Tuesday, August 26, 2008

Synonyms, the Constitution, and Ann Coulter

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."

--Lewis Carroll, Through the Looking Glass.

I'm not sure why, but whenever I shop at my local Target, I always happen to go by the scrapbook supplies aisle. Worse, I notice that I'm passing by these things.

Being a middle-aged man rather than an old lady, I don't keep a scrapbook. But if I did maintain one, the theme would be "silly things said about the Constitution by columnists." Every time I read an article where a preposterous statement was made about the grand document, I'd print it and lovingly paste it into the pages of my scrapbook as a keepsake.

Thanks to Ann Coulter's column last week, if I did keep such a scrapbook, it would have an addition, with an annotation next to it expressing my disbelief that someone with a law degree from the University of Michigan, and who clerked for a federal judge could have written something so ludicrous concerning the Constitution.

In the column, Coulter makes the point that Barack Obama did not do very well in the Saddleback forum (I can't argue with that). But in blasting Obama, she wrote this bizarre statement:

"Say, you know what else was 'historically' not defined in the Constitution? Slavery. The words 'slavery' and 'slave' do not appear once in the original Constitution. The framers correctly thought it would sully the freedom-enshrining document to acknowledge the repellent practice. (Much like abortion!) But in 1865, the 13th Amendment banned slavery throughout the land, in the first constitutional phrase ever to mention 'slavery': "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.'"

When I read this, my reaction was much like the GEICO caveman in this commercial. Yeah, I have a response--WHAT?

Let us suppose for a second that some liberal politician, commentator, or unbathed college professor wrote a pro-gun control article dispensing with the Second Amendment concerns by the declaration "Not once in the Second Amendment are 'guns' mentioned." Don't you suppose Ann Coulter might be in the forefront of those critical of such thinking? Wouldn't Coulter be among those likely to point out--correctly, actually--that the Second Amendment uses the term "arms" and it is clear from the context that this means guns? She might be expected to make some crack about how the author of the gun control piece apparently was asleep in grammar school when the concept of synonyms was presented to the class.

And yet, this is EXACTLY what Coulter does in her article. Yes, the pre-Civil War Constitution does not use the words "slave" or "slavery." But it implicitly mentions slavery three times. It just uses other words to describe the practice, much as "arms" is employed instead of "guns" or "weapons" in the Second Amendment. Slaves are referred to as "other persons" in the Enumeration clause (Article I, section 2), as "such Persons as any of the States now existing shall think proper to admit" in the Slave Trade clause (Article I, section 9), and as "Person(s) held to Service or Labour in one State, under the Laws thereof" in the Fugitive Slave clause (Article IV, section 2).

If Coulter had written that the framers intentionally avoided use of the term "slavery" because of its anti-democratic implications, I'd have no objection to that. But notice this isn't what she means; she writes "The framers correctly thought it would sully the freedom-enshrining document to acknowledge the repellent practice." Nonsense, as I've just shown, the Constitution does acknowledge the "repellent practice" in several places.

If you employ the idea that something isn't in the Constitution unless it's mentioned by a specific word or series of words, you can make all sorts of silly observations. Did you know that nowhere in the Constitution is the federal government authorized to establish a "capital city"? That's because it's called "such District... as may... become the Seat of the Government of the United States" (Article I, section 8; see also Amendment XXIII). Did you know that it is perfectly acceptable to deny a woman the right to vote based on her "gender"? That's because the Constitution only disallows preventing people from voting due to their "sex." Did you know that Congress is not authorized to "establish a uniform system for determining masses and volumes"? That's because the Constitution only gives Congress authority to "fix the Standard of Weights and Measures" (Article I, section 8). We could literally play this game all night.

I don't mean to rant, but Coulter's peculiar remark is a great example of the error made by those who remark--usually quite indignantly--that the phrase "separation of church and state" appears nowhere in the First Amendment. Often a person who says this will then observe that the phrase is from a letter Thomas Jefferson sent to the Danbury Baptists. And this is, of course, true--but only in a very technical and limited sense. Look what Jefferson actually wrote in the letter:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State."

