Civil Rights

“This is one Nation”: Johnson’s “We Shall Overcome” speech

Posted on April 17, 2014. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , , |

Hello and welcome to part 4 of our series on President Lyndon Johnson’s March 1965 “We Shall Overcome” speech demanding not only equal voting rights for black Americans, but an overhaul of American society to embrace justice. Last time, we were asking whether any voting rights law passed by Congress could really be enforced. Many pieces of legislation guaranteeing voting equality were already on the books, and gathering dust there as states went their own way and continued to deny black citizens their rights, loudly claiming that they had state sovereignty and a “special” way of life to protect.

Johnson addresses this concern as we go forward, so let’s pick that up:

[under the heading "WE SHALL OVERCOME"]

“But even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and State of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it is not just Negroes, but really it is all of us, who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.”

—Here, listeners would have wondered if they had really just heard their uptight-looking, cantankerous white Southern president quote the famous rallying cry of the civil rights movement. And had he really just said that all Americans inherit the burden and shame of racism and injustice? Again, Johnson’s insistence that racism was not a “negro problem”, an issue that trouble-making radicals kept bringing up or making up, but part of the fabric of American life and the part that needed to be ripped out and replaced, not honored and enshrined as “tradition”.

“As a man whose roots go deeply into Southern soil I know how agonizing racial feelings are. I know how difficult it is to reshape the attitudes and the structure of our society. But a century has passed, more than a hundred years, since the Negro was freed. And he is not fully free tonight. It was more than a hundred years ago that Abraham Lincoln, a great President of another party, signed the Emancipation Proclamation, but emancipation is a proclamation and not a fact. A century has passed, more than a hundred years, since equality was promised. And yet the Negro is not equal.

A century has passed since the day of promise. And the promise is unkept.”

—That first sentence is enormous. It says that Johnson is proud of being from the South. That he has seen racism in the South, and the damage it does. Between the lines, but not invisible, is the idea that racism causes “agony” for its victims and its perpetrators, which may well include Johnson who, growing up in the South, likely perpetrated racism in his youth. Racism causes agony in a few ways: it forces white people to be dissatisfied with society, and to long for a whites-only world where they are unchallenged; it leads white people to believe they must commit crimes and terrible acts to bring that whites-only world into being; it forces black people to live apart from and in fear of white people; it exposes black people to the agony of death, injury, rape, and terror at the hands of racists; and finally, it eats away at the nation and our founding beliefs. It is time, 100 years after the Emancipation Proclamation, to exit this horrible trap of racism and the endless churn, murder, anguish, and rage it produces.

“The time of justice has now come. I tell you that I believe sincerely that no force can hold it back. It is right in the eyes of man and God that it should come. And when it does, I think that day will brighten the lives of every American. For Negroes are not the only victims. How many white children have gone uneducated, how many white families have lived in stark poverty, how many white lives have been scarred by fear, because we have wasted our energy and our substance to maintain the barriers of hatred and terror?

So I say to all of you here, and to all in the Nation tonight, that those who appeal to you to hold on to the past do so at the cost of denying you your future. This great, rich, restless country can offer opportunity and education and hope to all: black and white, North and South, sharecropper and city dweller. These are the enemies: poverty, ignorance, disease. They are the enemies and not our fellow man, not our neighbor. And these enemies too, poverty, disease and ignorance, we shall overcome.”

—Again Johnson invokes God, and firmly re-settles him on the side of equality rather than racism, which was a significant change of address for the Lord for many Americans. Then he goes deeper into the “agony” of entrenched racism, describing how it divides whites and uses terror on those who don’t live up to their perceived duty to keep black people down, and describing the poverty of white people in states where so much time and money and resources are devoted to keeping black people down that there is nothing left to raise poor whites up—they are told that their membership in the white race is enough for them. It was daring of Johnson to address this directly, as so many poor whites clung on to that trade-off of racial superiority in place of real security, comfort, and achievement. To blame white Southern society for this situation rather than fall back on the old yarn that the North victimized the South so cruelly after the Civil War that the South could never fully recover was a step in a new direction. Even addressing this issue was a step in a new direction: name the president who had dared to talk openly about white poverty in the South and describe its real cause.

[under the heading "AN AMERICAN PROBLEM"]

“Now let none of us in any sections look with prideful righteousness on the troubles in another section, or on the problems of our neighbors. There is really no part of America where the promise of equality has been fully kept. In Buffalo as well as in Birmingham, in Philadelphia as well as in Selma, Americans are struggling for the fruits of freedom.

