Kneeling during the national anthem is patriotic

Posted on September 29, 2017. Filed under: Truth v. Myth, U.S. Constitution | Tags: , , , , , , , , , |

We’ve noticed a lot of people coming to the blog to read our post What does the United States national anthem mean? as more NFL players have been kneeling in silent protest during the anthem before games. Debate over this protest has focused on whether it is unpatriotic because it disrespects the flag.

What does our flag represent? In the Pledge of Allegiance, we say that we

pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation indivisible with liberty and justice for all.

Yes, we skip the “under God” part, which was tacked on during the Cold War (see The Pledge of Allegiance at 60) but even if you include it, you see that when we salute the flag we are committing ourselves as citizens to the principles of unity, liberty, and justice for all. “I pledge allegiance to the flag and this county, which is a united nation offering liberty and justice to all.”

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.

The flag and the anthem are not about supporting U.S. soldiers, as many people have come to believe over the past decade. They are not supposed to represent the military. They are not supposed to represent an ultimatum to hostile foreign nations. The flag and the anthem represent our founding principles of a people united in maintaining liberty and justice for each other in every way, in every place in this country. So kneeling during the anthem is not an insult to our military.

There are many ways to fight for America that don’t involve being a soldier. Whenever you fight for liberty and justice for all, you are protecting America. Sometimes that battle takes place in schools. Sometimes it takes place in courts of law. It can and does take place in business offices, factory floors, newspaper articles, playgrounds, restaurants, living rooms, and yes, sports arenas. Wherever you stand up for someone else’s civil rights, you are fighting to protect America.

And so when athletes take advantage of a national stage to nonviolently protest the unpunished persecution and murder of black Americans, that is appropriate. They are respecting the flag and our country by showing that the words we sing in the anthem and the hand we place over our heart should really mean something. They are holding us all accountable for living up to the pledge we all make.

The anthem is not just a feel-good moment. It’s serious. It’s a symbolic recommitment of every generation of Americans to the whole purpose of America, which is to be truly democratic, to offer life, liberty, and the pursuit of happiness to all citizens, without malice, with liberty and justice for all. If that’s not being honored, it’s better to sit it out. Kneeling during the anthem is a powerful statement. No one does it lightly. It’s a red flag, a wake-up call to all Americans that there is an actual and serious violation of our national principles going on.

As one American said on the radio this morning, Just because you put on a uniform doesn’t mean you give up your right to freedom of speech. We would add that it doesn’t mean you give up your right to sound the alarm when our national principles are at risk. That’s what we call patriotism.

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Medicaid is in the Constitution

Posted on July 20, 2017. Filed under: Politics, Truth v. Myth, U.S. Constitution | Tags: , , , , , , , , , , |

That’s a bold statement, and it’s inaccurate in the sense that if you read our Constitution you won’t find the word “Medicaid” in it. Medicaid is a federal program created in 1965 as part of a series of amendments to the Social Security Act of 1935. Here’s a quick, neutral definition of Medicaid from Wikipedia:

“Under the program, the federal government provides matching funds to states to enable them to provide medical assistance to residents who meet certain eligibility requirements. The objective is to help states provide medical assistance to residents whose incomes and resources are insufficient to meet the costs of necessary medical services. Medicaid serves as the nation’s primary source of health insurance coverage for low-income populations.

States are not required to participate. Those that do must comply with federal Medicaid laws under which each participating state administers its own Medicaid program, establishes eligibility standards, determines the scope and types of services it will cover, and sets the rate of payment. Benefits vary from state to state, and because someone qualifies for Medicaid in one state, it does not mean they will qualify in another.”

Millions of Americans rely on Medicaid (and the related Medicare) for medical care. All of them are poor–officially living below the poverty threshold as defined by the federal government. In 2017, for instance, the poverty threshold for a household of four people is $32,300. Most Americans who receive Medicaid are elderly. Many are disabled, many are veterans, many are children.

Medicaid, then, is a federal safety net like Social Security that is meant to maintain a basic standard of living for the poorest, oldest, and youngest Americans.

When the Affordable Healthcare Act (Obamacare) was passed, it required Americans to have health insurance. If someone lives below the poverty line, Medicaid pays for that insurance. To make this happen, the federal government offered all states more money for Medicaid.

18 states, all but two with Republican governors or legislatures, refused to take this extra funding for Medicaid. Some representatives of these states claimed they wanted to draft their own Medicaid “reform” legislation; others, like Maine’s governor LePage, claimed it was just an attempt by the Democratic party to create a “massive increase in welfare expansion.”

