It's become a holiday ritual as ubiquitous as decorating trees at Christmas or eating more than on Thnksgiving than most folks in Somalia eat in two months. I speak of the President's Day tradition of people coming out with their lists of the best, or worst occupants of the White House. I swear, if I ever get famous enough that I'm asked in mid-February who was the greatest Chief Executive, I will confidently exclaim "William Henry Harrison; he died thirty-one days into his term. Let's give him credit for setting a precedent which, had a few other Presidents followed, the country would have been better off."
Seldom, however, have I read a best or worst Presidents article that gave me more of a double take than this one, from the American Thinker, written by Ari Kaufman:
http://www.americanthinker.com/2008/02/americas_three_worst_president.html
I have little to say about two of his three selections, Jimmy Carter and James (Don't Call Me Pat) Buchanan. The interesting thing about living in Georgia is that I don't have to go far to find folks who still assert Carter was a reasonably good President, nor do I need to organize a search party to locate citizens who say, "Never mind Buchanan; that tall guy with the beard who followed him was a war criminal!"
But I do have something to say about Mr. Kaufman's disgust with Lyndon Johnson. In attempting to paint LBJ as a bigot, Kaufman does not mention that Johnson was the first President to nominate an African-American (Thurgood Marshall) to the Supreme Court. Nor does Kaufman take note of Johnson's stirring speech to Congress in 1965, emphatically supporting passage of the Voting Rights Act, an oration so inspiring that Martin Luther King-- who could give a pretty good speech himself--is reported to have been so touched by that he wept (Robert Torricelli and Andrew Carroll, eds. In Our Own Words: Extraordinary Speeches of the American Century, 1999, p. 265).
I'm not disturbed that Kaufman doesn't mention these things; after all, when one is writing an essay to convince others of the merits of his position, he is certainly not obligated to raise points that don't support his thesis.
But here is the bit from his essay I do object to:
"LBJ and the Southern wing of the Democratic Party persisted in supporting anti-black positions. Consider, as LBJ's term neared:
- In 1956, Democrats expressed their opposition to the desegregation decision of Brown v. Board of Education in the "Southern Manifesto." One hundred members of Congress, all Democrats, signed the manifesto."
Okay, if you read that, what do you logically infer? I think you would get the impression that among those awful one hundred members of Congress, one of them was Lyndon Baines Johnson.
As a matter of fact, nineteen of the twenty-two senators representing the states of the old Confederacy signed the manifesto. Three didn't. Two were the Tennessee senators, Estes Kefauver and Al Gore's daddie. The other one who withheld his signature was Lyndon Johnson ( James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy, 2001, p. 98).
I don't wish to argue that Kefauver, Gore Sr., and LBJ deserve sainthood for their refusal to endorse the Manifesto. In fact, in the Patterson book cited above, the author declares that the trio acted out of political expediency, as all dreamed of prominence on the national political stage and association with the manifesto would interfere with these goals. (This is a digression, but Patterson himself lets go of a laugher when he writes "All three had presidential or vice-presidential ambitions that they knew would suffer if they became too closely identified with southern racist opinion," p. 98-99. I honestly didn't know any US senators had vice-presidential ambitions.)
Anyway, since LBJ didn't sign the foul document, it's rather obivous that Kaufman has attempted a bit of slight of hand here. In the right hand he shows you the Southern Manifesto, in the left hand he shows you LBJ the bigot, and presto! The two are one. David Copperfield would be proud.
Kaufman's piece, as I mentioned, appears in The American Thinker. Here's hoping enough American thinkers will recognize that its author is being a bit cavalier with the facts.
Tuesday, February 19, 2008
Monday, February 18, 2008
Tucker and theocratic tendencies
"(Mike) Huckabee's theocratic tendencies are dangerous, and he shouldn't be on any ticket, even as vice president." --Cynthia Tucker, Atlanta Journal-Constitution, February 18, 2008.
http://www.ajc.com/opinion/content/opinion/tucker/stories/2008/02/15/tucked_0217.html
"Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. --The United States Constitution, Article VI (emphasis mine).