This is one Nation. What happens in Selma or in Cincinnati is a matter of legitimate concern to every American. But let each of us look within our own hearts and our own communities, and let each of us put our shoulder to the wheel to root out injustice wherever it exists. As we meet here in this peaceful, historic chamber tonight, men from the South, some of whom were at Iwo Jima, men from the North who have carried Old Glory to far corners of the world and brought it back without a stain on it, men from the East and from the West, are all fighting together without regard to religion, or color, or region, in Viet-Nam. Men from every region fought for us across the world 20 years ago. And in these common dangers and these common sacrifices the South made its contribution of honor and gallantry no less than any other region of the great Republic—and in some instances, a great many of them, more. And I have not the slightest doubt that good men from everywhere in this country, from the Great Lakes to the Gulf of Mexico, from the Golden Gate to the harbors along the Atlantic, will rally together now in this cause to vindicate the freedom of all Americans. For all of us owe this duty; and I believe that all of us will respond to it. Your President makes that request of every American.”

—How is it that Americans, Southern and Northern, will fight around the world for peace and justice, and enter without fear the worst maelstrom of war in human history, World War II, without a look back, and fight even now in Vietnam for freedom from Communism, but find fighting in the war against racism too hard, too doomed, too unconvincing? Is it because they don’t feel they have a mandate? Let the president offer one now.

[under the heading "PROGRESS THROUGH THE DEMOCRATIC PROCESS"]

“The real hero of this struggle is the American Negro. His actions and protests, his courage to risk safety and even to risk his life, have awakened the conscience of this Nation. His demonstrations have been designed to call attention to injustice, designed to provoke change, designed to stir reform. He has called upon us to make good the promise of America. And who among us can say that we would have made the same progress were it not for his persistent bravery, and his faith in American democracy.”

—As we saw in part 2, Johnson is again saying black Americans are the true Americans. As he did earlier in the speech, Johnson says black Americans are the heroes of justice and liberty, the Minutemen of the national conscience, the lonely supporters of American ideals.  Black Americans have been carrying white dead weight for 200 years, dragging whites along the road to freedom, dealing with white crimes, lies, and selfishness along the way in hopes of achieving real democracy for all. It’s time for white Americans to get down off black Americans’ backs and do their part.

“For at the real heart of battle for equality is a deep-seated belief in the democratic process. Equality depends not on the force of arms or tear gas but upon the force of moral right; not on recourse to violence but on respect for law and order. There have been many pressures upon your President and there will be others as the days come and go. But I pledge you tonight that we intend to fight this battle where it should be fought: in the courts, and in the Congress, and in the hearts of men. We must preserve the right of free speech and the right of free assembly. But the right of free speech does not carry with it, as has been said, the right to holler fire in a crowded theater. We must preserve the right to free assembly, but free assembly does not carry with it the right to block public thoroughfares to traffic. We do have a right to protest, and a right to march under conditions that do not infringe the constitutional rights of our neighbors. And I intend to protect all those rights as long as I am permitted to serve in this office. We will guard against violence, knowing it strikes from our hands the very weapons which we seek—progress, obedience to law, and belief in American values.”

—The courts, the Congress, and the hearts of men: that’s a pretty expansive theater of war. But Johnson knows that just passing more laws that aren’t enforced in the courts, or never reach the courts because they are never put into effect on the local level, won’t help, and will even set back the cause of civil rights. In the immediate term, Johnson will uphold the rights of black and white Americans to march in civil rights protests. Remember that he is giving this speech in response to Alabama state troopers viciously attacking peaceful marchers in Selma, Alabama. Those police officers had no justification for doing that—they were breaking the law, preventing citizens from upholding the Constitution, and fostering crime. Johnson is ready to take on the entrenched force for racism that was “law enforcement” in the South and the rest of the nation.

“In Selma as elsewhere we seek and pray for peace. We seek order. We seek unity. But we will not accept the peace of stifled rights, or the order imposed by fear, or the unity that stifles protest. For peace cannot be purchased at the cost of liberty. In Selma tonight, as in every—and we had a good day there—as in every city, we are working for just and peaceful settlement. We must all remember that after this speech I am making tonight, after the police and the FBI and the Marshals have all gone, and after you have promptly passed this bill, the people of Selma and the other cities of the Nation must still live and work together. And when the attention of the Nation has gone elsewhere they must try to heal the wounds and to build a new community. This cannot be easily done on a battleground of violence, as the history of the South itself shows. It is in recognition of this that men of both races have shown such an outstandingly impressive responsibility in recent days—last Tuesday, again today.”

—Saying that the president will uphold the rights of citizens is easier than making it happen. How can Johnson really guarantee the safety of black people in Selma once federal forces are gone, and the white establishment is left alone to deal with black people as it will (as it always has)? Johnson holds out hope that people on both sides, black and white, are ready to start something new which, crucially, means that at least some white people are willing to opt out of the predictable, socially mandated retribution that would leave more black men lynched, more black houses burned, more black women raped, more black families intimidated. Maybe, at last, some people are tired of living in a perpetual “battleground of violence”, and that, combined with federal scrutiny and TV cameras, will make change possible.

In this section of the speech, Johnson spoke as an insider pulling back a thick, heavy curtain to show the world the workings of the society he grew up in. He minced no words about the necessity of racism to the Southern status quo. He intimated that he too necessarily participated in that racism growing up in the South. Next time, he will do more than intimate about his own past, and he will conclude his speech with a personal call to the nation.

