This time it’s Nebraska: another state to ban teaching about racism?

This time it’s Nebraska. On July 26, Governor Pete Ricketts tweeted (because Twitter is where state policy should be formed and debated) that

I strongly urge the Board of Regents to pass the resolution opposing the imposition of Critical Race Theory on students, so we keep academic freedom alive and well at the University of Nebraska.
Additionally, the University of Nebraska should consider it an honor to be listed on the AAUP’s censure list alongside notable conservative institutions, including Brigham Young University, Catholic University of America, and Hillsdale College.

The AAUP is the American Association of University Professors. Nebraska is only the latest state to join the movement to censor K12 and college instruction:

On March 18 we wrote about the Iowa state legislature working to incorporate the anti-justice language and intent of the Trump Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping), which we spilled so much ink on late last year. The University of Iowa is being pressured by the state legislature to end diversity education for students and staff.
Then on March 23 we posted about the Idaho state legislature attempting to do the same. Then, just over a month later came the terrible update: they did. On April 29 the Idaho House approved legislation aimed at preventing public and charter schools and universities from teaching critical race theory, which examines the ways in which race and racism influence American politics, culture and the law.
On May 14, we posted about New Hampshire, whose House Bill HB544–“An Act relative to the propagation of divisive concepts”–is yet another move to make teaching Americans about racism illegal.
On June 7, we posted about Oklahoma and Kansas: Oklahoma Governor Keven Stitt signed legislation to ban critical race theory, and department chairs at Pittsburg State received an urgent email summons to “inquire” whether Critical Race Theory is being taught in any PSU classes. “The specific information would be 1. yes or no and 2. if yes which course(s). The response needs a short timeline as I need to have this information to the Dean’s office by the end of the day.”

We believe at this point Nebraska makes 17 states that have passed or are considering legislation to censor instruction. The irony of using censorship to protect freedom is so grating; how can this transparently illogical strategy be so successful every time?

The resolution Ricketts speaks of was introduced by U of Nebraska Regent Jim Pillen. It reads:

Whereas the campus and facilities of a university are places for open reflection, discussion, study, research, and learning and
Whereas America is the best country in the world and anyone can achieve the American Dream here and
Whereas education, free speech, and sound learning are the keys to freedom and opportunity in this country and
Whereas we oppose discrimination in any form and
Whereas Critical Race Theory does not promote inclusive and honest dialogue and education on campus and
Whereas Critical Race Theory proponents seek to silence opposing views and disparage important American ideals
Be it resolved that the Regents of the University of Nebraska oppose any imposition of Critical Race Theory in curriculum.

The vague language is so insulting. “Any” “imposition” of “Critical Race Theory”? What’s an “imposition”? Isn’t any syllabus with required reading on it “imposing” that content on students? The word “any” allows just that–a definition of “imposition” so broad it becomes at once meaningless and an effective total ban on anything that anyone decides is “critical race theory”.

The University of Nebraska has been simmering ever since 2018, when a white grad student teaching adjunct flipped off a white undergrad campaigning on campus for the neo-conservative Turning Point USA organization. The two got into an argument, the grad student gave the undergrad the finger, it was filmed, and all hell broke loose as neo-conservatives claimed it as yet another proof that white Americans are under constant threat and attack on college campuses.

The AAUP censured UNL for suspending Lawton from teaching, and that’s the censure list that governor Ricketts says the state should be proud to be on.

U of Nebraska system president Ted Carter and four campus chancellors have published a defense of academic freedom, which reads in part “Issues around race, equity and the fight against racism are an important part of our country’s story and they have an appropriate place in our classrooms,” which says it as well as we ever could.

Once a term like CRT becomes widespread, it’s pretty reasonable to assume most people using it don’t know what it really means. That’s the way neo-conservatives and white supremacists want it: vague enough to be scary, broad enough to include anything they don’t like.

To allow an individual to define, on his own, what CRT is and does, and therefore to ban it for all, is something we would expect in a dictatorship, like when Viktor Orbán re-writes the Hungarian constitution on his lunch break to confirm his own dictatorial powers.

Our response?

