Gay marriage and American Experiment approved in Maryland

When Maryland Governor Martin O’Malley signed legislation to ratify same-sex marriage on March 1, 2012, he made a powerful statement:

“For a people committed to the principle of religious freedom, the way forward is always found through greater respect for the equal rights of all.”

This is at once a great validation of the principle of the American experiment, and a proper reading of the First Amendment, which I heard someone on the radio define as being about freedom of religion. He defined it that way to force the Amendment to support the proposed Blunt amendment, which the Senate narrowly voted down on March 2. The logic is that if religion is protected first, then it’s the most important thing to protect, and therefore needs special protection, or even support. Somehow the First Amendment, which prohibits our federal government from establishing a state religion, or stopping anyone from practicing their religion freely, is really meant to champion certain religious beliefs, and legally protect them.In the cae of the Blunt proposal, a narrow Christian belief about conception would be championed above all other religious beliefs on the same topic, and protected by the federal government.

But the First Amendment protects freedom of speech, press, religion, and right to petition. Each of these is equally important. And the federal government’s role is to protect everyone’s beliefs by refusing to official sanction any of them.

So freedom of religion is about allowing all religious beliefs to thrive naturally, and this means not imposing any one church’s beliefs on others. And the last thing the federal government should do is outsource which beliefs are acceptable or condoned and which are not to the realm of business, where employers would make those decisions.

America has always been great when it extends rights to more people, not when it takes them away. When we allow more people to vote, to go to school, to work, to run for office, to marry, to immigrate here, to speak out, and to worship as they see fit, we’re doing the right thing, the thing America does best—living the experiment of freedom. The way forward is always to enshrine greater respect for the rights of all.

So thank you, Gov. O’Malley, for reiterating that point.

Summarizing the Dred Scott Decision

Here in the final installment of our series on the 1857 Dred Scott decision, we conclude our close reading of Chief Justice Taney’s majority opinion and sum up what the case meant in its own time, and what it means to us today.

Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of citizen to be changed to include black Americans.

Remember that this is Taney’s interpretation; we know that slavery was such a divisive issue amongst the Founders that the new nation was almost torn apart at the Constitutional Convention of 1787. Plenty of Founders did not hold this opinion of black Americans, and even many of those who supported slavery did believe that someday it might be abolished. But we need to stick with Taney’s thinking here to understand his decision.

We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.

Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:

“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

—So even if not everyone looks down on black people like they did in the past, slavery is law in the U.S., it is supported by the Constitution, and black people are specifically and deliberately excluded from citizenship by the Constitution. You can’t have a liberal interpretation of the Constitution in this regard—it allows no loopholes.

“Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended;”

—At last! Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior?

“…but while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

—This is an astounding solipsism. Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.

Equally astounding is the next statement, that changing the Constitution (ruling differently on its construction) is not something the judicial branch can do. Taney equates finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.

“And upon a full and careful consideration of the subject, the court is of opinion, that… Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts…”

—After maintaining that the judiciary has no Constitutional role in changing U.S. law, and reiterating that it was no accident that led the Founders to exclude black Americans from citizenship, Taney delivers the actual opinion in Dred Scott v. Sandford: there is no Dred Scott v. Sandford. The case should never have been brought in the first place since black Americans aren’t citizens. Taney is basically saying a) his hands are tied—he could never overturn slavery by amending the perfect Constitution, and b) that option isn’t even open to him since he’s not hearing a case about slavery, but dismissing a wrongful suit.

Now Taney makes a bizarre statement:

“It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a [monetary] or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit.”

—How a judgment in Scott’s favor, which would have made him and his wife free, could make “very little, if any, difference” to that enslaved man is unclear, to put it mildly. Taney seems to be saying, Hey, whatever way we went on this one wouldn’t matter to the slaveholder and the slave themselves, because it’s not about them. The case is about precedent in the law, and if we had ruled at all in this case—either for or against Scott—we would have sanctioned re-interpreting the perfect Constitution, and that would have created a whole new string of precedent that might someday do the “serious mischief and injustice” of outlawing slavery.

“Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no juisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequestly, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.”

—Since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.

And that’s it, for Scott, Sandford, Taney and his Court, and the American people. The Constitution is perfect because it was the work of the Founders who were steeped in the best wisdom of western Civilization, it has been upheld by precedent, and it is not supposed to be amended by anyone, especially not the Judiciary. The Court could amend the Constitution, but until it does that, it won’t do that.

