The Atlantic Slave Trade in Two Minutes

We have to interrupt our series on the Bill of Rights to share this with you. This astounding animation by Andrew Kahn and Jamelle Bouie shows all of the slave ships that left Africa for the Americas between 1546 and 1860. Larger dots are larger ships.

You see that until about 1600, almost all of the ships went to the north coast of South America and the Caribbean islands. Then Brazil becomes a destination, and that’s really how it continues right through the end: Brazil and the Caribbean like some horrible magnets drawing slave ships. Conversely, from today’s Senegal to Angola, the west African coast literally has the life sucked out of it as dots fly and fly for centuries from its shores.

Surprisingly, through the 1600s the main and almost only destination for slave ships going to today’s United States is what is now the Washington, DC/Chesapeake Bay area. Only a fraction head directly for the Carolinas. After 1750, the already heavy traffic picks up even more, and the Atlantic is almost blotted out by slave ships. Now slave ships are heading directly to the Carolinas, and, unexpectedly, the number of slave ships heading to French Canada picks up tremendously. The American Revolution slows things down remarkably—it was Britain running the bulk of the slave trade at this point, and its focus on the war meant a big loss in profits from the slave trade. But a thin stream of ships still heads relentlessly to the sugar islands of the Caribbean. As soon as the war ends, the traffic resumes at its original density.

Then it’s 1808, and the U.S. withdrawal from the slave trade shows in the complete lack of ships heading to the Atlantic seaboard. Even the number heading to the Caribbean falls, and Brazil is left as an insatiable market for the hundreds and hundreds of ships leaving Africa.

A lull in the 1820s is followed by an upswing in the 1830s and 40s, and then the traffic trails off to a few sporadic seasons, and then we end in 1860. Nearly 16,000 ships carrying human beings to slavery have crossed the ocean. Brazil would not abolish slavery until 1888, the last of the Latin American nations to do so.

Many, many thanks to Kahn and Bouie for doing this work and putting it in a form that is instantly clear and powerful. Viewing this resource leaves you with a sick feeling, and a strong sense of never being able to make up for all those lives lost. But we can and must work every day to undo the damage of black slavery in our own countries by ending the racism that is its strongest legacy. And we can work to end the slavery of Africans and Asians that is ongoing today.

The Fifth Amendment: not just about the right not to incriminate yourself

It’s part six of our series on the Bill of Rights, and here we consider the Fifth Amendment, which reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Why is it we only think of “I take the Fifth?” being said in court when we think of this portmanteau amendment? The Fifth Amendment does four distinct things:

—It does indeed give people the right to refuse to say anything in court that might prove them to be guilty of a crime, or essentially make a person a witness for the attorney prosecuting her/him. However, you must explicitly say that you are invoking your Fifth Amendment right not to answer a question: you can’t just remain silent.

—It requires grand juries to be called to hear cases of felony (“Infamous crimes”), except in the case of military personnel accused of committing crimes during wartime (these are handled by military trials/tribunals).

—It gives people the right not to be tried twice for the same offense in federal court. Clearly, people are often tried and re-tried through appeals, but someone cannot appear as a defendant in the same case before the same federal court (that’s why things move up to district and circuit courts and finally to the Supreme Court). This is called the “double jeopardy clause”.

—It grants citizens due process under the law, in a preview of the Fourteenth Amendment. No one can be arrested or have their property taken away without being explicitly told which law they have broken (or that they have broken a law at all).

—It forces any state or federal authority that takes away someone’s property by right of eminent domain to reimburse the person(s) who lost their property with something of equal value (“just compensation”).

That’s a lot. Most Fifth Amendment cases have addressed the self-incrimination aspect. During the Red Scare of the early 1950s, people hauled before the House Un-American Activities Committee who refused to testify against themselves by even answering questions about whether they were communists invoked the Fifth Amendment, but were lacerated as cowards and liars for doing so. Since being a communist was not actually a crime in the U.S. legal code, many people were not allowed to invoke the Fifth because it is specifically meant to prevent people from being forced to admit criminal activity.

In the following decade, this history was revisited when the Supreme Court decided in Griffin v. California (1965) that taking the Fifth in court cannot be used to persuade a jury that the person refusing to testify is guilty.

