Tuesday, November 27, 2007

Chuck Norris can kick the Establishment Clause's scrawny little butt

Recently hotair.com, a conservative blog, posted an item about actor and tough guy Chuck Norris, who—along with his pretty and much younger wife—supports the notion of teaching Bible classes in America’s public schools. (Here is the piece, including a youtube video:)


When such a suggestion is offered, it’s common for the objection to be raised that for government schools to offer Bible study would be a violation of the First Amendment’s Establishment clause, which mandates that "Congress shall make no law respecting an establishment of religion.” Modern interpretation of the later Fourteenth Amendment has held that this restriction on government action also applies to the states; e.g. Cantwell v. Connecticut 310 U.S. 296 (1940), Everson v. Board of Education 330 U.S. 1 (1947).

That’s fine; a discussion on whether or not Bible reading in a public school runs afoul of the Establishment clause is exactly the kind of meaty topic I hope in the future to address in this blog. If you conclude Chuck Norris is wrong, it’s perfectly acceptable to criticize him on the grounds that his interpretation of the Constitution is suspect.

But something else should be, I think, out of bounds in the discussion. That is the notion that nobody can endorse the idea of religious based values not because the Constitution won’t allow it, but because the person advocating such a position is (of course) a flawed person himself. Responding to the item posted at hotair.com, one of the readers there sneered: “Let’s not start taking lessons in morality from a guy that dumped the mother of his kids so he could marry his blonde trophy wife. Chuck Norris is as bogus as a three-dollar bill.”

I checked various websites purporting to give a fair biography of Norris; all the ones I’ve seen state that he divorced his first wife in 1988 and married his current one in 1998. If that is true, it hardly needs to be said that a man who marries his second wife a full decade after jettisoning his first absolutely did not “dump the mother of his kids to marry a trophy wife.” Of course, even if Norris had said “I do” to wife number two twenty minutes after saying “get lost” to wife number one, and he’d done the whole thing in Las Vegas with an Elvis impersonator presiding, this is not good evidence that the Constitution prevents public school children from being taught in class that “A word fitly spoken/ Is like apples of gold in pictures of silver.” (Proverbs 25:11).

Whatever argument there may be that reading the Bible in public schools is an affront to the Establishment clause, I think that no one should rationally argue that Chuck Norris doesn’t get to use his other First Amendment rights—freedom of speech, freedom to use the media to advance his position, and freedom to associate with others to petition the government for change—because he’s in his second marriage. Yet that basically is what the hotair poster is suggesting.

One hears this sort of thing occasionally in the form of shouts such as “Who is Sam to argue that we should not be in the current conflict in Iraq when he suddenly decided at age 19 in 1969 that it was time to look for an apartment in Toronto?” or “I can’t believe that candidate has the nerve to talk about family matters when her son got nailed on a DUI!” or “How can you fairly express an opinion on abortion; you are a MAN!!!!” When you hear things like that, you are hearing total nonsense. Nobody loses his First Amendment freedom to speak, write, or petition because he was a rowdy youth, made mistakes as a parent, or was born with (or without) a penis.

The irony is that the very authorship of the First Amendment in a sense confirms what I’m saying. It may be one of the most sublime expressions ever of what liberty really means—and one of the most concise as well, coming in at forty-five words. One might suspect that whoever wrote it couldn’t possibly be as good as those words—and indeed, James Madison wasn’t.

To his credit, on June 8, 1789, Madison presented to the House of Representatives a rough draft of what would eventually become the First Amendment (Farber, D.A. & S. Sherry, A History of the American Constitution, 1990, pp. 227-231.) To his discredit, Madison owned slaves. In fact, as historian Joseph Ellis pointed out in his Pulitzer Prize winning book Founding Brothers (2000, pp. 113-118), Madison used a good deal of parliamentary wrangling to keep Congress from even debating slavery issues. Free speech for Congress, thus, was in a sense shut out by the same man who advocated free speech for everyone.

So if someone implies that by virtue of having been divorced Chuck Norris has lost his First Amendment right to tout Biblically based morality, gee, why not go all the way and just say that the whole first Amendment itself is irrelevant because its main draftsman embraced slavery? Nobody ever gets to that point, of course, because muddled thinking eventually is understood to be just that.