The emphasis is mine, and the emphasis is, of course, to show that all Jefferson was doing through use of the phrase "wall of separation between Church & State" was giving a perfectly reasonable explication of the dynamic interplay of the two religion clauses of the First Amendment, which he had stated immediately prior to the wall metaphor. That is, he was reminding the parishioners of Danbury that prohibition of an establishment of religion means, in essence, "religion, you keep your hands off of government; we're not a theocracy." And the guarantee of free exercise effectively means "government, you keep your hands off religion; everyone here is free to worship in a manner of his own choosing."

It's hard to think of a better way of making this point than Jefferson did. And when someone says that "separation of church and state" is not in the Constitution, it's a bit like what Ann Coulter did with her "no mention of slavery" remark--technically true, but not at all accurate in any meaningful sense.

Ann, if you read this, in spite of your novel remark on the Constitution, I still think you're pretty. Now remember: if somebody asks you today if any man said you are good-looking, the answer is "yes." That's because calling a woman pretty and calling her good-looking are basically the same thing. Isn't the array of choices provided by the English language wonderful?

Women's suffrage--very narrow victory, eh, Michelle?

Well courtesy Michelle Obama's speech at the Democratic convention last night, I'm reminded that we recently observed the anniversary of the ratification of the Nineteenth Amendment, giving women the right to vote. It takes three-quarters of the states to vote yes on a constitutional amendment to give it effect, and on August 18, 1920, Tennessee became the thirty-sixth state to do so (Keyssar, The Right to Vote, 2000, p. 218).

Before anybody quibbles that Mrs. Obama got it wrong because August 18th was last week, let me quickly point out that she probably meant that the Nineteenth Amendment was formally certified by the federal government the week after Tennessee acted (Keyssar p. 218).

But wow, was this ever a narrow victory. In the first place, as Keyssar notes, the amendment passed the Volunteer State legislature by ONE vote. Furthermore, eight southern states withheld their approval; thus for any state south of the Mason-Dixon Line to vote yes, even by a bare majority, was noteworthy (Amar, America's Constitution: A Biography, 2005, p. 425). If there had been anywhere near that level of opposition to letting the ladies vote anywhere else in the land, the Nineteenth Amendment would have gone down to defeat.

Which doesn't mean that women wouldn't have been able to vote EVERYWHERE. By 1920, seventeen states had acted to allow women to vote--even in presidential elections (Keyssar at 401)! Thus, had the Nineteenth Amendment failed, a woman in Illinois or Wisconsin could still have voted for Warren Harding, but a woman in Georgia or Alabama could not. (I wrote that somewhat tongue in cheek, then realized I had no idea who the Democratic candidate was in 1920. The answer is here; what an amazing rout in a presidential election not featuring an incumbent. Harding received a significantly higher percentage of the popular vote than Reagan got in 1984.)

Well thanks to the Nineteenth Amendment, women here in Georgia can now vote for president. What the heck, a Georgia woman can even make a preposterously futile attempt to RUN for president!

Saturday, August 23, 2008

Biden didn't violate the Constitution in 1972

This morning on Fox News they ran a graphic that said Democratic vice-presidential pick Joe Biden had been in the Senate since he was 29. Say what? Article 1, section 3 of the Constitution clearly states that "No person shall be a Senator who shall not have attained to the age of thirty Years."

So I went to wikipedia, that quick, if not always scrupulously accurate information source. It says that Biden was born on November 20, 1942 and took his seat in the Senate on January 3, 1973.

That means he WAS thirty when he took office, but he was a couple of weeks shy of thirty when he was elected, and obviously well short of the three decade mark when he first announced his candidacy. That's okay; it's clear from the Constitutional text that one must BE thirty to take a seat in the Senate, but there is nothing preventing one from getting a senatorial campaign going while still in ones twenties.

See Corwin, The Constitution and What It Means Today, 1978 ed., p.10: "It was early established in the case of Henry Clay, who was elected to the Senate before he was thirty years of age, that it is sufficient if a Senator possesses the qualifications of that office when he takes his seat; and the corresponding rule has always been applied to Representatives as well."