Whereas a crucial component of any claim that America is the best country in the world is an appreciation of the Founders, and
whereas the Founders welcomed and dedicated themselves to open debate, and
whereas the Founders wrote in great detail and great specificity about how they thought this country should be governed, and
whereas the Founders did not hide behind vague wording to hide their agenda, and
whereas the Founders didn’t write threats into our founding documents, and
whereas the Founders didn’t impose censorship to protect any individual agenda,
Be it resolved that all of these vague, threatening censorship laws are un-American, and destroy anything that was great about America.

What makes a country great is its dedication and commitment to facing its problems honestly, in order to slowly but surely resolve them. Find out what your state legislature and state education system are doing and speak out against any attempts to introduce censorship defined as patriotism.

The Great American Experiment goes on

Way back in November 2008 we posted “The Great American Experiment”, an essay describing the election of Barack Obama as president as an instance of the triumph of our ongoing experiment in creating true democracy in the United States and the world.

We re-run it today, as Joe Biden and Kamala Harris take their oaths of office, with a few updates for 2021.

______

America is an experiment. From at least the time of its first white settlement, and likely for centuries before that, America has been a place where people came to experiment with doing things differently. It’s been a place to gamble, to see if you could be one of the lucky ones who could buy land, support yourself, marry and create a new life and a new family future in a stable, new land. You gambled on the weather, politics, your own skills, and your own ability to commit to the experiment of living in America, and being an American.

During the 18th century, the experiment deepened, as Americans began to speculate that they could form the first democratic nation in modern times. Intense experimentation went on from the 1760s to 1787, as Americans adapted and invented forms of government fit for the scope of their needs, the gaping hole of their inexperience, and the high and intense expectations for their future.

On and on went the experiment: could we create a strong and stable centralized government? Could we grow without destabilizing? Could we solve the problem of slavery? Could we truly create a melting pot in which to forge Americans out of peoples of all nations? Could we give women the vote? Could we accept Jewish people as true Americans? Could we desegregate? Could we assure civil rights regardless of sexuality?

Every time Americans experienced failure, or had the rug pulled out from under them, whether by natural disaster or human disaster (like stock market crashes, Depressions, war, and injustice), they had to stop and think: is it worth it? Do our high expectations just set us up for disappointment? Is it really possible to have a strong, wealthy, powerful, modern country that is also just, fair, free, and equal?

Our momentum from the Founding onward propelled us to believe that it is possible. We took pride in attempting the unlikely, in dedicating ourselves to making the seemingly impossible possible. We did it because we knew our history began when we committed ourselves to the biggest experiment humans can attempt: liberty and justice for all.

America’s story is one of constantly tackling the big—the biggest—problems, ahead of everyone else, with very little to guide us but those Founding principles that nag at our conscience. And each time we’ve made progress, extending civil rights to more and more people, it’s been because that old spirit of taking a gamble, of performing the ultimate experiment, took over and led us to the right decision.

As we think today about what divides Americans, we think it boils down to the fact that some Americans no longer want to experiment. They want to close the lab down. We’ve gone far enough into the unknown, making it known, they say; now let’s stop—let’s even go backward. We were wrong to conduct some of our experiments in liberty, and that’s the source of all our problems. Gay people shouldn’t be treated equally. Black people shouldn’t run the country. Women shouldn’t hold high office. Muslims shouldn’t be granted habeas corpus. Democracy itself is weak and corrupt–we need a military and religious dictatorship to undo every advance in civil rights and the pursuit of happiness, because somehow freedom and happiness are destroying America.

Whenever one of those Americans talks about the problem with our country today, they talk about how we should be like we once were, back when white people who defined marriage as one man-one woman and were Protestant veterans built this nation. They feel they are losing their birthright, their legacy.

But those Americans are wrong. What their ancestors really were was scientists. Experimenters. Radicals who always considered the impossible possible. A people with near-supernatural qualities of optimism and defiance and willingness to go into the unknown and make it their home, to make the amazing the norm. They defied the status quo. That’s how they built America.

