Wednesday, June 25, 2008

Seven words you can never say on TV: "Actually, just a slight majority of slaveholders"

I saw this item concerning the recent death of comedian George Carlin:

Quipped Carlin in one of his routines,

"This country was founded by a group of slave owners who told us that all men are created equal. That is what's known as being stunningly, stunningly full of [expletive]."

One never takes a comedian too literally, as comics paint in a medium where laughs are important, accuracy is irrelevant. But the item on the late funnyman did get me to wondering just how many of the founders owned slaves. Obviously, with his connection of "slavery" and "all men are created equal," Carlin is referring to the Declaration of Independence in general and to Thomas Jefferson in particular. But where slaveholders are concerned, I'm more interested in the Constitution, as this was the document that essentially founded the country, and this is where the compromises on slavery are found, like the three-fifths clause.

So how many of the delegates to the Constitutional Convention had slaves? There were fifty-five of them, although only thirty-nine ultimately signed the finished product. According to Forrest McDonald, "at least" thirty of the fifty-five were slaveholders (Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985, p. 220). I'm not sure about the Professor's use of the qualifying phrase "at least." Maybe there are a couple of delegates we don't know about. Perhaps some of the men were involved in confusing ownership arrangements where it isn't clear if they owned land or also the slaves toiling on it, an interesting possibility since there was some legal disagreement and confusion as to whether slaves were real property or personal property (see Fehrenbacher, The Dred Scott Case, 1978, p. 32). And of course, one could make the argument that a New England delegate in the business of exporting textiles made from southern cotton was involved with slavery, whether or not he personally was a slaveholder.

With those codicils, if there actually were thirty slaveholders out of fifty-five men at the Constitutional Convention, that's just a little more than half, 54.5%. So the country wasn't really founded by slaveholders; some slaveholders were founders.

I'll bet they'd all have laughed at Carlin's routine about his dog farting, however...

Tuesday, June 24, 2008

Just how great was the Great Writ?

Everybody is buzzing about the Supreme Court's recent decision in Boumediene v. Bush, 553 U.S. ___ (2008). Here are the Oyez Project's summary and a good example of an article critical of the five to four ruling:

The case involves the guarantee of habeas corpus, also called "the Great Writ," defined as "judicial determination of the legality of an individual's custody" (Gifis, Barron's Law Dictionary, 1996). It's origins have been traced all the way back to the Magna Carta (Corwin, The Constitution and What it Means Today, 1978, p.124). As to it's significance in America, consider this remark by Alexander Hamilton in The Federalist #84:

"The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains."

That's his emphasis; the words "our constitution" refers to the New York State Constitution of Hamilton's era.

Well here is the interesting part. Regardless of the New York Constitution's omission of prohibition of ex post facto laws and titles of nobility, once the federal Constitution was ratified the hands of New York and all other states were tied on these matters. Article 1, Section 10, listing powers denied to the states, declares:

"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."

Notice anything missing? Right, habeas corpus. There was nothing requiring states to observe or establish it, and nothing prohibiting them from dispensing with it altogether. So why didn't Hamilton or any of the other framers insist on a habeas corpus clause applicable to the states?

If you look through the debates in the 1787 Constitutional Convention, there isn't really anything to tell why the delegates thought they had to specify no titles of nobility or ex post facto laws at both the federal and state levels, but only mentioned the writ of habeas corpus where the federal government was concerned. At the August 28th session, John Rutledge of South Carolina said he was for was for "declaring the Habeas Corpus inviolable" but he didn't say why if it was inviolable the Constitution shouldn't also prohibit states from suspending it.

Why not? Well, probably the answer comes in this description of Mr. Rutledge in Carol Berkin's 2002 book A Brilliant Solution:

"(Rutledge in the 1760s) began a successful legal career. He made his fortune, however, from his plantations and slaves." (p. 257.)

