It’s short but sweet: in 1797 the Senate ratified the Treaty of Peace and Friendship with the Barbary States (today’s Tunisia, Algeria, and Morocco, and what was called Tripolitania). These were autonomous provinces of the Ottoman Empire in North Africa that made a living harassing shipping in the Mediterranean. Barbary pirates were a scourge to Ottoman, European, and U.S. shipping, and the U.S. attempted to use diplomacy to protect its shipping (though the U.S. would eventually fight two wars with the Barbary States in 1801 and 1815 to put a stop to pirate attacks).
Article 11 of the treaty reads thus:
As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries
Let’s break that down: 1) the U.S. is not founded on Christian principles; 2) the U.S. would not sign a treaty with any state that had “entered into any war or act of hostility” against a Muslim nation; 3) religious difference can never be used as an excuse for war between the U.S. and the Barbary States.
We offer this not to the ongoing debate about accepting Muslim refugees from the wars in the Middle East, nor to say there is no difference between Islam as practiced in 1797 in North Africa and Islam as practiced today in nations the U.S. is in conflict with. We offer it as rebuttal, from the Senate itself, of the poisonous idea that the U.S. was founded to be a Christian nation with a religious mission. Read any founding text and you will fail to find that belief proffered in any way. The mission of the U.S. is to promote representative democracy, liberty and justice for all, and that’s it.Read Full Post | Make a Comment ( 1 so far )
The episode begins with the English party going out to meet the Wampanoags who have kidnapped an English boy as a reprisal for the English raiding the Indians’ corn stores the previous Fall. This is a prime example of the show getting some things wonderfully right and others bafflingly wrong. It is accurate in presenting kidnapping as an Indian tactic, and in showing the kidnapped boy treated very well, and given clothes and gifts by his captors. Most kidnappees, Indian or English, were fully adopted into the groups they were kidnapped by (often to replace young men lost in battle) and treated very well. It is inaccurate in showing William Bradford apologizing for stealing the corn.
Remember how episode 1 showed Bradford refusing to help fix the mast on the Mayflower, even though the ship would sink without the repair, because he wouldn’t work on the Sabbath? This is a complete fabrication, but it was conjured up out of thin air to try to make a point about how devout Bradford and the Pilgrims were (as opposed to the non-Separatists on board). Having him apologize for stealing the corn is another fabrication meant to make us identify with Bradford as a good man. This is acceptable in the context of reminding modern viewers that the English settlers did not come over with the intent of murdering as many Indians as possible, or with an immovable hostility toward all Indians. But the way in which it’s inaccurate is large and complex.
First, just as he approved fixing the mast on a Sunday, Bradford approved stealing the corn. There were two reasons: first, the settlers knew about the smallpox epidemic that had devastated the Indian population in today’s southeastern New England and actually fully consumed some groups, so when they found the corn caches untouched, they assumed the people the corn belonged to were dead. Therefore, taking their corn was not a problem. Second, even when he found out the corn’s owners were not dead, Bradford maintained the position that the corn had to be taken for the settlers to survive, which is true—they did not have enough food to last the winter.
The show’s determination to make Bradford sorry for stealing is part of its attempt to make a 17th-century person conform to 19th- and 20th-century cultural norms. The show portrays Bradford as apologetic because he recognizes the Indians as his equals, despite their race. That is a 19th/20th-century idea. For early-mid 17th-century Europeans, the only differentiator that really mattered was religion. Indians were not alien to the settlers because of their race; it was their religious difference that mattered most. They were not Christian, but almost more importantly to the Separatists, they were not people who had left the Anglican church to practice more pure Protestant worship. It was that specific for them. As we point out in The Puritans and Freedom of Religion, in Europe at that time, most people saw those who did not practice their exact form of religion as demons, heathens, spiders, monsters, and antichrists. The vitriol showered over Catholics by Protestants—and vice-versa—will turn your stomach if you read it. And within Protestantism, the proliferation of different sects produced just as much hatred. The Thirty Years’ War (1618-1648), fought mostly in the principalities that became Germany, produced war crimes and atrocities that boggle the mind, and justified them on the basis of religion. Whole towns were set on fire and the population kept inside to be burned alive because they were Protestant, or Catholic.
So the Separatists in Plimoth did not hate the Indians for being heathens as much as they hated the Catholics and disdained their unreformed Anglican brethren. At least the Indians, unlike the Catholics, had the excuse of not ever having heard the Gospel. Neither did they hate the Indians for their race. Race was a concept just getting off the ground in the mid-1600s, as African slavery came to the Americas. When Bradford faced the Wampanoags, he faced them as potential allies or potential enemies, and practiced as sophisticated a diplomacy as he could to maintain them as allies. But he wouldn’t have apologized about the corn because he would have maintained that God provided it for his people. He would have told Massasoit this, to impress upon him the supernatural support the little group of settlers enjoyed. That godly support was a bargaining chip, and it was hard for Massasoit to completely dismiss it, after seeing his people and neighboring groups harrowed by disease that the English people seemed immune to.