Many cases have dealt with whether police officers used harsh interrogations, intimidation, threats, or torture and violence to force confessions out of suspects in their custody. The 1966 Miranda v. Arizona case threw out Miranda’s confession because it was forced out of him by police officers who did not tell him he had the right to remain silent. The Supreme Court said that the police are required to tell people that they have a Fifth Amendment right not to incriminate themselves—a right now usually referred to as “Miranda rights”.

Other rulings include one saying that someone can’t refuse to provide their tax records because they will incriminate them, and another that said, conversely, that someone can refuse to provide computer hard drives on that basis.

Next time: the long-abused Sixth Amendment

The Fourth Amendment: what is a search? what is property?

We’ve reached part five in our series on the Bill of Rights. Here we look at the Fourth Amendment, which gives us the old chestnut “a man’s home is his castle”. Sort of.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Readers of the HP will feel these words are familiar, and they are: the very first law of the 1641 Body of Liberties—the first codification of English law in North America—states:

No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.

Every tenet of the Fourth Amendment is here. This concept has a fairly long history in English law. Seizure of goods became an issue in the run-up to the American Revolution, as early as 1754, when the Excise Act of 1754 gave tax collectors expansive powers to search people’s homes and shops under the aegis of uncovering and destroying smuggled goods. The problem was how general the search warrants were—they did not specify what the tax collectors might be looking for, and thus allowed them to go through anything and everything they wanted.

As an unknown writer at Wikipedia succinctly puts it,

Fourth Amendment case law deals with three central issues: what government activities constitute “search” and “seizure”; what constitutes probably cause or these actions; [and] how violations of Fourth Amendment rights should be addressed.

The Fourth Amendment typically requires “a neutral and detached authority interposed between the police and the public,” and it is offended by “general warrants” and laws that allows searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation”, for the “basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of “unreasonable” searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.

Nowadays, what constitutes “houses, papers, and effects”, as well as “the place to be searched, and the persons or things to be seized” is up for grabs. Are text messages “papers”? Are phone calls? How can these be seized? Can anyone’s calls or emails or tweets be somehow removed from them and taken into government custody? And if the place to be searched is the Internet, how can searches be narrowed down to be very specific? If a video goes viral and is picked up by ten thousand websites, should all 10,001 sites be shut down? If the “paper” is a phone call, is the “place to be searched” the data-minimal phone records, or wiretap recordings of the calls?

If the police stop someone because they suspect that person was texting while driving, do they have the right to ask for the person’s cell phone to see if it has a recent text on it? Some courts have said yes, others no because the contents of the cell phone are private and a search warrant is needed to read them.

Other recent cases involve drug-sniffing police dogs, including the issue of whether a person arrested for some other crime who is then found to have drugs in their possession by a police dog can be arrested and held for drug possession when that was not the original reason for the arrest. If you’re stopped for speeding, then a police dog finds drugs in your car, the police officer should only be able to arrest you for speeding since that’s why s/he stopped you—that’s the specific “warrant” for the stop. The dogs become an added, general search warrant that might turn up other problems. The courts have generally found in favor of the police in these cases.

And of course the NSA’s surveillance of all phone calls in the United States has been attacked on Fourth Amendment grounds because it is the definition of “general”. The constant monitoring of phone calls represents a constant, general search that is most likely completely unwarranted in 99% of cases. You can’t search every house in New York City because there might be a gun in one of those houses.

This amendment was so clear and simple when it was ratified; the Founders would be grateful they aren’t around now to revise it to suit 21st-century life.

Next time: the famous Fifth Amendment

The lonely Third Amendment and its defense against quartering of troops in private homes

Hello and welcome to part four of our series on the Bill of Rights. Here we shine a rare spotlight on the Third Amendment, the lonely wallflower of the Bill. Here is its unanimously undisputed text:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

When we read it, we are immediately taken back to the tumultuous lead-up to the Revolutionary War. After the Boston Tea Party, one of the Coercive Acts issued by Parliament stated that British soldiers were to be quartered wherever housing existed—including people’s private homes. This only really had an effect on the Boston area, because the Coercive Acts were accompanied by a surge of soldiers to enforce them. Suddenly there were many times more British soldiers in the Boston area, and there really were not enough barracks or official military housing for them. And so the Quartering Act of 1774 read thusly:

