The Great American Experiment, 2020

We’ve seen a number of people looking at this post lately, so we’re rerunning it. It seems appropriate to do on Election Day; we originally ran it in 2008 when Barack Obama was first elected, and we re-ran it in 2016 when Trump was elected, and then said “perhaps we will run it every November, that great election month, to remind people of what is at stake each time they vote.” So here we are back again.

Vote today, if you haven’t already.

America is an experiment. From the time of its establishment as part of a New World in the late 1400s, the land that has become the United States of America has been a place where people came to experiment with doing things differently. It’s been a place to gamble, to see if you could be one of the lucky ones who became landowners or lawyers or independent merchants. You gambled on the weather, politics, your own skills, and your own ability to commit to the experiment of living in America, and being an American.

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

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

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

As we think today about what divides Americans, it seems to boil down to the fact that some Americans no longer want to experiment. They want to close the lab down. We’ve gone far enough into the unknown, making it known, they say; now let’s stop—let’s even go backward. We were wrong to conduct some of our experiments in liberty, and that’s the source of all our problems. Gay people shouldn’t be treated equally. Black people shouldn’t run the country. Women shouldn’t hold high office. Muslims shouldn’t be granted habeas corpus.

Whenever one of those Americans talks about the problem with our country today, they talk about how we should be like we once were, back when white people who defined marriage as one man-one woman and were Protestant military veterans living in a small rural town with lots of guns built this nation. They feel they are losing their birthright, their legacy—even when they themselves don’t entirely fit the description they cling to.

But those Americans are wrong. What their ancestors really were was scientists. Experimenters. Radicals who always considered the impossible possible. To define those ancestral Americans as merely white or straight or Christian strips them of their most stunning feature, their near-supernatural qualities of optimism and defiance and willingness to go into the unknown and make it their home, to make the amazing the norm. They defied the status quo. That’s how they built America, the ideal that is represented by the Statue of Liberty.

Americans who want to end the experiment are few, but boisterous. They clamor at the national microphone. But Americans who know that there is no America without the experiment will keep at it, and they will persevere.

Sometimes we elect a president who is such an American, and his (so far only “his”) election is proof that the lab is still open, and that America in general will always be at the drawing board, expanding its concept of liberty and justice and equality until we finally fulfill the founding principles that created this nation so long ago.

Sometimes we elect a president who is not such an American—we elect someone from the loud minority who want to shut down the lab and restrict liberty and justice to some, not all. In that case, real Americans must redouble their efforts to restore our proper focus.

Whatever time you find yourself in, live up to your duty as an American, and keep the experiment going, not because it is easy, as one president once said, but because it is your birthright.

Truth v. Myth: Trump’s Executive Order on Diversity Education

Welcome to the beginning of our series on the Trump Administration’s September 22, 2020 Executive Order on Combating Race and Sex Stereotyping. You can find the official White House version of this executive order here. We’ll be quoting from it extensively as we work our way through this insidious piece of doublespeak.

The title itself is an unapologetic, almost taunting lie: the order purports to combat race and sex stereotyping, but as we’ll see as we work our way through it, the order does just the opposite. The joy that its author(s) feel in twisting the truth is something we’ve come to expect not just from this administration, but from the Internet world it reflects. Let’s move in:

By the authority vested in me as President by the Constitution and the laws of the United States of America… and in order to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating, it is hereby ordered as follows:

Section 1. Purpose. From the battlefield of Gettysburg to the bus boycott in Montgomery and the Selma-to-Montgomery marches, heroic Americans have valiantly risked their lives to ensure that their children would grow up in a Nation living out its creed, expressed in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” It was this belief in the inherent equality of every individual that inspired the Founding generation to risk their lives, their fortunes, and their sacred honor to establish a new Nation, unique among the countries of the world. President Abraham Lincoln understood that this belief is “the electric cord” that “links the hearts of patriotic and liberty-loving” people, no matter their race or country of origin. It is the belief that inspired the heroic black soldiers of the 54th Massachusetts Infantry Regiment to defend that same Union at great cost in the Civil War. And it is what inspired Dr. Martin Luther King, Jr., to dream that his children would one day “not be judged by the color of their skin but by the content of their character.”

Thanks to the courage and sacrifice of our forebears, America has made significant progress toward realization of our national creed, particularly in the 57 years since Dr. King shared his dream with the country.

Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

–The first paragraph of Section 1 quotes from our Declaration of Independence, Abraham Lincoln, and Dr. King, and it’s wonderful to read their inspiring language. The abrupt, jolting switch to the determinedly hate-filled, divisive language of the administration author(s) in the third paragraph is, then, particularly painful and annoying. It reads like a draft essay by a high schooler: “today”, “many” people are “pushing” a different version of America. Whether it’s an inability or unwillingness to match the concentrated, formal yet powerful language of the earlier Americans they quote is unclear and, in the end, unimportant, as both inability and unwillingness do the same damage in the end: reducing the level of the conversation to “good” and “bad” people.

This continues in the paragraph, as the idea of acknowledging social hierarchies, and institutional racism and sexism, is “bad”. It’s “bad” because, apparently, the only way this is done is by slandering America as “irredeemable”, and slandering innocent white male Americans as “oppressors”, “simply” on account of their race or sex.

