Category: U.S. Constitution

The Judiciary saves us from the tyranny of the majority

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

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

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

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

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

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

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

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

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

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

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

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

A Duty to your country

I was listening to retired Lt. General Ricardo Sanchez on the radio yesterday, talking about his new book in which he details the Bush administration’s “catastrophically flawed, unrealistically optimistic war plan” in Iraq. Here is an excerpt from the book:

“Some senior military leaders did not challenge civilian decision makers at the appropriate times, and the courageous few who did take a stand were subsequently forced out of the service.  …I observed intrusive civilian command of the military, rather than the civilian control embodied in the Constitution. I saw the cynical use of war for political gains by elected officials and acquiescent military leaders. …I also understood that, while on active duty, the Uniform Code of Military Justice precluded me from speaking out against my superiors while in uniform. If I valued my oath—and I did—I had to comply. Since leaving the service, however, I have been encouraged by both civilians and retired four-­star military officers to write about my life, my career, and what really happened on the ground in Iraq. I believe now is the right time.”

It has become commonplace now to have military officers come out with “Iraq was a disaster” books as soon as they retire. Each time, they excuse their failure to live up to their duty of serving their country by saying they had to live up to their duty of remaining loyal to the military chain of command.

Sanchez himself, in this excerpt which I assume he chose or approved of, says at once that he saw the Constitution of the United States being violated, but that the oath he swore never to contradict a military superior was more important than upholding the Constitution.

As I said, Sanchez is hardly alone in this. Over and over, we ask military leaders–generals–why they didn’t do something to protect U.S. soldiers and innocent civilians, why they didn’t tell the American public what was really happening in Iraq, and why they are only speaking out once they have no power to do anything. And always the answer is that they swore a sacred oath not to tell the truth if it rocked the boat of military command.

It is clear that there is a confusion about what U.S. soldiers are sworn to do. They are sworn to uphold and defend the principles, common good, and safety of the United States. If the commands they are given do anything to degrade or endanger the U.S., they have a sworn duty not to obey those commands.

Any soldier can say “I had to follow orders”. That was the defense offered by many fascists after World War II. Americans tore that defense to shreds at the time. If you are in the U.S. military, and you receive an order contrary to the Constitution of the United States, you don’t follow the order. Your ultimate duty is to your country, not your unit, your general, or even the military as a whole.

Someone as high up as Sanchez, and all the other generals, certainly faced less danger of being silenced without recourse to the press. It’s a pretty lame passing of the buck to say, “I was in charge, but I still had to follow orders.”

My ancestors have fought in every American war, starting with the Pequot War in 1637. (This does not mean I think they were all good wars.)  I have relatives in the service right now. So I’m not anti-military. Rightly used, our military is a great force for good.  But I am pro-Constitution. It’s time that U.S. generals speak out against violations of our Constitution and against reckless endangerment of our soldiers while they are still able to do something about it. That’s “the right time” to tell what you know. That’s the real oath they take.

Truth v. Myth: Slavery in our democracy

Myth: Americans didn’t care about slavery, turning an indifferent eye to the sufferings of enslaved people.

Supporting myth:  We enslaved people.

“Proof” of myth: How could slavery go on for so long if people didn’t accept it?

 

How in the world did slavery exist in our representative democracy?

 

The minority of whites in America who enslaved people had a long tradition of looking out for their Lockeian possessions of property and labor. Virginia’s elected colonial legislature, the House of Burgesses, fought the colony’s royal governors constantly, rejecting taxes and other encroachments by the crown on Virginia’s independence—and wealth.

 

So these slaveholders really cared about liberty. No wonder Virginia spawned so many revolutionaries. But how could these men care so much about liberty and still hold slaves? The answer, as Edmund Morgan makes clear in his invaluable book American Slavery, American Freedom, is in a letter from Englishman Sir Augustus John Foster, who visited antebellum Virginia and said, “The Virginians can profess an unbounded love of liberty and of democracy in consequence of the mass of the people, who in other countries might become mobs, being there nearly altogether composed of their own Negro slaves…” (p. 380)

 

Why is this quote the answer to the riddle? Because it mentions mobs.