That’s a long, long digression on a short point, but it seems like an important one.
Here’s something the show gets very right: when Bradford wants to build a separate church building, Stephen Hopkins counters that they need to focus their energy on paying off their investors, which was absolutely true. The colony lived under the threat basically of repossession if it didn’t send valuable raw materials back to England that its investors could sell. Copper and gold were the (vain) hope; fur was the sure thing, but timber was the resource that the settlers were able to send first. Any trees cut down that first year after houses were built had to be prepared for shipment back to England, not for building a church.
Hopkins also claims that the colony is first and foremost a commercial venture, which is exactly how the non-Separatist majority of settlers saw it. The friction between them and the Separatists who saw they colony as first and foremost a religious safe-haven would eventually see the Separatists buying the non-Separatists out so they could go their “separate” ways.
One badly anachronistic moment is when, after joining forces with Hobbamock to attack the Massachusetts, English military leader Miles Standish tells the surviving Massachusetts “if you force us to violence it will reverberate for generations to come”. This foreshadowing is something that would never have occurred to Standish. It wasn’t the kind of threat Europeans made at the time. They would have said “we will kill every single one of you right now so you have no posterity”. There were to be no future generations reverberating with anything for heathens.
Another thing the show does well is to keep us guessing about Squanto’s loyalties. We will never know what his motives or goals were, whether he loved the settlers or hated them or saw them merely as pawns in his own game of power and survival. We will never know if he loved Massasoit or hated him or saw him merely as a pawn in his own game. We just don’t know. All we know is that both settlers and Wampanoags mistrusted him from time to time. So when Squanto does not translate Bradford’s words accurately when Bradford is addressed Canonicus, sachem of the Narragansetts, and turns Bradford’s words into an insult, we are left wondering why, just as everyone at the time was left.
The show goes to great lengths to tell us that Bradford really loved Squanto as a friend, and risks the colony’s survival to protect him when Massasoit demands his head. But Bradford’s own account says that he protected Squanto because “[the attack on Squanto] was conceived not fit to be born; for if [the English] should suffer their freinds and messengers thus to be wronged, they should have none would cleave unto them, or give them any intelligence, or do them service afterwards; but next they would [attack the settlers] themselves.” 
Bradford later writes this very direct assessment (he writes in the third person):
…they [the English] began to see that Squanto sought his own ends, and played his own game, by putting the Indians in fear, and drawing gifts from them to enrich himself; making them believe he could stir up war against whom he would, and make peace for whom he would. Yea, he made them believe they [the English] kept the plague buried in the ground, and could send it amongst whom they would, which did much terrify the Indians, and made them depend more on him, and seek more to him than to Massasoit, which procured him envy, and had like to have cost him his life. For after the discovery of his practises, Massasoit sought it both privately and openly; which caused him to stick close to the English, and never durst go from them till he died. They also made good use of the emulation [jealous rivalry] that grew between Hobbamock and him, which made them carry more squarely. And the Governor [Bradford himself] seemed to countenance the one [Squanto], and the Captain the other [Hobbamock], by which they had better intelligence, and made them both more diligent.
This is powerfully different from the show’s presentation of Bradford’s deep friendship with Squanto. Here Bradford says he, and all the settlers, began to see that Squanto would use anyone to get more private power, and that he only stayed with the settlers because he was afraid of being killed if he left Plimoth. When Squanto and Hobbamock became enemies, Bradford prudently pretended to trust Squanto while Standish pretended to trust Hobbamock, so they could get as much information out of both men as possible to protect themselves.
This is just Bradford’s side of the story—we don’t have Hobbamock’s or Squanto’s—but it rings true for the English approach to American Indians. Bradford appreciated the practical help the settlement got from Squanto regarding planting and farming, and believed God provided Squanto to help them in that way. (Bradford would likely have been glad that Squanto had been sold into English slavery so he could learn English and eventually help them.) But he did not trust Squanto, and seems not to have considered him a friend.
Oh criminy, then comes the First Thanksgiving. The biggest problem here is that Wampanoag women are shown at the tables, which did not happen. As we point out in Truth v. Myth: The First Thanksgiving, only Wampanoag men came (about 90 of them eventually) and the time was spent hunting and holding shooting games. No women. A tiny note is that there a lot of chairs at the tables as well as benches, but chairs were an expensive rarity in Plimoth in 1621.
