U.S. Constitution

Gay marriage, religious freedom, and the First Amendment

Posted on July 1, 2015. Filed under: Bill of Rights, Truth v. Myth, U.S. Constitution | Tags: , , , , , |

Recent events force us to stop in the middle of our series on what’s in the Bill of Rights to circle back to our post on the First Amendment-–the celebrity amendment. The Supreme Court’s ruling in favor of marriage equality has led to a firestorm of protest from people who say our First Amendment right to religious freedom is being tramped. They are wrong.

Let’s revisit 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.

The “free exercise” of religion means freedom to worship. That’s it. Our First Amendment religious right is to worship as we see fit. Since Congress will not “establish” a religion—i.e., make it the official state religion—everyone is free to worship as they wish.

Worship is generally defined as attending a religious service, but it can be extended to prayer, pilgrimage, wearing one’s hair a certain way, and dressing and eating a certain way.

What worship is not defined as is belief. This is the crucial misunderstanding so many Americans have. Worship is an outward manifestation of belief. But it is not belief itself. And that’s why the First Amendment says nothing about religious belief. Absolutely nothing at all. This is what makes separation of church and state possible: religious belief is not allowed to determine what services the state provides. This means people who have certain religious beliefs can’t be refused state services, and it means that people who have certain religious beliefs can’t refuse to provide state services to people their beliefs condemn.

That’s why all these “religious freedom” bills being passed are bogus. They enshrine beliefs as rights (this is nowhere in the Constitution) and then say the First Amendment protects those beliefs by allowing people to refuse to serve others because their religion says to. Beliefs are amorphous. They are not concrete activities like worship. Anyone can have any belief they want, and their right to express those beliefs is protected. But if that expression comes in the form of refusing state or federal government services, then they cross a line by saying the state or federal government must conform to their beliefs.

This is what’s happening when county clerks refuse to issue marriage licenses to gay couples. The clerks are saying their right to do so is protected, but it is not. If something is legal in this country, the government must provide it—end of story. If people feel they cannot do that, then they should resign their position (quit their job). You cannot refuse to uphold U.S. law on the basis of your religious beliefs. The First Amendment specifically says this by saying Congress shall establish no religion.

On NPR this morning, Tammy Fitzgerald, Executive Director of the North Carolina Values Coalition, said this:

Religious freedom is what our country was founded upon. That is why the Pilgrims came to America, because they were being persecuted in Europe for their religious beliefs.

Of course she is wrong on both counts. The Pilgrims, as faithful and patient HR readers know, came to America because they wanted the freedom to practice their own religion. This is not the same as freedom of religion. They did not allow any other religion than their own in Plimoth. The Puritans, which is who Ms. Fitzgerald probably was thinking of, did not allow freedom of religion either. Those two groups wanted to establish states where their religion was the sole state religion, and they did not tolerate any other religions. The same was the case in Virginia (strictly Anglican).

The Declaration of Independence does not mention religion one time. The Constitution did not mention it until the First Amendment was added. So it’s hard to say that our country was “founded” on religious freedom.

And, as we know, when the Founders wrote the First Amendment, they protected freedom of worship only, which, as we’ve made clear, is not the same thing as saying “your religious views are allowed to overturn federal law and you can do whatever you want if it’s part of your religion.”

Insisting that states pass laws protecting the right to do whatever people want so long as they say it’s part of their religion is a way to establish a state religion: it makes public access to government services dependent on the religious beliefs of government employees. That is NOT in the First Amendment, and Americans who know this must dedicate themselves to teaching those who don’t.

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The Fifth Amendment: not just about the right not to incriminate yourself

Posted on June 18, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

It’s part six of our series on the Bill of Rights, and here we consider the Fifth Amendment, which reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Why is it we only think of “I take the Fifth?” being said in court when we think of this portmanteau amendment? The Fifth Amendment does four distinct things:

—It does indeed give people the right to refuse to say anything in court that might prove them to be guilty of a crime, or essentially make a person a witness for the attorney prosecuting her/him. However, you must explicitly say that you are invoking your Fifth Amendment right not to answer a question: you can’t just remain silent.

—It requires grand juries to be called to hear cases of felony (“Infamous crimes”), except in the case of military personnel accused of committing crimes during wartime (these are handled by military trials/tribunals).

—It gives people the right not to be tried twice for the same offense in federal court. Clearly, people are often tried and re-tried through appeals, but someone cannot appear as a defendant in the same case before the same federal court (that’s why things move up to district and circuit courts and finally to the Supreme Court). This is called the “double jeopardy clause”.