Americans who want to end the experiment are few, but boisterous. They clamor at the national microphone. But Americans who know that there is no America without the experiment will keep at it, and they will persevere. Joe Biden and Kamala Harris are such Americans, and their election is proof that the lab is still open, and that America in general will always be at the drawing board, expanding its concept of liberty and justice and equality until we finally fulfill the founding principles that created this nation so long ago.

Truth v Myth: Trump Executive Order defines fighting racism as racist

Welcome to part 2 of our series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping. You can find the official White House version of this executive order here. Today, we move on to the Order’s misrepresentation of anti-racism as a “destructive ideology.”

This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights. They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.

–The duplicity here makes one want to cry out. Here is the pretzel: acknowledging racism at work in America today is actually racist. To bring up race is, somehow, to have a “racialized view” of America, and, beyond that, to bring up racism is to be an apologist for slavery.

Where to begin? Well, perhaps with the common knowledge that fighting racism and working for civil rights is hardly represented as new, revolutionary, or cutting-edge. We’ve been doing this work in this country since 1787, at least, and the association of “civil rights” with “fighting racism against black Americans” has been very much a part of our life as a nation since 1865. Perhaps the author(s) of this order remember the NAACP, SNCC, Martin Luther King, Jr., Malcolm X, Frederick Douglass, Shirley Chisholm, John Lewis, the NACW, and, greatest of them all, Mrs. Ida B. Wells-Barnett. Maybe they can recall the desegregation of Central High in Little Rock, Arkansas. The March on Washington. Brown v. Board of Education. The Great Society. All of these movements, organizations, events, and people of the past 160 years that we all read about at every grade level in our textbooks.

Fighting racism and working for civil rights is also not racist. To claim that fighting racism forces people to think about race, and only race, and therefore is racist, can only be the product of a deep stupidity or a deep evil. It’s very hard to say which would be worse.

Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors. For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”

–This is more of the same idea that acknowledging race and racism is racist. We should all be allowed to be “color-blind”. This phrase, as used in this Order, represents a false assumption, which is that America, or at least most Americans, are not racist and do not ever made judgments about people based on their race. Therefore, being told to think about race is ruining this paradise by introducing race-based thinking, and therefore, racism.

It’s hard to imagine that many Americans would claim that they are “color-blind.” They might say they themselves are not racist, or that they try not to be. But they wouldn’t claim that they never think about race unless forced to do so by a workplace diversity training. In reality, all people–whatever their race–have racist thoughts and feelings. Most of them know that, and work to fight that human tendency. Some of them know that and don’t care, and some of them know that and deny it. While one might find fault with a diversity training program that singles out white people as racist, when we know that it’s a part of human nature the world over, we are talking about the U.S., where centuries of institutional racism have worked to promote the interests and well-being of white Americans at the expense of black, Latinx, Asian, and Native Americans. So in a U.S. diversity training, the focus will indeed be on how white people can renounce the privileges racism offers them. If white Americans don’t do that, they cannot “let people’s skills and personalities be what differentiates them.”

Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”

–Again, the first statement is very familiar to Americans. We spent the last 70 years learning again and again how racism distorts housing, employment, incarceration, health care, and education. You either oppose or support this, but you can’t prove a case for denying it. That’s why pushing “color blindness” and “meritocracy” are indeed tools of racism: they ask people to assume a level playing field that does not exist. Meritocracy means “we all start with the same opportunities, and those who take advantage of them and work hard will succeed.” But we don’t all start with the same opportunities, the same equality of opportunity, as the Founders put it, and therefore meritocracy is not truly possible.

Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.

–Here the author(s) play into people’s willingness to roll their eyes at “political correctness”. They pull very small quotes from some larger document to prove that Sandia is denigrating white men, representing them in a negative way and, therefore, engaging in what white racists traditionally call “reverse discrimination.” See? they say; Sandia is encouraging racism against white men! Shouldn’t every individual be judged on their actions, not their race? This is pretty unforgivably deceitful. If one group have worked to institutionalize racism, then yes, they participate in racism and benefit from it, even if they’re not fully aware of the full extent of that participation and benefit. It become so normalized that it’s just the fabric of life. Sexism works the same way. Making people aware of the benefit, or privilege, they experience is a first step in teaching the basic lesson that discrimination must be actively opposed, and that can’t happen until it is personally acknowledged. The work doesn’t stop there. Acknowledging one’s own participation in discrimination is just the first step to fighting it, and being part of the solution.