WHEREAS doubts have been entertained, whether troops can be quartered otherwise than in barracks [within] any town, township, city, district, or place, within his Majesty’s dominions in North America: And whereas it may frequently happen, from the situation of such barracks, that, if troops should be quartered therein, they would not be stationed where their presence may be necessary and required: be it therefore enacted [that] it shall and may be lawful for the persons who now are, or may be hereafter, authorized by law, in any of the provinces within his Majesty’s dominions in North America, [at the request] of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billeted in such manner as is now directed by law, where no barracks are provided by the colonies.

And be it further enacted by the authority aforesaid, That if it shall happen at any time that any officers or soldiers in his Majesty’s service shall remain within any of the said colonies without quarters, for the space of 24 hours after such quarters shall have been demanded, it shall and may be lawful for the governor of the province to order and direct such and so many uninhabited houses, out-houses, barns, or other buildings, as he shall think necessary to be taken, (making a reasonable allowance for the same), and make fit for the reception of such officers and soldiers, and to put and quarter such officers and soldiers therein, for such time as he shall think proper.

So ominous. That Quartering Act was a long way of saying “Britain now considers the people of America to be an enemy population which will not only be placed under martial law, but will be forced to give up its own property to the soldiers commanding them.” Did they really station soldiers in “out-houses”? Luckily, or unluckily, depending on your viewpoint, “out-houses” here does not mean privy pits (outdoor bathrooms) but buildings in the yard of a house (stables, smokehouses, etc.).

During the Revolutionary War, General Washington won the hearts of many of his compatriots by refusing to let his men take anything from local people when they passed through an area—no food, firewood, clothes, or any other much-needed supplies. And he never forced people to house his soldiers anywhere on their property. Thus when the American people came to enumerate the rights they felt were most important to their life and liberty, they wanted Washington’s voluntary example to become mandatory law. And so the Third Amendment was written.

It’s interesting that it does not really completely preclude quartering. It just makes quartering a legal matter. “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”—that is, the government/Army is free to ask any property owner if soldiers can stay in their houses during peacetime, but during wartime there might be a law passed allowing quartering. This would be a temporary law, one feels, but it could happen. Quartering is not ruled out, it is taken out of the realm of official whim and placed within the realm of democratic law.

There has never been a major Supreme Court case predicated on the Third Amendment. That’s because the amendment immediately takes us back to the Revolutionary era, and that’s because, aside from the War of 1812, we haven’t had a war fought in our country since the Revolution. (The Pearl Harbor attack did not involve foreign soldiers landing on our soil.) During the War of 1812, our army was too small and too much on the run to trouble anyone with quartering. And so the problem that was so fresh and real in 1789 when the Third Amendment was written has become a museum piece (so far).

There have been a handful of court cases that referenced this amendment. As recently as February 2015, the District Court in Nevada rejected an argument that police officers cannot enter people’s homes without their permission because that would be a kind of quartering by saying that the police are not soldiers. (The case was sparked by police entering a home to help a victim of domestic abuse when the owner of the home [and the accused abuser] was not there.)

One colorful attempt to invoke the Third Amendment was in United States v. Valenzuela in 1951, when the defendant stated that rent control law was “the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution.” This plea was not heard by the Court.

Let’s all hope that the Third Amendment continues to be a moot point as we move forward in our history.

Next time: the all-too-relevant Fourth Amendment

The Second Amendment does NOT protect private gun ownership

…yes, if you read the HP you’ve seen that title before. For our third post in the series on the Bill of Rights, we’re reaching back to one of the first posts we put up in the infancy of the site. It was short—we used to be like that! The topic is still unfortunately pertinent today. We will do a little updating as we go along:

Let’s go out on a limb here to state the obvious.

How does it read? “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

A well-regulated Militia. Not a well-armed citizen.

We have to agree with ourselves here. But before we can analyze, we have to really understand. The amendment is written in that cart-before-the-horse way that plagued 18th-century writing in English. If you break it down, it says “Since the militia is necessary to national security in a free state, the government cannot forbid the public to keep and bear arms.”

