Why are anti-choice”heartbeat” laws unconstitutional?

We’re back with a follow-up to our post on the unconstitutional Texas Senate Bill 8 – or, as we call it, the Fugitive Abortion Act.

We had promised back in our first post to talk about how the bill, now a law, has been playing out. As expected, other states controlled by Republican legislators are gearing up to pass equivalent bills; Florida’s are working on the basically identical “Florida Heartbeat Act” – “ban most abortions as early as around six weeks, allow members of the public to sue anyone who helps end a pregnancy beyond that point and fine physicians $10,000 for each abortion they perform later in pregnancy.”

You will always hear opponents say these bills are unconstitutional. You will never hear them explain why. Is the right to get an abortion protected by name in the Constitution? It is not. So how are these laws unconstitutional? Here’s a very useful explainer from Cornell Law School’s Legal Information Institute:

In Roe v. Wade [1973], the [Supreme] Court established a right of personal privacy protected by the Due Process Clause [of the Constitution] that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In other words, the Supreme Court interpreted the Fourteenth Amendment of the Constitution, guaranteeing personal privacy, to include the personal decision about whether to end a pregnancy. It also interpreted the Due Process Clause of the Constitution to refer only to people, not embryos or fetuses (“the unborn”), sensibly acknowledging that embryos and fetuses cannot be understood the enjoy the right to due process before the law because they are not people.

This is the decision that anti-choice and anti-woman forces have been successfully working to overturn for the past 49 years. Their identification of embryos and fetuses as “children” and “babies”, even from the moment the first cell divides, has been very effective in convincing their followers that the unborn are indeed people with rights–rights that even overrule the rights of the actual people who are pregnant.

This deliberate untruth has impacted the U.S. in many ways aside from the battle to allow people who are pregnant to decide whether they should continue their pregnancy. It’s one of the foundational arguments of anti-vaccine activists who “have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue”. They are willing to infect and potentially kill actual people, including themselves, in order to claim “rights” to life for cells, embryos, and fetuses.

As we cannot state often enough, this is a prime example of the dangers of claiming that the Constitution protects “religious belief.” We’ve said it before, we’ll say it again:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.
The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.
It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public restrooms, or cats can’t be kept as pets, and we would have to be accommodated.
The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

People are allowed to believe anything they like, including that a dividing cell is a baby. But they are not allowed by our Constitution to enforce their beliefs through laws, for the simple reason that laws apply to everyone, no matter their personal beliefs. That’s one of the reasons why the new laws in Texas and Florida and elsewhere are so dangerous: they include the innovation of having other citizens, rather than state officials or law enforcement officers, enforce the laws by bringing lawsuits against people who seek abortions. This weaponizes people whose personal beliefs align with denying pregnant people control over their own bodies, and gives their personal feelings the power of law.

It also turns our established legal principle of “innocent until proven guilty” on its head by forcing people into court to prove that they have not had an “illegal” abortion–guilty until they prove themselves innocent, and guilty on the basis of violating someone else’s personal, religious beliefs.

This is not the America we want. It’s not what the Founders who wrote the Constitution wanted. Americans who value their natural rights as guaranteed by the Constitution have to be as active in defending them as Americans who do not value them are in tearing them down.

Texas Senate Bill 8 is the Fugitive Abortion Act of 2021

Section 7 – And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

That’s Section 7 of the Fugitive Slave Act of 1850. This Act of Congress allowed states and territories of the U.S. to create commissioners to hunt down black Americans who escaped slavery and return them to their enslavers. If an enslaved person was able to reach a state that had legally banned slavery, their enslaved status was not overturned. Instead, the people of that state were forced, by Section 7, to void their own antislavery laws by helping the slave commissioners in whatever way those commissioners demanded: help them to find enslaved people, take them into custody, guard them while they awaited return to their enslaver, and turn them over to the enslaver. Preventing a slave commissioner from enforcing slavery in a free state was illegal. Helping an enslaved person hide or escape was illegal. Knowing about people who were helping or hiding enslaved people was illegal, because it was a form of “hindering” the slave commissioner. The penalty for those who hindered slavery, directly or indirectly, was a $1,000 fine (a fortune in the mid-1800s), up to six months in prison, and another $1,000 fine to pay back the enslaver the “civil damages” they experienced as “the party injured by such illegal conduct”. Since very few Americans would have $1,000 to pay the first fine, the second $1,000 would be collected “by action of debt” – that is, seizure of property and/or any other asset the person might possess.