A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

–One of the concepts we learn as we move into adulthood is that words can have many meanings. We learn about codes, and code-switching. We find through personal experience that potentially explosive messages cannot be bluntly stated, but have to be filtered. It’s what we call a “dog whistle” – most people hear nothing, but those who are in the know hear the message.

Well-known examples include “the right kind of people” and “our kind of people”. In the U.S., the words and phrases “patriot,” “real Americans,” “honest, hardworking Americans,” and “middle-class” have been turned into dog-whistles for racism since the 1970s, when the conservative backlash against the civil rights movement and gains of the 1950s and 60s began, and were fully gelled by the Reagan Administration in the 1980s. All of these have become code expressions for “white”, and it was a horribly effective mis-use of meritocracy: start with the false assumption that everyone had the same starting point and resources, and then when racism ensures that people who aren’t white don’t succeed, the only way to explain it is by blaming the non-white people for being lazy, dishonest, and treacherous. If only white Americans succeed, it must be because only whites are hard-working, honest, and patriotic.

And so when the Order complains that the Smithsonian claimed that the phrases “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness,” it is pretending that these have not become thoroughly encoded dog-whistles.

We would criticize the Smithsonian–if it is being quoted correctly–for saying that only white people value the nuclear family. Black American families in particular have been targeted for destruction by policies that keep black Americans poor, physically unhealthy, exposed to drug use, and more likely to be sent to prison, all of which prevent nuclear families from forming and/or persisting.

All of this is contrary to the fundamental premises underpinning our Republic: that all individuals are created equal and should be allowed an equal opportunity under the law to pursue happiness and prosper based on individual merit.

–The horrible irony of this statement is clear: acknowledging and fighting the racism that prevents equal opportunity under the law is racist. All anti-racism is anti-American and is itself what is preventing equality for all Americans. And, before we close, let’s all remember that the Declaration of Independence that the Order purports to quote here by using the phrase “pursue happiness” says NOTHING about individual merit:

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, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

How does America achieve happiness for all? Is it through assuming a meritocracy? No: Americans achieve this by forming a government that supports happiness for all (“these ends”). And if that government “becomes destructive of these ends,” we the People must alter or abolish it to create a new government built on “such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.

That’s how we create and maintain and safeguard happiness in this country. Through the hard work of creating a system of government that does not allow systemic, institutionalized discrimination, and through the hard work of monitoring that government and correcting it if it goes wrong. The Founders knew how hard it would be to keep the government fair and to keep it dedicated to preserving our natural rights. They did not recommend or describe a fantasy about everyone having all the resources and opportunities they needed, like magic, and just taking advantage of them, easy as pie. It’s about rights, not magic.

Next time: define merit…

Romney, Dred Scott, and the Supreme Court

In March 2016, President Barack Obama moved to fill a Supreme Court vacancy created by the death of Justice Antonin Scalia. Republican Senators, in the majority, refused to hold hearings for Obama’s nominee to replace Scalia, Merrick Garland. The Republicans’ claim was that 2016 was an election year, Obama was finishing his second term and clearly could not run again, so the Supreme Court should not have an empty seat filled by someone who wasn’t going to be president after 2016. The new president, whomever that might be after the November 2016 election, should get to fill the seat.

This was an argument never before advanced in the Senate. Think about what that argument is: why should Supreme Court Justices be chosen only by an incoming president? The clear message is that presidents should get to choose Justices who agree with them politically–that a president should be able to shape the Court to do his political bidding. A president shouldn’t have to resign himself to fighting with a Court that doesn’t toe his line.

This is deeply un-American. In the United States, the judiciary is meant to be objective. Judges and Justices are not elected because they are not meant to reflect popular sentiment. As we say in one of our many posts on the judiciary and tyranny of the majority,

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

President Obama’s candidate was blocked by Senate Republicans nine months before the November 2016 election as “too close” to the election. Now, in September 2020, less than two months before the election, Senate Republicans are united in calling for President Trump to nominate a new Justice so the Senate can hold hearings and get the nominee confirmed before the election on November 3.