—It grants citizens due process under the law, in a preview of the Fourteenth Amendment. No one can be arrested or have their property taken away without being explicitly told which law they have broken (or that they have broken a law at all).

—It forces any state or federal authority that takes away someone’s property by right of eminent domain to reimburse the person(s) who lost their property with something of equal value (“just compensation”).

That’s a lot. Most Fifth Amendment cases have addressed the self-incrimination aspect. During the Red Scare of the early 1950s, people hauled before the House Un-American Activities Committee who refused to testify against themselves by even answering questions about whether they were communists invoked the Fifth Amendment, but were lacerated as cowards and liars for doing so. Since being a communist was not actually a crime in the U.S. legal code, many people were not allowed to invoke the Fifth because it is specifically meant to prevent people from being forced to admit criminal activity.

In the following decade, this history was revisited when the Supreme Court decided in Griffin v. California (1965) that taking the Fifth in court cannot be used to persuade a jury that the person refusing to testify is guilty.

Many cases have dealt with whether police officers used harsh interrogations, intimidation, threats, or torture and violence to force confessions out of suspects in their custody. The 1966 Miranda v. Arizona case threw out Miranda’s confession because it was forced out of him by police officers who did not tell him he had the right to remain silent. The Supreme Court said that the police are required to tell people that they have a Fifth Amendment right not to incriminate themselves—a right now usually referred to as “Miranda rights”.

Other rulings include one saying that someone can’t refuse to provide their tax records because they will incriminate them, and another that said, conversely, that someone can refuse to provide computer hard drives on that basis.

Next time: the long-abused Sixth Amendment

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The Fourth Amendment: what is a search? what is property?

Posted on June 12, 2015. Filed under: Bill of Rights, The Founders, U.S. Constitution | Tags: , , , |

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.

Next time: the famous Fifth Amendment

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The lonely Third Amendment and its defense against quartering of troops in private homes

Posted on June 4, 2015. Filed under: Bill of Rights, Quartering Act, U.S. Constitution | Tags: , , , , |

Hello and welcome to part four of our series on the Bill of Rights. Here we shine a rare spotlight on the Third Amendment, the lonely wallflower of the Bill. Here is its unanimously undisputed text:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

When we read it, we are immediately taken back to the tumultuous lead-up to the Revolutionary War. After the Boston Tea Party, one of the Coercive Acts issued by Parliament stated that British soldiers were to be quartered wherever housing existed—including people’s private homes. This only really had an effect on the Boston area, because the Coercive Acts were accompanied by a surge of soldiers to enforce them. Suddenly there were many times more British soldiers in the Boston area, and there really were not enough barracks or official military housing for them. And so the Quartering Act of 1774 read thusly:

WHEREAS doubts have been entertained, whether troops can be quartered otherwise than in barracks [within] any town, township, city, district, or place, within his Majesty’s dominions in North America: And whereas it may frequently happen, from the situation of such barracks, that, if troops should be quartered therein, they would not be stationed where their presence may be necessary and required: be it therefore enacted [that] it shall and may be lawful for the persons who now are, or may be hereafter, authorized by law, in any of the provinces within his Majesty’s dominions in North America, [at the request] of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billeted in such manner as is now directed by law, where no barracks are provided by the colonies.

And be it further enacted by the authority aforesaid, That if it shall happen at any time that any officers or soldiers in his Majesty’s service shall remain within any of the said colonies without quarters, for the space of 24 hours after such quarters shall have been demanded, it shall and may be lawful for the governor of the province to order and direct such and so many uninhabited houses, out-houses, barns, or other buildings, as he shall think necessary to be taken, (making a reasonable allowance for the same), and make fit for the reception of such officers and soldiers, and to put and quarter such officers and soldiers therein, for such time as he shall think proper.

So ominous. That Quartering Act was a long way of saying “Britain now considers the people of America to be an enemy population which will not only be placed under martial law, but will be forced to give up its own property to the soldiers commanding them.” Did they really station soldiers in “out-houses”? Luckily, or unluckily, depending on your viewpoint, “out-houses” here does not mean privy pits (outdoor bathrooms) but buildings in the yard of a house (stables, smokehouses, etc.).