We posted about the FSA four years ago, in September 2017 in “The 2017 Fugitive Slave Act”; that time, we were comparing it to laws making it criminal to help immigrants who are in the U.S. illegally, and turning police officers into “immigrant-catchers” just like the slave commissioners were “slave-catchers”. When you are rewarded for doing something, you will find ways to do it. When you are punished for doing something, you’ll stop. That’s how these acts work.

This September, in Part 1 of a short series, we’re comparing the Fugitive Slave Act of 1850 to the 2021 Texas Senate Bill 8. Why? Because this Bill, now law, makes it illegal for a woman to get an abortion after six weeks of pregnancy in the state of Texas, and therefore illegal for anyone to provide an abortion or, crucially, to help a woman to get an abortion in Texas after six weeks in any way. Abortion is realistically banned by this procedure, not just or primarily because not all women know that they are pregnant at just six weeks, but because

–all women are forced to make two appointments with an abortion provider, one to get an ultrasound so they can be shown their “baby” and told that they will be “murdering” it if they get an abortion, and one to get another ultrasound before the procedure;

–women under age 18 are forced to get written and signed parental approval to get an abortion; and

–only women with strong support systems, money, and flexible employers who allow time off are able to travel out of Texas to a state that does provide abortions after six weeks.

With the passage of this bill into law, it’s not just illegal to perform an abortion; it’s also illegal to drive a woman out of state to get one elsewhere, to pay for one, or, potentially, to tell a woman where she can get an abortion after six weeks. The law is purposefully vague, using the phrase “conduct that aids or abets the performance or inducement of an abortion” to cover just about anything.

Let’s do a close reading. We took the text of this Bill from the website Texas Legislature Online, which is part of the official State of Texas government website. We’re not reproducing the entire text, but letting you know which sections we’re looking at.

AN ACT
relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. This Act shall be known as the Texas Heartbeat Act.

–The use of the word “child” is already a red flag for subjectivity. A fetus at 6 weeks is a fetus, not a “child”. Anti-choice advocates have long used the words “baby” or “child” to describe something that could one day be a baby or child, but currently is not. From the moment an egg is fertilized by sperm, it’s a “baby”, as Section 171.201 (5) says: “‘Pregnancy’ means the human female reproductive condition that: (A) begins with fertilization”.

Calling the Bill the “Texas Heartbeat Act” technically refers to the fact that a fetal heartbeat is detected between 3-6 weeks after fertilization. But even the language of this Bill in Section 171.201 (1) reveals what a technicality this is: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Is this what anti-choice advocates want you to think of when you hear “Texas Heartbeat Act”? No; they want you to think of a valentine-shaped heart that represents a baby with feelings and emotions.

Basically, calling a 6-week old fetus a “child” or “baby” is like calling someone you enslave a “laborer” or “worker”, as the Fugitive Slave Act of 1850 did, consistently calling people who escaped slavery “fugitives from labor.”

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

–Here the Bill leads early with its key component: it’s not being enforced by the State government. No enforcement of the Bill may be taken or threatened by anyone representing the state. Here’s the first part of that following section they refer to:

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

–Texas never claimed that this Bill is constitutional. The evil genius of it is that it doesn’t have to be constitutional if the state is not carrying it out. No one working for the state government of Texas will be asked to prevent a woman from getting an abortion, or take anyone to court for having an abortion or helping a woman to get one. The state’s hands are off. It’s private citizens who will do this work. Yes, they’re authorized by state law, but this means that anyone who wants to challenge this law will have to go after every individual citizen who acts on it–which could be thousands or tens of thousands of people. No one can sue the State of Texas over it.