At first, Republican Utah Senator Mitt Romney seemed to waver from this position. But then he toed the line using words that echo those of a terrible moment of failure in our democracy: the Dred Scott decision.

Here’s a quick summary of this 1857 case from our series on Dred Scott:

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.

The Court found against Scott.. but not really. In reality, Chief Justice Taney declared in the majority decision he wrote that the Court actually decided that it should not even have heard the case at all. As we say in our analysis of Taney’s summary,

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.
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.”

Taney rules out the possibility that Americans realizing that race-based slavery is immoral (a change in “public opinion or feeling”) should ever lead the Court to overturn established law and legal precedent. Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior? Here’s Taney’s answer:

“…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.”

In other words, as we said then, “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.”

Taney concludes the majority opinion by saying that 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.

Where does Mitt Romney come into this awful equation? On September 22, 2020, he was interviewed on camera about why he supported hearings for a Republican Supreme Court nominee less than 6 weeks before a presidential election but didn’t support them for a Democratic nominee 9 months before an election. Here is a transcription of his response:

REPORTER: Back in 2016 the message was “let the voters decide” – why not now?
ROMNEY: At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.
…I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.
It’s also appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.

Let’s review:

Taney, 1857: “…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.”

Romney, 2020: “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.”

Both men equate 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.

But it’s even worse in Romney’s case, as the Constitution says nothing about this matter. There is no law about how to proceed with Supreme Court nominations to uphold via precedent or to change via the judiciary. Let’s fact-check Romney:

At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.

What does the Constitution really say? Article 2, Section 2, Clause 2:

He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

There is nothing in the Constitution that says that “in a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.” So there is not Constitutional or legal precedent for this. In fact, a quick scan of presidential nominations to the Court from Washington to Obama shows that there were completely extra-legal “senatorial courtesies” that Senators developed and observed, like letting Senators from Georgia, for example, have the final word on evaluating a Court nominee from Georgia.

We also find that most presidents who had one nominee rejected were able to successfully nominate another person who was confirmed. The idea that anyone a Republican president nominated would be rejected out of hand by Democratic Senators is a myth.

In the 20th century, we do find a growing trend of nominees being rejected on ethical grounds. Harding, Hoover, Eisenhower, Nixon, and Reagan all had candidates rejected, refused hearings, or withdrawn for ethical reasons. Sometimes this was for the right reasons–Hoover’s candidate John Parker was opposed for his anti-labor and racist beliefs. Sometimes it was for the wrong reasons–Eisenhower’s candidate John Marshall Harlan II was rejected for his “ultra-liberal” positions. But we often find that someone who was rejected once was later confirmed–this happened with Harding and Eisenhower in the 20th century.

Nowhere in the Constitution does it say that a sitting president cannot get a hearing for their Supreme Court nominee. There is no precedent for refusing the candidate of a sitting president a hearing during an election year. If we go down this road, we invite the possibility of saying that only a president whose party is in the majority in the Senate can nominate a candidate and get a hearing. This is not our democracy.

Back to Romney and his defense of “precedent” (even when there is none):

since the beginning of our country’s history… In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.

Continuing an error–in this case, allowing partisanship to thwart the purpose of the judiciary as a whole and the composition of our highest court in particular–is justified, for Romney, because the error is longstanding. Doing the wrong thing often enough transforms the error into a precedent that must be upheld–that is, into the right thing to do. This is a solipsism: the Garland decision was consistent with other unjust decisions so the Garland decision conforms to unjust precedent so I will follow unjust precedent since others have before me. He has not studied this, or he would know that the Constitution has no role here. To make a decision to continue an error is not a high-minded, lonely stand for justice.

When Romney says “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution”, he is insulting anyone who believes the Constitution can or should be amended. He is also channeling Taney in the purest way. Compare Romney’s statement to Taney’s:

No one, we presume, supposes that any change in public opinion or feeling… 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… 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.

Finally, it is not, as Romney says, “appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.” The whole point of the judiciary, as we began by stating, is to adhere objectively to the principles in our Constitution–and its amendments--to ensure liberty and justice for all, and not to follow the will of the majority, support one political party or another, or say “the Constitution is perfect and should never be changed.”