 

The men and women who ascribed to Locke’s ideas about natural rights applied those rights only to themselves and “their kind”: the wealthy and well-educated. Just as most people do today, Enlightenment thinkers believed that poor people were so crass and animalistic, so driven by the survival instinct, that they were completely unable to appreciate ideals. There was no educating a really poor person. The poor were really barely human.

 

Now when you have this dangerous, large group of uneducated, uneducatable poor people, who outnumber the educated 100,000 to 1, you have to make sure those dangerous poor uneducated people don’t rise up and ruin the status quo. Think about it: if the poor are unable to understand ideas and concepts, then the poor will never understand democracy or natural rights. They can never self-govern like they’re supposed to in a democracy. A democracy requires all of its citizens to be active, informed, self-disciplining (that is, willing to obey the law), and educated (you have to be able to read and write). Since there was “no way” to bring the poor to that level, the poor were nothing but dangerous to democracy. They will instead remain violent, anarchic, and destructive. And they will continue to constitute 98% of the population. 

 

 

So you can’t include those people in democracy; all you can do is contain them. Neutralize their threat. What better way than to enslave them? And indeed, plans for enslaving poor whites were proposed in England in the 1700s.

 

In America, that slavery was not hypothetical. Black Americans were actually enslaved. Slaveholders saw this as a break for democracy. If enslaved, black Americans could not threaten the new republic with their ignorance, violence, and blackness. They were contained.

 

So we go back to Foster’s statement and it makes sense: “The Virginians can profess an unbounded love of liberty and of democracy in consequence of the mass of the people, who in other countries might become mobs, being there nearly altogether composed of their own Negro slaves…” That is, because the masses, which are Negro in this case, are enslaved, they cannot become mobs destroying society and government. The free whites of Virginia are free to embrace democracy and liberty for themselves and their nation because those dangerous poor people are safely contained.

 

Thus we get some Founders who did not see that enslaving black Americans was inconsistent with liberty and justice for all. In fact, in their minds it was crucial to it. Picture a vast machine toiling underground, and a small wagon moving above ground. All that underground toil was required to move the wagon.

 

This is the horrible idea that people were at last starting to doubt in the revolutionary period. The British, after all, had said Americans were a rabble, not really citizens, and clearly unable to govern themselves. The British had been wrong. Now Americans were saying black people were a rabble, not really citizens, unable to govern themselves. Might not the Americans be wrong?

 

Those who felt the Americans were wrong ended their enslavement of black Americans. Those who felt the Americans were not wrong pointed out that they, white Americans, were charged with a beyond-precious responsibility: introducing democracy to the human race. They should be very cautious about offering citizenship in that democracy to people who were “incapable of defending it and might become a means of destroying it. If the poor were already enslaved, would it not be wise to keep them so?” (p. 385) What was worse: enslaving 200,000 people in Virginia, or setting them loose on the nation, to beg in the streets and join mobs and become henchmen for or dupes of unscrupulous politicians who would use their mob power to seize control of the government and revert it to dictatorship?

 

Think about it, said the pro-slavery skeptics. Most black Americans are uneducated, desperate, and friendless. The first white person who gives them a buck and a drink will win their undying loyalty. And if that white person asks them to loot a store or raze the postmaster’s office or kill the governor, what black person wouldn’t want to wreak some revenge on the whites who enslaved him? Black people have a chip on their shoulder, said the skeptics. Set them loose with no skills and hearts full of anger, and you’re not going to like what you see.

 

We’d love to end slavery, they said. We see that it’s not consistent with democracy’s principles. But it’s just too late to undo slavery’s ill effects, so you have to choose: the problems slavery causes (a sometimes guilty conscience), or the problems ending slavery will cause (rioting, rape, murder, fire, dictatorship). Which will you choose?

 

These were repellent yet powerful arguments during the revolutionary and founding period. Like democracy itself, ending slavery was for many whites a radical experiment whose outcome no one knew for sure.