 

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“The command of the Constitution is plain”: Johnson’s We Shall Overcome Speech

Posted on April 10, 2014. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , |

Hello and welcome to part 3 of our series on President Lyndon Johnson’s “We Shall Overcome” speech, delivered on live TV on March 15, 1965. Today we jump right back in where we left off in this groundbreaking speech in part 1, as Johnson moves on from his powerful re-definition of the “Negro Problem” as the “American Problem”.

[under the heading "THE RIGHT TO VOTE"]

“Our fathers believed that if this noble view of the rights of man was to flourish, it must be rooted in democracy. The most basic right of all was the right to choose your own leaders. The history of this country, in large measure, is the history of the expansion of that right to all of our people. Many of the issues of civil rights are very complex and most difficult. But about this there can and should be no argument. Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to ensure that right.

Yet the harsh fact is that in many places in this country men and women are kept from voting simply because they are Negroes.”

—Again, Johnson is direct. (We have already shouted out to the man who wrote this speech, presidential speechwriter Richard Goodwin. He put into powerful, unafraid, and unapologetic words what Johnson believed.) Democracy exists to protect and promote individual rights, primarily the right to be governed by free consent. There is absolutely no justification for denying any citizen of a democracy their civil rights, including the right to vote. Race, the ultimate justification for discrimination, is shut down and ignored.

“Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of State law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.”

—Johnson would have seen all of these barriers to black voting in action growing up in Texas. They would have been accepted as necessary to the democratic process: if black Americans voted, they would vote in liberals who would change national law to get rid of Jim Crow (legal racial segregation and discrimination). You couldn’t let black citizens vote because they would vote to destroy the Southern way of life. Everyone was better off in their place, whites on top, blacks on the bottom, and so all the tricks Johnson describes were played to maintain the status quo.  But Johnson strips away this social justification, this threat of political and social anarchy, to leave racial discrimination exposed for the world to see and to judge as the primitive, tyrannical beast that it is.

“Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books—and I have helped to put three of them there—can ensure the right to vote when local officials are determined to deny it. In such a case our duty must be clear to all of us. The Constitution says that no person shall be kept from voting because of his race or his color. We have all sworn an oath before God to support and to defend that Constitution. We must now act in obedience to that oath.”

—”What can I do about it? I’m just one person against a whole system”: this is the easy stand that Johnson assails next. If you see something, you have to do something. If you see injustice, you have to end that injustice. Americans have a duty not only to justice but to God himself to defend the Constitution that grants civil rights to all. God is decisively moved from the side of racism (“God made the races unequal”) to the side of equality. It’s also noteworthy that Johnson mentions his own legislation as part of the impotent failure of law to address injustice thus far: Johnson was not a man who brooked failure, and he would move heaven and earth, as most people knew, to accomplish something he wanted to see accomplished. This was the type of man who was now dedicating himself to real equality in America.

[Under the heading "GUARANTEEING THE RIGHT TO VOTE"]

“Wednesday I will send to Congress a law designed to eliminate illegal barriers to the right to vote. The broad principles of that bill will be in the hands of the Democratic and Republican leaders tomorrow. After they have reviewed it, it will come here formally as a bill. I am grateful for this opportunity to come here tonight at the invitation of the leadership to reason with my friends, to give them my views, and to visit with my former colleagues. I have had prepared a more comprehensive analysis of the legislation which I had intended to transmit to the clerk tomorrow but which I will submit to the clerks tonight. But I want to really discuss with you now briefly the main proposals of this legislation.”

—We are in real time here: there’s no misty and ill-defined future date at which Johnson will begin unspecified efforts to make sure black Americans can vote. Johnson was speaking on Monday the 15th. On Wednesday the 17th, he will have a draft law before Congress, and they will have been prepped for that by the analysis he is giving the Congressional clerk that very evening, once he’s done speaking to the nation.

Where does Johnson get the confidence to move so quickly? He had been the master of Congress during his many years there. He was a man who knew every member of Congress: knew them personally, sought them out, knew their families, their constituents, what they wanted, what they hated, who they needed to be introduced to, what they would and would not be willing to trade to achieve their goals. Johnson was renowned for turning a handshake into an intimate encounter, putting his face just millimeters from the other man’s face, gripping his arm, telling him what he had to do for Johnson, and asking him what he needed in return. When he comes now as president to “visit with his former colleagues”, they know he will drill right down to their souls from the word go.

“This bill will strike down restrictions to voting in all elections—Federal, State, and local—which have been used to deny Negroes the right to vote. This bill will establish a simple, uniform standard which cannot be used, however ingenious the effort, to flout our Constitution. It will provide for citizens to be registered by officials of the United States Government if the State officials refuse to register them. It will eliminate tedious, unnecessary lawsuits which delay the right to vote. Finally, this legislation will ensure that properly registered individuals are not prohibited from voting.”