The Dred Scott decision, after close reading, comes across as less a fiery defense of slavery and the idea that black people are inferior than as a lame, panicky, resentful hand-washing by the Court. It does not want to deal with slavery, so it won’t hear the case. It can’t change the Constitution until it does so, and until then the Constitution must be obeyed as-is. Dred Scott is shameful for many reasons, but chief among these, perhaps, is that the highest institution of our Judiciary took a pass on its Constitutionally mandated responsibilities in the name of the Constitution, and doomed its own citizens to slavery without having the guts to admit it.

It would take President Lincoln and his Republican Congress to amend the Constitution to ban slavery, putting that amendment to a vote by the free citizens of the U.S., and finally ending slavery in this country.

Dred Scott: Slavery as “doctrine and principle”

Part three of our look at the 1857 Dred Scott decision comes to the section of Chief Justice Taney’s majority opinion in which he switches from detailing precedent—the ways in which U.S. law has had slavery written into it—to explaining why the Founders did that, why they held racist beliefs about black people, why they had no choice but to respond by writing slavery into U.S. law, and why, therefore, Taney and his Court will have no choice but to uphold that law and to uphold slavery.

Let’s resume the text of the decision; again this is not the complete text, but excerpts taken in order. All italics are mine:

“…[T]he legislation and histories of the time [when the Declaration of Independence was written], and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted….

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery. . . He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

—Here Taney is not saying, Look at how racist people were back then. He is not just describing a previous time and its beliefs. You have to remember that Taney is writing as the Chief Justice of the Supreme Court, and he is writing about the men who founded our government. This is a civics lesson. Just as we said in the last post, this is not mere private opinion. Because these opinions about black people are in the minds and mouths of the Founders, these opinions literally become the philosophical foundation of our system of government and code of law.

The line that is almost always pulled from this opinion and quoted is the line, “the negro has no rights which the white man is bound to respect”. But notice that this not not a judgment Taney makes; he is describing not his personal opinion or a universal principle but the opinions of the Founders. We know enough by now to recognize that this is citing precedent—Taney is not making a judgment of his own. It’s not Taney saying “the negro has no rights which the white man is bound to respect”, it is the Founders and all U.S. slave law since them. We’ve mentioned in the previous post that the Taney decision actually will be “this Court has no business even hearing the Dred Scott case because he is not a U.S. citizen, therefore we decline to give a ruling.”

Taney ends that quote by saying none of the Founders ever doubted that their low opinion of black people was correct; he will reiterate this in the next paragraph, in which he expands to say that England, our founding nation, shared the same opinion, and that no one seems to have doubted that it was correct. He then cites some of the slavery laws of the American colonies, and then says,

“[T]hese laws … show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power…

“We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted … in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them [black people], or to give to them or their posterity the benefit of any of its provisions.”

—The first lines give you hope: Taney describes slavery as despotic. He describes a barrier put between black and white and you think, for a moment, that he will describe that barrier as false and wrong. But it is not to be. Remember, the question is not whether slavery is right or wrong. The question is, Is slavery supported and enforced by U.S. law? You may hate slavery, Taney may hate it, but that is not the issue. Support it or hate it, if slavery is enforced by and enshrined in U.S. law, the Court must uphold it. The only alternative is to call slavery unconstitutional.

Why not do just that? Taney is getting to that. Is there an argument to be made that the line “All men are created equal” should now apply to black people? Notice how Taney adds “to black people or their posterity” to the last line above. It’s a quick little clause but it’s important. If the Constitution was not meant to give equal rights to black Americans living at the time of its ratification in 1787, could it possibly be changed to offer those rights to their children and grandchildren?

This is tricky because Taney is asking what the Founders intended for the future. Did they say anything that seems to open the door to freeing black people decades after 1787—i.e., 1857, the year of the Dred Scott case?

“But it is too clear for dispute, that the enslaved African race were not intended to be included… for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.”

—Why would including black Americans as equal citizens have exposed the Founders to “rebuke and reprobation”? Because you cannot designate one group of people as inferior, incapable of understanding or law, and then give them full rights of citizenship. That cheapens citizenship, and makes democracy impossible. It’s like making people who can’t swim lifeguards. If you say black people are ignorant and incapable of law, you cannot include them without making your democracy a sham.

