We’re happy to announce appearance #9 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 a district court overturns Utah’s ban on gay marriage:
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.
We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.
The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.
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.Read Full Post | Make a Comment ( None so far )
Some history lies forgotten; we came across this link from the AHA fortnightly newsletter–from a collection of maps that feature the original names of familiar places. They are somehow unnerving and satisfying to read.
Click here for maps of the United States;
click here to find maps for Canada, the British Isles, and the rest of the world.Read Full Post | Make a Comment ( None so far )
Hello and welcome to the last post in our unexpectedly long series on Oliver Stone’s new TV series, The Untold History of the United States, currently airing on Showtime. We are analyzing and judging Episode 1 – World War II on its historical accuracy, as Stone asks us to do in the intro.
We left off with 15 minutes to go, and the Allies yet to open a second front in western Europe to relieve the pressure on the Soviet Union, which was fighting off the Nazi invasion launched in 1941. At 51.00 Stone, narrating, shows a propaganda movie clip of Russian people of all ages swearing to fight the Nazis to the death, and describes the superhuman effort of the Russian people to push back the Germans. While their sacrifice was astounding, the lionization of the people ends up subbing in for a frank assessment of Stalin, whose incompetent leadership repeatedly betrayed his people. At last at 55.40 Stone does mention that Stalin decreed that anyone caught retreating or surrendering was to be treated as a traitor, and his family imprisoned. Over 135,000 Russian soldiers were executed during the course of the war for this “treason”; Stone also mentions the over 400,000 prisoners still held in Soviet gulags during the war. He does not say who they were, eliding the fact that many thousands were Polish citizens removed from their homes during the Soviet occupation of Poland. Instead, Stone turns away from a close inspection of Soviet policy under Stalin to focus once more on the heroism of Soviet soldiers.
At 57.52 the episode wraps up by saying: “Though the myth lives on that the U.S. won World War II, serious historians agree that it was the Soviet Union and its entire society, including its brutal dictator Joseph Stalin,who, through sheer desperation and incredibly stoic heroism forged the great narrative of World War II: the defeat of the monster German war machine.”
Again, as we mentioned in our first post, one immediately wonders who the “serious historians” consulting on this project were, but an examination of the credits brings up only three “Researchers” who are not listed as having advanced degrees or belonging to any university or institution. Dr. Peter Kuznick has a bio on the website; he specializes in atomic- and nuclear-era U.S. history. Clearly Dr. Kuznick’s expertise will be critical in later episodes that focus on the Cold War, but in this WWII overview episode, it can have been put to minimal use at best. Who else informed this episode?
We ask because the closing statement is full of holes. No reputable historian of WWII says that the U.S. won it; it is always acknowledged as the joint effort of Britain, the USSR, the U.S., forces from the British Commonwealth, and resistance movements, like the Polish Home Army, in occupied Europe. The Soviets holding on and keeping the Nazis from the Baku oil fields was critical in the Allied victory, but the Soviets alone did not win the war, either. Even if they had been able to force the Nazis out of their country, that would not have stopped fighting on other fronts, like Italy and North Africa, which Stone dismisses as small potatoes because Allied forces there generally “only faced about 10 German battalions.”
More crucially, had the Soviets won the war on their own, they would not have had to negotiate with Roosevelt and Churchill, and would simply have taken over as much of Europe as they possibly could have, fulfilling the same purpose Hitler had had in invading eastern Europe and the Soviet Union itself. Winning the war is not winning the peace, and in this case, the peace was as hard-fought for by the Allied leaders as the war had been, as Churchill and Roosevelt tried to keep Stalin from seizing 3/4 of Europe and starting a war with Britain and the U.S. for the rest of it.
We have documented the extremely rose-colored view of Stalin and the Soviet Union throughout this first episode in our earlier posts. Stone says that the major goal of the series is to find unsung American heroes and to “explore the demonization of the Soviets.” So we know up-front that the USSR is going to be presented in a better light than usual, and that makes the “serious historian” uneasy. Whenever you have a goal of undermining the popular view of a person, group, or issue, you have to make your goal clear throughout your work. You can’t just present a radically different view without comment, and you have to back up your new theory with plenty of research. You have to say, for example, “Most people say the Soviets would only have started another war to take Europe if Churchill and Roosevelt hadn’t been firm with him, but I can prove that’s not true.” Then you make your contrary case and prove it with primary documents. Stone does not do this. He leaves out information that contradicts his theory, and that means he is not a serious historian, and cannot ask us to accept his series as serious history.
We can’t say for sure what the point of glorifying the Soviets is in this series; perhaps it will become clear in later episodes, or maybe it will just be put out there over and over with no explanation. It’s likely that for each glorification of the Soviets there will be a denigration of the U.S., since Stone wants to flip the US-good/Soviet Union-bad paradigm. But we are unlikely ever to know, since we won’t be watching any more movie-making masquerading as historical documentary, and will stick with serious history, radical and persuasive as it is.Read Full Post | Make a Comment ( 2 so far )
Welcome to the first in a short series on President George Washington’s farewell address of 1796. Most students of American history learn a little about this address, and the one thing that usually sticks with them is that Washington warned the nation not to make permanent or even long-term alliances with other nations. While this was a guiding principle of Washington’s presidency, it’s not the only or even the main point of note in his address.