—That’s one powerful piece of legislation. Is it really possible to create a law or a standard that cannot be perverted or denied? The only way to ensure that the law Johnson gets passed is upheld is for every American to take up its banner and get out on the streets and uphold it. See something, say something. Johnson believes we will do this.

“I will welcome the suggestions from all of the Members of Congress—I have no doubt that I will get some—on ways and means to strengthen this law and to make it effective. But experience has plainly shown that this is the only path to carry out the command of the Constitution. To those who seek to avoid action by their National Government in their own communities; who want to and who seek to maintain purely local control over elections, the answer is simple: Open your polling places to all your people. Allow men and women to register and vote whatever the color of their skin. Extend the rights of citizenship to every citizen of this land.”

—The understatement of the clause in the first sentence is classic. Johnson goes on to address the heart of the refusal to let black Americans vote (that they will elect national leaders who will force state governments to remove their racist laws) here: “those who seek to avoid action by their National Government in their own communities; who want to and who seek to maintain purely local control over elections”. Johnson does not offer these people a safety net. He flatly says there is no way forward but to give up that control over local elections.

[Under the heading "THE NEED FOR ACTION"]

“There is no constitutional issue here. The command of the Constitution is plain. There is no moral issue. It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country. There is no issue of States rights or national rights. There is only the struggle for human rights.”

—Once more our hats are off to Richard Goodwin for writing this, and Johnson for delivering it. There is absolutely no legal justification for denying black citizens the vote. None. The old arguments about the Constitution guaranteeing states the right to conduct their own elections, about black people threatening our democracy with an ignorant vote, about some people being qualified intellectually to vote and others not being qualified—all are put into the bonfire. Nothing in the American founding principles justifies or calls for or condones racial discrimination in voting. The end.

“I have not the slightest doubt what will be your answer. The last time a President sent a civil rights bill to the Congress it contained a provision to protect voting rights in Federal elections. That civil rights bill was passed after 8 long months of debate. And when that bill came to my desk from the Congress for my signature, the heart of the voting provision had been eliminated. This time, on this issue, there must be no delay, no hesitation and no compromise with our purpose. We cannot, we must not, refuse to protect the right of every American to vote in every election that he may desire to participate in. And we ought not and we cannot and we must not wait another 8 months before we get a bill. We have already waited a hundred years and more, and the time for waiting is gone.’

—You think Johnson is going to say, “I know your answer will be Yes! Yes, I’ll get on board! I support you, President Johnson!” But we are thrown for a loop as he basically says, I know you don’t want to do this. Southerners don’t want this because it wrecks up their system; Northerners don’t want it because they are sick of racial violence in the South and want to forget about it. Johnson references Kennedy, saying if this popular president couldn’t inspire you to do this work, I know I can’t. But he doesn’t give up. He takes the nation in close, puts his face close to ours, and says into our ears, “You have to do this for me. This has to be done.”

“So I ask you to join me in working long hours—nights and weekends, if necessary—to pass this bill. And I don’t make that request lightly. For from the window where I sit with the problems of our country I recognize that outside this chamber is the outraged conscience of a nation, the grave concern of many nations, and the harsh judgment of history on our acts.”

—Again, Johnson tells us we now have a full-time job: upholding and extending the right to vote. We all just signed an employment agreement, and now we’re on the clock, no breaks, no vacations. Why? Because U.S. failure to live up to its founding ideals has torn this country apart, and inspired the disdain and contempt of the world, and while it’s too late to prevent history books from displaying our past failures, we can provide a date on which racial prejudice in the U.S. ended and a new era began: March 1965.

So we see the definition, the existence, the quality of the nation itself is in the balance here. What is more important than swinging that balance toward the good, the admirable, the American? What is more important than America being American by living up to its defining ideals? Nothing.

Next time, we will pick up with Johnson as he embraces the logic and the passion of Martin Luther King, Jr.

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What is a man profited, if he shall gain the whole world, and lose his own soul? – Johnson’s We shall overcome speech

Posted on April 3, 2014. Filed under: American history, Civil Rights, Politics | Tags: , , , , |

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Johnson’s “We Shall Overcome” speech

Posted on March 27, 2014. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , , , |

March 2014 marks the anniversary of a crucially important milestone in U.S. history: President Johnson’s 1965 speech calling on Americans—white Americans—to commit themselves to voting equality for black Americans.

The Fifteenth Amendment had guaranteed all U.S. citizens the right to vote regardless of race. But the concerted efforts of whites, particularly in the South, to prevent at first black American men, and then women, from exercising that right, meant that by 1965 only about 20% of black Americans qualified to vote (that is, at least 18 years of age and a U.S. citizen) were voting. Intimidation, torture, and murder were regularly used to keep black Americans from voting. Southern states passed laws requiring black Americans to pay poll taxes and pass literacy tests to be able to vote.