This is such a time machine window into the state of the early U.S. We had no standing army. We had only volunteer state militia for our national defense. The key words are “free state”: rather than create a standing army, which was only ever used in Europe to oppress the people and defend the monarch’s absolute power, the U.S. wants to continue to rely on volunteer militia.

But what if the federal government tries to get around this protection of the people by forbidding them to own guns? That way, they can’t form militia, and the federal government could create an army after all, arm it itself, and be tyrannical.

The answer is to forbid the federal government from outlawing private gun ownership. As we said back then…

This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your arms so that you can serve in the militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.

Now, we’re not a strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.

That is, the Second Amendment has no meaning outside of military service. It’s ironic that most strong supporters of expanding carry laws and gun ownership are often very anti-military (official U.S. military, that is). They want guns to protect them from an attack by the U.S. armed forces that they feel is imminent.

The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.

There are times when we wish the Founders had been more specific, but this is not one of them. The Second Amendment is clearly about military service. It cannot be read loosely to apply to anything else—a new constitutional amendment would be necessary to do that. Until that new amendment is ratified, we will continue to honor the Second Amendment as it is written.

Next time: another military amendment

What does the First Amendment say?

Hello and welcome to part 2 of our series on the Bill of Rights. We’re moving into the First Amendment here. It’s the celebrity Amendment in the Bill of Rights. “First Amendment rights”, “my First Amendment rights”—these phrases are like “Washington crossing the Delaware” or “Don’t fire until you see the whites of their eyes”: famous, oft-repeated, but often difficult for the people saying them to really explain. What are our First Amendment rights?

Let’s read the text of the amendment:

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.

What is “an establishment of religion”? A state religion. The FA says that Congress (the legislative branch of the federal government) cannot make any religion the official state religion of the United States. A state religion is supported financially by the federal government of a nation, which also puts barriers in the way of other religions to prevent them from gaining traction. In the 18th century when this amendment was written, every kingdom in Europe had a state religion. Britain’s was Anglicanism. The Anglican church received tax support and if you were a member of another church it was hard to get a job in the government. Go back a century to the 1600s and it would be illegal to be a member of any other church. “State” religion is endorsed by the government, and so the head of the government—the monarch—is the head of the church. Henry VIII created the Anglican church when he made himself, not the Pope, the head of the Catholic church in England. An English person who rejected Anglicanism was rejecting the authority of the monarch, which is treason, which is a capital offense. The Puritans and Pilgrims left England because they could not accept the Anglican church without major reforms, and refused to worship in it as they were told to. This was political treason and made them criminals.

By rejecting the concept of a state religion, the concept of the head of state (our president) being the head of a church, and the concept of forcing people to either belong to the state-approved religion or stand trial for treason, the Framers were making a bold and revolutionary stand that went directly against everything the great European powers had fought for during the Thirty Years’ War. We tend to think of a state religion as obviously contrary to democracy, but European powers would not reach this conclusion for over a century, and in Europe the old state religions are still powerful. In France, non-Catholics are rare. In Britain, Anglicanism is the norm. Even people who don’t practice their religion are born into its culture, which by now is indistinguishable from the socio-political culture to them.

Finally, this statement is saying the U.S. government will be completely civil. There is complete separation of church and state. The federal government will play no role in the religious life of the country, and no religious beliefs can shape our laws.

Why is “or prohibiting the free exercise thereof” tacked on to the first statement? Of course this is all one sentence, and makes more sense as one sentence, but we had to pull it apart to discuss state religion. This phrase is important on its own, though: it doesn’t just reiterate the main message that there is no state church, but also forbids the federal government to outlaw any religion. Again, this was radical for the time. In Europe practicing any religion other than the state religion was heresy and treason. The U.S. is not only saying it won’t impose religious uniformity by adopting a state religion, it’s saying it will not just allow but protect by law the proliferation of religious practices.

This was a big deal in a country that mostly hated and feared Catholics. If Congress had decided to outlaw Catholicism in 1787, most Americans would have been very supportive. But the Framers are making an enormous commitment to true democracy by saying no religion will be outlawed in the U.S.

