Category: U.S. Constitution

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

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.

What are the freedoms we have as Americans?

Citizens of the United States have been proud of their freedom for many generations. It has become a shorthand—we are admired for our freedom, hated for our freedom, we need to preserve our freedom, fight for our freedom… the list goes on. But, inspired by Dr. Rufus Fears’ interesting lecture on the topic, we thought it would be helpful to provide a clear definition of our “freedom” in the U.S. We’ll start by referencing Dr. Fears’ categories of freedom, then provide our own analysis of how they play out in American society.

As Dr. Fears points out, there are basically three types of freedom: national, individual, and political.

National freedom is the independence of a political state—freedom from occupation or other foreign control.

Political freedom is the right of citizens of a political state to participate in government (through voting or acting as a representative) and to have a fair trial.

Individual freedom is the freedom to do and say what you will so long as you don’t hurt anyone—freedom of speech, assembly, religion, freedom to choose where you live or what job you do or don’t do, freedom to make money and spend it as you please.

Of all these freedoms, national is the oldest and perhaps the most widely accepted. It’s hard to find a country, city-state, or any other unified entity that has not placed self-preservation at the top of its priorities. Historically, it has been the only freedom that is universally honored; that is, while many states still do not grant full individual or political freedoms, it’s hard to find one that does not stand for national freedom. Only completely failed states like Somalia or Sudan cannot and do not provide national freedom to their citizens.

Political freedom is about as ancient as national freedom; just about every society has a “ruling class”, whether it is Iron Age priests, medieval lords, or modern representatives to Congress. Rulers—kings, presidents, etc.—have almost always had political bodies advising them, managing the government, and/or curtailing the ruler’s powers. Extending political freedom beyond the top 2% of the population to the lower 98% of the people—granting real democracy—has been rare in human history. The concept of a fair trial has changed over time, and been infrequently offered.

Individual freedom—the rights Americans are guaranteed in the Bill of Rights—is the least common type of freedom. Very few societies have been willing to let their citizens do whatever they want so long as no one is hurt. Individual freedom is a result of true representative democracy, which has been rare in human history and is still not the type of government offered by most nations of the world. The only way for a tiny minority—sometimes just one person in the form of the ruler—to control millions of other people is to strip them of their right to complain, to move away, to become rich, etc. They must remain completely under the control and at the mercy of the ruler/governing class, whose power is exercised by deciding what is legal and what is not and finding that most things are illegal.

So where do we stand in the United States when it comes to these three freedoms? We are in the unique position of enjoying all three of these freedoms, a situation that is almost unparalleled in human history. The Founders worked unbelievably hard to create a government that was strong enough to protect the state (national freedom), offer fair representation before the law and equal participation in the government (political freedom), and give its citizens complete personal liberty (individual freedom). The latter is especially important; in fact, we as Americans believe national and political freedom cannot really exist without individual freedom.

This is what makes the United States unique and admirable, but it does create some problems, which we’ll get into in the next post.

Next time: The problem with triple freedom

Saying the Pledge of Allegiance: A Test of Citizenship?

Every so often a public debate occurs over the question of whether saying the Pledge of Allegiance aloud in public school classrooms should be mandated or abolished. As it stands, each school district is free to decide whether to require the Pledge to be recited aloud or not.

Those who want it to be recited usually do so because they feel that such recitation at once compels and displays patriotism. Students who say the Pledge in school will be more patriotic, in part because they are part of a town or city or district that demands public shows of patriotism, thus prioritizing them.

It’s unclear that reciting the Pledge each school morning really creates patriotism; anything performed by rote, without being explained and discussed and thought over, becomes just one more task to perform in the minds of the children saying it. The lack of explanation or discussion of the Pledge is bound out in the myriad examples of the misunderstandings children have of the words, such as “I pledge allegiance to the flag and the United States of America, and to the republic of Richard Stands…”.