During the Revolutionary War, General Washington won the hearts of many of his compatriots by refusing to let his men take anything from local people when they passed through an area—no food, firewood, clothes, or any other much-needed supplies. And he never forced people to house his soldiers anywhere on their property. Thus when the American people came to enumerate the rights they felt were most important to their life and liberty, they wanted Washington’s voluntary example to become mandatory law. And so the Third Amendment was written.

It’s interesting that it does not really completely preclude quartering. It just makes quartering a legal matter. “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”—that is, the government/Army is free to ask any property owner if soldiers can stay in their houses during peacetime, but during wartime there might be a law passed allowing quartering. This would be a temporary law, one feels, but it could happen. Quartering is not ruled out, it is taken out of the realm of official whim and placed within the realm of democratic law.

There has never been a major Supreme Court case predicated on the Third Amendment. That’s because the amendment immediately takes us back to the Revolutionary era, and that’s because, aside from the War of 1812, we haven’t had a war fought in our country since the Revolution. (The Pearl Harbor attack did not involve foreign soldiers landing on our soil.) During the War of 1812, our army was too small and too much on the run to trouble anyone with quartering. And so the problem that was so fresh and real in 1789 when the Third Amendment was written has become a museum piece (so far).

There have been a handful of court cases that referenced this amendment. As recently as February 2015, the District Court in Nevada rejected an argument that police officers cannot enter people’s homes without their permission because that would be a kind of quartering by saying that the police are not soldiers. (The case was sparked by police entering a home to help a victim of domestic abuse when the owner of the home [and the accused abuser] was not there.)

One colorful attempt to invoke the Third Amendment was in United States v. Valenzuela in 1951, when the defendant stated that rent control law was “the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution.” This plea was not heard by the Court.

Let’s all hope that the Third Amendment continues to be a moot point as we move forward in our history.

Next time: the all-too-relevant Fourth Amendment

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The Second Amendment does NOT protect private gun ownership

Posted on May 28, 2015. Filed under: Second Amendment, The Founders, U.S. Constitution | Tags: , , |

…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.

Next time: another military amendment

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What does the First Amendment say?

Posted on May 20, 2015. Filed under: Politics, The Founders, U.S. Constitution | Tags: , , , |

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.

Next time: the very clearly military Second Amendment

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What’s in the Bill of Rights?

Posted on May 14, 2015. Filed under: Politics, U.S. Constitution | Tags: , , |

It’s time for another series! We’ve decided to take up the Bill of Rights and give it a good going-over, since it seems that when people argue about preserving “the Constitution” they are only ever talking about the Bill of Rights section—the first set of amendments to the Constitution.

So let’s get right into it. For curiosity’s sake, and to give a sense of what was originally proposed, we’re going to start with the first two of the 12 amendments presented to the state legislatures for ratification; the only two that were not ratified.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

—The closing phrase of the first paragraph (from the short preamble) is interesting: these amendments are meant to “extend the ground of public confidence in the Government, to best ensure the beneficent ends of its institution.” In other words, the amendments we know as the Bill of Rights are meant to make Americans more confident in the federal government because they prevent the federal government from ever overstepping its powers and becoming tyrannical. Yet today, most Americans seem to see the Bill of Rights as a weapon to use against a federal government that can only ever be tyrannical: instead of assuring us that our government will never be unfair, the Bill of Rights panics us that our government will always be unfair. The Bill was meant to put fears of tyranny to rest, but now it only ever stirs them up.

On to the first article, which was not ratified. It deals with representatives to Congress, and tries to anticipate the problems that population growth might provoke as the nation grows. The men drafting our Constitution and its amendments had this problem on their minds at all times. It was clear the nation would only experience exponential growth as it took over the continent from sea to sea. They tried to set up frameworks that would work in 1787, when the population was already a little unmanageably large, and work in 1887 or 1987, when they imagined the population to have soared far beyond their imagining.

The public imagination at the time, however, rejected this proposed amendment as impossible. One representative for 50,000 people? That wasn’t right: how could one person fairly and effectively represent so many? The other problem was this: if this amendment had been ratified, today we would have over 6,000 Representatives in the House. As it is, we have 435, and each House member represents over half a million people (about 650,000). When your population grows to hundreds of millions, it’s impossible to give them anything close to effectively individual representation.

When you think about it, that’s why political parties really took off. Parties allow thousands or millions of people to become one person, adopting one set of beliefs. If you represent 650,000 people and 500,000 of them are Republicans, if you just follow the party platform you will be accurately representing most of your district. You don’t have to try to get to know 500,000 personal beliefs. Early on in our history representatives and the represented figured this out.

Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

—This failed amendment says that Congress can’t vote to change its pay during a term. Members can propose a pay change for the next term. To make sense of this, first we have to note that they only change in pay likely to be proposed is a raise. So this amendment says that Congress can’t give itself a pay raise without allowing the people to vote on it. What Congress can do is propose a pay raise for the next session, which allows people to vote on that pay raise: if they approve it, they re-elect the members who voted for it; if they don’t approve it, they elect new members. James Madison was behind this amendment because he didn’t think Congress should be allowed to pay itself arbitrarily without giving the people a chance to approve or reject the changes.

The interesting thing about this amendment is that it was not ratified in 1787—but it was ratified 202 years later, in 1992, as the Twenty-Seventh Amendment.

Next time: the amendment we know best

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All civil rights matter: hats off to Clela Rorex for recognizing same-sex marriage rights in 1975

Posted on April 27, 2015. Filed under: Civil Rights, U.S. Constitution | Tags: , , , , , , |

We just heard a great interview with Clela Rorex on the NPR news program The Takeaway. Ms. Rorex was a county clerk in Boulder, Colorado in 1975 when two men approached her for a marriage license. She gave those men, and five other couples, the licenses after consulting with her boss, who said there was no law against doing so, and that it was up to her to decide. You can read a summary of the interview here. It gets the point across, but there were some important omissions we’d like to fill back in.

It’s hard to believe that such important decisions are left to people’s personal discretion: to hear that a government official said granting marriage licenses to gay couples is not illegal, but that the clerk could refuse to do it anyway, is to hear a violation of our basic form of government. Innocent until proven guilty, legal until made illegal—that should be the formula. It’s the logical conclusion of our legal system. But we see it overthrown left and right these days, from individual pharmacists refusing to fill prescriptions for birth control that violate their personal religious beliefs to Hobby Lobby employees refusing to help gay shoppers find products. Some Americans have prioritized their personal liberties over others’, creating a hierarchy in which one’s own personal beliefs trump the law.

And some Americans have decided to make this kind of prejudice and discrimination the law, thus avoiding any possibility that Americans who aren’t prejudiced might serve people the lawmakers don’t like. “Religious freedom” acts in Georgia, Indiana, and Arkansas are almost sure to be passed in other states before they are defeated by popular outcry.

Clela Rorex represents the kind of American we can all be proud of. Here is what she said in the interview that doesn’t appear on the website (as of this posting) when asked by host John Hockenberry what led her to make her decision to issue the license:

ROREX: This is where it kind of gets confusing for even me because people expect me to say something profound. The very core of me said, I’m not the person to discriminate if two people of the same sex want to get married and that was pretty much my thinking. …And I just made the decision to do it, I didn’t want to legislate any kind of morality, personal or otherwise. I felt that if the law did not prohibit me issuing same-sex marriage licenses, then I truly felt that I should do so.

HOCKENBERRY: Clela, you don’t think that’s profound?

ROREX: Well, I think I learned later that it was profound. …It was very simple for me. [It was] a question of am I going to be the one to take away such a right if this right exists? And I could never have lived with that.

Some Americans seem to make a career of legislating morality today; they often claim the blessing of the Constitution on their actions even as they violate the First Amendment that says the government shall make no establishment of religion in order to grossly expand the definition of “prohibiting the free exercise thereof” to mean that people can use their religion to strip other people of their rights. Taking away rights they don’t like is their bread and butter.

Ms. Rorex addressed this at the end of her interview, when the host rather callously said that the same-sex marriage licenses she issued were a “different spin on the mindless paperwork of a clerk”:

It was mindless paperwork… you just don’t think that someone in an administrative level of government really can be called upon sometimes to make important decisions. When you look at things now, with the Supreme Court soon to hear once again whether marriage equality will be the law of the land, you see administrative officials, county clerks and others, putting up all kinds of roadblocks to try to not issue licenses to same-sex couples. You see administrative officials saying they’re not going to change the gender on a driver’s license or on a birth certificate. It’s very petty to me, it’s petty. Government officials I feel get hamstrung with red tape and they should find a way around it. It’s not like you’re asking for the impossible.