On the matter of Henry Clay in the Senate, David Currie gives an account different from Corwin's book. See The Constitution in Congress: The Jeffersonians, 2001, p. 120, n. 238, "Clay had been appointed in midterm (taking his seat in January 1807) to replace John Adair, who had resigned. Born in 1777, he was younger than the Constitution required, and he served--this time--only until (sic) 1807... No one challenged his qualifications." Clay was born in April of 1777, so clearly he was only twenty-nine when the January 1807 senatorial session convened.

Notice that Corwin has Clay elected to the Senate before he was thirty; Currie, citing the Biographical Directory of the United States Congress, says Clay was appointed, and that he actually did hold office before his thirtieth birthday. Never mind Clay as a precedent for someone in his twenties running for Senate, Clay actually was a Senator before he was constitutionally eligible.

As for Biden--did you notice given his birth date that when he first ran for president he was actually younger than Barack Obama is now? My memory may be faulty, but I don't recall people making much of an issue of Biden's youth in the 1988 campaign. If my recollection on that is accurate, I would suggest there were three reasons for the lack of focus on Biden's age back then:

1. He had been in the Senate for about sixteen years, for goodness sakes, so no one could say he was young AND inexperienced--which is usually what people mean when they say someone is too young for something, and,

2. Al Gore ran for president the first time in 1988, and he was only forty, so there was someone even younger than Biden gunning for the White House, and

3. Biden shot himself in the foot and dropped out early anyway, well before he gained sufficient support to warrant much scrutiny about anything.

Wednesday, August 20, 2008

Twenty gods or none

Kathleen Parker has written a piece critical of last Saturday's Saddleback forum. She opens her article in this fashion:

"At the risk of heresy, let it be said that setting up the two presidential candidates for religious interrogation by an evangelical minister — no matter how beloved — is supremely wrong. It is also un-American."

If Parker wanted to call the event "unwise" or say that "there are more appropriate forums" I wouldn't object. But I'm very uncomfortable with Parker describing it as "supremely wrong" and "un-American." Question for Ms. Parker to ponder: would it have been "un-American" if in 1964 the pastor of Atlanta's Ebenezer Baptist Church, Dr. Martin Luther King, had held a similar forum asking candidates Johnson and Goldwater their views on civil rights? (See chapter V of Jon Meacham's wonderful American Gospel (2006) for an engaging discussion of King's political work, plus Billy Graham essentially endorsing Nixon, and Jerry Falwell first being critical of pastors going political, then riding down the same highway himself.)

Parker brings up Thomas Jefferson near the end of her article:

"For the moment, let’s set aside our curiosity about what Jesus might do in a given circumstance and wonder what our founding fathers would have done at Saddleback Church. What would have happened to Thomas Jefferson if he had responded as he wrote in 1781: 'It does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.' Would the crowd at Saddleback have applauded and nodded through that one? Doubtful."

The Jefferson quote is from his Notes on the State of Virginia, p. 159 of the University of North Carolina Press edition.

I've written before about people writing erroneously that Jefferson was one of the framers of the Constitution or the Bill of Rights. While not quite irritating on the same level, there is another thing people sometimes do that they shouldn't, namely, treat one of the guys from the Revolutionary era as typical of the entire group. Jefferson in particular gets used a lot in this manner. Note that Parker ponders what the founding fathers would have done at Saddleback Church, zeroes in on the third president, quotes him, and leaves it at that as though TJ could speak for everybody.

And frankly, it's a bit hard to find other prominent American statesmen of the day saying it's okay for his neighbor to think there is no God or a score of them. Mostly you find a lot of statements more in line with what Benjamin Franklin said on June 28, 1787 at the Constitutional Convention:

"I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth — that God Governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? ... I therefore beg leave to move — that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that Service..."

Remember now, this is Ben Franklin; he of intellect and fame equal to Jefferson's.

But never mind bringing other famous men of the time into the discussion; we should note that Jefferson himself often didn't write like a man who honestly believed the sentences Parker quotes. Indeed, look at the words Jefferson wrote right before the bit Parker quoted:

"But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

The emphasis is mine, of course; I've highlighted it to show Jefferson's use of the phrase "our God" in close juxtaposition with the twenty gods or none remark. Notice that it's not "the god some people believe in," with god in lowercase, but "our God" with the deity capitalized.

Even in the famous Virginia Statute for Religious Freedom, Jefferson employed religion to make the point that government shouldn't involve itself with religion--and he sounded quite devout doing so, beginning the legislation in this manner:

" Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishment or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do . . ."