Ah, the scourge of “reverse racism,” as it’s called, against white people So much worse, its proponents would have you believe, than racism against non-white people. Turning the language of civil rights on its head to support “reverse racism” is deliberately harmful. It attempts to erase a long history of people–like Lincoln and King–calling for all Americans to plainly acknowledge, in writing, in spoken words, in public, the institutional discrimination derailing our nation by thwarting our commitment to liberty and justice for all. This call is not new, it’s not something only happening today, and yes, it is supposed to create a “different version of America” –a better version that lives up to our founding principles.

This commonly known history, however, is under attack throughout the Order. As we will see in our next post, the Order makes no effort at nuance: its message is that white Americans, particularly white American males, are being crucified on the cross of “political correctness” and the “pernicious” pushing of a campaign of reverse racism that threatens our very foundations as a nation.

Next time: the “malign ideology” of civil rights

The American problem and its solution

We feel inspired to re-run an installment of our series on President Lyndon Johnson’s “We Shall Overcome” speech, delivered on live TV to the American nation on March 15, 1965, as Johnson spoke directly to the people to tell them why black Americans should have the right to vote and why that right should actually be enforced by federal, state, and local governments, and by all those who call themselves Americans.

We were particularly struck, in re-reading that post, by Johnson’s firm statement that “There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.”

Words from 1965 have never been more applicable to 2020, and beyond. Let’s face our own time armed with Johnson’s wisdom.

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Welcome to part 2 of our series on President Lyndon Johnson’s “We Shall Overcome” speech, delivered on live TV to the nation on March 15, 1965. In this post, we will begin our close reading of this pivotal declaration that America was founded on the promise of civil rights for all—if not immediately, then inexorably, as time passed, and we grew wiser and more powerful in our commitment to natural rights, human freedom, and an American ideal of liberty and justice for all.

Let’s get right into it, as Johnson did that evening:

Mr. Speaker, Mr. President, Members of the Congress:

I speak tonight for the dignity of man and the destiny of democracy

I urge every member of both parties, Americans of all religions and of all colors, from every section of this country, to join me in that cause.

—Somehow the phrase “Members of the Congress” leaps out at us as more than a description of the House and Senate. We are all, as Americans, members of a congress that was and to a large extent still is unique in the world. We are a congress of nations and peoples joined together in a perpetual union as Americans. This is reiterated by Johnson’s description of us as being from “all religions and all colors, from every section”. To this Congress of Americans, Johnson speaks “for the dignity of man and the destiny of democracy”; the two are inseparable, one can’t live without the other. This is a message that some Americans have always and are still trying to shut down, but Johnson is putting it in the spotlight.

At times history and fate meet at a single time in a single place to shape a turning point in man’s unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama. There, long-suffering men and women peacefully protested the denial of their rights as Americans. Many were brutally assaulted. One good man, a man of God, was killed.

—Connecting—equating—the white policemen in Selma with the British regulars at Lexington and Concord and with the Confederate leadership at Appomattox was daring. Johnson is very clear here: the white police of Selma fought and killed Americans trying to exercise their rights and freedoms as Americans. There is no other way to define it. They were not protecting Southern society, or Southern womanhood, or keeping down violent blacks, or maintaining law and order, or upholding the law of the land, or any of the other justifications racial violence was so constantly wrapped in by its perpetrators.

There is no cause for pride in what has happened in Selma. There is no cause for self-satisfaction in the long denial of equal rights of millions of Americans. But there is cause for hope and for faith in our democracy in what is happening here tonight. For the cries of pain and the hymns and protests of oppressed people have summoned into convocation all the majesty of this great Government—the Government of the greatest Nation on earth. Our mission is at once the oldest and the most basic of this country: to right wrong, to do justice, to serve man.

—The U.S. federal government has heard the cries of its people, and is about to come to their aid. Again, the idea of an American Congress made up not of a few hundred elected officials but of all American citizens, a “convocation of this great Government” is powerfully presented. Our great Government can be summoned into action by any of its people—not just whites. And that is because its mission is to take action to ensure justice, for all. When Johnson says that the mission of the U.S. federal government is the mission of the nation itself, the founding principle and demand placed on that government and on all Americans, he, like Martin Luther King, Jr., is making a powerful argument: it is not an attack on the U.S. to criticize it for failures to provide justice for all. It is a course correction. Equal rights for all races is not some foreign idea that a few people are trying to force into American government and society, it is the original basis for that government and society. The Founders intended that rights be extended to all, over time if not immediately. The history of America is one of extending rights: the right of black men to vote, then of women to vote, then of all people over 18 regardless of race, sex, or origin; the right of interracial couples to marry, then of gay couples to marry; the right of black children to attend schools with white children, and then of mentally challenged children to attend mainstream schools, and eventually of all children to attend public schools without being hampered—the list goes on. In the U.S., we extend rights, through trial and error and argument and sometimes ferocious antagonism, to more and more people. Because that is what this nation was founded to do. That is its mission.

So to demand equal civil rights for black Americans is not some disruptive, un-American demand that the nation abandon its identity and heritage and tradition. It is the usual, necessary texture of America itself. It is what Americans do, and only those who fight to restrict rights are un-American.