She is generous to give these officials the out of saying they are hampered by red tape. We will follow her lead and go along with this explanation for all the personal decisions about what is legal and what isn’t and encourage everyone to educate any government official they encounter who does not understand the law and their duty to it as clearly as Ms. Rorex. The job and purpose of a government official is to administer the law, not set up roadblocks to it based on their personal beliefs and feelings. If a law is to be contested, and its constitutionality questioned, that must be done in the public forum of the legislature, not an individual’s lunch break. We all have a say in what is legal in this country; let’s all make the decision, as Clela Rorex did, not to take away other people’s rights in the name of our own.

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Wrapping up Reagan’s farewell speech

Posted on April 17, 2015. Filed under: American history, Politics, U.S. Constitution, What History is For | Tags: , , |

So what is the takeaway from our excruciatingly long and terribly close reading of Reagan’s 1989 farewell address?  It’s one that isn’t unique to Reagan, certainly; it’s a conclusion Americans have drawn almost for as long as there has been an America: mandating an ill-defined patriotism as the measure of our national good is un-American.

Many presidents have urged Americans to support “my country right or wrong”. Reagan was not the only one. Many presidents have urged Americans to define patriotism as never questioning or criticizing national policy. And many presidents have urged Americans to see every war the U.S. fights as just, and never to question our military actions overseas (and to see military service as the highest or only form of patriotism).

But those presidents were usually countered immediately and publicly by Americans who realized and pointed out that this is not the American Way. High-profile Americans were willing to demand real patriotism, which means putting our founding principles of liberty and justice for all first above all other goals and desires, and taking personal responsibility for the preservation and exercise of those principles

Since Reagan, however, there has been an increasing trend away from real patriotism. So much has changed, even since 1989. The Internet has created a wide avenue for shaming and attack that deters many people from even getting involved in debates because those “debates” are actually uninformed dogfights focused on personal attack. Cuts to education funding have dumped civics education onto the scrap heap, so that most Americans have no idea what our founding principles are, and have to rely on the warped interpretations they get from political campaigns run by people as uninformed as themselves. History education has been hit hard, too, so that many Americans do not know their own history and have few examples of real patriotism to summon up for inspiration. Terrorist acts, beginning with September 11th, have been made an excuse to hail military action and military service as the only real patriotism, which is an astounding turnaround from the national opinion when Reagan took office, when the long ordeal of the Vietnam War had made U.S. military action unpalatable for most adults.

Since Reagan economic growth has been prized above all else, and is so important that corporations have been given rights of personhood, corporate money openly controls elections from the state to the presidential level, the federal government failed to take any substantial or lasting legal action to prevent another financial collapse like the 2008 Recession because big business is so much more powerful than the federal government, and Congress is working hard to remove any taxation of estates valued at over $5 million. The shining corporation on a hill is king.

In his speech, while reflecting on the “trickle-down economics” that he introduced, Reagan said this about the critics who pointed out that it would begin a terrible wealth gap: “What they called “radical” was really “right.” What they called “dangerous” was just “desperately needed.”

Sometimes it seems that we live in an America where radical and dangerous stances (anti-gay, anti-immigrant, anti-woman, anti-separation of church and state, anti-environmental health) are considered right and desperately needed to return America to a mythological perfect past where everyone was white, straight, either born here or a “good” (read white) immigrant, and Christian. That is a depressing legacy of Reagan.

But we must not give in to despair. The pendulum always swings, and it will swing back away from this radicalism because there will always be Americans who fight for our founding principles. Our job is to be those Americans.

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Lynching in the 21st-century: or, black lives matter

Posted on December 5, 2014. Filed under: American history, Civil Rights, U.S. Constitution, What History is For | Tags: , , , , , , , |

One of the cornerstones of a history education is civics. If we don’t understand how our government is supposed to work, and why it is structured the way it is, we cannot participate properly in our own government, and we can’t hold the people in positions of political authority accountable for their actions. We can’t define what justice is. We have no recourse when confronted with a crime against our proper form of government but to run into the streets as mobs, in brief and ultimately futile demonstrations that accomplish no long-term reform. So here’s our civics lesson for 2014 and beyond.

In the United States, the police are bound by the same laws they enforce. They are not above the law. They don’t have a separate code of law from non-police officers. They are government employees (at the federal, state, or local level) bound to obey the law just like other government employees. A police officer has no special waiver to break the law in dangerous circumstances; the police can use their judgment to decide whether force is needed to prevent a criminal from killing someone, but they are bound to use only so much force as is necessary to defuse the danger and take the suspect into custody alive.