Pro-choice advocates will certainly take the first private citizen who acts on this law to court, and hope to work that individual case up to the Supreme Court, just like Brown v. Board of Education or Plessy v. Ferguson. But in the meantime, unknown numbers of people will continue to act on it–far greater numbers than work in Texas state government. 25 million people live in Texas. Far fewer work in state government.

This is an authorization of vigilantism, as we will see. Let’s continue that last section:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(1)  performs or induces an abortion in violation of this subchapter;
(2)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(1) is clear: no abortions can be provided after six weeks. (2) is that horribly vague “conduct that aids or abets the performance” of an abortion that could cover anything. The only specific they give is that insurance companies that pay for abortion can be sued. The vanishingly small number of insurance companies that ever cover abortion will soon, one fears, be reduced to zero.

You may be asking at this point, where is the burden of proof? How can anyone prove that someone “aided or abetted” in an abortion in any way? It’s just hearsay–I can go to court and say “I know that Person A drove Person B to get an abortion” or, worse, “I know that Person A encouraged Person B to get an abortion,” or even “Person A knew that when Person B left the house that day they were going to drive out of state to get an abortion and didn’t try to stop them.” There’s no end to the dystopian nightmare that is made possible here.

This law also makes someone guilty until proven innocent, which is the opposite of the legal principle the U.S. is founded on. If Person A is sued, they are forced to appear in court and argue that they are innocent. The Bill refers to someone in this situation as the “defendant” and the person who sued them as “the claimant”, and never was the word “claim” so accurately and awfully used. No one making a claim against someone will be thrown out of court, and every groundless case will have to be heard–and the “defendant” will pay all the legal fees if they are found guilty, and the state will pay all the legal fees if they are not, as we see here:

[3] (b)  If a claimant prevails in an action brought under this section, the court shall award:
(1)  injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;
(2)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and
(3)  costs and attorney’s fees.

So if Person X takes Person A to court and wins, Person A is first made incapable of repeating their crime (“injunctive relief” is a court order that demands that someone stop doing something), and Person X, the Claimant, gets “not less than” $10,000 for each abortion performed or “aided and abetted” by Person A, and the court will pay for Person X’s court costs and attorney’s fees. Person X, of course, pays their own costs and fees.

Remember how the Fugitive Slave Act guaranteed $1,000 to anyone who turned in someone hindering a slave commissioner? And put the hinderer in jail, and made them pay another $1,000 so they couldn’t do it again (injunctive relief)? Just add a zero to the Texas law and we’ve got the same situation, except that in 1850 the person found guilty paid the reward to the person who had turned them in. Now, it’s all taxpayers in Texas. Everyone, regardless of their stance on abortion, is helping to prosecute people who provide or “aid and abet” abortion.

(d) Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

–There’s a statute of limitations of four years on suing someone for providing, aiding or abetting abortion. We’re surprised it’s that short. Why fear that memory or hearsay or “claims” will be harder to prove with passage of time? Concerns about proof don’t seem to trouble anyone who wrote or passed this Bill.

Sec. 171.212. SEVERABILITY.
(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

–This is surprisingly frank. The Texas state legislature would have passed last word of this bill, “irrespective of the fact” that any part of it “were to be declared unconstitutional or to represent an undue burden.”

Part of this lack of concern for constitutional law comes from their deviant removal of enforcement from the state to the private citizen–again, it doesn’t matter if the law is unconstitutional if the state is not carrying it out (even though the state is, of course, carrying it out by allowing cases to be heard and punishing the courts if they don’t hear the cases).

But the larger part is that this is meant to be read as a brave, moral stand against the immorality of abortion. Even if the whole world tells us we’re wrong, the lawmakers say, we know that we’re right, and we stand by it. This wrapping oneself in morality is very selective in the U.S., and seems mostly to occur when right-wing politicians go against something liberal politicians support.

It’s also almost always about life-or-death stands that are fairly meaningless: support our troops by funding weapons and wars, because they’re fighting for our freedom… but don’t give military personnel a living wage, safety from rape and/or abuse based on sexuality, good life and health insurance, easy access to quality mental or physical health care, or good housing.

Here, it’s don’t “kill” an unborn “child” because that’s “murder”… but once that child is born, do nothing to fund early childhood education, school breakfasts, mother and infant health care, affordable and safe day care, after-school programs, or anything else that will help that child live a good life. This is not being “pro-life” but “pro-birth”.