Having habeas corpus in all cases would, I think, make it a bit more difficult to enforce slave law. While the Thirteenth Amendment ended slavery, it is the Fourteenth Amendment's mandate that states observe due process that essentially insures that habeas corpus is the law of the land for both the federal government and the states (see Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, 1986, p. 129).

Anyway, when you hear talking heads on television refer to the writ of habeas corpus as "ubiquitous" or "a cornerstone of Anglo-American law since the English Parliament passed the Habeas Corpus Act of 1679," remember, this country had a huge Great Writ loophole for almost its first hundred years. The states could constitutionally ignore it.

Wednesday, June 18, 2008

The genocide

Geoffrey Stone's Perilous Times: Free Speech in Wartime (2004) is a remarkable book, one of those all too uncommon historical tomes that hold the reader's interest throughout.

It's probably inevitable that writing about current events is more difficult than writing about events that happened decades or centuries ago, because with things going on right now we're always in the middle of a forest that obscures the precise contours of the individual oaks and hickories. Thus, I'm not surprised that my only significant disagreement with Professor Stone comes near the end of the book, when he discusses the War on Terrorism. On page 554 he takes the Bush Administration to task for characterizing 9/11 as "the first stage of a "war," rather than as a heinous crime."

The problem with this assertion is that Stone, no less than the President he criticizes, is acting as though there is a clear distinction between an act of war and crashing planes into the Twin Towers. To demonstrate the fuzziness of such categorization, I would pose the following question to Stone: what about the Holocaust? Was that an act of war or a heinous crime?

If you think that my linking of the Holocaust and September 11th is strained, perhaps that's because you have not thought of 9/11 as an act of genocide. But it clearly was, and I'm actually quite surprised that this point is almost never made.

In Jared Diamond's The Third Chimpanzee (1992)--speaking of great books that really hold your attention--the Pulitzer Prize winning author defines genocide as group killing in which:

"The victims must be selected because they belong to a group, whether or not each victim has done something to provoke killing. As for the defining group characteristics, it may be racial... national... ethnic... religious..or political" (pp. 283-287).

Or, I might add, a combination of these characteristics; I would say the terrorists in those jumbo jet cockpits killed thousands of people for at least three of Diamond's five traits: national, religious, and political.

Unlike crime, in genocide the person or people being killed are not slain for the typical motives to murder--personal gain, revenge, jealousy, etc. They simply have a particular demographic taint that causes their attackers to feel justified in attempting to exterminate them from the planet. Islamic jihadists want Westerners, Jews, and Christians killed, and they've been working towards this goal at least since the 1972 Olympics, in a horrifying event that was in the news again recently due to the death of sportscaster Jim McCay, who reported the carnage.

What we are dealing with in the War on Terrorism is, I think, not quite a war as President Bush would have it, but also not quite a heinous crime, as Stone seems to maintain. Genocide really doesn't fit neatly into either of those categories. It's easy to see that the Battle of Gettysburg was war and Charles Manson's actions were a heinous crime; what's happening now in Darfur occupies a shade of gray between such simply distinguished events.

In any case, even if you believe as Professor Stone does that 9/11 was a crime rather than an act of war, I think it's important to recognize that such a distinction actually has little bearing on the constitutional authority the President has to respond to the crisis. It's a cliche' to point out that where military action is concerned "The President shall be Commander in Chief of the Army and Navy of the United States" (Article II, Section 2) but one far less often hears it mentioned that the Constitution also requires the President to "take Care that the Laws be faithfully executed" (Article II, Section 3).

The September 11th terrorists violated a plethora of federal laws; it's the president's job to see that these laws are enforced and to do all in his power to see that they are never broken again. During his term in office, President Bush has observed this constitutional mandate and obeyed it well, thus we've had no additional days as sad as that fall morning in September nearly seven years ago. In other words, Mr. Bush has done a wonderful job keeping us from being victims of genocide.

Our next President, whether it is Obama or McCain, has an obligation to the American people to enforce the laws and thus keep us safe. We should hope he succeeds in this enormous duty as well as the current President has, and we as a people need to recognize that regardless of his political affiliation, our Chief Executive should be given great latitude in carrying out his constitutional commands.