There are many ill omens in 2020 that lead the historian to draw parallels to the precarious state our nation was in on the eve of the Civil War. This statement from Romney, and the anti-democratic, anti-American partisan perversion of the Supreme Court nomination process, is one of them.

Removing Confederate monuments erases history–or not

We were reading a great interview with Harvard Law School history professor Annette Gordon-Reed on the recent attacks made on statues of slaveholders, conquistadors, and Confederate soldiers. You can read it all here; we’ve pulled out a few highlights.

GAZETTE: What do you say to those who argue that the removal of such statues in prominent public settings dishonors the memory of those who died fighting for the Confederacy?

GORDON-REED: I would say there are other places for that — on battlefields and cemeteries. The Confederates lost the war, the rebellion. The victors, the thousands of soldiers — black and white — in the armed forces of the United States, died to protect this country. I think it dishonors them to celebrate the men who killed them and tried to kill off the American nation. The United States was far from perfect, but the values of the Confederacy, open and unrepentant white supremacy and total disregard for the humanity of black people, to the extent they still exist, have produced tragedy and discord. There is no path to a peaceful and prosperous country without challenging and rejecting that as a basis for our society.

–This is extremely well-put and we can add nothing of value to it. The BLM protests happening all over our country are based on the truth of the last sentence.

GAZETTE: Many believe that taking the statues down is an attempt to cover up or erase history. Do you agree?

GORDON-REED: No. I don’t. History will still be taught. We will know who Robert E. Lee was. Who Jefferson Davis was. Who Frederick Douglass was. Who Abraham Lincoln was. There are far more dangerous threats to history. Defunding the humanities, cutting history classes and departments. Those are the real threats to history.

–Here Gordon-Reed addresses the argument that always irritates us as historians. As if the main vehicle of learning about U.S. history were Confederate statues! Those statues are not preserved and defended in the name of the objective study of our national history. They are preserved and defended as evidence of the Lost Cause and meant to enforce a sense of alienation from the U.S. predicated on primary identification with “the South”.

GAZETTE: What about the slippery slope argument? Many of America’s founders — George Washington, Thomas Jefferson — owned slaves. Does removing statues of Columbus or Confederate officials pave the way for action against monuments honoring those who helped create the United States?

GORDON-REED: I suppose, if people want to, everything can pave the way to some other point. I’ve said it before: There is an important difference between helping to create the United States and trying to destroy it. Both Washington and Jefferson were critical to the formation of the country and to the shaping of it in its early years. …No one puts a monument up to Washington or Jefferson to promote slavery. The monuments go up because, without Washington, there likely would not have been an American nation.

–Again, perfectly stated, and in need of no confirmation from us. But we celebrate this truth-telling, and recommend it to all Americans.

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.

Does the president have total authority?

We’re reposting this piece in response to President Trump’s recent claim that he wields “total authority” in his role: “When somebody’s the president of the United States, the authority is total. And that’s the way it’s got to be.” This specious claim was refuted almost immediately by the people you expect to see on TV–governors, Washington politicians, political experts, and academics.

But we sometimes fear that the average American begins to believe it–that a poisonous seed is planted in the American mind that in times of crisis, you need a dictator to force everyone to do the right thing, to take control and ensure that no one games the system. It’s a belief that begins as “you need might to do right” but, as human history teaches us, quickly and inevitably ends up as “might makes right.” Think of the cliche about Mussolini: he was a fascist, but the people loved him because “he made the trains run on time.”

When there’s so much friction and factionalism in Congress, people begin to yearn for a bulldozer to clear it all away, a Harry Truman-style “the buck stops here” leader who will tell people what to do, force them to do it, take credit or blame, and just get things moving again.

That’s the inherent problem in the general definition of leadership: that it’s an all-powerful person giving orders to obedient followers. It’s implied that the power is accompanied by wisdom.

But real leadership, as our Founders set us up to one day achieve, is not a Great Leader with an infallible Vision telling everyone else how to follow them. It’s a person who wants to make change mobilizing the talents and energy of other people to work with them to make change happen. It’s everyone sharing their ideas and everyone working equally hard to experiment, take chances, fail, learn, and try again. Incremental change, not Sweeping Edicts and Commands.