What does it mean to say Congress will not abridge the freedom of speech, or of the press? This is the most famous part of the celebrity Amendment. Freedom of speech—if you asked Americans to name one phrase that sums up all our freedoms, this might be it. It’s so important that the concept and definition of “speech” has been expanded over the centuries to include clothes, tattoos, parades, art, and other non-mouth-moving activities. In 1919 the Supreme Court decided that some kinds of speech are indeed illegal; any speech that endangers other people is not protected (this was the case that gave us the famous example of shouting Fire! in a crowded theater when there is no fire; someone who does that will be arrested). But that decision was overturned 50 years later because Americans have identified themselves so completely with freedom of speech that we found a way around the problem of endangerment (that ruling said that only speech that creates a dangerous situation faster than the police can arrive to mediate it is illegal).

Again, this amendment is radical. No kingdom in Europe allowed its citizens to criticize the monarch, the government, or the state religion, without punishment. After nearly two centuries of religious war and civil war, Europe cracked down hard on anyone who tried to stir up trouble. But the Framers believed Americans could have freedom of speech without abusing it. Libel laws were maintained, of course; we never said you could lie about someone and not be punished if they choose to prosecute. But expressing an opinion would never be illegal in this country.

Isn’t “the press” synonymous with speech? It’s just speech that is printed rather than spoken aloud. But the Framers specifically included the press so they could protect actual printers. Again, the way to start trouble in Europe for nearly 200 years had been to print pamphlets and broadsides criticizing the government and/or church. And for nearly 200 years European powers had punished rebellion by punishing not just the authors of these documents but their printers—men hired to put paper through a printing press who had nothing to do with what was written. The Framers were protecting printing presses, publishers of books, pamphlets, and broadsides as well as newspapers, as well as the authors of all these items. In an age where a book that displeased the government could get not just its author but its printer arrested, this was an important addition to the amendment.

Why protect the right of the people peaceably to assemble? Once more we think of the time the Constitution was born in. In pre-modern Europe, people did not gather in large groups. It just didn’t happen in the course of normal human events. The vast majority of people lived in small villages, where there weren’t enough people to make up large crowds. The only way a large crowd could gather was if there was trouble: someone stirring up the people and urging them to leave their villages and meet in one place, usually to protest the government. These gatherings quickly turned into mobs, and were usually violent. In the cities, people could gather in large crowds but were prevented by the watchful eye of royal authorities from doing so, for the same reason. There was just no acceptable reason why any large crowd would gather in that period. The Reformation period was characterized by mob after mob after mob being put down violently by government forces, causing almost incalculable losses of human life and capital.

So when the Framers said Americans had the right to gather in large groups, they looked like they were inviting trouble. That’s why this part of the amendment is the only one with a caveat: the people must assemble peaceably. Colonial America had a terrible record of mob violence, often sparked for no good reason (see our post The Boston Tea Party and a tradition of violence for more on this). It seemed like the last place where you would be safe allowing people to gather in large groups. But part of freedom of speech is freedom of assembly—people have to be allowed to talk together. Knowing the fondness for mob violence that Americans had, the Framers offer the one condition in the amendment by saying Americans can gather together but only if they are not violent. They didn’t say speech was free as long as it didn’t criticize; they didn’t say printers could print anything as long as it didn’t call for violence. But they did restrict public gatherings to peaceful purposes.

What is petitioning the Government for a redress of grievances? This means that Americans can criticize the government, and as you understand by now, this was not on the table in Europe. At a time when Europe was trying to end its centuries of strife by cracking down hard on any public expression, America was inviting its citizens to talk to their government and even make complaints. A redress of grievances is making something wrong right. If someone has injured (grieved) you, they must make it right somehow (redress it). If the government does something wrong, if it violates the Constitution, Americans have the right to demand that the government stop that violation and then make up for the damage it has done. This is two rights in one: the right to demand that the government obey the Constitution, and the right to demand repayment for any violations of the Constitution. This keeps the government honest, and sharpens people’s love for and commitment to the Constitution.

That’s a lot! But then this is the star amendment that, for most Americans, completely sums up who we are and how things here should be. You wouldn’t think another amendment could rival the First in importance, and for about two centuries none did. But in the late 20th century, the Second Amendment was wrested out of obscurity and thrust into the spotlight, and we’ll go over that amendment next time.