I can't go back in time and ask Thomas Jefferson what he would think of the Saddleback forum; perhaps he would agree with Parker that it wasn't appropriate. That's not my point in writing this essay; I simply want to show that there are inherent problems with treating Jefferson's twenty gods or none remark as being typical of either the Revolutionary thinkers or of Jefferson himself.

And I can't let this close without acknowledging a clever rebuttal to Jefferson made by a contemporary of his, the Reverend William Linn (see Eidsmoe, Christianity and the Constitution, 1987, p. 239):

"Let my neighbor once persuade himself that there is no God, and he will soon pick my pocket, and break not only my leg but my neck. If there be no God, there is no law, no future account; government then is the ordinance of man only, and we cannot be subject for conscience sake."

Tuesday, August 19, 2008

Just what source needs protection here?

"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."

That, of course, is the text of the First Amendment. I've highlighted the final twenty-two words to emphasize that freedom of the press is placed neck and neck with the right of citizens to gather and tell the government what it's doing wrong.

This juxtaposition is, to me, significant in that it reminds us that our ability to petition the government is in many cases dependant on the press performing its duties fairly, efficiently, and without officials looking over their shoulders. Usually, after all, we learn that the government has failed us precisely because the press has shown us it is so. Think of the Pentagon Papers case.

Now in order to conduct its important functions in our free society, the press often needs to conceal its sources. Whistle blowers deserve protection. We want someone to come forward if he has information that the construction firm building a bridge is saving money by using inferior steel; we don't want him deciding not to do so because the paper or TV news report won't guarantee his anonymity. He might have justifiable fear that the construction company will send goons out to make his life miserable if his name becomes known.

All this is very well and good. But why, I say why, do reporters feel the need to protect their sources in stories about political campaigns?

This week, Andrea Mitchell and NBC, her network, have come under considerable criticism for comments Mitchell made on Sunday's "Meet the Press," involving the performances by Barack Obama and John McCain in their appearances last Saturday at the Saddleback Church. From the transcript:

"MS. ANDREA MITCHELL: ... And, you know, there was the crisp, immediate, forceful response by John McCain, clearly in a comfort zone because he was with his base. And Barack Obama, taking a risk in going there but seeing an opportunity. And a much more nuanced approach. The Obama people must feel that he didn't do quite as well as they might have wanted to in that context, because that -- what they're putting out privately is that McCain may not have been in the cone of silence and may have had some ability to overhear what the questions were to Obama."

Not surprisingly, the McCain camp was rather perturbed by what Mitchell said, and fired off a letter of complaint to NBC.

Okay, let's lay aside any questions that could be construed as being partisan and simply look at this through the lens of logic. What if instead of the words I've transcribed above, Mitchell had said this:

"The Obama people must feel that he didn't do quite as well as they might have wanted to in that context. I spoke with Mortimer "Mudcat" Muttonbutz, the Obama campaign's Manager of Whimpering and Sending Out for Chinese Food, and he said that McCain may not have been in the cone of silence and may have had some ability to overhear what the questions were to Obama."

If she'd said that, would there be any criticism of Mitchell or her network for the "Meet the Press" segment? Only by people really out to blast NBC. And note the only difference between what Mitchell actually said and what I've created: in my version she named a name. Everybody who gets angry about this sort of thing would be out for the skin of Mortimer Muttonbutz, because it would be obvious that Mitchell was simply reporting what a living, breathing person was saying rather than some unnamed source "in the Obama camp." By declaring what the Obama people were saying "privately," she just opened herself to charges of doing dirty work for a political campaign.

And this is why I cannot for the life of me understand why the press doesn't have a hard and fast rule: there will be NO reporting of what one campaign says about its opposition unless a staff member connected with the campaign is willing to stand front and center, identify himself, and make the allegations. There's no need for the source to be protected here as with my hypothetical example of the weak steel whistle blower. The public interest--which the press in our free society is supposed to serve--is in no way enhanced by giving political campaigns anonymity as they hiss at each other.