That word—“welfare”—has become a charged word in the U.S. Like “liberal”, which means “generous”, welfare is a positive word that has been given a negative meaning by its opponents. “Welfare” means “the good fortune, health, happiness, prosperity, etc., of a person [or] group”. You can see its English root pretty clearly: “fare” means “to experience good or bad fortune”; if you fare well, that’s good. Then you have welfare. We maintain this understanding when we tell people “farewell” when they leave on a trip. We want to wish them a good experience, safety, and happiness.

But conservatives who oppose any government spending on social safety nets turned our federal welfare system into a whipping boy in the 1980s, under President Reagan. The infamous “welfare queen” Reagan wowed audiences with—a woman who supposedly bilked the federal system to the tune of $150,00 a year—was used by conservatives to damn the program. They said people on welfare were lazy (code word for “black”), and that all hard-working, middle-class Americans (code words for “white”) were paying to support these people who laid around eating candy and watching TV all day. Why should they go get jobs? They were living the good life on our dime. If we got rid of welfare (shorthand for all federal safety net program, from food stamps to subsidized school lunches to Head Start), the conservatives said, all of those people would have to go out and get jobs, and we’d all be better off.

To help make this happen, Reagan’s administrations cut funding to the programs, and subsequent Republican lawmakers and presidents continued this trend. They also began cutting taxes sharply under George W. Bush. With less money coming into the federal government, less money could go to states to support programs like Medicaid and SNAP (food stamps). States began to cut services, often by making the poverty threshold lower and lower.

These cuts in funding exacerbated the problems of the poor who depended on them. They also coincided with stagnating incomes, a stubbornly low minimum wage, and a forced shift of workers to part-time employment by companies that did not want to pay full-time wages or offer full-time benefits to make the traditionally poor even poorer, and to move working people who used to make enough money to live on into the poverty range, where they need federal assistance.

Despite the fact that “the poor” includes white people, people who are working, children, veterans, and elderly people who worked all their lives, conservatives today continue to slam “welfare” as a trap set by devious immigrants, blacks, and criminals to trick honorable working white people into giving away their money.

Welfare. Despite all of this recent effort to make it a bad word and an even worse idea, welfare actually is in the Constitution. Let’s revisit that famous Preamble (and sing it in our heads to the Schoolhouse Rock melody):

We, the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity do ordain and establish this Constitution for the United States of America.

“Promote the general Welfare”: that’s written into the fabric of our national identity, the purpose of our nation. One of our fundamental reasons for being is to ensure that every American has the full opportunity to experience the Blessings of Liberty. This is an idea that was first expressed by English settlers in 1630, when Puritan John Winthrop said, in what we call the “City on a Hill” speech,

…we must be knit together in this work as one man, we must entertain each other in brotherly Affection, we must be willing to abridge our selves of our superfluities, for the supply of others necessities, we must uphold a familiar Commerce together in all meekness, gentleness, patience and liberality, we must delight in each other, make others Conditions our own, rejoice together, mourn together, labour, and suffer together, always having before our eyes our Commission and Community in the work, our Community as members of the same body, so shall we keep the unity of the spirit in the bond of peace, the Lord will be our God and delight to dwell among us, as his own people and will command a blessing upon us in all our ways…

As we note in our original post, this is a beautiful passage, reminiscent of the Sermon on the Mount in its focus on mercy, kindness, sharing, and other selfless qualities. The Puritans will not succeed by harrying out the sinner or otherwise smiting evil, but by loving each other, caring for each other, and “abridging our selves of our superfluities, for the supply of others necessities” (that is, there will be equality of wealth, with no one living in luxury while others starve). They will delight in each other,  making others’ conditions their own, and they will do all this to create a natural community of faith.

That’s what America was still dedicated to in 1787 when the Constitution was written and ratified by popular vote. We dedicated ourselves to giving some of our own wealth to provide for others. We dedicated ourselves to “liberality”, meaning generosity. We dedicated ourselves to Community, to seeing ourselves as members of the same body, living in a unity of spirit.

In short, we committed ourselves to the “general Welfare”, as the Constitution says. Americans must remember this in an age where we are urged to believe that “rugged individualism” is our true creed, and urged to say “no one helped me so why should I help anyone else?” and “I take care of my own.” Medicaid, food stamps, subsidized school breakfasts and lunches, Social Security, and everything else slighted now as “welfare” are really avenues toward establishing and maintaining the general Welfare our Founders envisioned. No nation is rich if it refuses to create equality of opportunity for all its citizens. No nation ends poverty claiming it is a trick played on the nation by the poor. No nation but the United States made generosity a cornerstone of its political outlook and purpose. Let’s remember that, and live up to our own creed.