Clearly, we haven’t been seeing this in the U.S. over the past few years. At the same time, it’s not a new problem. The police generally uphold the values of the majority in any country. In the U.S., the police have traditionally been white men (and this still holds true today), and they have generally upheld racial and sexual discrimination. They’re not the only ones, of course; the same can be said of Congress and most state and local governments. When we look back at U.S. history, we see that government officials and the police have often worked together to thwart the principles of our nation’s founding, and to pervert our democratic government. But one would have thought that since 1970, say, and a full century of civil rights progress and seemingly increasing enlightenment about race, sex, and sexuality, this would not be happening so openly and baldly today, in 2014. A leader of the New York police department on the radio this morning promised in-depth training and education for officers, basically to help them not respond to every encounter with a black man with deadly force. This made us wonder why, at this late date, and after so many decades upon decades of civil rights activism and education in this country, this “training” begins only now.

You have to take the long view on any current problem. When we do that here, we see that the police assaults on black men are just part of a larger problem that is not fully encompassed even by race. The real problem being expressed in these incidents is the militarization of our police and our culture. Somehow, in the last 30 years, guns have been made the hallmark of American freedom. Everyone must have one everywhere, despite their criminal record or mental stability. One of the outcomes of this is the regular school shootings we endure each year. Another is attacks on the police. For years now, we’ve heard about police being called to a domestic dispute and being shot instantly, either as part of a general shootout or as the end result of a deliberate trap. Police have been shot by people they pull over for speeding. In many states, people can carry guns around everywhere, at all times; this makes any interaction with them by the police potentially fatal for the officer.

The logical reaction to this by the police has been to up the ante: when you expect to be shot, the only way to defend yourself is to make sure you shoot first. It’s not surprising that police officers have begun to expect that every encounter they have could be fatal. And it doesn’t seem likely that any “training and education” will prevent further deaths when Americans continue to carry guns at all times—the police will still believe that the only outcome of every encounter is gunfire, from both sides. Add race to this, in the form of a black suspect, and death is almost a given. Even when it is clear the black suspect does not have a gun, extreme force is used to subdue him before he somehow injures the officer. Eric Garner was not shot like Michael Brown, but he was immediately put into a choke hold—an extreme action.

Darren Wilson’s perception of Brown as looking like “a demon” was not only an admission of his fear of being killed by a suspect, it was a shocking admission of racism that was so very like descriptions of black men during and after slavery in this country that we were left aghast. Describing black men as big, hulking, animal-like, amoral, dumb, demonic, and savage was boilerplate for two centuries in this country. Black men had to be “demonized” to justify slavery and then post-slavery oppression and… lynching.

Lynching has to come to mind here. We seem to have entered a new age of lynching in this country. Lynching is characterized not just by a violent death (by hanging, mutilation, torture, burning, etc.), but by one or two men making a lightning-fast decision about someone’s guilt and immediately acting on that decision to kill them. Originally, lynching in the West was done by whites to whites. No one described lynching more decisively and unflinchingly than Ida B. Wells, so let’s let her describe it here (from Lynch Law in America, published in 1900):

Our country’s national crime is lynching. It is not the creature of an hour, the sudden outburst of uncontrolled fury, or the unspeakable brutality of an insane mob. It represents the cool, calculating deliberation of intelligent people who openly avow that there is an “unwritten law” that justifies them in putting human beings to death without trial by jury, without opportunity to make defense, and without right of appeal. The “unwritten law” first found excuse with the rough, rugged, and determined men who left the civilized centers of eastern States to seek for quick returns in the gold-fields of the far West. Following in uncertain pursuit of continually eluding fortune, they dared the savagery of the Indians, the hardships of mountain travel, and the constant terror of border State outlaws. Naturally, they felt slight toleration for traitors in their own ranks. It was enough to fight the enemies from without; woe to the foe within! Far removed from and entirely without protection of the courts of civilized life, these fortune-seekers made laws to meet their varying emergencies. The thief who stole a horse, the bully who “jumped” a claim, was a common enemy. If caught he was promptly tried, and if found guilty was hanged to the tree under which the court convened.

The key here is the speed of the judgment. If someone was caught committing a crime, large or small, or even suspected of it, he was immediately found guilty and killed. It could be done in 10 minutes. There’s no trial (later there would be nauseating show trials with a pre-determined guilty verdict), no testimony beyond “He stole that from me”, no chance for the accused to protest or prove himself innocent. Lynching is about pre-determined guilt, but it’s also about leaping over the lengthy process of criminal justice and fair trials to the instant gratification of death to the criminal.