“Yet the men who framed this declaration were great men… high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separate from white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

—It was no accident, it was no oversight. The Founders deliberately excluded black Americans from the definition of citizen, based on the “established doctrine and principles” of the civilized world of their time. They had no choice but to do so—those doctrines and principles demanded it. As “great men”, the Founders could not cheapen and destroy their own democracy by including people who could not live up to it. They could not forsake the judgment of the civilized world (this will be important as we wait to see if Taney will forsake that judgment to overturn slavery). Taney adds,

“This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language…”

—So from 1776 to 1787 there was not change in established doctrine. What about after 1787? Taney nixes the hope that since then there has been any change in doctrine:

“…It would be impossible to enumerate … the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. …The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards… To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given…. ”

—Taney then broadens the scope:

“For if [black Americans were] entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.”

—This is complex. Taney is saying that if his Court overturned slavery to make black Americans citizen, two things would happen: a) this would overturn myriad slave laws already in place and serving as part of the precedent of upholding slavery, and b) those laws were put in place for the protection of black Americans. The latter is an example of the popular idea of the mid-19th century that slavery helped black people by protecting them from their own ignorance and other shortcomings.

So overturning slavery as unconstitutional is the only way to break from precedent, but that is hard to do when precedent seems so well-founded in the princples and doctrine of the wisest and best men of western civilization, freedom-loving men who would clearly grant liberty to anyone who deserved it, and compassionate men who put in place laws to help protect those who did not deserve liberty from themselves. Precedent is also enshrined in dozens of state laws.

Taney is moments from his conclusion; we will cover it in the next post. For now, we see that he began by citing precedent in U.S. law supporting slavery. He then reached back to find precedent for U.S. law in colonial and English law. By doing so, he removed racism from the realm of opinion to the realm of principle. Notice again how his own Court, his own decision, has not made an appearance. Taney was not about the make a ruling on the controversial slavery issue. He knew the uproar it would create if his Court found Scott to be free or if it found Scott to be still enslaved. He resented Congress bailing on its duty to write legislation to solve the slavery debate once and for all by throwing the issue at the Court. He therefore turns back to the original legislators, the Founders, to do the dirty work for everyone and uphold slavery.

Next time: the final decision

Reading the Dred Scott Decision: Precedent, precedent, precedent

Part two of our look at the 1857 Dred Scott decision leads us to do a close reading of the words of its author, Chief Justice Roger Taney. This close reading will show and focus on Taney’s thorough, driving citation of precedent in the question of slavery and race in United States law.

Taney’s citing of precedent serves, as we shall see, two purposes: first, it puts the burden of deciding whether enslaving black people is legal and/or morally justified onto previous generations, removing it from the shoulders or conscience of the Court; second, it makes the question of enslaving black Americans moot, removing the need for the Taney Court to make a decision on this controversial issue.

Let’s begin reading Taney’s majority decision. This is not the full text! It is excerpts taken in order. The full text is far too long for this format. All the italics are my own, to highlight meaning:

“The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution[?]”

—The seemingly meaningless, boilerplate starter “the question is simply this” is actually freighted with meaning. Taney will repeat it later. It serves to say, “We are facing a legal question, as a Court. This means that we must take the issue of slavery as a legal question that has been dealt with in courts before ours, and therefore a thorough examination of precedent—how those earlier courts decided the question—is not only necessary, but will likely answer the question for us.” In our justice system, precedent is very important. If 50 courts before you have decided one way on an issue, you have no legal footing to decide a different way, unless you are going to say the law is unconstitutional and needs to be changed.

The Supreme Court does just that from time to time, of course; there are occasions when it overturns precedent and says an existing law is unconstitutional and therefore all those previous judgments were wrong. But this is rare. So when Taney brings up the definition of “citizen” as specified in the Constitution, you know he is not likely to overturn that definition.

“The question before us is, whether [people of African ancestry] compose a portion of this people [described in the Constitution as citizens], and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

—Again, we have to read this as a description of precedent, not someone’s personal opinion. Yes, Taney says “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution”, but what he is saying is, Because the writers of the Constitution did not intend to include black Americans as citizens, we are forced to think that they cannot now be citizens. Precedent—if the Founders did not specifically include black Americans in the definition of citizen, then that is an important piece of precedent for the Court today to take into consideration.

