Declaration of Independence, and perhaps in all American documentary history, is not what we think it is.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

That’s the way we learn it. But Allen has convincing evidence that in the original document there was no period after “happiness”, which means that first line should read like this:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

In their regular waves of anti-government passion, which recur throughout our history, Americans often claim that the federal government in Washington interferes with our “life, liberty and pursuit of happiness”, and even that the federal government—or the bare concept of having a federal government—is at odds with Americans being able to pursue life, liberty, and happiness. But if the Declaration’s famous line has no period (as Allen seems to prove), then the only way Americans can pursue those rights given by God to all people is if they institute a government that derives its just powers from the consent of the governed.

This is how we have always seen it at the HP: what makes America great is not, as is so often suggested, “our freedoms”. It is the fair, representative, democratic government that makes those freedoms possible, that makes preserving those freedoms its first priority and understands them as its reason for being. Without a fair and free government, we cannot long maintain any national, political, or individual freedoms we currently possess. In our posts “What are the freedoms we have as Americans?” parts 1 and 2, we put it this way:

“Many Americans have come to see our individual freedoms as the wellspring from which national freedom is born, and thus individual freedoms are the most important. But these individual freedoms come from our government, from the Constitution, and last only as long as we have our national freedom. Without national freedom, there is no individual freedom, and national freedom only lasts as long as we have political freedom. Giving up our right to vote—for refusing or failing to vote is tantamount to giving up that right—is a dangerous step toward losing national and individual freedom. Once we stop demanding that our government really represent us, our democracy is crippled, and then the nation is open to outside threats. If individual freedoms are seen as separate from or at odds with national and political freedom, then we begin to prioritize our liberty to do whatever we want at the expense of national safety.

Individual freedom is really our freedom to live up to the founding principles of our nation. It’s our freedom to speak and worship and serve our country as we each see fit, and not really the freedom to be lazy and uninvolved and prioritizing our own choices over other people’s choices. It is the freedom to live together as one without having to be the same, not the freedom to push our own ways at the expense of everyone else’s.

Political freedom is our freedom to have a democracy, to be represented accurately in the federal government, and to preserve the individual freedoms we enjoy.

National freedom is the end result of the first two freedoms, because we who value our individual and political freedom will not allow our country to be destroyed by outside forces—or by those Americans who don’t believe in the full triad of freedoms.”

The idea that the Founders did not want us to have a strong government is ludicrous. Their whole aim in breaking away from Great Britain was to create a new kind of government—the government was the point, the goal, the prize, the crowning achievement of the United States. They would create a government that was democratic and representative, strong but flexible, responsive yet authoritative enough to enforce its laws (which would be written by popularly elected representatives of the people). Without that kind of government, there could be no guarantees of life, liberty, or happiness. As Jack Rakove of Stanford puts it in the New York Times article on Allen’s quest to remove the inaccurate period from the Declaration, “Are the parts [of the Declaration] about the importance of government part of one cumulative argument, or—as Americans have tended to read the document—subordinate to ‘life, liberty, and the pursuit of happiness’?”

It takes energy to maintain a fair and free government. Energy on the part of citizens. We are so often lacking that kind of energy, particularly in the new millennium. George Washington warned us in his Farewell Address that the greatest threat to American life, liberty, happiness, and the government that provides them all comes from within America itself:

“The unity of government which constitutes you one people is also now dear to you. It is justly so, for [the government] is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”

Washington urges us to love our democracy and our democratic government, and to remember that it is a painfully new kind of government, and there are going to be many people—outside the U.S. and even within it, your fellow citizens—who don’t believe it will really work. They will try to tear it down, and tell you you’re crazy to defend it. You’ve got to remember that being united under your unique government is your greatest treasure. Forget the things that make you different, like religion or customs and focus on what you have in common, what you share that no other people on earth share: a democratic government of the people, for the people, and by the people.

That’s why we are quick to believe there was no period after “happiness” in the original Declaration of Independence. The Founders knew that good, tireless government was the only safeguard of life, liberty, and happiness. As the Fourth of July approaches, we would do well to remind ourselves of that fact.