The Civil Rights Act of 1964, which Johnson pushed through Congress with all his considerable energy and powers of persuasion, outlawed discrimination in hiring and housing, but it had little impact on the number of black Americans being registered to vote. On March 7, 1965, nonviolent, unarmed marchers protesting repression of the vote in Selma, Alabama were brutally attacked by state police armed with clubs, bull whips, and tear gas. The attack was filmed by national television crews and broadcast to the nation. It was one thing to hear about police brutality, and to speculate that it must have been justified somehow; it was another thing entirely to see young people being beaten to the ground and then kicked and beaten further, all for asking that they be allowed to exercise a right they had been granted by the U.S. government almost exactly a century before.

President Johnson was one of those Americans who watched the footage from Selma and was infuriated and repelled by what he saw. Johnson was a sincere proponent of civil rights, and he had staked a lifetime of political clout on passing the Civil Rights Act of 1964. Everyone expected him to back down after that, and not “push” the Southern Democrats for anything more on the race front. Instead, Johnson went on TV himself, and spoke to the nation, one week after the attack at Selma, and asked the American people to live up to their creed and ensure the voting rights of black Americans.

We’ll go through his powerful address in the next few posts, and then talk about the reaction it provoked and the legislation it enabled.

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Gay marriage in New Jersey–continuing to overturn tyranny of the majority

Posted on October 22, 2013. Filed under: Civil Rights, Politics, U.S. Constitution, What History is For | Tags: , , , , |

We’re happy to announce appearance #8 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as New Jersey Governor Christie drops his attempt to stop gay marriage and the first couples are wed in that state:

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.

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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DOMA ruling overturned 2013

Posted on July 12, 2013. Filed under: American history, Civil Rights, Politics, U.S. Constitution | Tags: , , , |

On June 26, 2013, the Supreme Court ruled 5-4 that the federal Defense of Marriage Act (DOMA) is unconstitutional. The majority opinion reads in part:

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

It’s actually not the clearest of statements: we’d parse it as “the federal law is invalid because it tried to disparage and injure gay Americans living in states that legalized gay marriage. Those states said gay married couples had the same personhood and dignity as straight married couples. DOMA tried to displace this protection, thus violating the Fifth Amendment.”

The Fifth Amendment ensures all U.S. citizens equal protection under the law. So if a state legalizes gay marriage, that means gay marriage has the same protected status as straight marriage.

DOMA, a 1996 law, “defended” marriage by saying even if you were legally married in your state, as a gay person you were not allowed federal benefits that straight married people received, from tax exemptions to being able to receive Social Security payments when widowed to Family and Medical Leave to care for a family member. DOMA joins other examples of discrimination enshrined as law in U.S. history, taking its shameful place with Plessy v. Ferguson, the Chinese Exclusion Acts, the Indian Removal Act, and others. Conservative politicians who decried “big government” and sought to strip the federal government of every power suddenly rushed to pass a federal law making gay marriage second-class marriage. Marriage laws had always been the exclusive domain of the states, but as states began to legalize marriage for gay Americans, these politicians had a change of heart regarding big federal government and pushed DOMA through to “defend” “normal” marriage.

As is usually the case in the U.S., a radical minority got their way through activism, but in doing so aroused the suspicion and then resentment of the majority of Americans, who saw that the principles of liberty and justice for all were being overthrown. Many married gay people took their protests to local courts, and appealed up the hierarchy until at last one reached the Supreme Court, where justice was done.

Not everyone was pleased. Predictably, Justice Antonin Scalia dissented, on dubious and irritating grounds:

“In the majority’s telling, this story is black-and-white: hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. …the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

The truth is indeed more complicated than describing DOMA supporters as “hating their neighbor”. Many DOMA supporters act out of fear and ignorance rather than hate. But fear and ignorance open a wide door for hate, and that’s the problem with choosing to sympathize more with the fearful and ignorant rather than the supporters of blind justice.

Scalia went on to say that the Constitution “neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.” The majority’s opinion, he wrote, declares “open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.”

This is beyond specious, and we have a feeling Justice Scalia is well-aware of that. No, the original Constitution does not require or forbid us to approve of same-sex marriage, just as it does not require us to make a judgment on slavery, racial segregation, or the collection of federal income tax. The Constitution does not address specific items like this; it provides a general framework of justice and equal opportunity that we are allowed to amend as particular cases come up that challenge that framework. The Constitution does not ask anyone to “approve” of anything. It asks U.S. citizens to uphold the founding principles of this nation, applying those general principles as described in the Constitution to whatever specific cases may arise in our own times. Perhaps there are Americans who would have described “whites only” and “coloreds only” facilities not as unjust but as “mean-spirited”. Those people would never have brought Brown v. Board to court. It’s those Americans who saw racial segregation as a violation of the Equal Protection clause of the Fourteenth Amendment who brought that case, and it’s the same type of American who brought the DOMA case—Americans who want being American to mean something; to represent a high standard of justice.