In our time we have come to live with moments of great crisis. Our lives have been marked with debate about great issues; issues of war and peace, issues of prosperity and depression. But rarely in any time does an issue lay bare the secret heart of America itself. Rarely are we met with a challenge, not to our growth or abundance, our welfare or our security, but rather to the values and the purposes and the meaning of our beloved Nation. The issue of equal rights for American Negroes is such an issue. And should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation. For with a country as with a person, “What is a man profited, if he shall gain the whole world, and lose his own soul?

There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.

—It is Johnson speaking the words, Johnson who believed in them; Johnson who would dedicate himself to the civil rights movement, and Johnson who was willing to “betray” his southern identity by standing up for black Americans. But we must take a moment to express our thanks and gratitude to the man who wrote these magnificent words that gave Johnson a platform to stand on: presidential speech writer Richard Goodwin (husband of historian Doris Kearns Goodwin; she also worked for President Johnson). Here, through Goodwin’s words, Johnson is saying that Cold War America may think its biggest problem or threat is Communism, especially in the growing war in Vietnam, but in reality, that threat is external. It does not “lay bare the secret heart of America itself”. Fighting Communism is just a way to stand up for stated American values of freedom. Fighting for civil rights, however, runs the risk of exposing our internal conflicts, our failures to live up to our ideals, our values of freedom, our inability to fully guarantee freedom at home even as we try to export it to the rest of the world. Fighting for civil rights takes the case off the watch so everyone can see the mechanisms inside that can become stuck or loose or rusty.

Civil rights is not about external threats, from Communism or an economic downturn, but about our internal health as a nation: are we who we are supposed to be? Because in the long-term, that internal health dictates our success and our national future. The greatest threat to our national security during the Cold War does not come from outside but from within. If we do not fight for civil rights, then we have no democracy to oppose Communism with. Fail to provide civil rights, and “we will have failed as a people and as a nation”, no matter what happens in Vietnam. We could, in fact, “gain the whole world” for democracy, winning the Cold War and stamping out Communism, and be in more danger than we were before, because we lost our own American soul by denying our own people their freedom. For a Cold War American president to say that fighting Communism was not the  most important thing Americans could do was astounding.

And then the magnificent, unequivocal statement: “There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem.” For centuries, black Americans had been treated as aliens by people and by our laws; they were not full citizens, not “real” Americans, and in demanding equal rights, black Americans were traitors who wanted to destroy the good society white Americans had built, one which gave black people a “place” in service to the superior race. Here Johnson, through the words of Goodwin, demolishes this lie. Blacks were not wrong to ask for equality, the problem is not some regional issue the rest of us don’t have to worry or care about, Northerners who journey South to join the fight are not traitorous instigators of a new civil war. There was murder in Selma a week earlier because Americans had yet to fully live up to their national mandate of freedom. Americans had failed, and Americans would find a solution—now.

This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American heart, North and South: “All men are created equal”—“government by consent of the governed”—“give me liberty or give me death.” Well, those are not just clever words, or those are not just empty theories. In their name Americans have fought and died for two centuries, and tonight around the world they stand there as guardians of our liberty, risking their lives.

—Just as the white police of Selma are comparable to British regulars during the Revolution, so the black Americans they attacked and killed are comparable with every white American who ever fought and died in the name of his country. Black Americans are guardians of American liberty—this is an astoundingly bold and honest statement of fact that no previous president had made since Lincoln. Even Truman and Eisenhower, the only presidents we could say made a real effort to end segregation, and men who were personally repulsed by racism, did not go this far. Black Americans had been treated as people we should pity and do favors for, out of the kindness of our hearts. Now they were the Minutemen who rode out to risk all to protect the rest of us who stayed home. They were the men in the statues erected in memory of heroes who gave their lives for liberty. Black Americans held the torch that white Americans had tried to blow out, and, failing that, had tried to hide away.

Those words are a promise to every citizen that he shall share in the dignity of man. This dignity cannot be found in a man’s possessions; it cannot be found in his power, or in his position. It really rests on his right to be treated as a man equal in opportunity to all others. It says that he shall share in freedom, he shall choose his leaders, educate his children, and provide for his family according to his ability and his merits as a human being. To apply any other test—to deny a man his hopes because of his color or race, his religion or the place of his birth—is not only to do injustice, it is to deny America and to dishonor the dead who gave their lives for American freedom.

—Again, we are getting a radical revision of America, in which black Americans are the heroes whose memories we dare not dishonor, and the un-American way is to discriminate, the true Americans are black, and they are leading the way for the rest of us to follow.

Lyndon Johnson was not an attractive man. He was, in 1965, still seen by many Americans as a pale substitute for the man he replaced in office. His voice was a little grating, and he did not modulate his rather hectoring tone or his Texas accent. (And this at a time when wealthy Americans still faked a semi-English accent as a sign of their sophistication–watch any movie from the 1940s or 50s.) He couldn’t stand in front of the nation and assume its good will. He couldn’t assume they would be won over by his charm or his popularity. He could, on the other hand, assume that his Southern allies in Congress and in state governments would be infuriated by this speech and feel personally betrayed and attacked by an erstwhile comrade. Whatever popularity Johnson did have was in the South, and that was potentially evaporating by the sentence as he spoke on March 15.