In the same editorial, Tucker refers to Josiah Bartlet of "West Wing," as "My favorite president ever." Maybe I haven't won a Pulitzer Prize as Cynthia has, but I think if you're writing a serious piece in which your goal is to convince people that Mike Huckabee is unfit to be the Vice President of the United States, you lose a bit of credibility by declaring your favorite president to be a fictional character. By the way, shouldn't everybody in the media, when asked to name her preferred Chief Executive, answer "James Madison"? After all, freedom of the press is guaranteed by the First Amendment he drafted.
Tucker calls Huckabee "a country preacher." This raises the question--not brought up in the editorial--could Huckabee Constitutionally be disqualified from holding public office because he's a member of the clergy? That's not exactly covered by Article VI, as one can hold strong views on faith without being ordained.
Where the history of denying clergy the ability to run for public office is concerned, I recommend a reading of the Supreme Court's decision in McDaniel v. Paty, 435 U. S. 618 (1978).
http://supreme.justia.com/us/435/618/case.html
In brief: the Court noted that seven of the original thirteen states--Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware--disqualified clergy from elected office, McDaniel at 622. An outspoken opponent of this practice was James Madison, Id. at 623-624. Yes--the same James Madison whose First Amendment prevented an establishment of religion, guaranteed free exercise of faith, and promised that future Cynthia Tuckers could write with impunity that someone shouldn't be elected because of his faith.
Madison's opinion gradually carried the day, or as Justice Brennen in his McDaniel concurrence stated:
"When, with the adoption of the Fourteenth Amendment, the strictures of the First Amendment became wholly applicable to the States... earlier conceptions of permissible state action with respect to religion -- including those regarding clergy disqualification -- were superseded." Id. at 637.
Let me conclude with one other point Tucker raises. It's not related to the religious issue strictly, but it's a Constitutional point I'm obliged to address given the title of my blog. Tucker blasts Huckabee as a potential VP candidate because he supports a constitutional amendment banning gay marriage. I presume that Tucker has noticed that George W. Bush, the man who actually holds a post a spot higher in our government than the one she hypothetically posits for Huckabee, has also supported altering the Constitution to define marriage as between one man and one woman.
And we're no closer to it happening. Whenever anybody talks about amending the Constitution, whether it's President Bush or the loudmouth guy in the local tavern, remember: it takes a whole lot of people to do this. Two-thirds of both houses of Congress have to sign on, then three-quarters of the states, see Article V. That's why I don't get too worked up about any candidate for anything talking about Constitutional amendments, because usually we don't get them, and when we do, they are as clear an expression of the will of the people as we're ever likely to see.
http://www.ajc.com/opinion/content/opinion/tucker/stories/2008/02/15/tucked_0217.html
"Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. --The United States Constitution, Article VI (emphasis mine).
In the same editorial, Tucker refers to Josiah Bartlet of "West Wing," as "My favorite president ever." Maybe I haven't won a Pulitzer Prize as Cynthia has, but I think if you're writing a serious piece in which your goal is to convince people that Mike Huckabee is unfit to be the Vice President of the United States, you lose a bit of credibility by declaring your favorite president to be a fictional character. By the way, shouldn't everybody in the media, when asked to name her preferred Chief Executive, answer "James Madison"? After all, freedom of the press is guaranteed by the First Amendment he drafted.
Tucker calls Huckabee "a country preacher." This raises the question--not brought up in the editorial--could Huckabee Constitutionally be disqualified from holding public office because he's a member of the clergy? That's not exactly covered by Article VI, as one can hold strong views on faith without being ordained.
Where the history of denying clergy the ability to run for public office is concerned, I recommend a reading of the Supreme Court's decision in McDaniel v. Paty, 435 U. S. 618 (1978).
http://supreme.justia.com/us/435/618/case.html
In brief: the Court noted that seven of the original thirteen states--Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware--disqualified clergy from elected office, McDaniel at 622. An outspoken opponent of this practice was James Madison, Id. at 623-624. Yes--the same James Madison whose First Amendment prevented an establishment of religion, guaranteed free exercise of faith, and promised that future Cynthia Tuckers could write with impunity that someone shouldn't be elected because of his faith.