 

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Who has ultimate authority: the president or the courts?

Posted on February 9, 2017. Filed under: Truth v. Myth, U.S. Constitution | Tags: , , , , , , |

A simple question, being asked by many Americans as the courts deliberate over the president’s travel ban, that alarms us to the core. This is basic three-branches-of-government data. We should all have learned this in grade school. But since civics education has been eliminated in our schools, most Americans seem to lack the most basic understanding of how our government works.

And that’s so dangerous. It allows people to believe the president when he says the courts are traitorous and should just do as he says “because it’s right”.

We’re rerunning our post on this issue in hopes of answering that simple and fatal question for America. We originally ran it nearly a decade ago, in the context of state supreme courts ruling on gay marriage. Every time you read “the legislature” below, sub in “the executive”, that is, the president, and it addresses the issue with Trump today. Sub in “tyranny of the president” for “tyranny of the majority”, and you are also on track.

 

We were listening to the news and heard someone being interviewed say that an issue in their state had been decided by the state Supreme Court, and therefore the issue “was solved by the courts, not by democracy”.

This idea that the judiciary, one of the three branches of our government as described by our Constitution, is somehow not part of our democratic system is a baffling one. We are forced to repost our original rebuttal of this idea, from 2008, here in the continuing effort to fight this misconception:

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

A review of the constitutionally described role of the judiciary is in order. The judicial branch exists to review laws, acts, and executive orders to ensure that they are constitutional. If those laws, acts, and executive orders are not constitutional the courts must overturn them. This allows the judiciary to preserve our democracy in a crucial way—stopping 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, through their members of Congress, 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.

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

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

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

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Trump and the Great American Experiment

Posted on November 10, 2016. Filed under: Civil Rights, Politics, The Founders, U.S. Constitution, What History is For | Tags: , , , , |

Today we’re re-running a post written at the very start of this blog, for reasons that will become evident as you read, on the second day of living in anticipation of a new presidency that is dedicated to perverting and destroying America’s founding principles.

From this point on, the HP is going to increase its focus on civics, our founding principles, and the fight for liberty and justice for all under the Constitution, because all Americans will need that information going forward into a Trump presidency that will not only allow that man to exercise his ill-judgment, but open the door to all Americans who have no faith in their nation’s founding principles. To destroy those principles is treason. The HP fights treason in all forms.

So, with a quote from the great Liberator, William Lloyd Garrison’s antislavery newspaper, we begin this new era:

I am aware that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! No! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen;—but urge me not to use moderation in a cause like the present. I am in earnest—I will not equivocate—I will not excuse—I will not retreat a single inch—and I will be heard. The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead.

 

America is an experiment. From the time of its first white settlement, 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 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, I think it boils down to the fact that some Americans no longer want to experiment. They want to close the lab down. We’ve gone far enough into the unknown, making it known, they say; now let’s stop—let’s even go backward. We were wrong to conduct some of our experiments in liberty, and that’s the source of all our problems. Gay people shouldn’t be treated equally. Black people shouldn’t run the country. Women shouldn’t hold high office. Muslims shouldn’t be granted habeas corpus.

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

But those Americans are wrong. What their ancestors really were was scientists. Experimenters. Radicals who always considered the impossible possible. 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.

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. Barack Obama is such an American, and 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.

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A Nation of refugees

Posted on November 17, 2015. Filed under: Civil Rights, Immigration, Politics, U.S. Constitution | Tags: , , , , |

The wars in what we grew up calling “the Middle East”, from the Syrian civil war to the battles against the so-called Islamic State, are doing what all wars do: creating millions of refugees. This is not new in human history. Why is the U.S. a nation of immigrants? In large part because millions of people fled war in Europe during the 19th century. From the revolutions of 1848 to the wars that created Germany to the people who fled Europe after WWII, war has always grown our population in the U.S.

But that last one in the list, WWII, is actually an anomaly. It was after WWII that the U.S. began adopting policies that limited immigration, even for people claiming refugee status. There were multiple reasons for this; anti-immigration policies had begun to multiply in the 1920s and 30s, and affected people’s ability to leave Europe for America before the Second World War. These policies led to the refusal of the St. Louis in May 1939,  because it carried 937 Jewish Europeans seeking refugee status in Cuba; Cuba would not take them, and according to the Immigration Act of 1924 that cut immigration from southeastern Europe sharply, neither would the U.S. (The Jewish refugees were sent back to Europe where they fell victim to Nazism.) After WWII, the Cold War encouraged U.S. officials to restrict European and Asian immigration as we became a fortress closed against Communism.