People who ban abortion are almost always “pro-birth”. They want huge governmental involvement, investment, and protection for stopping abortion, and zero of the above for helping all children thrive, regardless of race, religion, first language, income, sex, sexuality, etc. They usually follow pro-birth laws with measures designed to prevent exactly that kind of level playing field for the children they insist be born, from segregated schools to gay “conversion camps” (aka torture centers).

There’s no room for this in a democratic nation. The history of the United States is one of incrementally increasing democracy, of getting closer to liberty and justice for all. Making a Christian position against abortion the law for all Texans, and, one day, for all Americans, is a violation of our founding principle of separation of church and state. Un-American oppression and disregard for the Constitution, vigilantism and sexism, have no place in our nation. Religious belief is not protected by the Constitution, as we’ve noted before:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.
The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.
It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.
The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

Laws like the ones passed in Texas, and getting closer to passage in many other states, define one specific version of Christianity as “religious belief”, and seek to make it the state (and national) religion. That’s not what we’re supposed to do in America.

Next time, details of how the law is playing out in Texas–and beyond–and a primer in why these anti-choice laws are unconstitutional.

What is virtuous Republicanism? in the Federalist debates

Rerunning our series on the Federalist debates; here we look at the pros and cons of a strong federal government as argued at the time.

The Anti-Federalists wanted to keep government local. They did not want to change the sections of the Articles of Confederation that gave power to state governments and relegated the federal government to handling defense and foreign relations. That is, they wanted a confederation, not a union, of sovereign states that decided on their own whether they would heed calls from the federal government for taxation, or a military call-up, or a foreign treaty, etc. For instance, as we’ll see later in this series, when Alexander Hamilton proposed that the federal government must have the right to tax the states, unilaterally, in time of war, the Anti-Federalist response was to say, why not have the federal government go to the states when it felt it needed to raise money for war and the states would vote on whether to pay it. To us today that seems unworkable at best, crazy at worst, but it is clearly grounded in English law: the monarch had to go to Parliament to ask it to levy a tax to fight a war. This was a check on the monarch’s power meant to keep a monarch from bankrupting the kingdom in endless or losing wars. Parliament decided whether it would grant the money or not, considering whether the tax was in the best interest of the people. On the other hand, it was the breakdown of this system that had led to the English Civil War in 1642.

It’s obvious that the Anti-Federalists were worried that a strong federal government would begin to tyrannize over the states, as the British government in London had tyrannized its American colonies. But that British tyranny was just a symptom of a larger problem to the Anti-Federalists: the loss of virtuous republicanism.

Enlightenment political theorists described a successful republic as fueled by the private virtue of its citizens. Serving the state selflessly, devoting one’s energies to ensuring that the state fulfilled the common good, was an end in itself in the ideal/successful republic. All republics in history had failed, said the theorists, because civic virtue broke down—corrupted by power, or weakened by lazy inactivity. Of all the types of government, republicanism alone depended on the dedication of its citizens to the greater good and virtue as an end in itself.

This kind of republican virtue could only exist locally, according to the Anti-Federalists. When do people care about government? When they own it. When local people in local bodies make local rules, when you know your representatives and live next door to them and do business with them, then government is honest and effective, because it is truly representative, and any participant who goes against the common good is quickly voted out of office. State governments run by locally elected reps who live among their constituents can’t go wrong, especially in America, where the common people had proved their great republican virtue during the Revolutionary War by keeping their elected governments running and their local militias fighting.

The chances of local state governments remaining uncorrupted were made even greater by the fact that state reps would be elected by, and would mostly be themselves, farmers. Thomas Jefferson is the most famous of the advocates of the virtue of the yeoman farmer. A romanticized view of men who were “close to the land, close to God” was very popular during the Federal period, and continues on to a certain extent to the present day. To quote just one of Jefferson’s typical effusions:

“Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth.”