Madison's opinion gradually carried the day, or as Justice Brennen in his McDaniel concurrence stated:
"When, with the adoption of the Fourteenth Amendment, the strictures of the First Amendment became wholly applicable to the States... earlier conceptions of permissible state action with respect to religion -- including those regarding clergy disqualification -- were superseded." Id. at 637.
Let me conclude with one other point Tucker raises. It's not related to the religious issue strictly, but it's a Constitutional point I'm obliged to address given the title of my blog. Tucker blasts Huckabee as a potential VP candidate because he supports a constitutional amendment banning gay marriage. I presume that Tucker has noticed that George W. Bush, the man who actually holds a post a spot higher in our government than the one she hypothetically posits for Huckabee, has also supported altering the Constitution to define marriage as between one man and one woman.
And we're no closer to it happening. Whenever anybody talks about amending the Constitution, whether it's President Bush or the loudmouth guy in the local tavern, remember: it takes a whole lot of people to do this. Two-thirds of both houses of Congress have to sign on, then three-quarters of the states, see Article V. That's why I don't get too worked up about any candidate for anything talking about Constitutional amendments, because usually we don't get them, and when we do, they are as clear an expression of the will of the people as we're ever likely to see.
Thursday, February 14, 2008
Berkeley part 2: South Dakota v. Dole
Lat night on The O'Reilly Factor, Bill O'Reilly had a spirited argument with his network's legal analyst, Judge Andrew Napolitano. The Judge made clear that he did not condone the City of Berkeley's actions trying to kick the Marines out of town, but he objected to the idea of Congress withholding federal funds from Berkeley in response to the action. This, the Judge asserted, would constitute an infringment on the Berkeley Council's free speech rights.
There is certainly a good deal of merit in Napolitano's thoughts, given that in our democracy we prize freedom of speech over almost any other value of liberty. As Oliver Wendell Holmes wrote almost ninety years ago:
"(The Constitution) is an experiment, as all life is an experiment... While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
With that in mind, I still have no objection to Congress denying funds to Berkeley. I think a notable precedent here is South Dakota v. Dole, 483 U.S. 203 (1987), in which the Court refused to invalidate Congressional legislation withholding five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota challenged the law, arguing that both the powers reserved by the states in the Tenth Amendment, and the state and local authority over liquor acknowledged in Section 2 of the Twenty-first Amendment were violated by Congress's action (Dole at 205, 210). The challenge was unsuccessful; the Court sided with Congress.
While South Dakota may have been putting its share of the highway funds in peril by having a drinking age of eighteen, the state was not directly attempting to prevent the federal government from exercising an enumerated power. That is, however, exactly what the Berkeley City Council is trying to do by forcing the USMC recruiting center out of their town. As I mentioned in my previous post, Article I, Section 8 of the Constitution expressly gives the federal government power to raise military forces; maintaining recruiting centers is quite clearly a necessary and proper means to do so.
Free speech gives the Berkeley politicians the right to criticize the Marines, or the war, or the President and Congress responsible for the war. They can even draft resolutions denouncing the
process of military recruitment if they want. They just can't tell a unit of the federal government that it must leave town, and if they try, I see no reason Congress can't respond by closing its purse.
There is certainly a good deal of merit in Napolitano's thoughts, given that in our democracy we prize freedom of speech over almost any other value of liberty. As Oliver Wendell Holmes wrote almost ninety years ago:
"(The Constitution) is an experiment, as all life is an experiment... While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
With that in mind, I still have no objection to Congress denying funds to Berkeley. I think a notable precedent here is South Dakota v. Dole, 483 U.S. 203 (1987), in which the Court refused to invalidate Congressional legislation withholding five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota challenged the law, arguing that both the powers reserved by the states in the Tenth Amendment, and the state and local authority over liquor acknowledged in Section 2 of the Twenty-first Amendment were violated by Congress's action (Dole at 205, 210). The challenge was unsuccessful; the Court sided with Congress.
While South Dakota may have been putting its share of the highway funds in peril by having a drinking age of eighteen, the state was not directly attempting to prevent the federal government from exercising an enumerated power. That is, however, exactly what the Berkeley City Council is trying to do by forcing the USMC recruiting center out of their town. As I mentioned in my previous post, Article I, Section 8 of the Constitution expressly gives the federal government power to raise military forces; maintaining recruiting centers is quite clearly a necessary and proper means to do so.