You may be asking at this point, Where in the Constitution does it say black Americans are not and cannot be U.S. citizens? The Constitution doesn’t say that anywhere. We will deal with that, as Taney does, in our next post. For Taney does, in the second half of his decision, provide and lengthily analyze proofs that the Founders did not include and could not ever have intended to include black Americans as citizens. So for now, let’s continue with his establishment of that precedent.

“On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

—This is not a burst of personal-opinion racism, but again a description of legal precedent: if the Founders who created our Constitution saw black Americans as inferior, and wrote that into our law, and did not choose to grant them the right and privilege of citizenship because of that perceived inferiority, then we, the Court today in 1857, have to take that into consideration. It wasn’t just a private belief of the Founders; they wrote it into our law. Therefore, racial inequality must be seen as part of our law, and therefore difficult to overturn.

You see how Taney is moving here. He is painstakingly setting Dred Scott up to fail. If racism is not just personal, but legally incorporated into the law of the United States by our Constitution, Taney’s Court is likely going to have no choice but to decide against Scott without even having to think about it, without having to consider Scott’s case. In the eyes of precedent, Scott’s case was heard and decided against him 70 years ago, in 1787, when the Constitution was written and ratified.

“[Therefore Dred Scott] could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”

—This will be the eventual conclusion of this long decision. Since the Constitution says Scott is not a citizen, he has no right to even bring a case into a U.S. court. Again, precedent allows the Taney Court to dodge the controversial bullet of the slavery issue by refusing to even hear the case.

“It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body… And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded…”

—So only those who were deliberately included in the definition of “U.S. citizen” when the Constitution was written in 1787 are citizens today in 1857. And, crucially, people who weren’t included in that definition (immigrants, for the most part) were only able to become citizens if doing so did not overturn the Constitution and “the principles on which it was founded”.

This is important. Taney sees that there are some people who have to become citizens of the U.S., and that they are allowed to do so. How can you give a foreign-born person U.S. citizenship? And how can you give an immigrant citizenship but not a black American, native-born right here in the U.S.? What’s the difference?

Taney is going to answer this question in the second half of his decision, which we’ll look at next time. For now, we see that he has skillfully avoided even dealing with the issue of slavery by using precedent to show that a) you cannot rule against slavery without amending the Constitution; but b) no Court has ever done that, so it’s unlikely that it should be done, and c) the Court couldn’t overturn the Constitution even if it wanted to because Scott, as a non-citizen, can’t bring a case to trial in the U.S. and therefore the case before the Court must be dismissed.

Next time: Why some people could become citizens, but not black Americans

The Dred Scott Decision: An Investigation

To say that the 1857 Dred Scott Decision is a landmark of U.S. jurisprudence, history, and civil rights is an understatement. It is one of the bare handful of Supreme Court cases and decisions that is regularly studied in U.S. schools (along with Plessy v. Ferguson, Brown v. Board of Education, and the early Marshall decisions). What most Americans learn about Dred Scott is this:

In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.

Chief Justice Taney was firmly pro-slavery and his decision was based on his desire to protect slavery where it existed in the southern states and where it might be outlawed in the west. In his majority decision, Taney said that black Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

Taney then topped this outrageous statement with the assertion that the Declaration of Independence’s ringing statement that “all men are created equal” did not apply to black people. He wrote, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration…”

Taney’s racism and determination to protect slavery led him to disallow Scott to even present a case to the Supreme Court, since he was not U.S. citizen and to reaffirm not only the legality of slavery but its righteousness. One man’s mission sentenced millions of people to slavery.

This common interpretation of the decision is not quite right. Its outcome was, indeed, that slavery was upheld. But the decision is more a careful avoidance of drawing conclusions about slavery than a pro-slavery manifesto. It is just another in a decades-long series of non-decisions that refused to get the Court involved in the impossibly dangerous slavery debate. The Court had, for years, insisted that Congress fulfill its appointed duty to legislate and create a law to solve the slavery issue once and for all. It would not accept Congress lobbing that hot potato back in its lap.

In the next post, we’ll look briefly at the context of the Dred Scott case, and see why the Court was put in the position of deciding a slavery issue, and why it resisted doing just that so vehemently.