How the U.S. Constitution was born

Welcome to part the last of our series on Bernard Bailyn’s masterful description of the transformation of American political thought in the decade before 1775. Here we look at how the idea of a Constitution of principle took off once it was properly presented. As Bailyn puts it:

The transition to more advanced group was forced forward by the continuing need, after 1764, to distinguish fundamentals from institutions and from the actions of government so that they might serve as limits and controls. Once its utility was perceived and demonstrated, this process of disengaging principles from institutions and from the positive actions of government and then of conceiving of them as fixed sets of rules and boundaries, when on swiftly. [181]

Americans, as Bailyn spends a long early chapter explaining, seemed to fear nothing more than unlimited government that became tyrannical. Abuse of power was the worst possible abuse. That’s why most Americans had resisted a government based on theory–theory could infinitely expand and be used to justify any abuse of power. Better to send reps to the legislature with a few concrete demands than to have them while away their hours coming up with “ideas” to guide them.

But it became clear to these Americans that Principle did not have to be used for evil expansion of power. Principles could be used to limit government. The U.S. Constitution is a tribute to where this thinking quickly led–it can definitely read sometimes like it’s primarily a list of what the federal government cannot do rather than what it can. Principles can be used to curb government by giving natural rights to the individual citizen, and institutions like the free public press.

If politicians drew their power to act from a set of written principles that the voters had agreed upon, then those principles–the Constitution–began to seem like it had a lot in common with those written rules and requirements towns used to send their reps to the legislature with. One knew that one’s reps were bound by the principles of the Constitution, and, if that constitution was properly written, it would curb the power of the government.

This helped Americans to separate bodies of law from actual bodies of government. Parliament, or the colonial legislature, were not the constitution. They were not the law. They did not write laws by their own authority. Americans quickly adopted the idea that legislatures were authorized to write laws by authority of the constitution they were governed by. They could not create laws that violated that constitution. Legislatures were not synonymous with the law, and they were not above it.

This flew in the face of the established English legal tradition that the body of laws Parliament had created over the centuries was the English constitution, and therefore Parliament itself was the ultimate authority. As Zubly put it, the Americans were diverging into the belief that

Parliament derives its authority and power from the constitution, and not the constitution from Parliament… the constitution is permanent and ever the same, [and Parliament] can no more make laws which are against the constitution or the unalterable privileges of the British subjects than it can alter the constitution itself… The power of Parliament, and of every branch of it, has its bounds assigned by the constitution. [181-2]

This leads fairly naturally to the idea that a people and their legislature must have a written constitution to operate by. The English tradition that the entire great body of law and precedent created over the centuries was the constitution was unacceptable. That great body of law had no guiding principles–it contained laws that contradicted each other, laws that were written on the spur of the moment, laws that were the brainchild of individual men. And it put the cart before the horse: a legislature doesn’t make a constitution possible; a constitution makes legislation possible.

Bailyn goes on to the end of this chapter to describe how different colonies began to implement this idea, and it’s good reading. But we’ll close our series with a final quote from this great historian:

These changes in the view–of what a constitution was and of the proper emphasis in the understanding of rights–were momentous; they would shape the entire future development of American constitutional thought and practice.

It’s great to really study the intellectual history of our revolution, and to remind ourselves that it was not all about “Americans didn’t want to pay taxes”.

How America developed its Constitution

Here in part 5 of our series on Bernard Bailyn’s masterful description of American political thinking in the transitional decade of the 1760s, we come to the second revolution in political thinking that occurred in a very short period: the idea of a constitution of principles.

English legal tradition had defined the “constitution” as the legislature itself–“a legal constitution, that is, a legislature”, as Richard Bland put it. Bailyn describes how the work of the American lawyer James Otis began to articulate a new definition of a constitution as a moral foundation for the work of a legislature, a set of principles that informed and put boundaries on what a legislature could do. Bailyn sums this up as “a set of fixed principles and rules distinguishable from, antecedent to, more fundamental than, and controlling the operating institutions of government” (176).

In this understanding, a constitution authorized and limited the legislature’s actions. Since all of this thinking was going on in the context of English law, the question of whether a constitution authorized and limited the monarch’s actions did not come into play. And as we know, after the Revolution there was still substantial support in the new United States for a monarch-like president who stood above the law. But the idea that Congress, House and Senate, had to abide by a constitution of principles was firmly established–so much so that the American people famously demanded a Bill of their rights be added to the Constitution that they, the people, ratified, so that Congress would be clearly bound to protect principles of personal liberty, and, even more important to people at the time, restrained, constrained, and prevented from expanding its powers and becoming tyrannical.