(How a man who saw most farming done by enslaved men and women whom he described as incapable of virtue could wax so poetically so often is a riddle.) At any rate, farmers were seen as the polar opposites of bankers and businessmen: farmers did not make their money off of other people, did not get rich collecting interest on debt, etc. Farmers made an honest living working the land. Therefore, farmers should be the heart and soul of local government. Of course, in the late 1700s, the American economy was predominately agricultural, and most people were farmers, so to have a government run by farmers was not only possible, but natural, and truly representative.

To remove government from the states to a federal government, no matter how centrally located, was to strike a blow against republican virtue. Reps sent to that distant national capital would be necessarily distanced from their constituents, and lose touch with them. Local interests in one state would have to fight with the local interests of another state in the capital. State needs could be overruled by cooked-up “national needs”. Traveling to and from the capital, in an era when the nation had few good roads, meant reps would be on the road or in the capital most of the time, not living amongst their constituents. Farmers would not be able to be away from their farms for months at a time to do this, so citizens might stop electing farmers, people like them, and start electing urban businessmen who could wheel and deal more effectively, but, as a result of that, politics would become sleazy. And, crucially, local needs and local focus would take a back seat to national needs and national focus, which impinged on the sovereignty of the states—when you focus on national laws and taxes, you prioritize the national over the state/local, and the states become cogs in a machine rather than separate political entities. As the nation grew, any capital, no matter how centrally placed in 1787, would become distant and out of touch with its far-flung state citizens, and then tyranny inevitably beckoned.

Again, we recognize here an argument that has never died out of American politics. “Washington insiders” are “out of touch” with “the American people”, “Wall Street” tyrannizes over “Main Street”, and the world “outside the Beltway” has nothing in common with the world inside it. “Big government” is ruining the nation, and government itself “is the problem”. We still even like to idealize farmers, at least in produce and truck commercials. And the push to weaken the federal government and return more power and sovereignty to the states has been going strong since the 1980s.

But the belief that state governments, because they are smaller than the federal government, cannot become corrupt was strange in 1787 and it remains strange today. Power corrupts, and any entity given power runs the risk of corruption. We see corruption at all levels of our government, from city halls to state legislatures. If the federal government were wiped away tomorrow, and the states ran everything, local corruption levels would rise commensurately. Mayoral elections in cities large and small are generally characterized by claims that the candidates do not reflect or represent the people; the same thing happens in elections for state government and governorships. Our population is too diverse for any one person, to fully represent all her/his constituents. And gerrymandering and redistricting efforts make sure that no group of legislators can accurately represent the people of their state.

Yet that is exactly why we can’t completely discount the Anti-Federalists’ desire to pin government to citizen virtue. If everyone felt they really had ownership in their local government, they would work harder to safeguard that government. They would vote, and run for office, and insist on reps who really represented them. A representative democracy like ours is a rarity in the world; only a relative handful of nations really have truly representative democracies. And it does rely on its citizens’ virtue: they have to really believe in life, liberty, and justice for all, and be ready to put their fortunes and even their lives on the line for it. Our current federal government, as well as our state governments, work well only when stocked by people who have that kind of virtue.The Anti-Federalists were right to insist on this.

So how did the Federalists answer these domestic concerns? Find out next time.

How the U.S. Constitution was born

Welcome to part the last of our series on Bernard Bailyn’s masterful description of the transformation of American political thought in the decade before 1775. Here we look at how the idea of a Constitution of principle took off once it was properly presented. As Bailyn puts it:

The transition to more advanced group was forced forward by the continuing need, after 1764, to distinguish fundamentals from institutions and from the actions of government so that they might serve as limits and controls. Once its utility was perceived and demonstrated, this process of disengaging principles from institutions and from the positive actions of government and then of conceiving of them as fixed sets of rules and boundaries, when on swiftly. [181]

Americans, as Bailyn spends a long early chapter explaining, seemed to fear nothing more than unlimited government that became tyrannical. Abuse of power was the worst possible abuse. That’s why most Americans had resisted a government based on theory–theory could infinitely expand and be used to justify any abuse of power. Better to send reps to the legislature with a few concrete demands than to have them while away their hours coming up with “ideas” to guide them.