We don’t need a dictator. We have a government. It’s our government that makes Americans free. Unconvinced? It’s not surprising, after decades of “government is the problem” politicking. But read on, and we hope you are persuaded. That’s the incremental work we do here at the HP.

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.

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.

What did the federalist debates do?

Here we conclude our re-running of our colossal series on the Federalist debates that gave us our Constitution by wrapping up its impact on the U.S., in its own time, and over the centuries since 1787.

We haven’t hit all the topics of debate in this series; for example, we haven’t looked at the worthy Anti-Federalists criticisms of the Supreme Court (they balked at the idea of having an unelected, lifetime-term body that could overturn the laws of Congress as it pleased; as usual, the Federalists replied that any body in service of the just Constitution would never become tyrannical). We have also left out the demand for a Bill of Rights, which was general on both sides, Federalist and Anti-Federalist (more on that in a later series).But we have gotten a sense of the categories of debate in general: the Anti-Federalists wanted to keep government as small and, crucially, as local as possible to avoid its corruption; and the Federalists wanted to give the federal government elastic powers to meet unforeseen dilemmas in the future, as well as to control the all-too-real and familiar dilemmas the young nation was already facing.

But in a larger sense, the Federalist debates were important not for their content, but for their happening at all. After popularly elected delegates met to create a new body of national laws, the entire nation was invited to participate in the debate over their ratification as our Constitution. Every aspect of the proposed Constitution was dissected and put under the microscope, and dissenters were free to publish their dissent, their criticisms and fears, in the free press. 85 Federalist Papers were published between October 1787 and August 1788. This is a far cry from the usual press treatment of big issues today, which usually feature a flurry of intense coverage for a week or so, then a near-complete dropping off of interest. For nearly a year the nation weighed the pros and cons of the proposed Constitution and the government it would create in a public forum where no holds were barred. Then the states elected delegates to participate in ratification conventions, and in most states people thronged outside the building where the conventions met, waiting to hear what they had chosen—to accept the new Constitution or not. Over 10 months, the required 9 states voted to ratify, which the caveat that a Bill of Rights be written and added to the Constitution as the first order of business of the new government.

This democratic process must have inspired some Americans to believe in the Federalist promise that republican virtue could be relied on even in a large population. No one had been censored, no one arrested or imprisoned, no one lost their property or their livelihood as a result of the position they took on the Constitution. Americans must also have been inspired by the near-blinding modernity of the ideas in the Constitution, and the futuristic nation they at once created and imagined.

We have seen over the centuries since 1788 that the Anti-Federalists got a lot right; their questions about state power to counter federal power, the danger of giving any government body unlimited power to act in the name of national security, and the tendency of power to corrupt have been proven pertinent many times over. Yet we see that the Federalists’ main precept was correct: any government, even a small, local, state government, can become corrupt if people lose faith in the principles of democracy. Keeping things local is no guaranty against corruption. And we can’t rely on one segment of the population—the small farmer or, to add today’s like category, the blue-collar worker—to provide all the republican virtue. Everyone has to be raised up in the tradition and discipline of democracy. Every citizen has to be committed to upholding the Constitution. And the most committed citizens should serve in our government—not the richest or celebrity citizens. If we believe in the principles the Constitution offers, we will send people to Washington who also believe in them, and will actively uphold them in the face of temptation to corruption.

And so we leave the U.S. in 1788, with its newly ratified Constitution, and centuries ahead of it to work out the million problems old and new, expected and completely unanticipated, that would challenge the strength of that document and the commitment of those citizens. We should take with us as we go a bit of their republican virtue to solve the problems we face in our own time.

Representation to Congress: not a simple solve for the Federalist Debates

Here in the second to last post in the re-running of our colossal series on the Federalist debates that gave us our Constitution we look at the final large-scale thorny issue dividing Federalists and Anti-Federalists: representation to Congress.