But any suggestion that someone doesn’t even deserve to be heard because of something in his personal life is a few steps down that muddy path. You still get your First Amendment rights even if you’ve divorced or made silly martial arts movies.

Monday, November 19, 2007

The Big Man was in Paris

"Thomas Jefferson, one of the authors of the 1787 Constitution, declared: 'America is new in its forms and principles.'"
--Fernand Braudel, A History of Civilizations. New York: Penguin Books, 1987, p.458.

"Literate America heaved a collective groan last week: huge ads in several national newspapers promoted the upcoming film Jefferson in Paris by displaying part of the American Constitution. But Thomas Jefferson had as much to do with drafting the Constitution as he did with writing the recipe for American cheese. Says a spokeswoman for Walt Disney Co., which releases the film March 31: 'We all walked in Monday morning and said, 'Oh (expletive)! It should have been the Declaration of Independence.' This from the company that wanted to build a theme park celebrating American history."
--A 1995 Newsweek article quoted in "Forty Years of Overstatement: Criticism and the Disney Theme Park" by Greil Marcus, a chapter in the book Designing Disney's Theme Parks: The Architecture of Reassurance edited by Karal Ann Marling, Paris: Flammarion, 1997, p. 202.

"Mandark says Thomas Jefferson wrote the Bill of Rights, but James Madison did that."
--Comment posted at http://www.tv.com/dexters-laboratory/dexters-rival/episode/24509/summary.html?tag=ep_list;title;9, site visited 19 Nov 2007; the poster was remarking on an episode of the cartoon "Dexter's Laboratory."

Last week at the petting zoo I work at, I watched an elementary school teacher walk up to one of our sheep with her students. She carefully explained to them how these fuzzy animals are sheared periodically for their wool. And then, she asserted, the wool is used to make cotton.

This happens a lot, and I admit I was very surprised to discover how many adults have no clue that cotton comes from a plant and not from the backs of livestock. And after a parent or teacher has told a child that cotton comes from sheep, I suppose the next step in misinforming them is to declare that Thomas Jefferson wrote the U.S. Constitution.

The assortment of quotes above, taken from sources serious and frivolous, is a reminder how prevalent is the misconception that Thomas Jefferson was involved in the writing of the original Constitution or it's first ten amendments. It would be easy to dismiss the writers of a cartoon on Nickelodeon for getting it wrong, but Braudel's book is a respected treatise that has gone through several editions. (For the record: Braudel wrote in French, in which I am not fluent; I read the English translation by Richard Mayne. I sent an e-mail to Penguin Books noting the error and inquiring whether Braudel goofed or it was a mistranslation. I've not yet received a reply.)

During the 1787 Constitutional Convention, Jefferson was serving as minister to France; thus he was in Paris and not available for Constitution drafting. After the Convention, Jefferson corresponded with his friend James Madison on his likes and dislikes of the great document, and these letters enable us to understand what TJ thought about the whole deal. (A nice sampling of their letters is reprinted in Founding America: Documents from the Revolution to the Bill of Rights, Jack N. Rakove, ed., New York: Barnes & Noble Classics, 2006, pp. 545-587.) But Jefferson manifestly did not write the Constitution! Got that? And we don't get cotton from sheep!

So why do some people think Jefferson DID write the Constitution? I think it's obvious: such people are getting the Declaration of Independence, which Jefferson wrote, with the Constitution, which he didn't write. Either that or people just figure that since the Constitution was a big deal and it happened while Jefferson walked the earth, then by gosh, he must have had something to do with it.

As Jefferson spent a good deal of time in Paris, it is somewhat ironic that a Frenchman, Alexis de Tocqueville, may have put his finger on why it's easy to suppose Jefferson had a hand in the Constitution. Writing in 1835, de Tocqueville asserted: "I am glad to cite the opinion of Jefferson... rather than that of any other, because I consider him the most powerful advocate democracy has ever had." (Democracy in America, Volume 1, Chapter XV.) That's it in a nutshell: the Constitution was an influential document promoting democracy; Jefferson was its contemporary and an influential voice touting democracy. People think they just have to be connected somehow.