Yet Johnson forged ahead, and we will too, continuing our close reading in the next post

Votes for women, sexual consent, and the revolution we need to continue

There’s a very interesting article in the Smithsonian Magazine about “What Raising the Age of Sexual Consent Taught Women About the Vote”. It’s hard for us to believe today, but the age of consent for females was set by each state, and in 1895, 38 of those states set the age of consent at 21 or younger–in Delaware, the age of consent for a female was 7 years of age.

Most states set it at 12 or 13, considering this the age most girls began to menstruate, which meant, according to male lawmakers, that sexually she was an adult and would of course always consent to sex. And as the article points out, the consent age gave men complete freedom to rape girls and say the girl had consented; that’s all that was required if (and only if) the man was questioned. “She consented,” he could say, and that would be that.

Women who wanted to change this found allies in the Women’s Christian Temperance Union. The WCTU and “the temperance movement” were and still are reviled and mocked as frigid, frustrated, idiotic old maids who didn’t want people to have fun. What the WCTU really did was attempt to change state laws and business practices that sanctioned and even promoted drunkenness–for men only–that led to disastrous consequences for women, especially their wives. Many taverns made deals with factories to have the factory send male employees’ pay envelopes directly to the tavern, in hopes that the men would not be able to resist the temptation and end up drinking their entire salary away. Men staggered home drunk and broke, meaning their families went hungry, and, worse, that women asking where the pay was were often beaten and sometimes killed. Worse, in most states a man who killed his wife while drunk could be let off because he was drunk–a sort of “not guilty by reason of intoxication”–and no man could be held accountable for something he did while he was drunk. (See “Part 1: Roots of Prohibition” of Ken Burns’ documentary Prohibition for details on the climate of drunkenness in 19th century America and why it happened.)

So the WCTU fought alcohol manufacturers and distributors (i.e., bar and tavern owners), not alcohol itself, for what they did to women. They were a natural ally for women seeking to raise the age of sexual consent in the late 1890s and early 1900s.

It was tough going. Women petitioning their state governments were ridiculed and sometimes removed. In the south, rape was openly acknowledged as a way to maintain white male power over black women, and the idea that a black woman might be able to successfully accuse a white man of rape and he might go to jail was out of the question. As the Smithsonian article points out, white male legislators perverted the age of consent drive to write abominable laws against black men accused of rape, guaranteeing they were tortured, mutilated, and/or killed.

With great tenacity and bravery, American women pressed on. They realized that for as long as legislators were always and only men, there would never be justice for women. They organized themselves to gain the vote, which is remarkable. Women pressing for a right they had been denied were already targets for harassment and violence. Women talking openly about sex and rape and child rape and rape as a tool of racism were a hundred times more vulnerable to attack. Brick by brick they scaled the wall of sexism and won the vote in 1920. Once women began to vote, female legislators began to exist, and like “magic”, somehow, the age of consent rose in all existing states to between 16 and 18.

We owe these women a tremendous debt that can only be repaid by exercising the right they had to fight for at the cost of their lives: women voting. American women have been steadily told that sexism is at once not that big a deal and all over, a thing of the past. It’s like telling non-white Americans that we’re living in a “post-racism” society. American women are being urged not to be strident, angry, hysterical… like women have been told for centuries.

So much more work needs to be done to end sexism, and so much of it is being done in the court of public opinion–a man who preyed on women is forced to resign from his job. And it ends there. But American women at the turn of the 20th century didn’t win the vote so men who prey on women could remain safely outside the legal system. Freedom is maintained by law. We need to vote for legislators who will fight for enforcement of existing laws against rape and sexual discrimination. We need to vote for legislators who don’t let cases of rape and sexual discrimination be tried in the court of public opinion. We all–men and women–need to fight like Temperance women and Suffragettes for real justice.

Romney, Dred Scott, and the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Taney concludes the majority opinion by saying that since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.

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

REPORTER: Back in 2016 the message was “let the voters decide” – why not now?

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

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

It’s also appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.

Let’s review:

Taney, 1857: “…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

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

Both men equate finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.

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

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

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

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

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

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

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

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

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

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

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

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

No one, we presume, supposes that any change in public opinion or feeling… in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted… while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.

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

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

The politics of justice are never off-limits

Could it be more famous?

Mexico City, the 1968 Olympics, Americans Tommie Smith and John Carlos are standing atop the medal stand with their gold and bronze medals, respectively, for the 200-meter race, and, as Australian Peter Norman stands by, they raise their fists in the black power salute.

Or did they? As some of us at the HP recall, there was confusion sown in the 70s and 80s about whether Smith and Carlos were giving the black power salute or just raising their fists in some gesture of support for humanity in general. The idea that American Olympians would sully the Olympics with politics–let alone black American Olympians sullying the Olympics with racial politics–was considered out of the question.

