Tag: Constitution

Should Americans torture?

Time for a civics lesson.

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

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

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

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

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

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

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

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

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

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

The Judiciary saves us from the tyranny of the majority

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

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

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

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

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

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

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

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

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

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

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

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

John Adams has my vote!

I was reading Adam’s 1797 inaugural speech, where he has this to say about the American people, when faced by the obvious inability of the Articles of Confederation to form a “durable” government for the United States:

“In this dangerous crisis the people of America were not abandoned by their usual good sense, presence of mind, resolution, or integrity. Measures were pursued to concert a plan to form a more perfect union, establish justice… and secure the blessings of liberty. The public disquisitions, discussions, and deliberations issued in the present happy Constitution of Government.”

Just so! As I point out in Truth v. Myth: The Declaration of Independence, the usual course of action when a newborn revolutionary government begins to stumble is to descend into total, bloody civil war, out of which a harsh and reactionary government usually emerges.

Not so in the United States.

Adams goes on to say something that was true of him, and should be true of every president and presidential candidate: “I had the honor to be elected to a station under the new order of things, and I have repeatedly laid myself under the most serious obligations to support the Constitution.”

If we were to vote for presidential candidates based on how much and how well they uphold our laws, our Constitution, our system of government, we would be a much-improved nation. If our lawmakers and politicians were willing to experience serious challenges in their support of our Constitution, we would be a much-improved nation.

For, as Adams asks, “What other form of government, indeed, can so well deserve our esteem and love?”

A candidate who loves and esteems our form of government. Think of it! Not someone who has a particular agenda, but someone whose particular agenda is motivated by determination to fulfill our mandate as a democratic nation based on promoting natural rights.

That’s who to vote for. Too bad it’s not 1797.

The Constitution and Slavery

We the people… whenever we see it, we ask ourselves who they were. We ask ourselves about slavery. Just like the Founders did.

 

For people who are often accused of “not caring” about slavery, the Founders spilled a lot of ink arguing about it. Just as the Declaration of Independence dealt with slavery, so did the Constitution. People still thought and hoped slavery was just about to die on its own. But since it hadn’t died, yet, the same problem arose as had arisen in 1776: how do we deal with slavery when founding a nation on natural rights?

 

Well, the answer is to get rid of slavery. So why didn’t they?

 

Because the slaveholding states threatened to break up the Union if slavery was abolished. The question at the time was, do you want an imperfect United States or no United States at all? The states in which slavery was protected, where slavery was crucial to the state economy and social structure (almost all southern states), were serious in their answer. They were not about to remain part of a union that abolished slavery.

 

When you look at all the demands slave states made at the Constitutional Convention, you see both how radically they would have changed the United States, and how hard antislavery delegates had to fight to control them. Slaveholding states wanted to maintain or expand the slave trade (keep slave ships going to and from Africa) and hopefully take it over and run it themselves, supplying the world with enslaved people. They wanted no federal restrictions on slavery in the western territories, and a specific section of the Constitution prohibiting any federal restriction of the rights of slaveholders—that is, a guaranty that slavery would not just be allowed, but allowed to flourish. It was clear that the southern states would leave the union if a national emancipation policy was ever attempted. See Joseph Ellis’ fantastic book Founding Brothers: The Revolutionary Generation for a full examination of this.

 

So we see that it wasn’t so much “the Founders” or “uncaring northerners” or even “the Constitution” that allowed slavery to exist. It was a concrete group of southern slaveholding delegates and politicians, led by James Madison, who threatened to leave the Union and destroy it if slavery was not protected.

 

We know that organizing representation to Congress was the biggest headache facing the delegates, and slavery was part of it. The solution of the three-fifths clause, which counted three-fifths of the number of enslaved Americans as population, is shameful. But antislavery delegates accepted it, relying on the imminent death of slavery to make the question moot, and again, unwilling to sacrifice the entire experiment of America over slavery. Their feeling was, get the nation stabilized, and then we can perfect it. We see that as a cop-out, but at least it came after 12 years of constant churn and effort. We often lose our collective will today after much less time and almost no effort at all.