Next time: the slave question in 1857

Taxation = Slavery

As always, when history is being made in the present, or the present is clearly marked in a historical cycle, we delve into it here on the HP.

In this case, it is the debate in Congress over whether to raise the debt ceiling or default. The main sticking point has been the refusal of a sizable minority of Republicans, mostly belonging to the Tea Party faction, to allow the federal government to collect tax revenue. This group demands tax breaks for the wealthy, including corporations, and the maintenance of tax loopholes that allow millions of dollars of tax revenue to go uncollected.

This is not the place to go into the details of their platform, or the response by moderate Republicans and Democrats. Here, the issue is the extreme instransigence of the Republican minority on the issue of taxation. It has become, to them, a crime for the government to raise taxes or even to collect taxes. To them, there is no compromise on taxation: you are either for it (and therefore un-American) or against it. Again, we’ll leave aside for this post the historical fallacy of anti-tax advocates calling themselves “Tea Party”; read about that here. For now, we’ll focus on the black-and-white issue they have turned taxation into. It’s hard to think of a time when Congress was so completely divided, so unwilling and unable to compromise on an issue; when you look back at our history, only one comparable time comes up—the slavery debates of the late 1850s.

You could not compromise on slavery during those Congresses. You were for it or against it, and this divide worked its way into many other, seemingly unrelated issues, and the uncompromisable issue of slavery could not be resolved. Congress could no longer function to govern the country, and civil war ensued at the 1860 election.

Today, Congress’ refusal to accept compromise on taxation is quite similar to the earlier Congress’ refusal to accept compromise on slavery. But there are two key differences: first, the American people were becoming just as divided over slavery as their representatives; second, slavery really is an issue you can’t seriously compromise on.

Americans in the 1850s didn’t want to fight a war over slavery, but they were rapidly becoming more polarized over it. Even those who didn’t particularly want abolition for morality’s sake blamed slavery for all of America’s ills, and would have gotten rid of it for economic or political reasons. Their representatives’ furor over slavery was not out of line, then, with Americans’ feelings about slavery. It does not seem accurate to make that claim today. Many Tea Party Congress members have said their constituents contacted them to say it’s okay to raise taxes to avoid default, but those members refused to do so out of principle. The extreme polarization in Congress today does not really have its roots in how Americans are feeling.

And taxation is not slavery. It’s not a black-and-white, moral issue that no one can take a moderate stance on. The government raises taxes in order to provide services. It’s a very simple and fundamental tenet of government. We have representation to our government to decide what services and how much taxation, not to stop the collection of tax revenue.

The taxation issue is part of a larger move to reduce the federal government to a negative function: the federal government will not provide social services (no Medicare, Social Security, Head Start, etc.), will not regulate business (protect the environment, police Wall Street, etc.), will not really legislate (instead, Constitutional Amendments will be put in place to handle social issues), amd will not extend civil rights to immigrants, gay people, etc. All it would do under this plan, apparently, is fund wars.

No one really wants to live in that world. It is undemocratic, and unself-sustaining. This experiment with such negative chaos is a dangerous one. The first experiment ended in civil war; it remains to be seen where we are headed in the next 20 years.

Anti-immigrant, anti-American laws building steam

We’ve commented previously on the HP about states introducing unconstitutional voting restriction laws, nominally meant to stop voter fraud (which has never been proven as chronic or widespread), but really meant to target and deport immigrants. These include requiring voters to have a government-issued photo ID at the polls. Now the Times is reporting laws being passed in Georgia, Alabama, and South Carolina that basically create a police state in which anyone who “looks foreign” and can’t produce ID can be arrested and, if an immigrant—even a legal one—deported.

According to the editorial, these laws include removing illegal immigrants working under the table, reporting students who are immigrants or even American-born children of immigrants. Why target Americans who have immigrant relatives? Because other laws make it illegal to give an undocumented immigrant a ride in your car. By making native-born citizens afraid of immigrants and their native-born American children, these laws create a clear criminal class of immigrants and their friends and relatives.

To what end? I think the author puts it well: “It has long been clear that America is suffering for lack of a well-functioning immigration system that better protects workers and families, promotes lawfulness at the border and in the workplace, and gives hardworking people a path to legality. Congress’s inaction has let the states run amok with their own destructive ideas. Supporters insist they are only trying to enforce the law. But trying to catch and deport 11 million people is lunacy. The damage to this country — its citizens and its laws — is enormous.”