In 1968, however, there was no nonsense about it. Smith and Carlos never denied that the gesture was made in solidarity with black Americans. The Smithsonian Magazine has a full story about the moment, its genesis, and its fallout, in which Smith says

“I felt alone and free,” says Smith, now 72. “There was nothing there to protect me but God, nothing to distract my feeling of equality. … I was just alone in a position that millions were watching and I hope the millions realized that it was a pride in how I felt about a country that did not represent me. I was proud of the country, but even the greatest things in the world need attention when they’re not as strong as they could be. It was a cry for freedom. …My life was on the line for the belief in equality during the human rights era of Dr. King and what he stood for.”

Smith had help planning the moment of protest and solidarity in the name of black pride and power from founders of the Olympic Project for Human Rights (OPHR), made up of non-professional black athletes who wanted to use the international platform to advance human rights. Smith included some military-step movements that were the catalyst for boos from the crowd, which had kept silent, perhaps while evaluating just what they were seeing. Smith responded by raising his fist again as he left the field.

The outcry from the U.S. was overwhelming. Smith and Carlos were suspended from the U.S. team, ignored by the press when they returned home, despite their medals, and of course received death threats. The main charges against them were that 1) they had misrepresented the United States as a land where black people suffered oppression; and 2) they had brought ugly politics into the beautiful Oz land that was the peaceful Olympics. When the next Olympics, in Munich in 1972, were torn limb from limb by the abduction and murder of the Israeli team by Palestinian terrorists, there were those who blamed Smith and Carlos for opening the door to politics and murder at the Olympic games.

The first charge was, or course, untrue: it was no misrepresentation of the U.S. to say that it protected discrimination in word and deed, systemic and personal. The second charge is worth some thought. We do appreciate the Olympics for their focus on sports alone, and the fact that they usually bring nations in conflict together in one place. Of course, the 1936 Olympics in Nazi Germany were an exception, and the U.S., China, and Soviet Union and the European nations it occupied have all boycotted the Olympics for political reasons since 1980. And fewer nations are opting to run the financial and security risks of hosting the games in an age of near-constant terrorism. At the close of each Games, we all breathe a collective sigh of relief if the only problem was lack of snow at a Winter Games due to climate change.

But it’s becoming more obvious as the 21st century progresses that we can’t ask athletes to step away from politics and still require them to positively promote the owners, teams, leagues, cities, and nations that hire them. If we ask athletes to represent, we have to provide them with owners, teams, leagues, cities, and nations that are worthy of representation.

Representing your country in the Olympics is very meaningful, but only if your country supports and protects you. If your country oppresses you, then demands that you publicly honor it at sporting events and competitions, then come back home to be further oppressed, that’s so dishonest that it’s bound to impact the athlete’s sense of integrity and even their performance. The athlete must begin to compete either in their own name, or in the name of those who do support and protect them.

We first saw the latter happen in the NFL, when quarterback Colin Kaepernick began to kneel during the national anthem to protest racism. He was quickly drummed out of the league, and is still staunchly forgotten by the NFL even as it sends out messages of support for Black Lives Matter. Since the much-needed rise of the Black Lives Matter movement, racial protest in the WNBA, followed by the NBA, MLS, MLB, and the NHL has become common. For the first time in its history, players in the NBA refused to play in a game in August 2020 to protest the murder of yet another black American by the police.

In the U.S., we are bound by a pledge to offer and uphold liberty and justice for all. When we do not honor that pledge, our athletes need to call that out, in public, in front of the world. As we say in our post Kneeling during the national anthem is patriotic,

The national anthem is sung at sports events while enormous flags are unfurled across the stadium or from the roof of the court. The flag is the symbol of the indivisible nation we are committing ourselves to support. This is a moment of good faith: the flag stands in for our country, and we honor it by promising to uphold its founding principles.

So the anthem is an entirely appropriate time and place to protest any violation of those founding principles of liberty and justice for all. In fact, it is the height of patriotism to say, “I’m not going to pay lip service to the flag by saying I give my allegiance to the principle of liberty and justice for all but then ignoring flagrant violations of that principle. I’m not going to pretend that what the flag stands for is not being systematically violated. I will not support a good faith gesture being made in bad faith.”

We disrespect the flag when we thoughtlessly salute it, when we salute it while ignoring the violations of our national principles, when we act like saluting the flag is patriotism. Singing the national anthem and saluting the flag are not in themselves patriotic acts. They can be, if they are performed with the serious intention of working to uphold the principles the flag and anthem stand for. But if we’re just mouthing words and waiting for the game to start, they are not patriotic. If we sing the words and put our hands over our hearts while doing nothing to fight for our country, that is not patriotic.

If they didn’t love the United States, these athletes wouldn’t bother to protest. If they didn’t want to feel proud of their country for living by its pledge to uphold justice, they wouldn’t care. In other words, as Smith states above, American athletes are “I hope the millions realized that it was a pride in how I felt about a country that did not represent me. I was proud of the country, but even the greatest things in the world need attention when they’re not as strong as they could be.”

Political protest shouldn’t have to be a part of sports. But for as long as patriotism is, and we sing our national anthem and honor our American flag at sporting events, from little league to the Olympics, we have a duty to protest any attempt to thwart the pledge we make to liberty and justice for all. Tommie Smith and John Carlos knew that back in 1968. Maybe by 2068 we will all acknowledge it.