Mrs. Billington yells “damn them!” twice when the men heading to Wessagusset steal the settlers’ corn, which would have gotten her whipped and/or fined in the real Plimoth, where cursing was not allowed.
When Squanto dies, Edward Winslow and Bradford talk about him, and Winslow says Squanto was a schemer. Bradford grabs him by the shoulders and says “The Lord forgives you for believing you are better than that man,” another example of 19th-century religion being foisted onto 17th-century Plimoth. The Separatists did believe that they were better than Indians—and Catholics and unreformed Anglicans and anyone else who was not an English Separatist.
Right: Winslow goes to help tend Massasoit when he seems to be dying. This was a critical turning point in the difficult relations between the two groups, and the Wampanoags seemed to have believed Winslow’s god helped their sachem.
The show nears its end with a terrible myth, which is Bradford saying we have to prepare for our second Thanksgiving. Thanksgiving was not an annual tradition in Plimoth. Thanksgivings were held when appropriate, to thank God for his beneficence, just as days of humiliation and fasting were held to beg God’s mercy. There was no “second Thanksgiving” at Plimoth, but the show insists on it. At this mythical Thanksgiving, Indian women are again present and dance with English men, which was out of the question at that time.
At the very end, Bradford has a voiceover: “They called us Pilgrims, but what have we become? Saints, strangers, savages. We came for God, to move forward, for ourselves and our children.” His son arrives from Holland that Spring, and the circle is complete. Though no one ever called the Separatists Pilgrims in the 1600s.
We’ll quickly wrap this up next time—we promise it will be brief!
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We’ve reached part five in our series on the Bill of Rights. Here we look at the Fourth Amendment, which gives us the old chestnut “a man’s home is his castle”. Sort of.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Readers of the HP will feel these words are familiar, and they are: the very first law of the 1641 Body of Liberties—the first codification of English law in North America—states:
No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.
Every tenet of the Fourth Amendment is here. This concept has a fairly long history in English law. Seizure of goods became an issue in the run-up to the American Revolution, as early as 1754, when the Excise Act of 1754 gave tax collectors expansive powers to search people’s homes and shops under the aegis of uncovering and destroying smuggled goods. The problem was how general the search warrants were—they did not specify what the tax collectors might be looking for, and thus allowed them to go through anything and everything they wanted.
As an unknown writer at Wikipedia succinctly puts it,
Fourth Amendment case law deals with three central issues: what government activities constitute “search” and “seizure”; what constitutes probably cause or these actions; [and] how violations of Fourth Amendment rights should be addressed.
The Fourth Amendment typically requires “a neutral and detached authority interposed between the police and the public,” and it is offended by “general warrants” and laws that allows searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation”, for the “basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of “unreasonable” searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.
Nowadays, what constitutes “houses, papers, and effects”, as well as “the place to be searched, and the persons or things to be seized” is up for grabs. Are text messages “papers”? Are phone calls? How can these be seized? Can anyone’s calls or emails or tweets be somehow removed from them and taken into government custody? And if the place to be searched is the Internet, how can searches be narrowed down to be very specific? If a video goes viral and is picked up by ten thousand websites, should all 10,001 sites be shut down? If the “paper” is a phone call, is the “place to be searched” the data-minimal phone records, or wiretap recordings of the calls?
If the police stop someone because they suspect that person was texting while driving, do they have the right to ask for the person’s cell phone to see if it has a recent text on it? Some courts have said yes, others no because the contents of the cell phone are private and a search warrant is needed to read them.
Other recent cases involve drug-sniffing police dogs, including the issue of whether a person arrested for some other crime who is then found to have drugs in their possession by a police dog can be arrested and held for drug possession when that was not the original reason for the arrest. If you’re stopped for speeding, then a police dog finds drugs in your car, the police officer should only be able to arrest you for speeding since that’s why s/he stopped you—that’s the specific “warrant” for the stop. The dogs become an added, general search warrant that might turn up other problems. The courts have generally found in favor of the police in these cases.
And of course the NSA’s surveillance of all phone calls in the United States has been attacked on Fourth Amendment grounds because it is the definition of “general”. The constant monitoring of phone calls represents a constant, general search that is most likely completely unwarranted in 99% of cases. You can’t search every house in New York City because there might be a gun in one of those houses.
This amendment was so clear and simple when it was ratified; the Founders would be grateful they aren’t around now to revise it to suit 21st-century life.Read Full Post | Make a Comment ( None so far )
…yes, if you read the HP you’ve seen that title before. For our third post in the series on the Bill of Rights, we’re reaching back to one of the first posts we put up in the infancy of the site. It was short—we used to be like that! The topic is still unfortunately pertinent today. We will do a little updating as we go along:
Let’s go out on a limb here to state the obvious.