Tuesday, June 10, 2008

Actually, if John McCain had been president between 1919 and 1933..

... The oath he took to preserve, protect and defend the Constitution of the United States would have required him to veto every beer!

The Eighteenth Amendment, prohibiting manufacture, sale, or transportation of intoxicating liquors was ratified on January 16, 1919 and repealed by the Twenty-First Amendment on December 5, 1933.


That means,"Out of many, one."

Notice the similarity in the following two quotations:

"Be strictly honorable in every act, and be not ashamed to do right."

"We must use time creatively and forever realize that the time is always ripe to do right."

Both quotations are from letters. The first one is from a correspondence Robert E. Lee wrote to his son. The second is from Martin Luther King, Jr's. "Letter From a Birmingham Jail." (For Lee: Wyatt-Brown, Honor and Violence in the Old South, 1986, p. 57; for King: Washington, ed. I Have a Dream: Writings and Speeches that Changed the World, 1986, p. 92.)

On the surface Lee and King couldn't be more different. One man lived in the nineteenth century, the other in the twentieth. One man was white, one was black. Both were respected leaders for opposite causes; Lee led military forces fighting to preserve chattel slavery while King struggled to eliminate the last remaining vestiges of bondage. These days diversity is hailed as a value, and if you had Lee and King in your workplace you couldn't get more diversity in two men, although granted you wouldn't want any contrasting viewpoints in your operation on the issue of slavery--everybody has to say "no" to it.

In spite of their dissimilarities, in thhe quotations presented here both Lee and King emphasized the importance of doing right. I'm sure Lee and King, regardless of their differences, would probably agree on about ninety percent of what constitutes doing right. Treat people with respect, treasure your loved ones, help a friend in need. In what may be a divisive election year, those are values everyone should agree on. Listen to the other person's viewpoint and try to consider his or her point of view; don't automatically dismiss opinions contrary to yours as unsound or absurd.

When we value other people we live up to the motto on our coins. Out of many, one. E pluribus unum.

Wednesday, June 4, 2008

Race and the White House race

There are four states in which fewer than 0.8% of the residents are black: South Dakota, Wyoming, Idaho, and Montana. According to polls, John McCain will win these states handily in November.

There are three states in which more than 29% of the residents are black: Mississippi, Louisiana, and Georgia.

Guess what? According to polls, John McCain is going to take those three states with ease as well.

Before I go any further, I should link to my sources for the analysis I'm doing here. First, here is the Rasmussen Reports poll site, which I like because it's updated daily, and which you Obama heads will like because it says your guy has about a 65% chance of prevailing this fall:

Polls are simply predictions gauging what the voters will do, not a report on what they actually do. Maybe somehow between now and November Obama might turn it around in Georgia or McCain might pull ahead in Colorado. We don't know for sure; but one can't do pre-election analysis like this without resorting to polls. Oh, and please note I'm counting every state for Obama whether it's in his "safe," "likely", or "leans" column, and the same goes for McCain. With those caveats out of the way, now here's the Census Bureau page I'm getting data from:

I note that the table is labeled: "Percent of the Total Population Who Are Black or African American Alone." That word "alone" really stands out, in that this would seem to exclude Obama himself from the 14.8% figure for Illinois. As we have more and more people in this country like Obama, Halle Berry, Mariah Carey, Tiger Woods, etc. of mixed race, the significance of charts like this will be less and less; which I regard as a plus for America. But for the moment, we have distinctions on who is black and who isn't and for better or worse--mostly worse--we continue to act on these distinctions.

Anyway, I'm bringing this up because with Obama clinching last night, and all the stories generated about how this is the first time an African-American has been a major party's nominee, I got to thinking about circumstances in my state, Georgia. The Peach Tree State has a greater percentage of African-Americans that any of the other ten largest states; nevertheless, it's considered safely Republican for the fall. That inspired me to look at the data and so I discovered the surprising thing I led this article with: McCain is beating Obama in the four states where blacks are the fewest AND in the three states where they are the most numerous. Let's investigate this phenomenon a little more.