But it became clear to these Americans that Principle did not have to be used for evil expansion of power. Principles could be used to limit government. The U.S. Constitution is a tribute to where this thinking quickly led–it can definitely read sometimes like it’s primarily a list of what the federal government cannot do rather than what it can. Principles can be used to curb government by giving natural rights to the individual citizen, and institutions like the free public press.

If politicians drew their power to act from a set of written principles that the voters had agreed upon, then those principles–the Constitution–began to seem like it had a lot in common with those written rules and requirements towns used to send their reps to the legislature with. One knew that one’s reps were bound by the principles of the Constitution, and, if that constitution was properly written, it would curb the power of the government.

This helped Americans to separate bodies of law from actual bodies of government. Parliament, or the colonial legislature, were not the constitution. They were not the law. They did not write laws by their own authority. Americans quickly adopted the idea that legislatures were authorized to write laws by authority of the constitution they were governed by. They could not create laws that violated that constitution. Legislatures were not synonymous with the law, and they were not above it.

This flew in the face of the established English legal tradition that the body of laws Parliament had created over the centuries was the English constitution, and therefore Parliament itself was the ultimate authority. As Zubly put it, the Americans were diverging into the belief that

Parliament derives its authority and power from the constitution, and not the constitution from Parliament… the constitution is permanent and ever the same, [and Parliament] can no more make laws which are against the constitution or the unalterable privileges of the British subjects than it can alter the constitution itself… The power of Parliament, and of every branch of it, has its bounds assigned by the constitution. [181-2]

This leads fairly naturally to the idea that a people and their legislature must have a written constitution to operate by. The English tradition that the entire great body of law and precedent created over the centuries was the constitution was unacceptable. That great body of law had no guiding principles–it contained laws that contradicted each other, laws that were written on the spur of the moment, laws that were the brainchild of individual men. And it put the cart before the horse: a legislature doesn’t make a constitution possible; a constitution makes legislation possible.

Bailyn goes on to the end of this chapter to describe how different colonies began to implement this idea, and it’s good reading. But we’ll close our series with a final quote from this great historian:

These changes in the view–of what a constitution was and of the proper emphasis in the understanding of rights–were momentous; they would shape the entire future development of American constitutional thought and practice.

It’s great to really study the intellectual history of our revolution, and to remind ourselves that it was not all about “Americans didn’t want to pay taxes”.

How America developed its Constitution

Here in part 5 of our series on Bernard Bailyn’s masterful description of American political thinking in the transitional decade of the 1760s, we come to the second revolution in political thinking that occurred in a very short period: the idea of a constitution of principles.

English legal tradition had defined the “constitution” as the legislature itself–“a legal constitution, that is, a legislature”, as Richard Bland put it. Bailyn describes how the work of the American lawyer James Otis began to articulate a new definition of a constitution as a moral foundation for the work of a legislature, a set of principles that informed and put boundaries on what a legislature could do. Bailyn sums this up as “a set of fixed principles and rules distinguishable from, antecedent to, more fundamental than, and controlling the operating institutions of government” (176).

In this understanding, a constitution authorized and limited the legislature’s actions. Since all of this thinking was going on in the context of English law, the question of whether a constitution authorized and limited the monarch’s actions did not come into play. And as we know, after the Revolution there was still substantial support in the new United States for a monarch-like president who stood above the law. But the idea that Congress, House and Senate, had to abide by a constitution of principles was firmly established–so much so that the American people famously demanded a Bill of their rights be added to the Constitution that they, the people, ratified, so that Congress would be clearly bound to protect principles of personal liberty, and, even more important to people at the time, restrained, constrained, and prevented from expanding its powers and becoming tyrannical.

But that’s leaping ahead. During the period 1765-1775, Americans were working out the first step, which was how to define the principles a constitution should uphold. Were they simply the recognized legal principles handed down from legislature to legislature over the centuries of English practice? Were they religious principles of Anglican Christianity? Were they the new and radical tenets of natural law? It was easier to use the term “fundamental law” and “formal principles” than to define them, especially in America, where there had been so much steely and deliberate resistance to the idea of men in a legislature serving any other principle than “I will follow the orders my townspeople gave me.”