Trying to find illegal immigrants by terrorizing everyone in the U.S. is not only impractical and guaranteed to fail, it’s un-American. And since the people usually behind these laws say they must protect the American way from immigrants, you would think they would be the most resistant to passing any un-American laws. But the authors and promoters of these laws are the most un-American of people, and so hardly fit to decide who is a threat to our nation.

The U.S. has gone through many cycles of immigrant fear. In the 1850s it was the dirty Irish ruining the country. In the 1890s it was the hideous Chinese. In the 1920s it was the barbaric eastern Europeans. Now it is the lawless Mexicans (and all Latin Americans) who will destroy our country for the sheer fun of it. To reiterate a statement from our earlier post “Illegal Immigration must be stopped!”, the U.S. has made it harder to enter this country legally and get a green card or citizenship than ever before in its history, and that is the only reason why we have so many illegal immigrants today:

“If we reverted to our earlier, extremely simple requirements for entering the country and becoming a citizen, we would not have illegal immigrants. If we choose not to go back to the earlier requirements, we have to explain why. The usual explanation is that if we made it as simple now as it once was to enter this country and become a citizen, the U.S. would be “flooded” with “waves” of Latin Americans, poor and non-English-speaking, ruining the country. Which is exactly the argument that has always been made against immigrants, be they Irish, German, Italian, Chinese, Japanese, etc. Each group is going to destroy the country and American culture and society. It never seems to happen.

But it might happen now, with Latin American immigrants, not because they will destroy the country but because those in the U.S. who are so afraid of them will rip the country apart trying to keep them out. Taking the long view, I can say there’s hope that that won’t happen. But it will take a good fight to get all Americans to realize that the key to this nation’s success has always been the open-door policy.

Immigration will always be with us—thank goodness! The only informed position on the challenges it poses is a historically informed position.”

It was true before, and it’s still true now.

Freedom to Vote Threatened… again

In Spring 2011, a bloc of Republican legislators and governors renewed the push to end alleged rampant voting fraud in the U.S. by requiring that people registered to vote show a government-issued photo ID, like a driver’s license, in order to vote. This caused an angry reaction amongst opponents of any move to set up what they call barriers to voting. Which side is right? What does the Constitution say about voting?

Surprisingly little. There is nothing about voting rights in the original body of the Constitution. That first Constitution simply states that officers of the government will be chosen by the People and the Electors. There were many Amendments made to the original Constitution in a very short time, and by 1791 the Twelfth Amendment addressed voting only to explain how the Electoral College was supposed to work. The Fifteenth Amendment extended the vote to black males in 1870, and the Seventeenth Amendment gave the People the right to vote directly for their Senators in 1913. In 1920, the Ninteenth Amendment extended the vote to women of all races, the Twenty-Fourth Amendment in 1964 abolished the poll tax. Finally, in 1971, the Twenty-Sixth Amendment made age eighteen the legal voting age.

So if there is nothing in the Constitution about who can vote, how can asking for photo ID be wrong, or illegal?

If we look at the six Amendments that address voting, we see that all but one—the one about the Electoral College—expands the definition of who can vote. Black men and then all women are given the vote, people are allowed to vote directly for their Senators (who had previously been chosen by the Electoral College), younger people can vote (voting age had been 21). Most significantly of all, the Twenty-Fourth Amendment in 1964 abolished the poll tax. Poll taxes were a shameful tool of white supremacists, who set up fees that “everyone” had to pay in order to vote. In reality, only black people were forced to pay a fee in order to vote, and the white supremacists running the polls made sure it was so expensive for most black citizens to pay the poll tax that they simply could not vote. It was an effective way of stripping black Americans of their right to vote and of keeping Civil Rights legislation moving at a snail’s pace, since only white people were voting, and most in the South did not vote for people who supported that legislation.

So the sum of all Constitutional Amendments regarding voting since 1870 has been to let more people vote, and to keep the process just. No one has to pay to vote in this c0untry. It is the right of a citizen to vote. All people have to do is register.

There have, of course, been ongoing attempts to make voting very difficult for the poor and the non-white. Minimal staffing at government offices ensure hours-long waits for registration, and often those who register find that they are not on the list of registered voters at their polling places. Polling places are often few and far between in poor districts, again ensuring a long drive or bus ride to the polling place and another hours-long wait to vote. Votes from poor districts are sometimes “lost” on the way to the official tallying places. Everything but a poll tax has been put in place to maintain the white and powerful status quo.