How does it read? “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A well-regulated Militia. Not a well-armed citizen.
We have to agree with ourselves here. But before we can analyze, we have to really understand. The amendment is written in that cart-before-the-horse way that plagued 18th-century writing in English. If you break it down, it says “Since the militia is necessary to national security in a free state, the government cannot forbid the public to keep and bear arms.”
This is such a time machine window into the state of the early U.S. We had no standing army. We had only volunteer state militia for our national defense. The key words are “free state”: rather than create a standing army, which was only ever used in Europe to oppress the people and defend the monarch’s absolute power, the U.S. wants to continue to rely on volunteer militia.
But what if the federal government tries to get around this protection of the people by forbidding them to own guns? That way, they can’t form militia, and the federal government could create an army after all, arm it itself, and be tyrannical.
The answer is to forbid the federal government from outlawing private gun ownership. As we said back then…
This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your arms so that you can serve in the militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.
Now, we’re not a strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.
That is, the Second Amendment has no meaning outside of military service. It’s ironic that most strong supporters of expanding carry laws and gun ownership are often very anti-military (official U.S. military, that is). They want guns to protect them from an attack by the U.S. armed forces that they feel is imminent.
The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.
There are times when we wish the Founders had been more specific, but this is not one of them. The Second Amendment is clearly about military service. It cannot be read loosely to apply to anything else—a new constitutional amendment would be necessary to do that. Until that new amendment is ratified, we will continue to honor the Second Amendment as it is written.Read Full Post | Make a Comment ( 1 so far )
Hello and welcome to part 2 of our series on the Bill of Rights. We’re moving into the First Amendment here. It’s the celebrity Amendment in the Bill of Rights. “First Amendment rights”, “my First Amendment rights”—these phrases are like “Washington crossing the Delaware” or “Don’t fire until you see the whites of their eyes”: famous, oft-repeated, but often difficult for the people saying them to really explain. What are our First Amendment rights?
Let’s read the text of the amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
What is “an establishment of religion”? A state religion. The FA says that Congress (the legislative branch of the federal government) cannot make any religion the official state religion of the United States. A state religion is supported financially by the federal government of a nation, which also puts barriers in the way of other religions to prevent them from gaining traction. In the 18th century when this amendment was written, every kingdom in Europe had a state religion. Britain’s was Anglicanism. The Anglican church received tax support and if you were a member of another church it was hard to get a job in the government. Go back a century to the 1600s and it would be illegal to be a member of any other church. “State” religion is endorsed by the government, and so the head of the government—the monarch—is the head of the church. Henry VIII created the Anglican church when he made himself, not the Pope, the head of the Catholic church in England. An English person who rejected Anglicanism was rejecting the authority of the monarch, which is treason, which is a capital offense. The Puritans and Pilgrims left England because they could not accept the Anglican church without major reforms, and refused to worship in it as they were told to. This was political treason and made them criminals.
By rejecting the concept of a state religion, the concept of the head of state (our president) being the head of a church, and the concept of forcing people to either belong to the state-approved religion or stand trial for treason, the Framers were making a bold and revolutionary stand that went directly against everything the great European powers had fought for during the Thirty Years’ War. We tend to think of a state religion as obviously contrary to democracy, but European powers would not reach this conclusion for over a century, and in Europe the old state religions are still powerful. In France, non-Catholics are rare. In Britain, Anglicanism is the norm. Even people who don’t practice their religion are born into its culture, which by now is indistinguishable from the socio-political culture to them.
Finally, this statement is saying the U.S. government will be completely civil. There is complete separation of church and state. The federal government will play no role in the religious life of the country, and no religious beliefs can shape our laws.
Why is “or prohibiting the free exercise thereof” tacked on to the first statement? Of course this is all one sentence, and makes more sense as one sentence, but we had to pull it apart to discuss state religion. This phrase is important on its own, though: it doesn’t just reiterate the main message that there is no state church, but also forbids the federal government to outlaw any religion. Again, this was radical for the time. In Europe practicing any religion other than the state religion was heresy and treason. The U.S. is not only saying it won’t impose religious uniformity by adopting a state religion, it’s saying it will not just allow but protect by law the proliferation of religious practices.
This was a big deal in a country that mostly hated and feared Catholics. If Congress had decided to outlaw Catholicism in 1787, most Americans would have been very supportive. But the Framers are making an enormous commitment to true democracy by saying no religion will be outlawed in the U.S.