 

So how could slavery exist in our democracy? With difficulty. Even as many Americans (increasingly located in the southern states) argued that it was crucial to democracy, more and more Americans were coming to realize, often uncomfortably, that slavery was a slap in the face to democracy. The argument would not end, the nation would not rest easy about slavery—ever. It would not be long—the span of one long life—before the compromises with slavery in the 1787 constitution tore the union’s political system apart, and culminated in civil war.

 

 

Myth: Americans didn’t care about slavery, turning an indifferent eye to the sufferings of enslaved people.

Truth:  There was never a time in the life of the United States when slavery was not a tough issue.

Damage done when we believe in a myth: Believing this myth makes us think we will never end racism and prejudice, because America has always callously embraced both; that Americans just don’t care about equality, and it’s impossible to get justice in America. But if we believe this, we’re just giving ourselves permission to be prejudiced and racist. It’s permission to be inactively angry, to say that criticizing the U.S. as hopelessly hypocritical is actually an action. But it’s not. Cynicism is lazy, and if you see racism and prejudice, you have to fight it, not say “Oh, that’s just how America is.” Because it isn’t now, and it wasn’t then. That’s not the American way.

The Constitution: harder than it looks

We kind of hate the Constitution today. We wish it wasn’t so elastic. It allows for so many interpretations; we wish it would just tell us what to do. But of course the only reason it’s a viable document is that it doesn’t tell us what to do.  It gives us a framework of justice to apply to specific instances, and it’s not the document’s fault if we sometimes use its safe space for evil. That’s our fault. We make that choice.

 

“We the People, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of this liberty to ourselves, and to our posterity do ordain and establish this Constitution, of the United States of America.”

Most of us are familiar with this long sentence. Perhaps you, like me,  learned it on Schoolhouse Rock, and prefer to sing it. But by now, you may see the revolutionary principles and ground-breaking ideals in it more clearly.

 

After years of trying not to have a real centralized government, and years of trying to put state interests below national interests while keeping individual interests above national and state interests, we get this line. We, the people (not the states) of America, realize that if we want to make this experiment work, and if we want to experience the best government ever attempted in human history, we have to create and honor a binding legal document that establishes a unified, federal government.

 

The year is 1787. The Articles of Confederation have been in place for 10 years. The Revolutionary War ended in 1783, so we have been an independent nation for just four years. All in all, Americans have been in turmoil for 12 years. This is the point at which most new governments fall apart and the descent into civil war and terror begins. But we fulfilled the principles of our revolution, and peacefully assembled delegates to work together to write a new Constitution.

 

Even that majority of Americans who did not want a powerful central government were persuaded that it was necessary to keep the states from dissolving the union. They sent delegates to Philadelphia to figure out how to create a government strong enough to protect its people, but bound enough by principles of natural rights not to turn to tyranny.

 

These delegates were not the famous men who signed the Declaration. Adams was not there; Jefferson was not there. The delegates were mostly unknowns; lawyers, farmers, businessmen. They were not professional politicians. But they were those well-read, revolutionary Americans the rest of the world marveled at. Those men produced a great document because they put themselves second to the ideal of America. They had their moment of absolute power and used it to enshrine natural rights.

 

We all remember learning about the debates over how to make sure big and small states were equally represented in Congress, the federal government. We feel bored, again because we know how it ended, and the solution is so obvious, it just seems stupid to waste time reading about how they took so long to figure it out.

 

But the point of those debates about representation is not what ideas were tossed around, and which idea finally won out. It’s that the debates happened at all. We’ve already established that most revolutionary governments quickly implode. Here, faced with a real problem, with no clear answer (despite all our hindsight insisting it was clear), delegates to the convention insisted on figuring out what the best solution was,  on coming up with a solution that really lived up to the principles of the revolution. Instead of saying “We can’t fix this; there’s no solution that everyone will agree on”, and getting out their guns and starting a civil war, these delegates put themselves through hours of philosophical debate in a stiflingly hot room until they fulfilled the trust put in them.

 

The Founders didn’t “know” that the average American had to consent to this government for it to work; they decided that the average American had to do so, and they subordinated themselves to that purpose. And so they created, as delegate Peirce Butler said, “not the best government they could devise, but the best the people would receive.”