Now I know that if Mitchell had said to an Obama campaign worker suggesting McCain cheated, "Hey, can I use your name for that?" the staff member might well have said no, and if NBC observed my policy of not using anything one campaign said about another without a named source, we wouldn't know someone in Obama's camp thinks McCain might have engaged in a bit of chicanery. But would the press be compromising it's duty to us by not reporting on this matter? Would we in any way be hurt by not knowing what Obama's people privately think?

I don't think we'd suffer at all for not knowing. We're not at risk of driving over a poorly constructed bridge here; we simply wouldn't be privy to a bit of sniping of the sort that has gone on in politics for ages. And if you think I'm taking this position because it would be helpful to McCain if this story hadn't seen the light of day, guess what, Obama is arguably scarred by this as much as his rival. My impression, at least, is that Obama's camp is getting hammered in the blogosphere for its anonymous suggestion far more than McCain is being grilled over the possibility of the cheat. By now, probably both candidates wish Mitchell had shut up.

No reporting on what one political campaign said about another without a name and a face being attached to the allegation. I think this is an idea whose time has come.

Tuesday, August 12, 2008

"Last Clear Chance" starring Rielle Hunter as the horse and John Edwards as the jackass

Back in the 1840s in England, someone improvidently left his donkey tied by the side of the road. Another person, driving a team of horses at high speed, ran into the poor beast and killed it.

The English court, in the case of Davies v. Mann 10 M. & W. 545, 152 Eng. Rep. 588 (1842), ruled that the owner of the donkey could sue to recover damages. Typically back then, one could not sue for negligence if one's own conduct contributed to the accident. In Davies, however, the court noted that while the donkey owner shouldn't have left his creature where he did, the driver of the horse cart could have avoided the mishap by moving the horses along at a more reserved pace. This came to be known as the "last clear chance" doctrine; in short it holds that if you are in an accident that you had a reasonable chance to avoid, you don't get a pass just because somebody else was negligent. (There is a good discussion of this in White, Tort Law in America: An Intellectual History, 2003, pp. 45-50.)

I thought about this when the John Edwards scandal broke. (As a personal injury attorney, no doubt Senator Edwards knows all about the last clear chance doctrine.) In no way should what I write be seen as making excuses for the man.

But I've come to the conclusion that while a married man who has an affair is a jackass, he's sort of like the jackass in the Davies case. The accident doesn't happen without the horses galloping too fast.

The horses in this analogy, of course, are represented by Rielle Hunter.

A man can't just snap his fingers and cheat on his wife. He has to find a willing accomplice. So when you hear that this or that married man is having an affair, remember that there is a woman involved who had a chance to keep the extramarital relationship from happening, a woman who rationally should have known better.

Women all know this, by the way. You don't need to have a PhD in biology to know that men, heterosexual ones at least, are genetically programmed to be attracted to more than one woman. The act of marrying can be seen as, in essence, a man making the pledge that he's going to tell his genes that they can work up an appetite anywhere, but they can only nourish their DNA at home.

Of course, some married men ignore this pledge; shame on them. But they couldn't turn their desire to cheat into actual cheating without all the Rielle Hunters and Monica Lewinskys out there willing to complete the circuit.

Yet you probably have noticed that when a John Edwards or a Bill Clinton violates his solemn vows, generally the venom in coffeehouses and chat boards is directed towards the man doing the dirty deed. Less often does anybody point out there is also some pretty low conduct going on by the other woman.

In other words, while everybody talks about how John Edwards is slime for cheating on his wife while she is battling cancer, far less often is the point made that Rielle Hunter is slime for helping a man to cheat on his wife while she is battling cancer. Some people seem hell bent on portraying Hunter as a victim, instead of as someone who acted as callously as Senator Edwards did. And with all the discussion on whether Edwards will take a paternity test or not, it seems to me that people aren't making the connection that if the Senator isn't the father of Hunter's baby, she's an even bigger sleaze, because she's sleeping around with yet another man.

So remember, ladies, if a married man tries his utmost to arrange a sexual tryst with you, don't sink into the mud with him. Say no, you're the team of horses and you should drive responsibly. Don't hit the jackass.

You have the last clear chance to avoid hurting another woman.