Scalia almost approaches a justifiable complaint in one way: many news commentators we heard reporting this case claimed that public opinion, having swung so profoundly from homophobia to support or at least acceptance of homosexuality, must have an impact on the Justices’ decision. This is untrue, and a very un-American attitude. As we point out in many posts, notably “The judiciary saves us from the tyranny of the majority”, the Courts are supposed to ignore public opinion. If they did not, we would most likely not be enjoying Brown v. Board and other Supreme Court rulings that went against prejudiced majority opinion. Most Americans were not completely supportive of Miranda v. Arizona—why should someone the police “know” committed a crime be allowed to have a lawyer present before they are questioned? Most Americans did not support Tinker v. Des Moines—why should kids in public schools be allowed to wear political protest items of clothing? Majority opinion is not meant to be a guide for the courts because the majority often tyrannize the minority, depriving them of their civil rights simply because they can. The courts protect that minority population of Americans who want women to be able to vote, schools to be desegregated, or poll taxes and other barriers to voting to be abolished.

Once the minority wins out in the name of justice, the majority usually goes along within a generation or two, and we have an improved nation. In Windsor v. United States, the June 2013 case ending DOMA, we may have less of a hill to climb in that respect. For now, we can all take pride in our system and let this case remind us that while our journey toward upholding our founding principles is never on a clear upward trajectory, and rulings like the one striking down the key component of the Voting Rights Act of 1965, also delivered June 2013, will happen, we must remain determined to keep fighting for justice. We, like Edith Windsor, must maintain our confidence that in the United States, justice will eventually be done—or else it won’t be.

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The Supreme Court strikes down Section 4 of the Voting Rights Act of 1965

Posted on June 26, 2013. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , |

We noted back in March that the Supreme Court was hearing arguments to strike down vital sections of the Voting Rights Act of 1965. Yesterday, it did just that, ruling that Section 4 of the Act requiring nine states, mostly in the South, to get federal approval of any proposed changes to state voting law, is unconstitutional.

As we said in our March post,

“The VRA was passed in 1965 as part of President Johnson’s civil rights legislation. The U.S. Department of Justice website describes it this way: ‘Pursuant to the Act, the Voting Section undertakes investigations and litigation throughout the United States and its territories, conducts administrative review of changes in voting practices and procedures in certain jurisdictions, and monitors elections in various parts of the country.’ This means that voting procedures anywhere in the U.S. can be reviewed, especially when those procedures are changed, and that elections can be monitored to make sure they are fair. Notice the language goes from the entire U.S. and its territories to “certain jurisdictions”—this was originally directed at the southern states, where repression of black voters was well-documented. The Act does not say “southern states” because its authors knew that while it was the south that had a demonstrable problem with fair elections in 1965, the problem could crop up anywhere else at any time. So wherever unfair elections were discovered, those “certain jurisdictions” would come under scrutiny.

Sections 2, 4 and 5 of the Act are the most critical. Section 2 forbids race discrimination in poll worker hiring, voter registration, and redistricting plans. Section 4 sets out the criteria for determining when a jurisdiction is violating fair elections and voting. And Section 5 states that once your state or territory has been designated as problematic and unfair in its voting and election process, any change with respect to voting there can’t be legally enforced until it’s been reviewed by the U.S. District Court or Attorney General. Any jurisdiction with a proven history of voting discrimination had to prove that the change being proposed is not discriminatory—not just another attempt to prevent minorities from voting freely. The jurisdiction has to prove the absence of racial discrimination, and if it can’t, the proposed change cannot be made law. If the suspect jurisdiction can prove that it has gone 10 years without any voter discrimination, it is no longer subject to Section 5.

The key word in all this, of course, is proof. The suspect locale has to prove it is not discriminatory. This represents a rejection of the federal government’s traditional tactic, post-Reconstruction, of listening to southern political leaders say everything was just fine and there was no threatening or lynching of black voters and saying, Great—that’s good news.”

Returning to the present, the Court was reviewing two things: whether racial minorities still face voting intimidation and restriction nearly 50 years after the 1965 Act; and whether it was unfair to keep singling out Southern states for closer inspection than other states. The answer to both these questions was “no”.  The current system, says the majority opinion written by Chief Justice Roberts, is “based on 40-year-old facts having no logical relationship to the present day. Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current condition. It cannot simply rely on the past.”

That it, we can’t say that since Southern states prevented black citizens from voting during Reconstruction, in the 1870s, those states should still be identified as requiring federal oversight. The problem with this logic is that one does not have to go back to the 1870s to find voter repression in the Southern states singled out (Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, and Virginia). These states were preventing black people from voting in the 1920s, 1950s, 1970s, and today. The history of intimidation, arson, and murder used to prevent black Americans from voting in those states is unbroken from 1865 to 2013.

The proof of this claim is in the hundreds of proposed changes to state voting laws in the Southern states currently pending at the U.S. Department of Justice. It’s in the statements made yesterday by Republican leaders in those states that they will take “immediate action” to not only introduce new laws restricting voting rights, but to revive and pass old laws that were rejected by the Justice Department as infringing on the right to vote.