But that’s leaping ahead. During the period 1765-1775, Americans were working out the first step, which was how to define the principles a constitution should uphold. Were they simply the recognized legal principles handed down from legislature to legislature over the centuries of English practice? Were they religious principles of Anglican Christianity? Were they the new and radical tenets of natural law? It was easier to use the term “fundamental law” and “formal principles” than to define them, especially in America, where there had been so much steely and deliberate resistance to the idea of men in a legislature serving any other principle than “I will follow the orders my townspeople gave me.”

Otis wrote that Parliament could not be allowed to violate natural laws “which are immutably true,” because that would violate “eternal truth, equity, and justice,” and therefore any act of Parliament that violated natural law would be “void.” But how do we define what is “immutably true”? How do we come to agree on what is eternally true, fair, and just? What we discover is that the foundation of any constitution is a shared agreement on, and belief in, some powerful concepts of truth, fairness, and justice.

We see this shared agreement stated elegantly in the opening words of our Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

We hold these truths–it took years of debate, ten thousand letters and editorial essays printed in newspapers, tens of thousands of sheets of paper, a million letters between Americans, and countless millions of conversations in taverns, family homes, business offices, and farm fields to define who “We” were and what the “truth” was. That all this intellectual activity was compressed into about 10 years–1765-1776–is remarkable, and shows how important those definitions were to Americans at all levels of society. The same debate went on for another ten years, until our Constitution was drafted in 1787.

Even Otis did not go as far as his fellow Revolutionaries would. He did not believe that a constitution would “furnish judges with grounds for declaring [laws] nonexistent because they conflicted with the ‘constitution,’ but only[provide] judges with principles of interpretation by which to modify gross inequities in ways that would allow traditional [definitions] of justice to prevail.” [180] The idea that inherited laws and legal procedures, inherited concepts of law that were centuries-old, should still stand as the test of whether an act of Parliament was valid would be vehemently discarded by the men who wrote our Declaration and, eventually, our Constitution. Longevity was not truth, tradition was not equity.

We’ll finish next time with the path to concretizing the new American idea(l) of a modern constitution of principle.

Christian bakers, gay cakes: Masterpiece cake shop v. the Constitution

Back in April of 2016 we published the post below; with today’s Supreme Court decision allowing a baker who runs a public business to refuse to serve those members of the public they don’t approve of, we need to run it again.

In the New York Times story, we find this rundown of the 2018 decision:

Gay rights groups argued that same-sex couples are entitled to equal treatment from businesses open to the public. …Religious groups responded that the government should not force people to violate their principles in order to make a living.

If this is the linchpin the argument turns on, let’s revisit one Christian baker’s take on this argument:

 

We were pleasantly shocked to hear an NPR interview with a baker in Mississippi who took a stand against the new state law, signed by Governor Phil Bryant, allowing religious organizations, individuals and businesses to refuse service to lesbian, gay, bisexual and transgender people if they feel offering such services violates their religious beliefs.

These sexuality laws are identical to the laws that allowed whites to refuse service to blacks in all but one way: the racial laws claimed a biological justification (that black people were biologically inferior to white people), while the sexuality laws claim a religious justification (famously summed up by some anonymous bigot years ago as “God hates fags”).

Somehow the example most commonly used to illustrate the anguish of being a business owner who has to serve someone they don’t approve of is the baker: Christian bakers shouldn’t be forced to bake gay wedding cakes.

This is bogus in all respects, legally and morally. As we said just a few posts ago,

Remember: if you don’t want to serve gay or trans people, don’t open a public business. Once you open a public business, you are obliged to serve the public—no exceptions. There’s no difference between these anti-gay laws and the anti-black laws that kept black people from eating in restaurants with white people, going to movie theaters with white people, and riding city buses with white people. Anti-gay laws are discrimination, and America finally got rid of that curse through the hard work of the civil rights movement in the 1950s-70s. You can’t teach kids in school that Rosa Parks was a hero if you then vote for a law that says you can keep trans people off your bus or out of your bakery.