Free speech gives the Berkeley politicians the right to criticize the Marines, or the war, or the President and Congress responsible for the war. They can even draft resolutions denouncing the
process of military recruitment if they want. They just can't tell a unit of the federal government that it must leave town, and if they try, I see no reason Congress can't respond by closing its purse.
Saturday, February 9, 2008
The Constitution and Berkeley
Much has been written and said this past week on the actions of the Berkeley, California City Council essentially telling the Marines to get out of Dodge by sundown. Here's an article if you need a refresher:
http://www.cnn.com/2008/US/02/07/berkeley.protests/index.html
I have three points related to the Constitution I'd like to make about this matter:
1. I sometimes think that the most profound comment uttered by any of the delegates to the Constitutional Convention of 1787 was one made by Pennsylvania's James Wilson on June 16th. As described in James Madison's notes, Wilson took the floor to remark that: "With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved were commonly mistaken for the general voice." (Emphasis mine).
What does this have to do with the goings on in Berkeley? Take a look at a recent column by Michelle Malkin:
http://www.townhall.com/columnists/MichelleMalkin/2008/02/06/berkeley_vs_america,_again
Malkin notes that the action in Berkeley aroused the ire of Move America Forward, the American Legion, South Carolina Senator DeMint, and others, then she writes:
"After feeling the heat, not just from veterans, military families and troop supporters outside of Berkeley but also from their own embarrassed citizens, the council is waving a partial white flag: Two council members will move to rescind the obnoxious letter and Code Pink privileges next week. It seems a little light bulb went off in Councilwoman Betty Olds' head: 'I think we shouldn't be seen across the country as hating the Marines.'"
When a citizen in Berkeley speaks to a neighbor at the local Starbucks, who is he probably conversing with? Another person with almost the exact viewpoint on many issues, that's who. Many--perhaps even most--of the people who live in Berkeley have similar opinions to their town council, but these aren't necessarily shared by the people in North Dakota or South Carolina. It's like after the 2004 Presidential election I heard some otherwise intelligent people making comments such as "How could John Kerry have lost? Every sign I saw on lawns in Midtown Atlanta was for Kerry; I didn't see a single one for Bush." Of course, if only homosexuals from Atlanta, actors from Los Angeles, and Unitarians from Boston could vote, Kerry would have won with about 95% of the vote. But Kerry and Bush were running to be President of all Americans, not President of select demographic groups.
The people in Berkeley caught off guard by how much negative commentary has been directed towards their town simply forgot what I like to call James Wilson's dictum. They mistook the sentiments of the particular circle in which they moved for the general voice.
2. One of the wonderful things about reading history books is that quite often something will occur in contemporary America that relates to whatever volume you're perusing at the moment. I happen to be reading Geoffrey R. Stone's Perilous Times: Free Speech in Wartime (2004); right now I'm on the chapter about the appalling suspensions of civil liberties that took place during World War I. It is truly jolting to learn, for instance, that Rose Pastor Stokes, editor of the Jewish Daily News, was convicted and sentenced to ten years in prison for saying "I am for the people and the government is for the profiteers" at a meeting of the Women's Dining Club of Kansas City. (See pp. 171-72; fortunately, her conviction was overturned on appeal, n. 143 p. 593.)
I don't approve of many of Code Pink's present day activities, but thank goodness we now live in an America where the First Amendment isn't just marks on paper and mere expression of disapproval of the war isn't grounds for arrest. Of course, protestors have an obligation to keep it civil; I think one should at least face misdemeanor charges for thrusting blood stained hands in the Secretary of State's face:
http://www.nypost.com/seven/10242007/news/nationalnews/protestor_attacks_condoleezza_.htm
And in the specific case of Berkeley and the Marines, I don't think putting imprints of bloody hands on Saran wrap and taping it to the recrutment center's window is acceptable conduct:
http://www.zombietime.com/berkeley_marine_corps_2-1-2008/
So to sum up: I say no to women in 1918 being sentenced to a decade in prison for making antiwar statements, and I also say no to women in 2008 thrusting bloody hands in faces or pasting them to storefront windows. Society has a hard time finding an acceptable middle ground sometimes, doesn't it?