“After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot,” reports the Houston Chronicle. “North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats. …Laughlin McDonald, who heads the American Civil Liberties Union’s voting rights office, said he agrees that pending submissions to the Justice Department are now moot. It’s less clear what happens to scores of laws that the feds have already denied since the 2006 reauthorization.”

The Southern Republicans in question say that the ruling is a validation of their states’ move away from racial discrimination, an acknowledgement that times have changed. In one way they are right: over the past 20 years, Southern politicians widened the scope of their ambition to attempt to prevent not just black Americans from voting, but the poor, elderly, and Latino as well—all groups they perceive as voting for Democratic party. They have moved away from purely racial discrimination to a much broader discrimination.

Chief Justice Roberts, writing for the majority, said, “Voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”

This is the linchpin of the argument against the VRA: that it is unconstitutional because it only imposes oversight on Southern states. In 1965, only Southern states flagrantly defied federal law to prevent black people from voting, yet as we noted above the Act does not just apply to the South. It applies to “certain jurisdictions” where voters’ rights have been infringed upon. That can be anywhere. For many decades it was only in the South, but again times have indeed changed, and now states all over the country are eagerly introducing voting rights infringement laws, as the drive to prevent perceived Democratic voters from participating in elections spreads.

To basically gut the VRA because people claim it is unequally applied, while confirming that the problem the Act solves—voting discrimination—is still a problem is a move so contrary to common sense that it must call into question the majority of the Court’s commitment to voting rights.

In his perceptive and deeply researched book African Americans Confront Lynching, Christopher Waldrep traces the struggle black anti-lynching activists undertook from the late-1880s on to get the federal government to pass anti-lynching laws and enforce those laws on the state level. The NAACP later worked to do the same for segregation laws. The problem they all faced was that the federal government left enforcement of the few national civil rights laws passed after the Civil War (the Thirteenth, Fourteenth, and Fifteenth Amendments, or “Reconstruction Amendments”) to the states. The Southern states would not enforce these laws, and the federal government knew it. But rather than make the effort and fight the enormous fight to get those states to obey federal law, the national government allowed them to bray that any attempt to enforce federal law in the states was a violation of states’ rights. In this way Southern states openly and proudly violated federal law, and a weak federal government allowed them to do so.

Laws like the Voting Rights Act of 1965 finally brought badly needed federal oversight to state practice. Now that Act is basically being rescinded, on the grounds that “we’ve come a long way” and no one is racist anymore—or yes, there are still racists, but this Act isn’t the right tool to stop them. What is the right tool? No one knows. That part is left unexplored, as the Supreme Court takes away a established protection without offering a new one. It seems to be part of the de-regulation drive, the small government mania, that says the federal government should simply cease to exist and leave everything to the states. If the problem was that only nine states had to undergo oversight, why not simply extend it to all 50 states? It is impossible that the Court does not realize that it is returning those nine Southern states to the pre-1965 past, when they were free to prevent people from voting as they saw fit, without fear of retribution. Worse, they are introducing the 41 other states to that status. Now every state in the Union can defy federal law with little consequence.

Should states be punished for past actions? Yes, if those actions are still being attempted in the present.

Should only Southern states receive federal oversight? No; all states should be monitored for compliance with the Constitution.

Should we get rid of laws that have helped end discrimination simply because they are working? No—you don’t stop taking medicine because it is working. You take it until your disease is gone.

This decision is a blow to the Constitution. It is a vote against liberty and justice for all, for political equality, and for voting rights. It is  not completely unexpected—the principles of liberty and justice for all go against human nature, and there will always be people who don’t accept them. The United States was founded on its citizens’ decision to accept those principles, and fight for them. They can’t be inherited—they are too opposed to human nature to be inherited. Each generation must weigh them, accept them, and fight for them. That’s what keeps the United States going, that’s what makes us Americans: we inherit the fight for justice. Now is our time to fight for voting rights, in all our states, for all our citizens. It is our time to stake a claim for our founding principles, and live up to our responsibilities, by fighting across this country, wherever we live, for free access to polling places, reasonable wait times, sensible hours of operation for polling places, voting by registration alone (not voter IDs), clear ballots, and honest vote reporting. We will win this fight, because it speaks to our deepest sense of what is right. It may take a while, and it may be depressing to think that over 200 years since the Constitution was written we are still battling for basic rights, but we must remember what a great American once said: the arc of the moral universe is long, but it bends toward justice.

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The best of times, the worst of times: Supreme Court rulings on the Voting Rights Act and gay marriage

Posted on June 26, 2013. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , |

It’s the time of year when Supreme Court rulings come one after another; this year we have a very mixed bag. The principles of liberty and justice for all were violated by yesterday’s ruling striking down Section 4 of the 1965 Voting Rights Act. They were upheld by today’s ruling striking down the 1996 Defense of Marriage Act.