Otis wrote that Parliament could not be allowed to violate natural laws “which are immutably true,” because that would violate “eternal truth, equity, and justice,” and therefore any act of Parliament that violated natural law would be “void.” But how do we define what is “immutably true”? How do we come to agree on what is eternally true, fair, and just? What we discover is that the foundation of any constitution is a shared agreement on, and belief in, some powerful concepts of truth, fairness, and justice.

We see this shared agreement stated elegantly in the opening words of our Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

We hold these truths–it took years of debate, ten thousand letters and editorial essays printed in newspapers, tens of thousands of sheets of paper, a million letters between Americans, and countless millions of conversations in taverns, family homes, business offices, and farm fields to define who “We” were and what the “truth” was. That all this intellectual activity was compressed into about 10 years–1765-1776–is remarkable, and shows how important those definitions were to Americans at all levels of society. The same debate went on for another ten years, until our Constitution was drafted in 1787.

Even Otis did not go as far as his fellow Revolutionaries would. He did not believe that a constitution would “furnish judges with grounds for declaring [laws] nonexistent because they conflicted with the ‘constitution,’ but only[provide] judges with principles of interpretation by which to modify gross inequities in ways that would allow traditional [definitions] of justice to prevail.” [180] The idea that inherited laws and legal procedures, inherited concepts of law that were centuries-old, should still stand as the test of whether an act of Parliament was valid would be vehemently discarded by the men who wrote our Declaration and, eventually, our Constitution. Longevity was not truth, tradition was not equity.

We’ll finish next time with the path to concretizing the new American idea(l) of a modern constitution of principle.

Trump and Lincoln’s Cooper Union speech

Welcome to part four of our series on the serious and striking comparisons between the U.S. in the months (and years) before the 1860 presidential campaign and the 2016 presidential campaign. Here we take a look at Abraham Lincoln’s speech at the Cooper Institute in New York City (now Cooper Union) on February 28, 1860 and compare one part of it with the rhetoric coming from Trump supporters in 2016.

Again, our point of comparison between the 1860 and the 2016 presidential campaigns is sectionalism. In 1860, slavery drove sectional division north and south. In 2016, as we say in our first post,

Today’s sectionalism, then, represents a divide between liberals and conservatives that seems as strong as the divide between North and South ever did. Liberals and conservatives are found in every geographic region of the country, which means there is no region that serves as a safe haven for either…

Sub out “slavery” for “gun control”, “immigration”, or “war on Christianity”and you find that the language used in the 1860 campaign is strangely similar to the language used so far in the 2016 campaign.

In the Cooper Union address, Lincoln represented the new Republican Party, in only its second presidential election season. He was in 1860 still walking the fine line of saying that while the Republican Party was dedicated to stopping the spread of slavery into the west, it would not try to abolish slavery in the south. In most of his speeches on the campaign trail, Lincoln tried to do two things at once: force southerners to accept a Republican victory, if it came, by emphasizing that winning the popular vote would mean that most Americans wanted to stop the spread of slavery and therefore southerners could not claim that the election had been hijacked by a radical minority; and convince southerners that this antislavery majority did not mean that the south would have to get on board with the rest of the nation and abolish slavery.

This is the context for the statement we’re about to quote from the Cooper Union address, in which Lincoln addresses proslaveryites and debunks their claim that they have a Constitutional right to enslave other people and, therefore, an implied right to secede from the Union if slavery is abolished or even limited to the south. Here is the candidate:

…But you will break up the Union, rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound: but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours to take slaves into the Federal Territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is, that you will destroy the Government, unless you be allowed to construe the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

Sub out “slaves” and the right to enslave for the right of anyone and everyone to buy and openly carry guns anywhere in public, even schools, or the right of self-professed Christians to deny public services to people who they feel offend Christianity, or the right of anti-choice legislatures to deny women access to health care from providers that also perform abortions, and you have a Democratic speech right out of 2016.

Many people today who self-identify as conservative in our new sectionalism of conservative v. liberal consistently claim a constitutional right to deprive others of their personal liberties. Yet the Constitution, as Lincoln points out, is “literally silent about any such right”. The Second Amendment does not protect private gun ownership for private use; it protects the right of American citizens to own guns so they can fight in local militias sanctioned and controlled by local governments. The Constitution does not mention Christianity in any way, and the Founders officially denied any Christian basis for the United States. Abortion or the rights of fetuses are not in the Constitution.