Separation of church and state in colonial New England

Re-running our longstanding post on Roger Williams’ experiment in Rhode Island in 1663, to help us keep our bearings as the eternal minority of Americans demand more of a role for religion in our government.

 

The first-ever separation of church and state!

…well, at least in the western world. It happened in Rhode Island, in 1663.

This was the year that the colony received its royal patent. In 1643, Roger Williams had received a charter from Parliament, during the interregnum. When Charles II came to the throne, Rhode Island received a new patent from the king. It is a remarkable document. There’s no room to get into all the details here, but pick up Early New England, A Covenanted Society by David Weir for a terrific in-depth discussion.

In the 1663 patent, for the first time the English king/government acknowledged not only that there were religious conflicts in New England, but that differences in religious opinion were unavoidable–and even valid. Here is how the charter describes the people who left Massachusetts Bay Colony and the Connecticut colonies for Rhode Island:

…some of those our subjects not being able to bear, in these remote parties, their different apprehensions in religious concernments, and inn pursuance of the aforesaid ends, did once again leave their desirable stations and habitations, and with excessive labour and travel, hazard and charge, did transplant themselves into the midst of the Indian natives…

Here, for the first time, the crown acknowledges that the religious beliefs of a remnant of its people are truly heartfelt, and real. These are not seditious traitorous rabble-rousers, but people who left their desirable stations in life and their homes for the excessive labor and hazards of the wilderness. The king will justify and honor those beliefs and actions with this patent.

With religious diversity up-front as the founding cause of the Rhode Islanders, the charter goes on to allow the people of Rhode Island to travel safely into other colonies where their views are unwelcome, and, most importantly, the freedom to set up a society that rejects the state religion of England itself:

[A] most flourishing civil state may stand and best be maintained among our English subjects, with a full liberty in religious concernments; and true piety rightly grounded upon gospel principles will give the best and greatest security to sovereignty, and will lay in the hearts of men the strongest obligations to true loyalty.

This is truly remarkable. It is indeed the first time we can think of in the west that a government “[legally] separated the civil magistracy from civil religion and an established state church. We should note that civil religion is not the same thing as the established state church. The state church is an institution with records, buildings, financial dealings, and personnel; civil religion is something more amorphous, and can be described as a cluster of ideas that can be sustained by the state church (or by the state itself) and that form the often submerged foundations of societal life.” [Weir 53]

In granting the charter, the crown recognized that in Rhode Island, civil religion was the antithesis of the English state religion, and was not even uniform itself–many religions were tolerated in Rhode Island, and each contributed to the cluster of ideas that created the civil religion there. The crown also saw that maybe people who are allowed to live according to their deepest religious beliefs would be the most loyal citizens, as they would be grateful to the king for granting them that freedom.

The big news here is that it is no longer treason to challenge the Anglican church. Religious freedom is not heresy (so long, of course, as one’s religion is still Christian), or political treason, or anything but a private, personal matter.

What’s unusual is that this great religious freedom was granted in the Americas at the same time the crown was clamping down hard on religious freedom in England itself. The laws of the Clarendon Code maintained uniformity and orthodoxy. The Corporation Act of 1661 required all town officials to be Anglicans. The 1662 Act of Uniformity required the clergy in England to use only the Anglican Book of Common Prayer. The Conventicle Act of 1664 forbid groups of five or more people holding dissenting religious views to gather together. And the Five Mile Act of 1665 made it illegal for a dissenting minister to live within five miles of a town unless he had taken the Oath of Allegiance, which was unlikely. These measures sent more English Puritans to America.

So why did the crown decide to grant religious freedoms in the Americas that it was actively stamping out in England? Perhaps the answer lies in the distance between them. We know that Charles II, leaning more and more towards Catholicism, and later converting on his deathbed, hoped to create more religious tolerance in England. But Parliament, wary of another religious convulsion, took away the king’s power to make religious law altogether, and embarked on its coercion of uniformity. Events in the small and still financially unimportant colonies in New England were not as pressing to Parliament, trying to keep things under control at home after the Restoration.

But a precedent was set in New England by the Rhode Island royal charter. Massachusetts Bay colonists would never accept people of different religious beliefs to live amongst them, but they did trade with Rhode Islanders, hold markets together, and allow them to travel through and stay overnight in MBC. Gradually MBC, with its natural, un-coerced uniformity, came to be seen as the anomaly–even by its own people! And generations of Americans grew up not only expecting religious diversity to be tolerated, but, crucially, expecting civil religion, not state religion, to be the order of the day.

Therefore it was no stretch 100 years later to set up a government in which religion was important but not codified in law. Americans were used to this kind of separation of church and state, and comfortable with the primacy of civil religion over state religion. Belatedly, in the late 20th century, attempts were made to open up the public to the idea of state religion, but it will likely be an uphill battle to convince Americans to accept this 17th-century idea.

Sean Purdy et. al v. Vauhxx Booker

Purdy and his companions attempted to lynch Booker. That’s all there is to it. They attacked Booker, a black man on the Fourth of July at Lake Monroe in Indiana and after beating him, explicitly said they would kill him.