We have to say “address”, rather than “speech,” because contrary to common perception, Washington did not read his message publicly. He sent it to the Philadelphia Daily American Advertiser, which printed it on September 19, 1796, and it was picked up and reprinted by other newspapers around the country. But the address has become a speech since Washington’s time: in 1862, in the depths of the Civil War, the people of Philadelphia petitioned Congress to have the address read aloud at a joint meeting of the House and Senate to celebrate the 130th anniversary of Washington’s birth. Senator Andrew Johnson presented the petition saying, “In view of the perilous condition of the country, I think the time has arrived when we should recur back to the days, the times, and the doings of Washington and the patriots of the Revolution, who founded the government under which we live.” In 1888 it was read again to celebrate the 100th anniversary of the Constitution, and since 1896 it has been an annual tradition to read the address aloud to the joint session each February (and was read by Jeanne Shaheen on February 27 of this year).
In this series we’ll look at the address and do one of our usual close readings to get at the messages Washington wanted to send to the nation he had done so much to found and protect and set on the right course.Read Full Post | Make a Comment ( None so far )
March is our one-year anniversary here at the Historic Present. So it’s a little American history of our own!
To celebrate, I’ll let you know that we’re about to start a series on the Salem Witch Trials–still a complicated and confusing episode in our history, but at the same time, not the final word on Puritans that it is often supposed to be. Stay tuned!Read Full Post | Make a Comment ( 2 so far )
I wish I had something historical to say about this, like “the Puritans didn’t celebrate New Year” or “during the Civil War there was a New Year truce,” but I have nothing, so this post will be unusually about the present day.
Oh; well, I can mention the fact that March 1 was New Year’s Day for the Puritans, because Protestant countries did not want to accept the January 1 New Year that the pope reinstituted in 1582, him being Catholic and all. But mostly, I wish everyone well in 2009, a year sure to feature much Puritan-like difficulty, resolution, and joy.Read Full Post | Make a Comment ( None so far )
Brad Hart reviews an interesting study of Puritan (and other colonial American) sexuality at American Revolution. I agree that it’s hard to study colonial sexuality when only the most sensational of situations (court cases, executions) were recorded for public posterity, but there’s certainly work to be done combing through the journals and other records we do have.
The image we tend to have of Puritans in New England as sex-haters is completely mythical; see just about all my Truth v. Myth posts on the Puritans for proofs!Read Full Post | Make a Comment ( None so far )
I was rereading David Potter’s timeless book The Impending Crisis: 1848-1861 and thinking about how it sounds to us today to read that some Americans valued union over abolition.
It sounds awful. It sounds like cavilling, cowardice, inhumanity, and loathsome empty-headed pseudo-patriotism.
But that is because this is not 1850, or 1858, or any point antebellum. It’s so hard to forget or to avoid the impact of hindsight on historical vision. We know that the Civil War did not end in permanent disunion, that the United States continued, grew, and thrived after 1865. But as Americans before 1861 contemplated the possibility that slavery might cause a civil war, they did not know any of this. They only knew that a civil war might erupt over slavery.
Think of it this way: what if right now, as you sit reading this, the United States was in danger of civil war. Some group of states had actually written up papers outlining how they would secede, and they had the power and the foreign backing to do it. Imagine that every week you read about how these states–let’s say 15 western states–were ready to actually sever their ties to the U.S., and leave the nation with 35 states and a big hole.
It’s impossible for us to really imagine this. We are faced daily with serious threats to our economy intellectual political unity–there’s constant talk about red and blue states and how the coasts hate the middle and vice-versa, etc.–but we cannot imagine this translated into a threat to our actual political unity. We can’t picture facing the possibility that civil war would break out over these issues and that the United States as we know it would cease to exist.
And all over one political and social issue. An important issue, to be sure, but not one that you thought could destroy the United States. Say it was illegal immigration. It’s been simmering for decades, but it’s begun to boil in the past 10 years, and people’s emotions are getting stronger about it. What do you think will happen in this situation?
Well, you expect it to keep dragging along as a divisive issue that will someday get enough minor legislation to die down, and be replaced by something else. Inertia or a solution, those are the options.
You never expect it to cause an actual civil war, with people in your state fighting people from another state. You don’t expect to see armies formed in the western U.S. states to fight the U.S. amed forces. You don’t expect to have your home destroyed by battle next year.
And that’s the way Americans viewed slavery in the antebellum years. It was a divisive issue, and was getting hotter after 1848, but civil war? Really?
Once it became frighteningly clear that the southern states really were prepared to secede, and really were gathering an army to fight the rest of the U.S., many Americans clung to union as a sacred obligation in order to forestall war. And you can see why, if this thought experiment has worked. If our nation were about to actually go to war over illegal immigration right now, wouldn’t you protest that union was more important than this issue? that the issue could surely be worked out legislatively instead?
Of course, illegal immigration is not truly like slavery, but the conditions many illegal immigrants work and live in here in the U.S. can approach slavery. And the hatred and revulsion some Americans feel for these people is equal to the hatred and revulsion some Americans had for enslaved black Americans. And, like free black Americans, even legal immigrants are in many cases mistreated and denied equal access to the law. Still, could we possibly go to civil war over it?
Americans felt the same way in the antebellum period: yes, slavery was a big issue, but it was just one of a half-dozen big issues. Why go to war over slavery? It seemed irrational. It seemed much less of a sacred cause than union, the great union of states that shone the light of democracy over the world.
This is just an attempt to really put ourselves in the shoes of our ancestors. When we do so, we can better understand why the cry of “union!” was stronger for many Americans than the cries of secession or abolition. Only when we truly try to put ourselves in those shoes can we begin to understand the seemingly incomprehensible decision to support union over abolition that many of our ancestors made.Read Full Post | Make a Comment ( None so far )
One more Mitchell and Webb while I keep working!Read Full Post | Make a Comment ( None so far )
I am in the thick of research on the American Puritans and the Thirty Years’ War, so for the moment, here’s another video from That Mitchell and Webb Look. It’s American history, technically!Read Full Post | Make a Comment ( None so far )