What does it mean to say Congress will not abridge the freedom of speech, or of the press? This is the most famous part of the celebrity Amendment. Freedom of speech—if you asked Americans to name one phrase that sums up all our freedoms, this might be it. It’s so important that the concept and definition of “speech” has been expanded over the centuries to include clothes, tattoos, parades, art, and other non-mouth-moving activities. In 1919 the Supreme Court decided that some kinds of speech are indeed illegal; any speech that endangers other people is not protected (this was the case that gave us the famous example of shouting Fire! in a crowded theater when there is no fire; someone who does that will be arrested). But that decision was overturned 50 years later because Americans have identified themselves so completely with freedom of speech that we found a way around the problem of endangerment (that ruling said that only speech that creates a dangerous situation faster than the police can arrive to mediate it is illegal).
Again, this amendment is radical. No kingdom in Europe allowed its citizens to criticize the monarch, the government, or the state religion, without punishment. After nearly two centuries of religious war and civil war, Europe cracked down hard on anyone who tried to stir up trouble. But the Framers believed Americans could have freedom of speech without abusing it. Libel laws were maintained, of course; we never said you could lie about someone and not be punished if they choose to prosecute. But expressing an opinion would never be illegal in this country.
Isn’t “the press” synonymous with speech? It’s just speech that is printed rather than spoken aloud. But the Framers specifically included the press so they could protect actual printers. Again, the way to start trouble in Europe for nearly 200 years had been to print pamphlets and broadsides criticizing the government and/or church. And for nearly 200 years European powers had punished rebellion by punishing not just the authors of these documents but their printers—men hired to put paper through a printing press who had nothing to do with what was written. The Framers were protecting printing presses, publishers of books, pamphlets, and broadsides as well as newspapers, as well as the authors of all these items. In an age where a book that displeased the government could get not just its author but its printer arrested, this was an important addition to the amendment.
Why protect the right of the people peaceably to assemble? Once more we think of the time the Constitution was born in. In pre-modern Europe, people did not gather in large groups. It just didn’t happen in the course of normal human events. The vast majority of people lived in small villages, where there weren’t enough people to make up large crowds. The only way a large crowd could gather was if there was trouble: someone stirring up the people and urging them to leave their villages and meet in one place, usually to protest the government. These gatherings quickly turned into mobs, and were usually violent. In the cities, people could gather in large crowds but were prevented by the watchful eye of royal authorities from doing so, for the same reason. There was just no acceptable reason why any large crowd would gather in that period. The Reformation period was characterized by mob after mob after mob being put down violently by government forces, causing almost incalculable losses of human life and capital.
So when the Framers said Americans had the right to gather in large groups, they looked like they were inviting trouble. That’s why this part of the amendment is the only one with a caveat: the people must assemble peaceably. Colonial America had a terrible record of mob violence, often sparked for no good reason (see our post The Boston Tea Party and a tradition of violence for more on this). It seemed like the last place where you would be safe allowing people to gather in large groups. But part of freedom of speech is freedom of assembly—people have to be allowed to talk together. Knowing the fondness for mob violence that Americans had, the Framers offer the one condition in the amendment by saying Americans can gather together but only if they are not violent. They didn’t say speech was free as long as it didn’t criticize; they didn’t say printers could print anything as long as it didn’t call for violence. But they did restrict public gatherings to peaceful purposes.
What is petitioning the Government for a redress of grievances? This means that Americans can criticize the government, and as you understand by now, this was not on the table in Europe. At a time when Europe was trying to end its centuries of strife by cracking down hard on any public expression, America was inviting its citizens to talk to their government and even make complaints. A redress of grievances is making something wrong right. If someone has injured (grieved) you, they must make it right somehow (redress it). If the government does something wrong, if it violates the Constitution, Americans have the right to demand that the government stop that violation and then make up for the damage it has done. This is two rights in one: the right to demand that the government obey the Constitution, and the right to demand repayment for any violations of the Constitution. This keeps the government honest, and sharpens people’s love for and commitment to the Constitution.
That’s a lot! But then this is the star amendment that, for most Americans, completely sums up who we are and how things here should be. You wouldn’t think another amendment could rival the First in importance, and for about two centuries none did. But in the late 20th century, the Second Amendment was wrested out of obscurity and thrust into the spotlight, and we’ll go over that amendment next time.Read Full Post | Make a Comment ( None so far )
Danielle Allen, a professor at the Institute for Advanced Study in Princeton, NJ, has come to the conclusion that the most famous line in the Declaration of Independence, and perhaps in all American documentary history, is not what we think it is.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
That’s the way we learn it. But Allen has convincing evidence that in the original document there was no period after “happiness”, which means that first line should read like this:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
In their regular waves of anti-government passion, which recur throughout our history, Americans often claim that the federal government in Washington interferes with our “life, liberty and pursuit of happiness”, and even that the federal government—or the bare concept of having a federal government—is at odds with Americans being able to pursue life, liberty, and happiness. But if the Declaration’s famous line has no period (as Allen seems to prove), then the only way Americans can pursue those rights given by God to all people is if they institute a government that derives its just powers from the consent of the governed.