Here is a still from a video someone took of the incident that speaks volumes:

Screen Shot 2020-07-20 at 9.00.55 AM

The man in the red tank top seems to be telling the person with the camera to stop filming while a woman attempts to calm him down. The man behind him is also pointing at the camera person in a threatening way, while the woman in the foreground (whom we assume is Caroline McCord) has an expression that’s hard to read. Almost hidden is Booker, being pinned to a tree by the red tank top man whom we assume is Purdy.

What happened once this story broke? What always happens. Booker, the black victim, was accused of provoking the attack, and the white attackers were presented as victims. The IndyStar reports it this way:

In a press conference held in Indianapolis Monday, an attorney for two people involved in a racially charged incident near Bloomington said his clients are victims of a smear campaign perpetuated by Vauhxx Booker.

…David Hennessy, a criminal defense attorney, represents Sean Purdy and Caroline McCord, two of the white people captured on videos that show parts of the incident.

Hennessy said Booker has been “putting forth a false narrative” about the events and that his clients “want the truth to come out.”

“Mr. Booker was the instigator and the agitator,” Hennessy said. He alleged that Booker punched Purdy three times and had to be restrained.

According to Hennessy, the incident began when Booker and his friends trespassed on private property. He said Purdy gave Booker a ride to the property line and Booker gave Purdy a beer before leaving.

Hours later, Booker returned and claimed to be a county commissioner, Hennessy said. It was during this second encounter that Booker punched Purdy three times, he claims.

“Mr. Booker threw the punches. He was then restrained — not beaten, restrained,” Hennessy said.

Hennessy also accused Booker of “race baiting” and encouraging one of the men involved to use racist language. A man is seen in the video calling Booker a “nappy headed (expletive).” Booker is heard asking the man what he “really (want) to call” him. The man repeats the insult.

…Hennessy said he and his clients wanted Booker and the people with him to tell the truth about the incident and to “apologize to the real victims of racial injustice and racism.”

Private property, trespassing, innocent whites protecting themselves against a violent intruder–it’s all too familiar a process to turn a black victim into a black predator. Let’s say, for a moment, that Booker really was intruding on private property, and knew it, and did it deliberately, to break the law and threaten or hurt white people. Let’s say Booker began assaulting the Purdy without provocation. Let’s say Booker is a criminal.

Does that mean he should be lynched? Is that how the United States legal system works? That black people who break the law can be murdered by private citizens?

There’s little doubt that murder was the goal, and a real possibility. The look on the face of the woman trying to calm the man we assume is Purdy is eloquent. She is scared that her friends are going to kill someone, on camera, and she’s attempting to prevent that, whether out of concern for Booker or, more likely, concern for her friends. Her face is all we need to know that this was an attempted killing–the kind of vigilante killing of black people by white people that we call lynching.

The idea that criminals can be killed by private citizens, or by the police, without due process is being deliberately sown and encouraged by un-American residents of this country in order to subvert rule of law. These people aren’t inventing something new: they have a well-worn playbook that was first and most powerfully called out by the great American hero Ida B. Wells, a black American woman born in 1862 who devoted her life to publicly documenting lynchings in the south. It was unbelievably dangerous work. She was forced out of Memphis, TN by attempts on her life and the physical destruction of her newspaper office, but continued her work from Chicago.

Wells began her life’s work as… a “criminal” who “broke the law” and “deserved punishment”. Here’s a short version of the story:

In 1884 she was asked by the conductor of the Chesapeake & Ohio Railroad Company to give up her seat on the train to a white man and ordered her into the smoking or “Jim Crow” car, which was already crowded with other passengers. Despite the 1875 Civil Rights Act banning discrimination on the basis of race, creed, or color, in theaters, hotels, transports, and other public accommodations, several railroad companies defied this congressional mandate and racially segregated its passengers. It is important to realize that her defiant act was before Plessy v. Ferguson (1896), the U.S. Supreme Court decision that established the fallacious doctrine of “separate but equal,” which constitutionalized racial segregation. Wells wrote in her autobiography:

“I refused, saying that the forward car [closest to the locomotive] was a smoker, and as I was in the ladies’ car, I proposed to stay. . . [The conductor] tried to drag me out of the seat, but the moment he caught hold of my arm I fastened my teeth in the back of his hand. I had braced my feet against the seat in front and was holding to the back, and as he had already been badly bitten he didn’t try it again by himself. He went forward and got the baggageman and another man to help him and of course they succeeded in dragging me out.”

Wells was forcefully removed from the train and the other passengers–all whites–applauded. When Wells returned to Memphis, she immediately hired an attorney to sue the railroad. She won her case in the local circuit courts, but the railroad company appealed to the Supreme Court of Tennessee, and it reversed the lower court’s ruling. This was the first of many struggles Wells engaged, and from that moment forward, she worked tirelessly and fearlessly to overturn injustices against women and people of color.

We have put Wells’ crime in bold: she bit a train conductor so badly that he had to recruit help to enforce the “law” followed by the Chesapeake & Ohio Railroad Company. Even if the company was violating the 1873 Civil Rights Act, it’s still illegal for an adult to bite someone. When Wells was carried off the train the white passengers applauded. Of course they did–a scary black woman who bit a train conductor was given the treatment she deserved. Those white passengers were likely confirmed in their belief that all black people were animals who needed to be “kept down” by law enforcement, or any available white men.