Saturday, August 9, 2008

If a seven year old girl asks you why you want to be president, here's what you should say:

"Well thank you for asking, young lady, that's a wonderful question. You know what I think is the most important thing in the world? I think the most important thing in the world is for people to help each other. And that's what is wonderful about the job of President of the United States; the man or woman who is president can help a LOT of people. If I am elected president there are a great many people I'd like to help--people just like you, your parents, your friends, and their parents.

"Maybe someday you will be president; then you can help a lot of people, too. But whatever you do when you grow up, remember: everybody can make a difference; everyone can do something to make this a better country and a better world. That's why even if I don't get elected president I'm still going to do everything I can to help America and all its friends."

Wednesday, August 6, 2008

Playing the percentages--or the raw numbers

In the 2004 Presidential election, George W. Bush received 62,040,610 popular votes; John Kerry gathered 59,028,439. Bush got 50.73% of the popular vote to Kerry's 48.27%. This seems to me to be a case where, if you are discussing the numbers, you'd use the percentages, since it's easier to say "Bush got almost 51% of the popular vote" than to say "Bush received well over sixty-two million votes." Furthermore, it's clear from the first statement that Bush had a slight majority of the popular vote, but it's not clear from the second statement without any data telling how many folks voted for Kerry. (That will matter in 150 years when nobody will know off the top of their head who held the White House from 2005 to 2008.)

Of course, if you live in a small village with thirty voters and seventeen cast their ballots for Bush, you probably wouldn't say that 56.66% of your town chose Bush over Kerry. At that small a number of votes the percentages sound rather arcane; it's much easier to declare "Seventeen voters in our town picked Bush, the other eleven wanted Kerry."

I mention this because when you encounter numbers that are presented as either raw numerals or alternatively as percentages, the person responsible for choosing which format to use is making a judgment on which works better to make the point. But beware: someone can use one format over the other in an attempt to make an argument sound stronger than it is.

I recently encountered a good example of this in the book The Impending Crisis: 1848-1861 by David M. Potter (1976). Let me at the outset admit that I'm making a minor quibble here that in no way diminishes the outstanding nature of the late Professor Potter's book; it's one of the most enjoyable, information packed histories I've ever read.

But no book is perfect, and on pages 505-506 Potter makes this weird point:

"The election contests for (the conventions in upper South states to consider succession) were fought out under circumstances quite different from those of the contests in the lower South. Basically, the upper South was not as obsessively committed to slavery as the lower South. Of the seven states that had (by February 1, 1861) seceded, only Texas had a Negro population of less than 40 percent; in the five states that were about to act (Arkansas, Virginia, Missouri, Tennessee, and North Carolina), the Negro population averaged less than 30 percent." (Emphasis mine).

Okay, let's look at some raw numbers. Here are the actual tallies from the 1860 census on the number of slaves in the slave holding states. This was the last census taken before the Thirteenth Amendment abolished slavery, right at the same time those secessionist conventions were taking place:

State, number of slaves

Alabama 435,080

Arkansas 111,115

Delaware 1,798

Florida 61,745

Georgia 462,198

Kentucky 225,483

Louisiana 331,726

Maryland 87,189

Missouri 114,931

Mississippi 436,631

North Carolina 331,059

South Carolina 402,406

Tennessee 275,719

Texas 182,566

Virginia 490,865

Total: 3,950,511 slaves

The wonder of doing research is that you learn a lot of things, sometimes fun, sometimes sobering. Actually going through the census pages and counting up all the slaves was rather a bitter task; I could picture more readily than I've ever been able to the thousands of people being whipped, having their children taken from them and sold, and being denied any kind of education. And I was struck by the sheer magnitude of those numbers: nearly four million people in bondage. Lincoln in his Second Inaugural Address noted that "One eighth of the whole (1860) population were colored slaves." As I type this, I'm checking the Census Bureau's home page, which says the current population of the United States is 304, 798, 824 people. If one-eighth of us were slaves today, that would be thirty-eight million, ninety-nine thousand, eight hundred fifty-three slaves. That's nearly two million more people than live today in Illinois, Ohio, and Pennsylvania combined.

I should also note parenthetically that if you're surprised the slaves were tallied so diligently, don't be; the Constitution, after all, mandated they be counted to determine the apportionment of members of the House of Representatives. That's the infamous three-fifths clause of Article 1, Section 2; so Alabama's 435,080 slaves counted as 261,048 bodies when they were figuring out how many congressmen the state received.