Next time: the very clearly military Second Amendment

What’s in the Bill of Rights?

It’s time for another series! We’ve decided to take up the Bill of Rights and give it a good going-over, since it seems that when people argue about preserving “the Constitution” they are only ever talking about the Bill of Rights section—the first set of amendments to the Constitution.

So let’s get right into it. For curiosity’s sake, and to give a sense of what was originally proposed, we’re going to start with the first two of the 12 amendments presented to the state legislatures for ratification; the only two that were not ratified.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

…Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

—The closing phrase of the first paragraph (from the short preamble) is interesting: these amendments are meant to “extend the ground of public confidence in the Government, to best ensure the beneficent ends of its institution.” In other words, the amendments we know as the Bill of Rights are meant to make Americans more confident in the federal government because they prevent the federal government from ever overstepping its powers and becoming tyrannical. Yet today, most Americans seem to see the Bill of Rights as a weapon to use against a federal government that can only ever be tyrannical: instead of assuring us that our government will never be unfair, the Bill of Rights panics us that our government will always be unfair. The Bill was meant to put fears of tyranny to rest, but now it only ever stirs them up.

On to the first article, which was not ratified. It deals with representatives to Congress, and tries to anticipate the problems that population growth might provoke as the nation grows. The men drafting our Constitution and its amendments had this problem on their minds at all times. It was clear the nation would only experience exponential growth as it took over the continent from sea to sea. They tried to set up frameworks that would work in 1787, when the population was already a little unmanageably large, and work in 1887 or 1987, when they imagined the population to have soared far beyond their imagining.

The public imagination at the time, however, rejected this proposed amendment as impossible. One representative for 50,000 people? That wasn’t right: how could one person fairly and effectively represent so many? The other problem was this: if this amendment had been ratified, today we would have over 6,000 Representatives in the House. As it is, we have 435, and each House member represents over half a million people (about 650,000). When your population grows to hundreds of millions, it’s impossible to give them anything close to effectively individual representation.

When you think about it, that’s why political parties really took off. Parties allow thousands or millions of people to become one person, adopting one set of beliefs. If you represent 650,000 people and 500,000 of them are Republicans, if you just follow the party platform you will be accurately representing most of your district. You don’t have to try to get to know 500,000 personal beliefs. Early on in our history representatives and the represented figured this out.

Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

—This failed amendment says that Congress can’t vote to change its pay during a term. Members can propose a pay change for the next term. To make sense of this, first we have to note that they only change in pay likely to be proposed is a raise. So this amendment says that Congress can’t give itself a pay raise without allowing the people to vote on it. What Congress can do is propose a pay raise for the next session, which allows people to vote on that pay raise: if they approve it, they re-elect the members who voted for it; if they don’t approve it, they elect new members. James Madison was behind this amendment because he didn’t think Congress should be allowed to pay itself arbitrarily without giving the people a chance to approve or reject the changes.

The interesting thing about this amendment is that it was not ratified in 1787—but it was ratified 202 years later, in 1992, as the Twenty-Seventh Amendment.

Next time: the amendment we know best

Sixtieth anniversary of the liberation of Dachau through the eyes of PFC Harold Porter

It’s a horrible anniversary, but all the more necessary to keep because of the horror: 60 years ago in May 1945 U.S. soldiers led by General Dwight Eisenhower liberated the Dachau concentration camp. By the time they arrived, it had been emptied of the living and abandoned by the Nazis who ran it as they fled the approach of the U.S. forces. What was left was enough to permanently impact the soldiers who entered the camp.

The first camp Eisenhower’s men had liberated was Ohrdruf, in April 1945. This death camp is not well-known today like Dachau, but it lived in Eisenhower’s memory, and in General George Patton’s. Lt. Col. Lewis Weinstein, a member of Eisenhower’s staff, recorded the effect of seeing Ohrdruf’s victims on the Supreme Commander of the Allied Forces in Europe:

I saw Eisenhower go to the opposite end of the road and vomit. From a distance I saw Patton bend over, holding his head with one hand and his abdomen with the other. And I soon became ill. I suggested to General Eisenhower that cables be sent immediately to President Roosevelt, Churchill, DeGaulle, urging people to come and see for themselves. The general nodded.