But even above and beyond whether the Pledge recitals are thoughtful and thought-provoking is the issue of turning the Pledge into a test of citizenship. The Founders were against setting up tests of citizenship, such as those in Europe; having to swear loyalty to the monarch and/or the state church was anathema to them. They set up a republic in which citizenship was easy to get—if you’re born in the U.S., or naturalized, you’re a citizen. You don’t have to prove it in any way. Look at the Constitution: there is nothing in it defining citizenship beyond birth and naturalization, and even the naturalization process is not defined. The important thing is how to use your citizenship, not proving it through any kind of statement or oath.

In fact, you have to wait for the Fourteenth Amendment, in 1868, to get a reiteration of the definition of citizenship, and again it is straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction  thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Citizenship tests are “laws which abridge the privileges and immunities of citizenship”, and can lead to depriving citizens of life, liberty, and property. Requiring proofs of patriotism to justify one’s citizenship is un-American. Demanding that the Pledge be mandated on the basis that anyone who doesn’t agree is unpatriotic and doesn’t love their country is un-American. It is precisely the fact that Americans are not required to prove their patriotism through statements, oaths, or any act beyond upholding democracy by voting and obeying the Constitution, that makes Americans truly free.

Should Americans torture?

Time for a civics lesson.

The reaction to finding out that Americans tortured prisoners of war at the Guantanamo prison and in Iraq, and seem to still be using torture now in the Middle East has been a debate over whether torture produces valuable information. That is, do the ends justify the means? Is it worth our while to torture prisoners?

(I have to take a moment here to say torture. Not enhanced or harsh interrogation. We’re talking about the same torture techniques used by the Nazis. Torture.)

This is unfortunate and un-American. The question is not whether torture works. The question is, do the founding principles of the United States support torture? And the answer to that question is no.

Torturing people—prisoners, criminals, anyone—is unconstitutional. It is a violation of the human, civil, and natural rights this nation was founded to preserve. The U.S. has never condoned torture, including during wartime. One of the things that set us apart from the fascists we fought in World War II was our refusal to torture. We upheld the law even in very difficult circumstances. There was no torture of Nazi prisoners by American guards at Nuremberg.

Recognizing the especial temptation to torture enemies captured during war, the U.S. signed on to the 1949 Geneva Convention outlawing the torture of POWs.

One of the principles we are supposedly fighting for in the “war on terror” is the need to uphold human and civil rights. We cannot do that if we violate those rights.

So the end does not ever justify the means when it comes to torture. The “they did it first so we get to” argument often employed to support torture is hardly convincing. As Americans, we are dedicated to the principle of not sinking to the level of terrorists and war criminals. We have passed laws to prevent police officers from torturing confessions out of suspects. It is illegal to torture American prisoners in jail. We have agreed, at Geneva, to laws preventing torture of POWs.

Dressing torture up as “harsh interrogation” or “enhanced” interrogation makes it easier for Americans to condone “some” torture “sometimes.” But we cannot afford, as Americans, with our history, to use Nazi torture techniques—on anyone. Philip Zelikow, of the U.S. State Department, testified to a Congressional subcommittee on May 13, 2009, on torture by Americans and said this:

“The U.S. government, over the past seven years, adopted an unprecedented program in American history of coolly calculated, dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one.”

Coldly calculating torturers—is that how we think of ourselves as Americans? under any circumstances? No. We have not in our history ever officially condoned torture under any circumstances, including war. The only Confederate official put to death after our Civil War was the commandant of the Andersonville prison camp—for torture. It is not a part of our history, nor does it suddenly need to become so. Any goal that can only be achieved through torturing people is not a goal worthy of the United States.

Optimism is the true moral courage: Shackleton and Obama

I just got around to reading Clarence Jones’ article on the upcoming Obama inauguration. In it, Jones, an advisor to Martin Luther King, Jr., makes a profound and wonderful statement:

“Dr. King had an abiding belief in the basic goodness, fairness and decency of America. He never abandoned his confidence that a majority of Americans would ultimately embrace the precepts of our Declaration of Independence: That all persons are created equal, and endowed by their Creator with certain unalienable rights.”