Anyway, let's go back to the point made by Potter. The upper South was less obsessively committed to slavery than the lower South? Notice that the state having the most slaves, by far, was Virginia, one of those upper South states that didn't secede by February 1861. Not only did the Commonwealth have more slaves than all seven of the lower South states; it had over twice as many as Texas and Florida put together. North Carolina had the second highest number of slaves of any upper South or border state, far more than either Texas or Florida and virtually the same number as Louisiana. Looking at raw numerical counts, it's certainly hard to argue that Virginia and North Carolina were less "obsessed" with slavery than states deeper in Dixie.

Saying that the state that had the most slaves was one of the least obsessed with it is problematic. So how did Potter come to that conclusion? He went by percentages instead of numbers, pitting states with a "Negro population" of over forty percent against those where it was under thirty percent. Let's see how this works out with Virginia, an upper South state and ranking first in total number of slaves, matched with Georgia, a lower South state which ranked second in number of slaves.

Virginia in 1860 had, in addition to 490,865 slaves, 1,105,453 white people. Georgia, besides the 462,198 slaves, had 591,588 white folks. Both states, by the way, had a third category: "free colored people" of which there were 58,042 in Virginia and 3,500 in Georgia. It's easy to forget that the antebellum South had black people who weren't slaves, but it did, which is actually another problem with Potter's statement. He writes "Negro population" when he really means the portion of the Negro population that wasn't free, so he's basically inappropriately combining data sets.

Counting everybody, white, free black, and slave, Virginia had a population of 1,654,360 while Georgia's residents numbered 1,057,286. And yes, a larger percentage of Georgia's residents were slaves, 43.7% of the total as opposed to "only" 29.7% of Virginians held in bondage.

But is this really a case where a percentage is the best way to present the data and make a point? I don't think so; Virginia still had 28,667 more slaves than Georgia; it seems preposterous to me to argue that Virginia was less obsessed with slavery simply on the grounds that it also had half a million more white people.

Besides, the fact that Virginia had more whites than Georgia didn't necessarily have to do with slavery. Some of the difference was that Virginia was becoming more urbanized. I use the term "urbanized" in very relative terms; we are talking about 1860, after all. Still, Virginia had five cities of ten thousand people or more; Georgia had only two such towns. The greatest call for slaves, of course, was for agriculture, which took place outside cities as it does today. The more urban the population, the lower the percentage of slaves among the total population.

Taking all this into account, I'm unpersuaded that Virginia was "less obsessed" with slavery than Georgia. I think using percentages trapped Potter into making a statement that is far from clear.

Tuesday, August 5, 2008

Let the dummies vote, even the rich ones with lots of property

I figure even in Utopia you'd still need to have sewers. Maybe there could be a world in which I don't have to work for a living; I can just sit around, read, and philosophize and all my needs would be provided for me. Such a world would have me driving a car that gets three hundred miles on a gallon of gas... no, wait, it would run on air so there would be no annoying stops at the filling station and no pollution would emit from my tailpipe. Hannity and Colmes would, in this ideal universe, be replaced with Ann Coulter and Kirsten Powers, because I'd rather have attractive blond women debating the issues than two flatulent Manhattan guys. (Of course, it being Utopia, there wouldn't be a lot for the ladies to disagree on). And of course, I could eat pizza and chocolate cake and not only receive all my essential vitamins, minerals, and nutrients, but also not get fat.

But after all that pizza and cake, even in Utopia, I'd still probably need a toilet.

Which brings me to people voting. William Blackstone, the eighteenth century English jurist who had such a profound effect on Anglo-American common law, was, by our modern concept of nearly everybody being able to vote, rather an elitist. He steadfastly defended his era's policy of only granting the franchise to men of property. In Volume 1, page 165 of his Commentaries on the Laws of England, Sir Blackstone declared:

"The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other."

What strikes me about Blackstone's stance is that it's one of these cases where what somebody says is probably true--but even so, we have over time come to disregard it because a larger truth is more discomforting. That is, if we could talk to Blackstone we'd acknowledge he has a point about the perils of having a rich candidate buy the votes of poor folks, but we think responding to this reality by not letting anybody vote who doesn't have money is an even bigger affront to democracy.