That’s what is shocking about every instance of police brutality or deadly force. Instead of doing all he can to bring a suspect into custody where he can be tried, the officer makes a split-second decision about how much danger he himself is in from the suspect, and acts on it immediately. Afterward, this decision is validated by a claim that the suspect was resisting arrest. This is a claim so old and so reeking of our nation’s long history of injustice to minorities of all kinds that it’s difficult to hear it spoken today. Police officers are trained to overcome suspects resisting arrest in many ways; deadly force is supposed to be a last resort. But in our militarized and violent culture, it is the first and only resort for too many police officers.

We had already thought about this as a new kind of lynching when we realized that the head of the NYC police union is named Patrick Lynch. Here is his commentary on the Garner death as reported by NBC News:

“We feel badly that there was a loss of life,” said Patrick Lynch, president of the Patrolmen’s Benevolent Association. “But unfortunately Mr. Garner made a choice that day to resist arrest.”

—Don’t most suspects “make a choice” to resist arrest? Does anyone go quietly? We would wager that most suspects resist arrest, but only the large, black ones are put in choke holds. Does any police officer expect that no one he confronts will ever resist arrest? Aren’t the police trained in how to deal with someone resisting arrest without killing them?

He praised the officer, Daniel Pantaleo, as a good man, a mature policeman and an Eagle Scout who “went out and did a difficult job, a job where there’s no script, and sometimes with that there’s tragedy that comes.”

—But there is a script: it’s called police procedure. It’s police training. Is Lynch really saying that police officers have no idea what to do when someone resists arrest other than to use deadly force? The Eagle Scout reference we will pass by in disbelief.

“It’s also a tragedy for this police officer who has to live with that death,” Lynch said.

—It doesn’t seem like it should be a tragedy if, as Lynch maintains, no real harm was done. Someone resisting arrest got what they deserved. The warped idea that it is really the police officer, not Garner’s family, who suffers most is all too common in these statements.

He also praised New York police for their handling of protests on Wednesday night, when thousands who objected to the decision took to the streets. Lynch lashed out at Mayor Bill de Blasio, who said on Wednesday that the grand jury’s decision not to bring charges was “one that many in our city did not want.”

He suggested that the mayor was teaching children to fear police officers, and he said the lesson instead should be to comply with police officers, even if they feel an arrest is unjust.

—It is only possible to comply with police officers if their treatment of you as a suspect is constitutional and legal. If not, you are under no such obligation.

“You cannot resist arrest,” Lynch said. “Because resisting arrest leads to confrontation. Confrontation leads to tragedy.”

—Americans have the right to resist arrest. The police are obligated to take people who resist arrest into custody without killing them. Resisting arrest does lead to confrontation—but the idea that confrontation must lead to tragedy is so outrageous. Are we really to accept that if we resist arrest we will be killed? Shot, choked, tased, however it happens? Any act of defiance will be met with death? This sounds more like the totalitarian states the U.S. is constantly battling around the world than our own country.

We cannot allow our police force to become perverted. We cannot become a police state, where police officers have the right to kill if, in their own, split-second judgment, they are personally endangered. The first duty of a police officer cannot be to protect himself. We can’t have local city police suddenly driving around in armored vehicles, basically tanks, because they fear for their lives. We can’t accept this as the new normal. It takes bravery and a strong commitment to justice to be a good police officer. We need more people with those qualities to take on that job.

We also need to reform our society and put an end to our obsession with “protecting ourselves” with guns. For as long as a police officer has good reason to suspect that the people he encounters are armed, we will have nothing but escalating police violence.

And finally, we cannot opt out of our government system. We can’t eviscerate our government as unjust and wash our hands of it, deciding to riot or protest and then do nothing. We can’t change anything unless the people who are outraged by injustice do the long, hard work of changing the system. We can’t have people making the split-second decision that the police are corrupt, there’s nothing we can do about it, and we are thus free to hate and defy the police. That will not change anything. Everyone has to participate in our democracy to keep it working. Anger and outrage should fuel hard work, not self-righteous inactivity. It’s hard work to be free.

We’ve said many times here at the HP that every generation has to accept and commit to our nation’s founding principles of justice. Learn what those principles are, commit to them, and uphold them in your daily life to the greatest extent that you can, and never back down from them. It’s the only way to prevent lynching.

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