The power of King was that he didn’t say America needed to do something new, to become another people, to end racism. He didn’t say that racism was part of the fabric of America, the legacy of America, the nature of Americans. King said racism was un-American, that it contradicted our basic founding principles, and that racism turned us into another, lesser people. King had the founding principles and documents of the United States on his side, and he knew it. He called for a return to our true nature and our original commission. He denounced racism as having no part in the American experience, and not worthy of us as Americans.

So rather than angrily or cynically dismissing our founding principles as lies and shams, King demanded that we all live up to them. And he won, because he was right.

I’ve noted elsewhere that Barack Obama shares this quality of King’s; he believes in the founding principles of this nation as the best thing about us, and, when we live up to them, the only thing that gives us integrity in the larger world.

My title comes from Ernest Shackleton, the Irish explorer to Antarctica whose 1914-1917 expedition is the stuff of legend. His ship, the aptly named Endurance, was trapped in ice and eventually crushed. For 10 months, Shackleton and his crew waited for a thaw, and once the ship was gone, spent four months drifting in the open ice on an ice floe until they hit land at Elephant Island. Knowing they couldn’t survive there for long, Shackleton took a small crew in a modified whaleboat they had saved on the floe and rowed 800 miles across the Antarctic Ocean to land, then marched for three days and nights through the ice mountains of South Georgia Island to a whaling station. He briefly rested, then took a whaling ship back to Elephant Island to rescue the rest of his crew. There was not one life lost.

When an astonished reporter, much later, asked Shackleton whether he believed any of the men he had left at Elephant Island would survive for his return, expecting that Shackleton would admit that of course he had not, Shackleton replied of course he had. “Optimism is the true moral courage,” he said, meaning that if you don’t believe in what you’re doing, you will fail, because you will not have the strength of mind or body to succeed.

Obama is an example of that optimism. Belief in our founding principles in the face of their distortion is true moral courage. Believing we can live up to our principles allows us to do so. From King to us, that is the message for all Americans.

Country First–but first…

I see that Republican Party presidential candidate John McCain’s slogan is, as of late August 2008, “Country First.” This is clearly a slight reworking of the old “My country right or wrong.” And that’s a problem.

“My country right or wrong” is a sentiment going back millennia, but it was first recorded for posterity as coming from the mouth of Stephen Decatur, a U.S. naval commander who went to the North African port of Algiers, headquarters of the Barbary States (extending from Tangiers to Tripoli), during the Second Barbary War in 1815. Decatur was to negotiate with the Barbary States for the release of some American sailors who had been captured by pirates and held in slavery, and also for the end of the practice of paying tribute to the Barbary States (European and American states paid the Barbary States annual tributes of gold, arms, and other supplies in return for protection from Barbary pirates).

Decatur’s way of negotiating was to capture two Barbary ships, including their flagship Mashouda, and then blow into Algiers with guns leveled at the city and demand the American prisoners and an end to tribute. It was perhaps the first example of the U.S. using “gunboat diplomacy”. Decatur got everything he wanted. (This is why the Marine Hymn begins with the lines “From the halls of Montezuma to the shores of Tripoli; we will fight our country’s battles in the air, on land, and sea”.)

When Decatur returned to the U.S., as a great hero, he was given a banquet in Norfolk, Virginia, during which he gave a speech that included these words: “Our Country! In her intercourse with foreign nations may she always be in the right; but right or wrong, our country!”

This was morphed into “My country right or wrong” so quickly that by 1872, Wisconsin Senator Carl Shurz could refer to the phrase in a Senate speech and know that his audience would understand what it meant. Decatur’s qualifying “may she always be in the right” had been rapidly dropped, leaving “my country right or wrong” as the philosophy of the zealous American patriot. Shurz knew “my country right or wrong” was pulled out to at once kill any questions about American political policies (particularly overseas) and assert the justice of those policies.