Wednesday, November 7, 2007

Easy Access to the Constitution

I must have about twenty books around my place that contain copies of the United States Constitution. It just dawned on me, however, that a lot of folks probably don't have a Constitution at their fingertips. Well, through the magic of the Internet and the wonderful Avalon Project of the Yale University Law School, let me provide a link where the document can be viewed: http://www.yale.edu/lawweb/avalon/usconst.htm.

What a great website to peruse when you have time; they have everything posted there from the Magna Carta to the 9/11 Commission Report.

Tuesday, November 6, 2007

Shakespeare, Scriptures, Smith, and a cast of thousands

Have you ever heard that old bit of wisdom, something to the effect that the beating of a butterfly's wings in Madagascar can affect the weather in Kansas? When I first heard that, I couldn't help thinking that if an insect brandishing its wings in Madagascar influences weather in Kansas, just imagine what an elephant breaking wind in Uganda does for the climate in Missouri.

Anyway, the matter of this influencing that surrounds the discussion of a lot of things. I've come to the conclusion that when an author writes a long dissertation that a influences b, and he cites numerous sources and events to buttress his point, he probably is right: a does influence b.

The problem is, while a may influence b, there is a really good chance that b is also influenced by c, d, e, f, and g. Plus assorted butterfly wingbeats and random elephant farts. It's largely a matter of the individual investigator's focus--he's not saying c doesn't influence b, mind you, it's just that this isn't his personal interest, which is demonstrating to the world that a influences b.

You should always remember that when you read what someone has to say about what inspired the Framers as they crafted our United States Constitution.

Take the Bard of Avon. How much of a factor were the works of Shakespeare in the writing of the Constitution?

If you pick up a copy of Forrest McDonald's Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, KS: The University of Kansas Press, 1985)--hailed as "The best single volume on the origins of the Constitution" by a review quoted on the back cover--you might conclude that we have a very non-Shakespearean Constitution. Professor McDonald's 359 page book contains just two fleeting references to the great Elizabethan playwright. (By contrast, there is a 46 page chapter entitled "Systems of Political Economy" that dwells in depth on the role the work of economists such as Adam Smith and James Steuart had in shaping the world of the Framers.)

Ah, but now check out George Anastaplo's volume The Constitution of 1787: A Commentary (Baltimore: The Johns Hopkins University Press, 1989). He devotes an entire chapter to the Constitutional significance of Shakespeare, particularly The History Plays. On page 75, Anastaplo states, ""Shakespeare was (the author) who probably provided early Americans with a comprehensive moral and political account of things. They encountered in his plays an entertaining instructor in constitutional principles..."

Later Anastaplo gets down to specifics: "The History Plays, insofar as they address both the problem of what happens when rulers are not properly selected and the problem of what happens when rulers, however selected, do not conduct themselves properly, very much touch upon issues that should be evident to us as we examine the provisions in the Constitution for the Exectuive and for the Judiciary" (pp. 87-88). Anastaplo also wrote a book entitled The Artist as Thinker: From Shakespeare to Joyce, and with a resume like that, it's no wonder he'd be enthralled with tying Shakespeare and the Constitution together.

But including one thing sometimes entails leaving another out. Near the beginning of his chapter on Shakespeare, Anastaplo advises, "When we wonder what it was that the Framers brought to their Constitution-making, we must remember the influence of the greatest English authors as well as the Bible" (p. 75). It seems a bit odd that he would bring up Scriptures at all, since the chapter doesn't take up the topic of Biblical influence at all and there are only a few references to the Bible in the whole 339 page book.

Of course, if you really want to read about how we have a Constitution heavily influenced by the Old and New Testaments, well, you can find that out there too. Christianity and the Constitution: The Faith of Our Founding Fathers by John Eidsmoe (Grand Rapids, MI: Baker Books, 1987) is an argument that religious leanings shaped the thoughts of the delegates at the 1787 Constitutional Convention, and the results are evident in the great document itself. For example, Eidsmoe notes that Article I, Section 7 of the Constitution, concerning the presentment of legislation to the executive, reads "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it..." This reference to Sunday, Eidsmoe insists, is a part of the Ten Commandments written into our basic law--Exodus 20:8-10 admonishing: "But the seventh day is the sabbath of the Lord thy God; in it thou shalt not do any work."