The reason usually given for these hindrances to voting is that there has been voting fraud—in poor and non-white districts only. The implication here is that of course the poor and non-white are not honest, and that the immigrants who make up this group either don’t understand democracy or want to destroy it. We have to protect the U.S. from immigrants, the poor, and the non-white, and so we must police voting very closely.

Evidence of massive and continual voting fraud is never presented, just as the hindrances already in place in underserved districts’ polling places are never acknowledged. Asking for a government photo ID is a blatant attempt to reinstate a racial and ethnic barrier to voting. Advocates say, Everyone has a driver’s license, so what’s the big deal? The only people who don’t have a driver’s license are illegal immigrants, and they shouldn’t be voting anyway. Those against the ID respond that many people don’t have a driver’s license, including many elderly people and some physically impaired people.

But the problem is not that photo IDs are not as common as we think. It’s that asking for anything but proof of registration—having your name on the list of voters for your polling place—is a poll tax. It’s a barrier to voting. It makes it harder for some citizens to vote, for no good reason. Nowhere in the Constitution does it say you have to have proof of citizenship to vote. You need that to register, and if you are registered, and your name is on the list at your polling place when you show up to vote, you do not have to show any further proof of your right to be there.

Once we demand proof of citizenship at the polling place, we may as well—and might well—ask for a small fee to be paid, or your photo to be taken, or your signature on a loyalty oath. This is not our democracy. We have to fight any attempt to require ID or any other proofs of citizenship or loyalty at the polling place vigorously, or our next Amendment will be a giant step backward from the previous five.

White Americans in the minority by 2019

A report issued by the Census Bureau, based on the latest census results, states that by 2019, the majority of children born in the United States will be non-white.

We’ve been looking at the 2010 Census results and race, and this new parsing of the data is interesting in many ways. First, let’s look at the facts:

–The Hispanic population is growing faster than white, black, or Asian populations because of Hispanic people’s higher birthrates.

–Why is the white birthrate so low? Because white people have fewer children and have them later in life.

–Thus, the white population is aging far faster than the Hispanic, Asian, or black population. The median age of white people in the U.S. is 41 years old, while the median age of Hispanic people in the U.S. is 27 years old.

–The number of white children in the U.S. has fallen by 4.3 million since the last Census was taken in 2000. The number of Hispanic and Asian children has increased by 5.5 million.

–The number of black children in the U.S. has also fallen by 2 percent. The report states that “Over all, minorities now make up 46.5 percent of the under-18 population”, but it seems they are hardly “minorities” at this point. White children are currently the minorities in 10 states.

It’s not surprising that groups with higher birth rates are outstripping those with lower birth rates, but of course it is nearly impossible for the nation to receive this objective data objectively. Many white Americans are no doubt concerned that they are losing their majority status in this country.

This is only natural. No group wants to lose its socio-economic-political power/control. Look at the vicious backlash that men’s groups deal out to women who support equal rights, that straight groups deal out to gay people who support equal rights, etc. Those who have power want to keep it—not universally, but generally. Not every man hates feminism, not every straight person hates gay rights. But a substantial portion—a majority—are opposed because these groups pose a threat to the male or the straight grip on power.

Now a substantial portion of white Americans may react with fear and anger to this news. It will add fuel to the fire of anti-immigrationists, and likely lead to calls for quotas on Latin American immigration. Those Latinos already in the U.S. will be castigated by some for not speaking English, taking U.S. jobs, and other actions that have nothing to do with how many children they have. I think Asian Americans will escape this vitriol for the most part, because it is Latinos who are the more visible immigrants.

One of the arguments of these white Americans will be that incoming Latinos do not respect, understand, or plan to support the “American way”, by which they will mean representative democracy, English speaking, and suburban comfort and norms. This is the same dire accusation leveled at Irish immigrants in the 1840s (no, they were not considered to be white at that time), Germans in the 1860s, Chinese people in the late 1800s-early 1900s, Italians and eastern Europeans in the early 20th century (again, not considered white), etc. Every new group is castigated as deliberately, gleefully destroying the nation they have just arrived in.

In all of these cases, the reports of the American way’s death were exaggerated. Will it be the same this time? It depends. It depends on education.