This is how we have always seen it at the HP: what makes America great is not, as is so often suggested, “our freedoms”. It is the fair, representative, democratic government that makes those freedoms possible, that makes preserving those freedoms its first priority and understands them as its reason for being. Without a fair and free government, we cannot long maintain any national, political, or individual freedoms we currently possess. In our posts “What are the freedoms we have as Americans?” parts 1 and 2, we put it this way:
“Many Americans have come to see our individual freedoms as the wellspring from which national freedom is born, and thus individual freedoms are the most important. But these individual freedoms come from our government, from the Constitution, and last only as long as we have our national freedom. Without national freedom, there is no individual freedom, and national freedom only lasts as long as we have political freedom. Giving up our right to vote—for refusing or failing to vote is tantamount to giving up that right—is a dangerous step toward losing national and individual freedom. Once we stop demanding that our government really represent us, our democracy is crippled, and then the nation is open to outside threats. If individual freedoms are seen as separate from or at odds with national and political freedom, then we begin to prioritize our liberty to do whatever we want at the expense of national safety.
Individual freedom is really our freedom to live up to the founding principles of our nation. It’s our freedom to speak and worship and serve our country as we each see fit, and not really the freedom to be lazy and uninvolved and prioritizing our own choices over other people’s choices. It is the freedom to live together as one without having to be the same, not the freedom to push our own ways at the expense of everyone else’s.
Political freedom is our freedom to have a democracy, to be represented accurately in the federal government, and to preserve the individual freedoms we enjoy.
National freedom is the end result of the first two freedoms, because we who value our individual and political freedom will not allow our country to be destroyed by outside forces—or by those Americans who don’t believe in the full triad of freedoms.”
The idea that the Founders did not want us to have a strong government is ludicrous. Their whole aim in breaking away from Great Britain was to create a new kind of government—the government was the point, the goal, the prize, the crowning achievement of the United States. They would create a government that was democratic and representative, strong but flexible, responsive yet authoritative enough to enforce its laws (which would be written by popularly elected representatives of the people). Without that kind of government, there could be no guarantees of life, liberty, or happiness. As Jack Rakove of Stanford puts it in the New York Times article on Allen’s quest to remove the inaccurate period from the Declaration puts it, “Are the parts [of the Declaration] about the importance of government part of one cumulative argument, or—as Americans have tended to read the document—subordinate to ‘life, liberty, and the pursuit of happiness’?”
It takes energy to maintain a fair and free government. Energy on the part of citizens. We are so often lacking that kind of energy, particularly in the new millennium. George Washington warned us in his Farewell Address that the greatest threat to American life, liberty, happiness, and the government that provides them all comes from within America itself:
“The unity of government which constitutes you one people is also now dear to you. It is justly so, for [the government] is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”
Washington urges us to love our democracy and our democratic government, and to remember that it is a painfully new kind of government, and there are going to be many people—outside the U.S. and even within it, your fellow citizens—who don’t believe it will really work. They will try to tear it down, and tell you you’re crazy to defend it. You’ve got to remember that being united under your unique government is your greatest treasure. Forget the things that make you different, like religion or customs and focus on what you have in common, what you share that no other people on earth share: a democratic government of the people, for the people, and by the people.
That’s why we are quick to believe there was no period after “happiness” in the original Declaration of Independence. The Founders knew that good, tireless government was the only safeguard of life, liberty, and happiness. As the Fourth of July approaches, we would do well to remind ourselves of that fact.Read Full Post | Make a Comment ( None so far )
The HP was delighted to hear basketball legend Kareem Abdul-Jabbar skillfully counter Bill Maher’s leading negative question about President Lincoln on Maher’s show Real Time last week.
The two were having a discussion about Clippers owner Donald Sterling, who had just been heavily censured by the NBA commissioner for his racist screed on the phone a week or two earlier. They ventured into many different issues of racism in America society and history, including the question of, as Maher put it, whether to cut the Founders slack for their slaveholding because they were “of their era”—i.e., they grew up with slavery and didn’t know any better. Kareem said no, no slack is allowable, because there was never a time when people did not know that racially based slavery was a tool for destroying the enslaved race (our paraphrasing). Kareem mentioned Alexander Hamilton’s abolitionist views, and Bill Maher proffered Ben Franklin as well, but then fell into the usual trap about Lincoln: that he was an unrepentant racist and proslavery president with an unjust reputation for ending black slavery in the U.S.:
Maher: But you know Lincoln had some harsh words about the black people…
Kareem: Yes he did, but you have to say that Lincoln evolved. In 1858 he had some harsh things to say, [but] by the time the middle of the war had come around he realized what needed to be done, so you have to give him his credit for evolving quickly and understanding what really was at stake.