So we actually became less welcoming to Refugees from Foreign Wars, as they used to be called, during WWII. Famously, it took an emotional visit by First Lady Rosalyn Carter to starving and dying Vietnamese and Cambodian refugees from the Vietnam War to change our policy and allow them to enter the U.S.

In the 1920s, the U.S. banned immigration based on religion and race: “undesirable” Catholics, Jews, and people who were not considered white at that time like Italians and Czechs and Russians all had their quotas lowered. Since the 1950s, immigration has been viewed through the lens of politics and religion: Catholic Latinos in the 1970s-90s, and now Muslim Middle-Easterners are the new bogeymen. In the late 19th century and to the 1930s, southeastern European Jews and Catholics were decried  loudly by panicking white Protestants: their mission from the Pope or whoever controlled them was to destroy the U.S. government and our white nation. Today, the nativists panic as they claim… the exact same thing.

Muslims can’t understand democracy. They can’t participate in it. They won’t learn English. They hate our free society. They’ll bring their religious laws here and try to enforce them. They’ll destroy our government. They’ll commit acts of terrorism.

All of these hate-panic claims were once made about Italian, Jewish, Chinese, and Catholic immigrants. Somehow none of them came true.

Yet some of our political leaders are clearly nostalgic for the bad old days. Rick Santorum thinks all Syrian refugees should go back home and fight ISIS. Somehow they will succeed where Russian air strikes have not. Carly Fiorina wants all refugees screened for terrorism before they can come here. Rand Paul has a blanket “no” when it comes to Muslim refugees. Bobby Jindal thinks all refugees should be constantly monitored in the U.S., ankle-bracelet style. And Mike Huckabee thinks it’s “crazy” to take poor people from the “desert”, “who don’t speak our language, who don’t understand our culture, who don’t share a [sic] same worldview, and bring them to Minnesota during the winter”.

Luckily none of these people are running the country. Our president faced this front of ignorance by reminding us of who we are:

When I hear political leaders suggesting that there would be a religious test for which a person who is fleeing from a war-torn country is admitted, when some of those folks themselves come from families who benefited from protection when they were fleeing political persecution, that’s shameful, that’s not American. That’s not who we are. We don’t have religious tests (for) our compassion.

This is a much-needed counter-attack against those who insist that instituting the religious tests that our Constitution absolutely outlaws and deplores as undemocratic will keep our democracy safe. Suspecting people who have fled for their lives in a war of being warmongers whose only goal is to destroy any nation that takes them in and offers them hope is beyond ignorant. And it’s beyond American.

Whenever anti-immigrant, hate laws were passed in our history, there were Americans who stood up against them. There are always Americans who fight for justice for all. That’s our true identity. That’s American. Let’s remember that. Let’s remember who we are and how we got here, always aspiring to greatest-nation-on-Earth status, because the old saw is true: if we destroy everything we stand for in the name of security, the terrorists win.

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Court decisions are not “democracy”?

Posted on November 13, 2015. Filed under: Civil Rights, U.S. Constitution | Tags: , , |

We were listening to the news and heard someone being interviewed say that an issue in their state had been decided by the state Supreme Court, and therefore the issue “was solved by the courts, not by democracy”.

This idea that the judiciary, one of the three branches of our government as described by our Constitution, is somehow not part of our democratic system is a baffling one. We are forced to repost our original rebuttal of this idea, from 2008, here in the continuing effort to fight this misconception:

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

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

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

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

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

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

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

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

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

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

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

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

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The Ninth Amendment: (all unallocated) power to the people!

Posted on July 30, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

In part ten of our series on what’s in the Bill of Rights, we land on the Ninth Amendment, which is a harbinger of the Tenth and final amendment in that it is a portmanteau amendment: a short sentence packed with meaning.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That is, any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people. A right has to be explicitly withheld by the Constitution for it to be unlawful. You can see why this was necessary to state: all the rights citizens have can’t be listed in any document; it could get to a thousand pages and still be incomplete. The Ninth Amendment is sort of like “innocent until proven guilty”: an action is protected until it is specifically outlawed in the Constitution. It keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution. The main, big, fundamental rights are all in there; the many smaller rights are not, but they are indeed our rights until legislation and/or judicial decision makes them unconstitutional.