 

While slavery was protected from abolition by the Constitution, and the slave trade could not be abolished for 20 years after ratification (1808), the document itself never uses the word slavery. Why? Because people were embarrassed and ashamed to put that word into the Constitution. Because they knew it was wrong. Just as the Declaration put in Happiness instead of Property, the Constitution put in interests instead of slavery.

 

The Constitution was written; now it had to be ratified by popularly elected state legislatures. And here’s where we see that it wasn’t a small group of rich white wig-wearers who dictated the course of American history.

 

The American public was utterly passionate about the Constitution. They weren’t going to just ratify whatever they were given. And they weren’t going to let the issue get strangled in red-tape and delay. In short, they didn’t leave it to the politicians. In Pennsylvania, when the state assembly fell short of a quorum to call a state ratifying convention, a mob dragged two assemblymen from their homes to the State house, forcing them to stay while the assembly voted.

 

Americans also clamored for a Bill of Rights. Why? Because they wanted those original natural rights to be explicitly protected by the new government. Americans were not pretending to carry the revolution from the battlefield to the legislature; they were really doing it.

 

With human rights on their minds, Americans faced the compromises over slavery. Most were not happy with them. But in the end, most Americans agreed that the experiment was not worth abandoning over slavery. Again, we recognize this as a failure today, knowing that it would take a civil war to end slavery, but it is actually true that in 1787, many antislavery (and some proslavery) Americans believed slavery would die out within a generation. And what would guarantee that process more firmly than establishing a democratic union? What good would it do to insist on abolishing slavery now, thought people in 1787, thus driving the southern states out of the union? That way, slavery was guaranteed to go on in the south, in whatever nation was created there. But if those southern states were coaxed into the democratic union, slavery would end. Northern states were passing gradual emancipation acts; so would the south.

 

The Constitution was ratified, but it was close. The nation was established. It was a remarkable achievement. We’ve seen that the nation really was founded on revolutionary ideals, and that all those ideals were not betrayed by the Founders. The inclusion of slavery in the new nation was a problem and a mistake, but it was not the result of apathy or complacence. Slavery was protected because the Founders, and most Americans, could not bear to destroy the nation by abolishing slavery and losing the southern states of the union.

 

Today, we think that would have been preferable. Why not just lose the south and create a free union with the states that were left? It would have been better. But in reality, if the southern states had seceded in 1787, the likelihood of the remaining states banding together was small. We’ve seen that the states had only the loosest ties with each other, and almost no loyalty to each other. If some left, others would go, too, unable to resist the lure of individual sovereignty. Americans at the time knew this.

 

The Constitution sums up the achievements of the Founding Generation, both the men in the paintings and the people at large. No people had ever formed a working government based on natural rights before. Hammering out ways to guaranty fair representation to the government, prevent government tyranny, and protect individual rights was blood, sweat, and tears difficult. Ending slavery, so insidiously entwined in southern American life and northern American commerce, “was a challenge on the same gigantic scale as these achievements.” [Ellis 108] It was not done in one generation, not even a generation so remarkable as the Founding Generation. But the wheels were set in motion. A person born in 1787 could live to see the Civil War fought, and slavery ended; the span of one long life was all it took to finally make good on the Constitution’s promise of liberty and equality.

 

So. Can you be proud of the Founders of your nation? Yes. Absolutely. They did the impossible. And by Founders I mean all Americans, not just the men in the paintings. The Founding Generation. The challenge of creating the United States was mind-boggling. We take it for granted today. We take the intelligence and creativity and passion and struggle of the Founding generation for granted. As if the rules were clear and they just had to write them down.

 

But America is exceptional. An exception to all rules. We were the first people to found a long-term working government dedicated to the preservation of natural rights. Today as I write, nations with this form of government are still in the minority. It’s very hard to live up to the principles of natural rights. We fail at it all the time. But we do also succeed at it. And we have a responsibility to do so.