Kareem must be reading the HP! For this is the point we make in the first post of our series on Lincoln, Slavery, and Racism. Everyone is of their time in that they imbibe certain attitudes, beliefs, and social/political systems as children, but when they grow up, they inevitably re-evaluate those attitudes, beliefs, and systems. Most people decide to uphold them, for various reasons (tradition, the desire to avoid trouble, real support, no new ideas to offer). But some, like Lincoln, decide to reject them. They decide to be better than their society, and to forge a new attitude, belief, or system to bring more justice to the world.
We appreciate Kareem’s easy yet firm rebuff of the anti-Lincoln myth, and hope it does a lot of Americans and others a lot of good.
(P.S.: The tags for this post group together what are surely the strangest bedfellows in the world: “Kareem Abdul-Jabbar, Bill Maher, Abraham Lincoln, Donald Sterling”.)Read Full Post | Make a Comment ( None so far )
In our conclusion to our series on the Federalist debates that gave us our constitution, we try to wrap up their overall impact on the U.S., in their own time, and over the centuries since 1787.
We haven’t hit all the topics of debate in this series; for example, we haven’t looked at the worthy Anti-Federalists criticisms of the Supreme Court (they balked at the idea of having an unelected, lifetime-term body that could overturn the laws of Congress as it pleased; as usual, the Federalists replied that any body in service of the just Constitution would never become tyrannical). We have also left out the demand for a Bill of Rights, which was general on both sides, Federalist and Anti-Federalist (more on that in a later series).But we have gotten a sense of the categories of debate in general: the Anti-Federalists wanted to keep government as small and, crucially, as local as possible to avoid its corruption; and the Federalists wanted to give the federal government elastic powers to meet unforeseen dilemmas in the future, as well as to control the all-too-real and familiar dilemmas the young nation was already facing.
But in a larger sense, the Federalist debates were important not for their content, but for their happening at all. After popularly elected delegates met to create a new body of national laws, the entire nation was invited to participate in the debate over their ratification as our Constitution. Every aspect of the proposed Constitution was dissected and put under the microscope, and dissenters were free to publish their dissent, their criticisms and fears, in the free press. 85 Federalist Papers were published between October 1787 and August 1788. This is a far cry from the usual press treatment of big issues today, which usually feature a flurry of intense coverage for a week or so, then a near-complete dropping off of interest. For nearly a year the nation weighed the pros and cons of the proposed Constitution and the government it would create in a public forum where no holds were barred. Then the states elected delegates to participate in ratification conventions, and in most states people thronged outside the building where the conventions met, waiting to hear what they had chosen—to accept the new Constitution or not. Over 10 months, the required 9 states voted to ratify, which the caveat that a Bill of Rights be written and added to the Constitution as the first order of business of the new government.
This democratic process must have inspired some Americans to believe in the Federalist promise that republican virtue could be relied on even in a large population. No one had been censored, no one arrested or imprisoned, no one lost their property or their livelihood as a result of the position they took on the Constitution. Americans must also have been inspired by the near-blinding modernity of the ideas in the Constitution, and the futuristic nation they at once created and imagined.
We have seen over the centuries since 1788 that the Anti-Federalists got a lot right; their questions about state power to counter federal power, the danger of giving any government body unlimited power to act in the name of national security, and the tendency of power to corrupt have been proven pertinent many times over. Yet we see that the Federalists’ main precept was correct: any government, even a small, local, state government, can become corrupt if people lose faith in the principles of democracy. Keeping things local is no guaranty against corruption. And we can’t rely on one segment of the population—the small farmer or, to add today’s like category, the blue-collar worker—to provide all the republican virtue. Everyone has to be raised up in the tradition and discipline of democracy. Every citizen has to be committed to upholding the Constitution. And the most committed citizens should serve in our government—not the richest or celebrity citizens. If we believe in the principles the Constitution offers, we will send people to Washington who also believe in them, and will actively uphold them in the face of temptation to corruption.
And so we leave the U.S. in 1788, with its newly ratified Constitution, and centuries ahead of it to work out the million problems old and new, expected and completely unanticipated, that would challenge the strength of that document and the commitment of those citizens. We should take with us as we go a bit of their republican virtue to solve the problems we face in our own time.Read Full Post | Make a Comment ( 4 so far )
Here in the second to last post in our colossal series on the Federalist debates that gave us our Constitution we look at the final large-scale thorny issue dividing Federalists and Anti-Federalists: representation to Congress.