This puts a burden on the courts, of course, to decide cases where it’s not certain whether something should be made unconstitutional. But that’s how our system is supposed to work, through trial and error and case-by-case precedent and reinterpretation of precedent. Usually the Ninth Amendment is called into play to expand an existing Amendment right: for example, 1973’s Roe v Wade decision said that the right to choose to have an abortion is protected under the right to privacy: “the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

When it’s not assisting interpretation of other amendments, the Ninth Amendment is sometimes called into fundamental question. Harvard law professor Laurence Tribe has stated that “The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

That seems to be logical, but then again, a) it’s  important to know how to read the Constitution, and b), it’s even more important to remember that a democracy must assume that rights outnumber prohibitions. If citizens have to prove they are not breaking the law at every turn, if they are “guilty until proven innocent”, the power of the law is not with them. This idea will be reinforced by our next, and final, amendment.

Next time: the end of the road

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Why don’t we remember Watergate?

Posted on October 1, 2014. Filed under: Politics, U.S. Constitution, What History is For | Tags: , , , , , , |

Hello and welcome to the final post in our series on the Watergate Crisis, in which we ask the depressing question, Why have Americans forgotten about Watergate? This series has only given an outline of the terrible challenge to our democracy posed by President Nixon’s actions, and those of his top advisors. Their attempt to put the executive branch above the law and create an imperial presidency, if successful, would have allowed the president, any president, to commit any crime s/he felt was necessary to achieve her/his goals. Whether or not the president’s goals were good ones would be immaterial.

The American public’s response to this attempted hostile takeover was spectacular. They rose up almost as one to protest. Network news, newspapers large and small, and the man on the street all knew that the Constitution was being violated and they all refused to sit back and accept that. Nixon was out of office once his criminal activities and determination were clear. Maybe that’s part of the problem. The reaction was so swift and complete, and Nixon out so quickly (and immediately pardoned by Gerald Ford, so there was no long criminal trial after his resignation), and Americans so eager to leave the sordid episode behind them, that Watergate was collectively buried. More Americans today know about George Washington’s alleged infidelity (a complete lie, by the way) or Lincoln’s alleged homosexuality (don’t know, but it doesn’t seem likely) than the actual, open, undeniable crimes committed by Richard Nixon.

But we think the amnesia surrounding Watergate is caused by something far worse than a quick burial. One of the long-term effects of the crisis was a deep mistrust of the federal government. This is so inexplicable. Representatives of the federal government, notably the Watergate special prosecutor Cox, Attorneys General Richardson and Ruckelshaus, the Supreme Court, and all the members of the Senate Watergate Committee heroically resisted efforts to corrupt them. It was men within the president’s inner circle who committed and/or ordered the crimes, not the machinery of the federal government. The federal government rejected the attempt to transgress the Constitution, and the next two presidents after Nixon, Ford and Carter, made strenuous efforts to restore the dignity and honor of the executive branch. Yet somehow, over the 1980s, the message of Watergate became “You can’t trust the government.”

Perhaps the controversial/criminal actions of the Reagan Administration, coming so soon after Nixon’s, became merged with Nixon in the public mind, and led people to believe that the government had not been trustworthy since Kennedy.

Or maybe the steady decrease in civics education from the 1970s on created new generations of Americans who have no idea why Nixon’s actions were criminal.

Or maybe the imperial actions of President George W. Bush, and over a decade of invasion of privacy and other constitutional violations, notably by the Patriot Act, have made Americans forget that the president is not supposed to govern by executive order.

Whatever the reason, it’s bad news to forget about Watergate—what it threatened, who stood up to it, and how the Constitution and good government triumphed. If we begin to believe as a nation that we have “never” had good government, that “all” presidents are corrupt, or that the president is “supposed to” rule the nation like a king, then Nixon wins, corruption wins, and it’s as if Bill Ruckelshaus never stood up to the power of the president who told him he had “no choice but to obey” and said, “I have a choice—I can resign.” We all have the choice to refuse to obey when our Constitution is threatened, whether it’s by the federal government, or by our own ignorance.

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Federalists and Anti-Federalists: what did the debates do?

Posted on March 12, 2014. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , |

In our conclusion to our series on the Federalist debates that gave us our constitution, we try to wrap up their overall impact on the U.S., in their own time, and over the centuries since 1787.

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

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

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

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

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

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The Federalist Debate over the three branches of government

Posted on February 26, 2014. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , , |

Hello and welcome to part 7 of what is becoming a monumental series on the Federalist debates that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.

But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?

The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress)  given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?

Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.

The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.

As Madison puts it in Federalist Paper 51:

But the great security against a gradual concentration of [power] in [one branch of government], consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.

The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.

Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.

So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.

The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.

With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.

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