Cynic that I am, I might note that there are times I think Congress and the President don't do any work on days other than the sabbath, either.

The point is, I'm not criticizing McDonald for not closely examining Shakespeare's role in Constitutional thought, nor am I demeaning Anastaplo for not probing the Bible question more thoroughly, nor am I arguing that Eidsmoe spent too much time on religion in neglect of all else. Everyone who writes a book or article on the Constitution has the right to focus on whatever aspect of it interests him the most. I feel better for having read McDonald, Anastaplo, AND Eidsmoe.

But just remember this, especially if you are undertaking an examination of the Constitution for the first time: the men who wrote it were learned gentlemen who were influenced by a LOT of things. If you peruse only one or two sources of Constitutional thought, you'll miss a lot of theory because no one scholar covers everything.

Monday, November 5, 2007

It's not JUST Brett's Constitution!

Hello. I'm Brett and this is a blog about the United States Constitution. I had to choose a name for this endeavor, so "Brett's Constitution" it was, but of course, the Constitution belongs to EVERYBODY. That's what I hope to emphasize here. Our constitution does not belong to left wing professors from Ivy League universities OR to conservative farmers in Kansas. It belongs to BOTH liberal professors AND right leaning farmers, and to everyone in between. I think the great U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. put it quite well when he wrote:

"A constitution... is made for people of fundamentally differing views..." Lochner v. New York, 198 U.S. 45, 75 (1905).

If you are wondering what those odd words and numbers mean right after the quote, "Lochner v. New York" is the name of the case in which Holmes wrote those words (in dissent, by the way, of the majority opinion) and "198 U.S. 45, 75" tells you that this can be found in volume 198 of the U.S. Reports--that is, the official register of United States Supreme Court opinions--and the Lochner opinion begins on page 45 of volume 198, with the quote found specifically on page 75. Of course, 1905 is the year the case was ruled on.

Why am I dwelling on this, when I know you might not care about the source of the Holmes quote? It's simple: I know that one must be sceptical about what one reads online. Scores of professors admonish their students not to cite wikipedia because their standard for scholarly review to insure the accuracy of the information presented is slim compared to the careful scrutiny a published book or article receives. Well, I'm going to cite my sources on this blog, and even tell you how to easily access them online, if that can be done. This policy will keep both the author and the readers of this blog honest! Also this will help students--if they wish to use information they read here in a report for a class, they can go to the original source and cite it instead of my blog. (For example, to read Lochner, you can get up and head for the nearest law library. Or you can remain seated and just go here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=198&page=45).

And yes, I will give my own opinions on the Constitution. When I do this, however, it should be clear that you are reading my thoughts.

"Okay, Brett," you might be thinking, "Who are you? Are you an attorney or a legal scholar?"

The answer is no. I'm not a lawyer; I do have a paralegal certificate but that does not make me an expert on legal matters.

That admission may cause you to think, "Then why should I pay attention to what you write here, seeing as you have not gone to law school?"

I have two answers. First, I'm not giving legal advice; I don't need to be an attorney. And second, the United States Constitution is our basic law, and as such, it is not strictly the province of the legal profession. Consider what two influential Americans said:

"I hold that every American citizen has a right to form an opinion of the constitution, and to propogate that opinion, and to use all honorable means to make his opinion the prevailing one."

--Frederick Douglass, speech of July 5, 1852, in Philip S. Foner, ed., The Life and Writings of Frederick Douglass (New York: International Publishers, 1950-1955), vol. 2 at 202; cited in Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996) at 54-55.

"The Constitution of the United States (is) a layman's document, not a lawyer's contract."

--Franlin Delano Roosevelt, Address on Constitution Day, Sep. 17, 1937, in Samuel I Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt (New York: Random House, 1941) vol. 6 at 359, 362-363, 365; cited in Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford Press, 2004) at 217.

I shall take the advice of Douglass and FDR and think of the Constitution as mine, even though I'm no lawyer or legal scholar. I hope you will do the same and I invite you to join me for regular installments of this blog.