And Wells was scary in that moment. She was a criminal. But she was breaking the law in the name of justice. While violent protest like biting someone is not the ideal, and non-violent protest remains the goal, and the most effective means of changing a society, we see that in that moment, Wells believed she had no other way of stopping the conductor from violating her rights and breaking the law passed by Congress. In that moment, she chose violence to defend herself by taking a very visceral public action.

And so Booker may also have chosen violence when surrounded by angry white men claiming he was trespassing, like Wells was trespassing on the private property of a white train car. Wells had to be restrained, just as Purdy’s and McCord’s lawyer says Booker had to be restrained. This is not how Booker reports it. But even if he did, this doesn’t mean that Booker should go to jail, let alone be murdered by his “victims”.

Vengeance has been getting a makeover from a petty act that only rises to the level of moral duty once in a thousand instances to the first and only response to any kind of attack, real or perceived, serious or minor. Revenge killing is the mark of a society without law. In the same vein, the United States cannot allow the police to murder people because those people seemed scary and the police were afraid. We must live by rule of law, and our laws must provide liberty and justice for all, or we cease to be the United States of America.

Removing Confederate monuments erases history–or not

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

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

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

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

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

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

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

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

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

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

Confederate monuments fall, America rises

It’s amazing that the sudden removal of so many Confederate war monuments is just a footnote in this Spring’s news. The long and awful battles to remove these monuments to slavery and hatred are suddenly resolved, and it seems like an afterthought.

But all Americans who love liberty and justice for all are happy to hear it. We will pull from two previous posts, Confederate Monuments and the cult of the Lost Cause, and Pro-Confederate is Anti-American to celebrate, and contribute momentum to, this moment.

First, from Confederate Monuments and the cult of the Lost Cause:

There’s a great article from Smithsonian, by New Orleans mayor Mitch Landrieu, called “How I Learned About the Cult of the Lost Cause,” which delineates the real reason so many Confederate monuments were put up in this country, both just after the Civil War and in the 1950s and 60s. One application for federal funding to preserve three Confederate statues as historically important specifically states that the statues commemorate the Cult of the Lost Cause:

“The Cult of the Lost Cause had its roots in the Southern search for justification and the need to find a substitute for victory in the Civil War. In attempting to deal with defeat, Southerners created an image of the war as a great heroic epic. A major theme of the Cult of the Lost Cause was the clash of two civilizations, one inferior to the other. The North, “invigorated by constant struggle with nature, had become materialistic, grasping for wealth and power.” The South had a “more generous climate” which had led to a finer society based upon “veracity and honor in man, chastity and fidelity in women.” Like tragic heroes, Southerners had waged a noble but doomed struggle to preserve their superior civilization. There was an element of chivalry in the way the South had fought, achieving noteworthy victories against staggering odds. This was the “Lost Cause” as the late nineteenth century saw it, and a whole generation of Southerners set about glorifying and celebrating it.”

It’s very odd that this clear-eyed assessment of the Lost Cause as a cult and therefore a myth was successfully used to justify maintaining three Confederate statues in Louisiana. One would think that the goal of preserving acknowledged racist propaganda would be recognized as out of step with real American founding principles.

The only thing we would add is that Landrieu mentions the fact that Confederate memorials were put up in the North as well as the South. This is true; it happened directly after the war as part of an attempt to heal the breach and offer a socio-political olive branch to the South. But that misguided effort quickly died away in the North, while statues continued to go up regularly and in abundance in the former Confederacy.

 

And now from Pro-Confederate is Anti-American:

No need to do much more than to point you to James Loewen’s frank article: Why do people believe myths about the Confederacy?

But we will go ahead and also point you to our own posts on this topic: Amazing Fact: The Civil War was fought over slavery, What made the north and south different before the Civil War?, and Slavery leads to secession, secession leads to war.

The Confederate States of America were founded with the sole purpose of perpetuating black slavery. There is nothing heroic in that. The men who created the Confederacy did not care about states’ rights—they had repeatedly demanded that states’ rights be trampled by forcing northern states that had abolished slavery to enforce the Fugitive Slave Act, by going into territories and voting that they enter the Union as slave states even though they were not residents of that territory, by terrorizing residents who wanted to vote anti-slavery, and by taking enslaved people into free states and forcing the free state residents to endure that slavery.

Soldiers of the Confederacy were not heroes. The old argument that most of them were poor and were not slaveholders is meaningless: they fought to protect their land and their governments, which meant protecting the slave system and the slave aristocracy that governed their land. If they won the war, those poor, non-slaveholding soldiers would have allowed slavery to keep going. They knew that. You can’t cherry-pick motives and focus on the heartwarming “they fought to keep their families safe” motive and ignore the chilling “the soldiers didn’t care if black Americans were enslaved as long as they kept their land” motive.

Secession was not allowed in the Constitution. There is no place in it that makes secession legal. So founding the Confederacy was the most anti-American action in our history.

It’s high time we became as tough on Confederacy worship as the Confederates were on America, democracy, and states’ rights.