We talked last time about the division of the Legislature into two bodies, the House and Senate, and how contentious this internal division in an already divided, three-branch federal government was for Anti-Federalists. After it was adopted, the question of how to people this Congress arose, and the debate fell out along now-familiar lines: whether members of Congress should be elected by the people directly, or indirectly, by some carefully considered elite.
Before this issue could be addressed, however, the question of how many members would be elected had to be solved. The larger states believed they should have more representation than the smaller states, and would have established a majority-rule system where might made right. Smaller states, of course, did not want to be marginalized in this way, and accused the large states of promoting tyranny of the majority. Smaller states also did not want to get locked into a small number of representatives in Congress when most of them planned on expanding west in the near-term. If they did this, and were much bigger in 1817 than they were in 1787 when their representation was set in stone, they would be large states with small representation. The large states in 1787 had the same plans to expand—when Virginia’s western border was the Pacific (as was that state’s plan), it would need even more representatives than it had been allotted in 1787.
On this issue, Anti-Federalists and Federalists were able to work together more, as the question of how many representatives each state could send was not really about the power of the federal government, and with relatively minimal debate the Connecticut Compromise was adopted. This created a system in which each state, regardless of its size now or in the future, would send 2 members to the Senate and one Representative to the House for every 30,000 people.
The idea of equal numbers of Senators for all states, and proportional representation in the House did not pit Federalists and Anti-Federalists against each other. But the reality of defining “proportional representation” did. Anti-Federalists pointed out the impossibility of one person capably and honestly representing the wants and needs of 30,000 people. The Federalists replied that lowering the number (1 Rep for every 1,000 people, for example) would not solve the problem of one person representing multiple constituents—any time one person represents a group there is no way that person can fully represent their wants and needs unless that group is fully united. Since it is very rare for any group to be fully united, no representative can ever do justice to that group. But as usual, the Federalists used this flaw of human nature as a strength: the one thing that can give a Representative some authority to say that he accurately represents his many constituents is elections themselves. In elections, the people are forced to choose someone they think will do the best possible job representing their basic wants and needs. Not everyone will be happy, but the majority of the people will be satisfied, and if too many people are not satisfied, then they elect someone new. Elections will also force the people to focus their wants and needs into a few main issues, on which candidates will campaign. What the people really want most will come out during election campaigns, and the person who best represents what the people think is most important will go to the House.
The Federalists also pointed out, yet again, that the growing nation would soon have so many millions of citizens that it would be impossible to have 1:1 or even 1:1,000 or 1:100,000 representation in the House. The House had to be a figurative representation of the nation; it could not be a literal one.
This argument, of course, is based on the premise that the people would vote directly for their House Representatives. Some Federalists were against this, but they knew that there was no way the Anti-Federalists, or the majority of the American people, who had just fought a war to ensure their political representation, would accept a Congress made up entirely of indirectly elected members. So the Federalists went along fairly easily with the proposal that the House would be directly elected and the Senate would not. Senators would be chosen by the state legislatures, which meant the people had an indirect voice in the process, as they directly elected those state legislators. But in reality, the legislators could choose whomever they liked, and they would ideally choose someone who seemed the most capable, and the most likely to bring honor to the state, not simply someone who was the most popular. This solution made it possible to test the Federalists’ theory that if a small elite of educated, passionately sincere and devoted republican patriots controlled the federal government, that government could never become corrupted.
The big compromise on representation at the Constitutional Convention, of course, was on slavery, not the Senate. Southern states wanted their entire population counted when it came to apportioning House Representatives, and that included enslaved people. The northern states, of course, rejected this as the sham it was—no Representative from the south was going to represent the wants and needs of enslaved people. Enslaved Americans were not considered citizens, and had none of the rights of citizens. They were governed by black codes and slave laws and the whims and whips of individual slaveholders. To pretend that the south needed Representatives for these people was to turn the whole idea of representative government into a cruel parody. The whole issue of counting the enslaved in state populations was originally about taxation, and is a different topic than we are pursuing here—though we will come back to it in the future. For now, we note this compromise, see that it is really outside the scope of arguments about the size and strength of the federal government, and close.Read Full Post | Make a Comment ( None so far )
Hello and welcome to part 7 of what is becoming a monumental series on the Federalist debates that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)
The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.
But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?
The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress) given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?
Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.
The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.
As Madison puts it in Federalist Paper 51:
But the great security against a gradual concentration of [power] in [one branch of government], consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.
The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.
Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.
So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.
The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.
With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.Read Full Post | Make a Comment ( None so far )
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