All of those previous immigrants were educated in American public schools that inculcated American values in them, sometimes cruelly, often with the excitement and true devotion that their teachers, former immigrants themselves in many cases, felt for their new country. In fact, making sure immigrant children got an American education in civics and the workings of the American democratic system so they would become loyal citizens was a key goal of American primary education for the bulk of the 20th century. And it worked. For most of the 20th century the average American was a first- or second-generation immigrant who knew a lot about the three branches of government, the Bill of Rights, due process, etc. That American voted and participated in the political system. And thus the American way, and the nation, did not die.

But I’m not sure that is true now. Now American K-12 education system has no real focus, riven as it is with internal and external conflicts, except perhaps for testing. And civics—learning about our government, its purpose, its structure, and the importance of citizen participation—is rarely a part of K-12 education. Many states no longer require that civics be taught at all. Schoolchildren today are ignorant of civics, and therefore the average American cannot name the three branches, how they work together, how the state and federal governments align, etc., and citizen political participation is at an all-time low.

And that’s for white children. What about the non-white children soon to make up the majority of American students? They are likely to go to the worst, most under-funded schools, where learning to read and write and do math is not guaranteed. They learn nothing about civics, about their government—except that so many people in that government don’t want them here. This will only get worse by 2019. As the Times article puts it, “Will the older generation pay for educating a younger generation that looks less like itself? And while the young population is a potential engine of growth for the economy, will it be a burden if it does not have access to adequate education?”

We all know the mantra that “children are our future.” It is true. If we want the American way to be the way of the future, if we want the country to be preserved as it is/should be, we must educate this non-white generation the way we educated previous immigrant generations, and the way we educate the white generation. We have to start treating children born in this country to Latino parents, and children whose parents bring them here, as the Americans they are, and give them the education we assume white children should have.

Because the real fear many white Americans have is that immigrant and black people will drastically change this country if they take the majority because they do not share “white values.” What are “white values”? American values assumed to be the natural birthright of white children but values that must be laboriously inculcated into non-white children, who somehow genetically resist them. Justice for all, innocent until proven guilty, government of by and for the people, etc. Those are American values. But they are not naturally a part of the makeup of white Americans—as we have noted elsewhere on the Historic Present—every American has to learn these values. They go against human nature, and human history. Everyone has to learn them, every new generation, black, white, Asian, or Latino. You get the nation you pay for. You reap what you sow. If we want the American way, we have to teach it. If we refuse to teach new immigrant American children about their country, if we throw civics education away, it is we who will guaranty the ruin of our country, not those children.

So these numbers should not panic anyone. We are privileged to live in a moment of real historical change in our country—one of many. If we cherish our country, we will make sure every child in it knows that s/he is an American, and we will teach every child what that means, and how to live it.

The problems of American freedom

We saw in the last post that Americans live in a unique situation: we enjoy all three types of basic freedom, national, political, and individual. Listing the nations that have offered all three freedoms to all of their citizens is a counting-on-one-hand proposition. Successfully providing and defending all three freedoms is what makes the United States great.

But it also presents some problems. Over the generations, Americans have veered between putting national freedom first and putting individual freedom first. We’re sometimes willing to give up individual freedom to be safe from attack, and sometimes unwilling to perform our duties of national and political freedom in the name of individual freedom. When the U.S. faces attack or threats to its safety, many Americans want to put laws in place curtailing individual freedoms like freedom of speech, religion, and assembly in order to at once weed out troublemakers and create a more homogenous society. Conversely, when the federal government tries to put sweeping legislation into effect, such as government-paid health care or social security or gun control, many Americans loudly protest the move as an infringement of their individual rights.

Individual rights also lead many Americans to neglect their political freedom to participate in government by holding office and/or voting. The feeling that participation in our democracy is unnecessary, an extra rather than a basic tenet of American citizenship, is pervasive. Resentment of “big government” leads many people not to want to participate in government at all, as if they would be supporting an invasive federal government by voting or running for office, although the way to change the nature of government is to join it or vote in those you wish to have representing your views. The belief that our government is an impediment to individual freedom is sadly prevalent.

Holding all three freedoms in equal esteem is difficult. 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.

Going forward, we’re seeking to bring our three freedoms into balance and remember that each is equally valuable, and each demands our equal time and effort to maintain.