Too often an American’s right to freedom of speech, which actually is in the Constitution, is construed to protect “rights” that are not in the Constitution. Ever since the Supreme Court decided that actions could be identified as speech, this has happened. If it’s constitutional to protest outside an abortion clinic, clinics must be unconstitutional. If religious freedom is protected in the Constitution, then all of my religious beliefs must also be constitutionally protected (nope—see Gay Marriage, Religious Freedom, and the First Amendment for a rundown of the difference between religious worship and religious belief).

But conservatives who believe that all their beliefs are enshrined in the Constitution are often deaf to these arguments. As Lincoln put it, they will destroy the Government, unless they be allowed to construe the Constitution as they please, on all points in dispute between them and liberals. They will rule or ruin in all events. The eagerness of Trump’s supporters to destroy the federal government that they see as denying them their constitutional rights is a harvest sown by neoconservative Republicans for over thirty years now. This anti-government, Constitution-bending activist section may likely dispute the outcome of the presidential election if Clinton wins. And so we find ourselves, like Lincoln, facing a possible contested election over chimerical Constitutional rights. Secession seems slightly less likely today than in 1860… but it seemed unlikely to most observers in 1860.

Next time: on with the 1860 campaigns

A Holiday Gift: Religious Tolerance

Here’s a sharp video from Dr. Larry Schweikart, University of Dayton, on the PragerU site that explains the origins of religious tolerance in the English colonies of North America, and the astounding breakthrough that was the First Amendment of the U.S. Constitution. He even gets the Puritans right! Since WordPress won’t let us import the video, we just have to give you the link:

Religious Tolerance: Made in America

Enjoy, and enjoy watching a short video rather than reading reams of text from the HP crew. That’s our gift to you!

Saying the Pledge of Allegiance: A Test of Citizenship?

Every so often a public debate occurs over the question of whether saying the Pledge of Allegiance aloud in public school classrooms should be mandated or abolished. As it stands, each school district is free to decide whether to require the Pledge to be recited aloud or not.

Those who want it to be recited usually do so because they feel that such recitation at once compels and displays patriotism. Students who say the Pledge in school will be more patriotic, in part because they are part of a town or city or district that demands public shows of patriotism, thus prioritizing them.

It’s unclear that reciting the Pledge each school morning really creates patriotism; anything performed by rote, without being explained and discussed and thought over, becomes just one more task to perform in the minds of the children saying it. The lack of explanation or discussion of the Pledge is bound out in the myriad examples of the misunderstandings children have of the words, such as “I pledge allegiance to the flag and the United States of America, and to the republic of Richard Stands…”.

But even above and beyond whether the Pledge recitals are thoughtful and thought-provoking is the issue of turning the Pledge into a test of citizenship. The Founders were against setting up tests of citizenship, such as those in Europe; having to swear loyalty to the monarch and/or the state church was anathema to them. They set up a republic in which citizenship was easy to get—if you’re born in the U.S., or naturalized, you’re a citizen. You don’t have to prove it in any way. Look at the Constitution: there is nothing in it defining citizenship beyond birth and naturalization, and even the naturalization process is not defined. The important thing is how to use your citizenship, not proving it through any kind of statement or oath.

In fact, you have to wait for the Fourteenth Amendment, in 1868, to get a reiteration of the definition of citizenship, and again it is straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Citizenship tests are “laws which abridge the privileges and immunities of citizenship”, and can lead to depriving citizens of life, liberty, and property. Requiring proofs of patriotism to justify one’s citizenship is un-American. Demanding that the Pledge be mandated on the basis that anyone who doesn’t agree is unpatriotic and doesn’t love their country is un-American. It is precisely the fact that Americans are not required to prove their patriotism through statements, oaths, or any act beyond upholding democracy by voting and obeying the Constitution, that makes Americans truly free.

The Constitution: harder than it looks

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

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

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

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

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

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

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

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

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

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