Eisenhower’s written account of his experience is well-known:

…the most interesting—although horrible—sight that I encountered during the trip was a visit to a German internment camp near Gotha. The things I saw beggar description. While I was touring the camp I encountered three men who had been inmates and by one ruse or another had made their escape. I interviewed them through an interpreter. The visual evidence and the verbal testimony of starvation, cruelty and bestiality were so overpowering as to leave me a bit sick. In one room, where they were piled up twenty or thirty naked men, killed by starvation, George Patton would not even enter. He said that he would get sick if he did so. I made the visit deliberately, in order to be in a position to give first-hand evidence of these things if ever, in the future, there develops a tendency to charge these allegations merely to ‘propaganda.’

The evidence of the Holocaust was so unbelievably inhuman that the men looking at it simply could not fully take it in—and if they couldn’t, how could those at home who never saw it themselves believe it?

This is a problem PFC Porter addresses in his letter home to his parents, written May 8, 1945 on the stationery of the former camp commandant. His account is of course not famous at all like Eisenhower’s, but it is equally powerful. “It is easy to read about atrocities,” he wrote; “but they must be seen before they can be believed.” His letter is here, and of course it is almost unbearable to read, but even the sickeningly frank descriptions of what he and his fellow Americans saw at Dachau were weak and helpless shadows of the real thing, as he acknowledges on page 3 of his letter:

Although I stood there looking at it, I couldn’t believe it. The realness of this whole mess is just gradually dawning on me, and I doubt if it ever will on you.

Let’s remember this anniversary and let it remind us of the Americans who wanted to make sure that the whole world understood what the Holocaust was.

All civil rights matter: hats off to Clela Rorex for recognizing same-sex marriage rights in 1975

We just heard a great interview with Clela Rorex on the NPR news program The Takeaway. Ms. Rorex was a county clerk in Boulder, Colorado in 1975 when two men approached her for a marriage license. She gave those men, and five other couples, the licenses after consulting with her boss, who said there was no law against doing so, and that it was up to her to decide. You can read a summary of the interview here. It gets the point across, but there were some important omissions we’d like to fill back in.

It’s hard to believe that such important decisions are left to people’s personal discretion: to hear that a government official said granting marriage licenses to gay couples is not illegal, but that the clerk could refuse to do it anyway, is to hear a violation of our basic form of government. Innocent until proven guilty, legal until made illegal—that should be the formula. It’s the logical conclusion of our legal system. But we see it overthrown left and right these days, from individual pharmacists refusing to fill prescriptions for birth control that violate their personal religious beliefs to Hobby Lobby employees refusing to help gay shoppers find products. Some Americans have prioritized their personal liberties over others’, creating a hierarchy in which one’s own personal beliefs trump the law.

And some Americans have decided to make this kind of prejudice and discrimination the law, thus avoiding any possibility that Americans who aren’t prejudiced might serve people the lawmakers don’t like. “Religious freedom” acts in Georgia, Indiana, and Arkansas are almost sure to be passed in other states before they are defeated by popular outcry.

Clela Rorex represents the kind of American we can all be proud of. Here is what she said in the interview that doesn’t appear on the website (as of this posting) when asked by host John Hockenberry what led her to make her decision to issue the license:

ROREX: This is where it kind of gets confusing for even me because people expect me to say something profound. The very core of me said, I’m not the person to discriminate if two people of the same sex want to get married and that was pretty much my thinking. …And I just made the decision to do it, I didn’t want to legislate any kind of morality, personal or otherwise. I felt that if the law did not prohibit me issuing same-sex marriage licenses, then I truly felt that I should do so.

HOCKENBERRY: Clela, you don’t think that’s profound?

ROREX: Well, I think I learned later that it was profound. …It was very simple for me. [It was] a question of am I going to be the one to take away such a right if this right exists? And I could never have lived with that.

Some Americans seem to make a career of legislating morality today; they often claim the blessing of the Constitution on their actions even as they violate the First Amendment that says the government shall make no establishment of religion in order to grossly expand the definition of “prohibiting the free exercise thereof” to mean that people can use their religion to strip other people of their rights. Taking away rights they don’t like is their bread and butter.