We talked last time about the division of the Legislature into two bodies, the House and Senate, and how contentious this internal division in an already divided, three-branch federal government was for Anti-Federalists. After it was adopted, the question of how to people this Congress arose, and the debate fell out along now-familiar lines: whether members of Congress should be elected by the people directly, or indirectly, by some carefully considered elite.

Before this issue could be addressed, however, the question of how many members would be elected had to be solved. The larger states believed they should have more representation than the smaller states, and would have established a majority-rule system where might made right. Smaller states, of course, did not want to be marginalized in this way, and accused the large states of promoting tyranny of the majority. Smaller states also did not want to get locked into a small number of representatives in Congress when most of them planned on expanding west in the near-term. If they did this, and were much bigger in 1817 than they were in 1787 when their representation was set in stone, they would be large states with small representation. The large states in 1787 had the same plans to expand—when Virginia’s western border was the Pacific (as was that state’s plan), it would need even more representatives than it had been allotted in 1787.

On this issue, Anti-Federalists and Federalists were able to work together more, as the question of how many representatives each state could send was not really about the power of the federal government, and with relatively minimal debate the Connecticut Compromise was adopted. This created a system in which each state, regardless of its size now or in the future, would send 2 members to the Senate and one Representative to the House for every 30,000 people.

The idea of equal numbers of Senators for all states, and proportional representation in the House did not pit Federalists and Anti-Federalists against each other. But the reality of defining “proportional representation” did. Anti-Federalists pointed out the impossibility of one person capably and honestly representing the wants and needs of 30,000 people. The Federalists replied that lowering the number (1 Rep for every 1,000 people, for example) would not solve the problem of one person representing multiple constituents—any time one person represents a group there is no way that person can fully represent their wants and needs unless that group is fully united. Since it is very rare for any group to be fully united, no representative can ever do justice to that group. But as usual, the Federalists used this flaw of human nature as a strength: the one thing that can give a Representative some authority to say that he accurately represents his many constituents is elections themselves. In elections, the people are forced to choose someone they think will do the best possible job representing their basic wants and needs. Not everyone will be happy, but the majority of the people will be satisfied, and if too many people are not satisfied, then they elect someone new. Elections will also force the people to focus their wants and needs into a few main issues, on which candidates will campaign. What the people really want most will come out during election campaigns, and the person who best represents what the people think is most important will go to the House.

The Federalists also pointed out, yet again, that the growing nation would soon have so many millions of citizens that it would be impossible to have 1:1 or even 1:1,000 or 1:100,000 representation in the House. The House had to be a figurative representation of the nation; it could not be a literal one.

This argument, of course, is based on the premise that the people would vote directly for their House Representatives. Some Federalists were against this, but they knew that there was no way the Anti-Federalists, or the majority of the American people, who had just fought a war to ensure their political representation, would accept a Congress made up entirely of indirectly elected members. So the Federalists went along fairly easily with the proposal that the House would be directly elected and the Senate would not. Senators would be chosen by the state legislatures, which meant the people had an indirect voice in the process, as they directly elected those state legislators. But in reality, the legislators could choose whomever they liked, and they would ideally choose someone who seemed the most capable, and the most likely to bring honor to the state, not simply someone who was the most popular. This solution made it possible to test the Federalists’ theory that if a small elite of educated, passionately sincere and devoted republican patriots controlled the federal government, that government could never become corrupted.

The big compromise on representation at the Constitutional Convention, of course, was on slavery, not the Senate. Southern states wanted their entire population counted when it came to apportioning House Representatives, and that included enslaved people. The northern states, of course, rejected this as the sham it was—no Representative from the south was going to represent the wants and needs of enslaved people. Enslaved Americans were not considered citizens, and had none of the rights of citizens. They were governed by black codes and slave laws and the whims and whips of individual slaveholders. To pretend that the south needed Representatives for these people was to turn the whole idea of representative government into a cruel parody. The whole issue of counting the enslaved in state populations was originally about taxation, and is a different topic than we are pursuing here—though we will come back to it in the future. For now, we note this compromise, see that it is really outside the scope of arguments about the size and strength of the federal government, and close.

Next time, we will wrap up—at last!—our series with some reflections on what we can take from the Federalist debates.

Happy Fourth of July 2019!

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

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:

“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.”