When I said the three states with the greatest percentage of blacks were in McCain's column, I admittedly disregarded the District of Columbia, which isn't a state, but does participate in presidential elections courtesy of the Twenty-third Amendment. Now let's bring it into the discussion. There are sixteen states plus the D.C. that have a higher percentage of black or African-American residents than the U.S. national average of 12.4%. According to Rasmussen, McCain is ahead in ten of these seventeen places, and the only reason it's that close for Obama is that he is ahead in the three states ranked fifteen through seventeen: Illinois, Michigan, and New Jersey. If you make the cutoff point states where fifteen percent or more of the folks are black, McCain has an absurd lead, ten states to four. Or, since in our presidential elections it's all about the electoral college, McCain leads Obama in electoral votes in these thirteen states and the District by a whopping 119 to 47! Even if Obama were to capture Florida, which Rasmussen has down as only "leaning" towards McCain, the Arizona senator would still be ahead in this group of states 92 electoral votes to 74.

Okay, let's go to the other end of the spectrum. I led with McCain winning in the four states with the lowest percentage of blacks, but that's too small a sample to have much meaning. We tallied the electoral vote count for states with fifteen percent or more black residents, now let's take a peek at the states with five percent or fewer blacks.

There are twenty such states--and by the way, I wouldn't have guessed that West Virginia, which we think of as a border state, was one of them. Let's toss out Colorado and New Hampshire, because Rasmussen has these as toss-up states this fall. What about the other eighteen?

McCain is ahead in ten of them. Again, however, it's the electoral college that matters, and McCain suffers from his strength being mostly in places like Alaska and North Dakota. Tally the electoral votes for the eighteen states categorized here and Obama wins, 51 to 45. If you want to consider the impact of those two swing states, New Hampshire has four votes, so McCain would not jump ahead by winning that; he only beats Obama in states with fewer than five percent blacks if he wins Colorado OR Colorado and New Hampshire.

So what states are left? Right, the ones with over five percent but fewer than fifteen percent black denizens. There are seventeen of these; again let's toss out the states Rasmussen says could go either way, Ohio and Nevada. What results do we get for the other fifteen?

We get an Obama rout, that's what. McCain only leads in six of these states and among the nine Obama is predicted to win is California with it's 55 electoral votes. That works out to a 162 to 77 edge for the man from Chicago. Put Ohio and Nevada in McCain's column and he's still nowhere close; the count would become 162 to 102.

So let me put this in one block of text to facilitate comparison. Here, I'm leaving out those four pesky toss-up states that I get the feeling may be crucial this fall. Taking the other forty-six states plus DC and dividing them into three groups, you get:

Group 1: Over fifteen percent black: McCain kicks butt, 119 to 47.

Group 2: Five to fifteen percent black: Obama in a cakewalk, 162 to 77.

Group 3: Under five percent black: Obama narrowly, 51 to 45.

And you know what? If you add together groups 2 and 3 to make one super group of states with fewer than fifteen percent people of African descent, it's still an Obama rout: 213 to 122. If all four toss-up states went for Obama he'd have 251 electoral votes, and by winning New York he'd be well over the 270 votes needed to win. In other words, theoretically Obama could lose almost all of the states with high percentages of blacks and still win the election; McCain could win almost all of the states with high percentages of blacks and still lose the election--and if Rasmussen is accurate, this is a very real possibility.

Look, we'll hear an awful lot about the significance of race in the 2008 election in the months to come. Some of it may be profound, much will be profane. But if someone tells you it's all going to be about race, maybe you'll remember what you've read here and point out to that someone that the way it looks right now if only the states with a large percentage of blacks were permitted to vote, the white candidate would win, and if only states with a medium to small percentage of blacks could cast ballots, the black candidate would win.

Ironic, huh?