Ms. Rorex addressed this at the end of her interview, when the host rather callously said that the same-sex marriage licenses she issued were a “different spin on the mindless paperwork of a clerk”:

It was mindless paperwork… you just don’t think that someone in an administrative level of government really can be called upon sometimes to make important decisions. When you look at things now, with the Supreme Court soon to hear once again whether marriage equality will be the law of the land, you see administrative officials, county clerks and others, putting up all kinds of roadblocks to try to not issue licenses to same-sex couples. You see administrative officials saying they’re not going to change the gender on a driver’s license or on a birth certificate. It’s very petty to me, it’s petty. Government officials I feel get hamstrung with red tape and they should find a way around it. It’s not like you’re asking for the impossible.

She is generous to give these officials the out of saying they are hampered by red tape. We will follow her lead and go along with this explanation for all the personal decisions about what is legal and what isn’t and encourage everyone to educate any government official they encounter who does not understand the law and their duty to it as clearly as Ms. Rorex. The job and purpose of a government official is to administer the law, not set up roadblocks to it based on their personal beliefs and feelings. If a law is to be contested, and its constitutionality questioned, that must be done in the public forum of the legislature, not an individual’s lunch break. We all have a say in what is legal in this country; let’s all make the decision, as Clela Rorex did, not to take away other people’s rights in the name of our own.

Wrapping up Reagan’s farewell speech

So what is the takeaway from our excruciatingly long and terribly close reading of Reagan’s 1989 farewell address? It’s one that isn’t unique to Reagan, certainly; it’s a conclusion Americans have drawn almost for as long as there has been an America: mandating an ill-defined patriotism as the measure of our national good is un-American.

Many presidents have urged Americans to support “my country right or wrong”. Reagan was not the only one. Many presidents have urged Americans to define patriotism as never questioning or criticizing national policy. And many presidents have urged Americans to see every war the U.S. fights as just, and never to question our military actions overseas (and to see military service as the highest or only form of patriotism).

But those presidents were usually countered immediately and publicly by Americans who realized and pointed out that this is not the American Way. High-profile Americans were willing to demand real patriotism, which means putting our founding principles of liberty and justice for all first above all other goals and desires, and taking personal responsibility for the preservation and exercise of those principles

Since Reagan, however, there has been an increasing trend away from real patriotism. So much has changed, even since 1989. The Internet has created a wide avenue for shaming and attack that deters many people from even getting involved in debates because those “debates” are actually uninformed dogfights focused on personal attack. Cuts to education funding have dumped civics education onto the scrap heap, so that most Americans have no idea what our founding principles are, and have to rely on the warped interpretations they get from political campaigns run by people as uninformed as themselves. History education has been hit hard, too, so that many Americans do not know their own history and have few examples of real patriotism to summon up for inspiration. Terrorist acts, beginning with September 11th, have been made an excuse to hail military action and military service as the only real patriotism, which is an astounding turnaround from the national opinion when Reagan took office, when the long ordeal of the Vietnam War had made U.S. military action unpalatable for most adults.

Since Reagan economic growth has been prized above all else, and is so important that corporations have been given rights of personhood, corporate money openly controls elections from the state to the presidential level, the federal government failed to take any substantial or lasting legal action to prevent another financial collapse like the 2008 Recession because big business is so much more powerful than the federal government, and Congress is working hard to remove any taxation of estates valued at over $5 million. The shining corporation on a hill is king.

In his speech, while reflecting on the “trickle-down economics” that he introduced, Reagan said this about the critics who pointed out that it would begin a terrible wealth gap: “What they called “radical” was really “right.” What they called “dangerous” was just “desperately needed.”

Sometimes it seems that we live in an America where radical and dangerous stances (anti-gay, anti-immigrant, anti-woman, anti-separation of church and state, anti-environmental health) are considered right and desperately needed to return America to a mythological perfect past where everyone was white, straight, either born here or a “good” (read white) immigrant, and Christian. That is a depressing legacy of Reagan.

But we must not give in to despair. The pendulum always swings, and it will swing back away from this radicalism because there will always be Americans who fight for our founding principles. Our job is to be those Americans.