But Shurz chose to reiterate the qualifier. His words are far more stirring to the real patriot than Decatur’s:

“‘My country, right or wrong.’ In one sense I say so too. My country; and my country is the great American Republic. My country, right or wrong; if right, to be kept right; and if wrong, to be set right.”

Shurz elaborated this further in an 1899 speech:

“I confidently trust that the American people will prove themselves … too wise not to detect the false pride or the dangerous ambitions or the selfish schemes which so often hide themselves under that deceptive cry of mock patriotism: ‘Our country, right or wrong!’ They will not fail to recognize that our dignity, our free institutions and the peace and welfare of this and coming generations of Americans will be secure only as we cling to the watchword of true patriotism: ‘Our country—when right to be kept right; when wrong to be put right.’”

The true American patriot knows that what she is proud of is the principles this nation was founded on, and on our willingness and commitment to live up to them. America will go astray, because living up to those principles is hard. But true patriots will use all their energy when America goes astray to get it back on course. The first step, of course, is to admit America has gone wrong, and veered off course.

And that’s exactly what cannot happen if one’s slogan is “Country First.” Because this slogan assumes that anything America does is right, and anyone who questions that is putting something else–fear, weakness, ignorance–ahead of America and its interests. Country can only come first in the sense that we work tirelessly to put our founding principles of equality and justice first. “Principles First” would be a more heartening slogan for the American patriot.

“Country First” assumes somehow that Americans are separate from the country of America, and that we must put our needs and values aside to promote our country. And then maybe the country will check in with us later. That’s not how a democracy works. We are America, and so must put ourselves first, and always vote for the policies that promote the justice and equality we are founded on.

So let’s vote with the slogan “Principles First” as we go to the polls in November, and let’s remember that the most patriotic thing is to set one’s country right when it stumbles, not to enshrine the stumbling as a principle.

Proving citizenship proves difficult

Some states are ratcheting up the requirements for getting a driver’s license–and I mean way up.

In Massachusetts right now, you must present four distinct pieces of ID to prove your identity. What are they? The web site for the Commonwealth Registry of Motor Vehicles actually does not say. You have to take your chances. Since most people’s main form of ID is a driver’s license, those without one must bring in a passport, birth certificate, bank statement, social security card, report card, bank signature guaranty… I suppose the list goes on. I can’t think of anything else.

Ironically, most people seeking their first driver’s license are teenagers who most likely do not have a passport, bank statement, or social security card. And few people of any age have a copy of their birth certificate handy (and it’s not quick or easy or cheap to get one).

All this to prove your identity as a state resident? Of course not. It is really to prove U.S. citizenship, and part of our extremely inefficient war on terror.

The problem with this sudden expansion of requirements for getting a license is that it is really part of the eroding our of founding principle of equality of opportunity. This is the right of all Americans to have an equal opportunity to succeed, and equal access to necessary tools for success. One traditional example of this is that in the U.S. there is no aristocracy, no group that is born with access to power that no one else has. 

In a climate of fear about terrorist attack, it is easy to start setting up barriers to equality of opportunity. Suddenly you need difficult-to-obtain identification to get a driver’s license. No one ever explains why, or tells you how to access this information, or even, in the case of the Massachusetts RMV, what this identification is. You are just meant to accept it.

Suddenly you will also need proof of citizenship to vote. Suddenly you have to undergo a special process not to appear on a potential flight risk/terrorist list kept by the government at airports.

When rules like this are made without notice, explanation, or justification, they destroy equality of opportunity. They intimidate many people into giving up what they were trying to get (a driver’s license) or to do (vote), and no one protests because they either don’t know about the new rules or they are afraid of how they will look if they protest.

Look into your state’s requirements for a driver’s license. Seem familiar? Or has there been a change?