But why listen to us repeat ourselves when you can listen to Mitchell Moore, a baker in Jackson, MS and an American who understands the civil liberties he has an obligation to uphold as an American:

RENEE MONTAGNE: As a baker, this bill would allow you to refuse service to people you don’t want to bake for. Have you ever felt forced to bake for clients that you didn’t want to serve?

—Right away, Montagne’s question points up the illegitimacy of the sexuality laws. Of course the answer is yes. Bakers, like other people who run public businesses, probably have customers they don’t like, whether it’s because those customers swear, or dress provocatively, have foreign accents, or tattoos, or wear head scarves, smell like marijuana, act rude and condescending, or do any of the other hundred things that can put people off.

But are there laws saying business owners don’t have to serve people whose clothes they don’t like? or smell? or language? No. Only sexuality. So we see immediately that the sexuality laws are singling out one type of potentially problematic customer, which is un-American and illegal under federal law.

MITCHELL MOORE: No, no that is not a problem. I am here to bake cakes and to sell those cakes. I’m not here to decide arbitrarily who deserves my cake and who doesn’t. That’s not what I do. That’s not my job.

MONTAGNE: Have you heard from others that they do have these objections?

MOORE: Not to my knowledge, no. Everyone that I know in the greater, say, wedding-service industry – we’re here to serve. The public’s made up of a lot of people. I don’t have to agree with what they do. I don’t have to support them. I serve them.

—So well-said: “I don’t have to agree with what they do. I don’t have to support them. I serve them.” When did we lose sight of this basic premise?

MONTAGNE: Well, I do gather that you are a Republican. But you oppose this bill. So what are your particular objections, other than it sounds like you don’t think it’s needed?

MOORE: So leaving aside the stupidity of passing it because it decriminalizes discrimination – which, that really is kind of the biggest issue – but I can actually say I think the law of unintended consequences is going to come back to bite the people who signed this bill. If it is my sincerely held religious belief that I shouldn’t serve them, then I can do that. And I can hide behind that language. But that language is so vague it opens a Pandora’s box. And you can’t shut it again.

—Why isn’t Mitchell Moore running for president? Yes, these laws do “decriminalize discrimination”. And yes, claiming religious frailty is just a way of hiding that discrimination and bigotry. And if these sexuality laws are allowed to stand, soon the laws about tattoos and clothing and language will all be crowding the state legislatures, too.

MONTAGNE: Well, do you consider yourself a religious person or would you…

MOORE: Yes.

MONTAGNE: …consider that maybe you don’t understand what it means to have a deeply held religious belief?

MOORE: I don’t think that there is such a thing as a deeply held religious belief that you should not serve people. There is no sincerely held religious belief to think that I am better than other people – to think that my sin is different than other people. And so I am a deeply Christian man, and those go counter to my belief system.

—Precisely: “there is no such thing as a deeply held religious belief that you should not serve people.” The Bible doesn’t say anything about who to sell a cake to. Neither does the Koran, or the Torah. And again, if you don’t want to risk violating your religious principles by opening a public business, don’t open one.

MONTAGNE: Why do you think your state elected officials, who presumably think they’re looking out for the best interests of exactly people like you – why do you think that they passed this bill?

MOORE: The assumption that they think that they’re looking out for us – that’s not what they are doing. A report just came out. We rank number one – our state government is the most dependent on federal money. We are the third most obese state. We rank at the bottom in unemployment, in education. We’ve got crumbling infrastructure. None of them are being tackled. Instead, we are passing, hey-let’s-discriminate bills.

—This is the first time we’ve heard someone state this so clearly: state governments that “protect” their people by passing laws that do nothing to stop poverty, illness, and lack of education are really using people’s religion to keep them down.

MONTAGNE: Coming from Mississippi, do you have concerns that this bill reflects on your state in a way that you wouldn’t like it to be seen?

MOORE: Yeah – Mississippi is an amazing place. And it’s filled with amazing people. But if you aren’t from here, if you don’t know that, you’re going to choose to not come here because of bills like this – because you see the state government as taking no action on hundreds of other priorities and taking action instead on trying to solve a problem that doesn’t exist. It boggles my mind.

MONTAGNE: Well, thank you for sharing this with us.

MOORE: Certainly – you’re welcome.

MONTAGNE: Mitchell Moore is a baker, and he owns Campbell’s Bakery in Jackson, Miss.

Anyone want to build a memorial to this Southern hero? We do.