It's kind of like if you read any of the literature on Brown v. Board of Education, you will occasionally encounter the troublesome question of what would have been appropriate for the Supreme Court to decide if instead of evidence suggesting that segregation in schools had long-term adverse affects on black children, the evidence instead showed rather convincingly that segregating school children by race actually helped the learning process. Given such circumstances, if you argued that Brown was correctly decided, you would essentially be saying that segregation is unacceptable in American constitutional law even if it has positive benefits. And I'd agree with you.

I've always felt that if I were to debate Blackstone on the merits of letting every adult vote, I'd argue first that, as Roger Sherman asserted in the Constitutional Convention, frequent elections "assure the good behavior of rulers" (debates of June 26th), so no elected official is going to survive long in office if he is perceived as inefficient or incompetent. Even if the voters make a terrible choice, in other words, they will have the ability to undo their mistake before too long. This puts a check on a yo-yo serving almost as well as restricting the franchise does. (Or, if you want to be cynical, frequent elections work almost as poorly as restricting the franchise; the point is there are other ways to try to accomplish Blackstone's goal of keeping "great, artful, or wealthy men" at bay.)

Second, I'd remind Blackstone of our recent experiences in this nation's presidential contests. Ross Perrot and Steve Forbes tried to buy their way into the White House; it didn't work, did it? Our electorate has shown at least some disinclination to be bought.

But thanks to the book I'm reading now, I'd have a third argument: even doing what Blackstone advises, only letting men of property vote and excluding "such persons as are in so mean a situation that they are esteemed to have no will of their own" you still have a lot of goofballs casting ballots. You still don't get rid of the sewers in Utopia, in other words.

The book I speak of is James Madison and the Struggle for the Bill of Rights by Richard Labunski (2006). In chapter 2, Labunski discusses election day in Madison's Virginia, a time and a place where only those with property could vote--oh, and you had to be white and male as well. Labunski writes:

"(Madison's) opinion of the ability of people to choose wisely at election time may have been clouded by his firsthand experience with voters, who sometimes behaved more like drunken partygoers than citizens performing a solemn duty. Back in 1777, when Madison ran for election to the new Virginia House of Delegates, the lower house of the legislature, he refused to go along with the usual practice of providing alcohol to voters at the polling place and around the county to win their support. He thought that the corrupting influence of liquor and other treats was 'inconsistent with the purity of moral and republican principles'... His opponent did not have similar scruples and provided the usual beverages to prospective voters. It was the only election Madison lost by a vote of the people during his long career." (p. 32).

It gets worse:

"Because so many voters expected to be treated to liquor and food, candidates sometimes had to spend substantial sums of money to run for public office, making it difficult for those of modest means to win the election... Even George Washington had to satisfy the expectations of the voters. During a July election in Frederick County in 1758, his agent supplied 160 gallons of alcohol to 391 voters. Although this violated the law... few candidates were ever prosecuted or disqualified from taking office on such grounds." (p. 33).

That's almost two and a half gallons of booze per voter that the Father of Our Country sprung for. I decided to have a little fun and figure out if Washington was running today in Frederick County what that would mean. Well, the Virginia government's website says the county has 44,381 registered voters. That doesn't make it a big American county by any stretch of the imagination; still, if George provided 2.44 gallons of liquor for each voter, as he did in 1758, he'd be on the hook for 108,289 gallons of alcoholic beverages, more booze than is consumed today by even the most ambitious frat houses. Which raises an interesting question I don't have an answer for: did the practice of giving a stiff drink to voters end because people came to agree with James Madison that this was inappropriate? Or as the country's population expanded did it just become too costly for even the richest candidates to provide enough firewater to inebriate the electorate sufficiently to vote for him? My money is on the latter.

So our American experience disproves Blackstone. Even if you only let people of some means vote, you don't eliminate stupid voters.

At least George Washington tried to eliminate sober ones.

On edit: Obviously, I had the numbers backwards; 160 gallons of liquor for 391 voters is only 0.4 gallons. That's still 17,752 gallons of booze if Washington had to provide the same amount per voter in Frederick County today.