We will post at more length on both rulings shortly, as we all begin to grapple once again with the ups and downs of participating in the always ongoing, never finished fight against human nature and us v. them that is the price and privilege of being citizens of the United States.

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Why the American Revolution is not a model for gun ownership today

Posted on May 8, 2013. Filed under: American history, Civil Rights, Colonial America, Historians, Politics, Revolutionary War, Second Amendment, Truth v. Myth, What History is For | Tags: , , |

Often one hears Americans on the news saying that the Second Amendment is necessary to us today because we may need to take up arms against an oppressive government in the 21st century, just as we did in 1775, and that those who anticipate doing so in the near future share the motivations of Americans during the Revolutionary War. Our thoughts on the Amendment can be found here; in this post, we will spell out why our situation in this century is not at all like that on the eve of Revolution in the 18th century, although we have the feeling this should be obvious without our intervention.

—During the Revolution, we fought a foreign government and a foreign occupation.

This is the key item to note. Granted, we overstate a little, so let’s go through it and be clear. The American colonies generally had popularly elected legislatures and royally appointed governors, so laws in the colonies came from two very different sources: representatives of the American people, and representatives of the British crown. Our experience of law was mixed. Legislatures generally made life difficult for governors who betrayed the people’s interests, especially in the realm of taxation, and so the influence of royal governors, who technically reported to no one but the king, was limited. Until, that is, the 1760s, post-French and Indian War, when London began direct rule of its colonies in North America. Parliament passed Acts (Stamp Act, Sugar Act, Tea Act, Coercive Acts) which were to be enforced without any input from legislatures. Indeed, even the governors were bypassed eventually as British soldiers were sent to America to make sure Acts were enforced. Americans who disobeyed Acts were to be sent to London for trial. This is the key moment, in the 1760s, when long-standing doubts about how much the American colonies owed to Britain were crystallized for many into clear convictions that London and Parliament did not consider Americans to be British citizens and did not grant them the rights of citizens, and were thus, through these Acts, imposing a foreign government on the American colonies. By refusing to allow American representatives in Parliament, the British government was confirming this. By sending troops to maintain order, the British government was occupying lands it believed to be hostile possessions; Americans were alien combatants.

It’s very clear that we are not remotely in that position today. Any Americans who oppose the government and/or its actions (taxation, immigration, welfare) are opposing their own government, popularly elected by their fellow Americans and even, perhaps, by they themselves. We don’t need to resort to arms to oppose our government because soldiers from another country are not in our streets and homes enforcing foreign laws. We resort to the voting booth, the referendum, and the ratification process to change or oppose our government. U.S. citizens today have rights that their government enforces and upholds—and if it doesn’t, we work through the courts and the political bodies to make it do so.

—Americans during the Revolution did not fight on their own.

They fought in their locally organized militias, which joined the Continental Army led by George Washington. They fought in the army, not as a vigilante group. Individual citizens submitted themselves and their guns to a government-authorized national army. That’s hardly what people today are picturing when they say they need guns to fight the government if it becomes oppressive. In 1775, Americans were fighting a formal war against a formal army. They weren’t sitting in their homes waiting for someone to challenge them and get blown away.

—Americans during the Revolution were fighting to keep their government alive.

Americans who fought in the Revolution were hoping to see the new government, represented by the Continental Congress in Philadelphia, firmly and officially established as the government of their nation. They were not fighting to get rid of government, as so many Second Amendment fans seem to want to do today. They knew that the nation needed a strong government (though not necessarily fully centralized) to survive, and their aim was to make sure that government was fair once it was established—that’s why the Constitution was ratified by popularly elected officials, and why even common people clamored for a Bill of Rights to be added to it. Americans in the 1770s were fighting for government, not against it. They did not believe that armed individuals were a proper substitute for state and federal government.

So we have three good distinctions to draw between ourselves and our ancestors, and hopefully we can put this ridiculous argument to rest. We no longer have to use guns to maintain our freedoms; we have to use our rights as citizens to vote and participate in government to maintain our freedoms.

But what if our government becomes perverted and undemocratic, people ask? What if our political system fails? Then we’ll have to use force to protect ourselves.

it seems clear that the only way this could happen is if the American people fail in their participatory duty as citizens, so we are back to our original argument, which is that as long as we do our duty, the government we elect can never fail to be what we want it to be. It’s only by withdrawing from participation in our democracy that we lose it, and by looking for reasons to rise up in arms that we threaten ourselves with that dire possibility.

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Gay marriage and the tyranny of the majority—no more?

Posted on March 25, 2013. Filed under: Civil Rights, Politics, U.S. Constitution | Tags: , , , , |

Yes, it’s the seventh appearance of this post, which we run each time the issue of gay marriage comes up in high court in the U.S. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as we circle back to California. The U.S. Supreme Court is hearing a challenge to that original California ruling that made banning gay marriage illegal in the state:

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.

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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