3. I haven't seen anything written on this, but it's pretty obvious to me that what the Berkeley City Council did was unconstitutional. Article 1 § 8 of the Constitution grants Congress the power to raise military forces and to use means necessary and proper to staff the troops. It's rather difficult to see how this could be done without having recruiting centers. Never mind whether the Marines can recruit a voluntary force, the Supreme Court in 1918 unanimously upheld federal authority to hold a draft, see Selective Draft Cases, 245 U.S. 366. What the heck, the following year the Court without dissent even ruled that the feds could shut down brothels near military bases as a necessary and proper exercise of the military powers, see McKinley v. U.S. 249 U.S. 397 (1919). (So that's why some young men who could have used family connections to remain stateside during the Vietnam War chose to go to IndoChina instead...)
And remember: a power specifically granted to Congress, the President, or the federal courts may NOT be interfered with by a state or local government. We've got almost two hundred years of precedent on this, going back to Justice Marshall's famous opinion in McCulloch v. Maryland, denying Maryland the power to tax the Second Bank of the United States. Argued Marshall:
"If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this principle would transfer the supremacy, in fact, to the States." 17 U.S. (4 Wheat.) 316, 432 (1819).
Clearly what the Berkeley City Council intended to do was just that, prostrate at their feet the federal military power. Thanks to numerous voices raised in protest, it seems likely they won't get away with it.
I love it when the Constitution wins.
http://www.cnn.com/2008/US/02/07/berkeley.protests/index.html
I have three points related to the Constitution I'd like to make about this matter:
1. I sometimes think that the most profound comment uttered by any of the delegates to the Constitutional Convention of 1787 was one made by Pennsylvania's James Wilson on June 16th. As described in James Madison's notes, Wilson took the floor to remark that: "With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved were commonly mistaken for the general voice." (Emphasis mine).
What does this have to do with the goings on in Berkeley? Take a look at a recent column by Michelle Malkin:
http://www.townhall.com/columnists/MichelleMalkin/2008/02/06/berkeley_vs_america,_again
Malkin notes that the action in Berkeley aroused the ire of Move America Forward, the American Legion, South Carolina Senator DeMint, and others, then she writes:
"After feeling the heat, not just from veterans, military families and troop supporters outside of Berkeley but also from their own embarrassed citizens, the council is waving a partial white flag: Two council members will move to rescind the obnoxious letter and Code Pink privileges next week. It seems a little light bulb went off in Councilwoman Betty Olds' head: 'I think we shouldn't be seen across the country as hating the Marines.'"
When a citizen in Berkeley speaks to a neighbor at the local Starbucks, who is he probably conversing with? Another person with almost the exact viewpoint on many issues, that's who. Many--perhaps even most--of the people who live in Berkeley have similar opinions to their town council, but these aren't necessarily shared by the people in North Dakota or South Carolina. It's like after the 2004 Presidential election I heard some otherwise intelligent people making comments such as "How could John Kerry have lost? Every sign I saw on lawns in Midtown Atlanta was for Kerry; I didn't see a single one for Bush." Of course, if only homosexuals from Atlanta, actors from Los Angeles, and Unitarians from Boston could vote, Kerry would have won with about 95% of the vote. But Kerry and Bush were running to be President of all Americans, not President of select demographic groups.
The people in Berkeley caught off guard by how much negative commentary has been directed towards their town simply forgot what I like to call James Wilson's dictum. They mistook the sentiments of the particular circle in which they moved for the general voice.
2. One of the wonderful things about reading history books is that quite often something will occur in contemporary America that relates to whatever volume you're perusing at the moment. I happen to be reading Geoffrey R. Stone's Perilous Times: Free Speech in Wartime (2004); right now I'm on the chapter about the appalling suspensions of civil liberties that took place during World War I. It is truly jolting to learn, for instance, that Rose Pastor Stokes, editor of the Jewish Daily News, was convicted and sentenced to ten years in prison for saying "I am for the people and the government is for the profiteers" at a meeting of the Women's Dining Club of Kansas City. (See pp. 171-72; fortunately, her conviction was overturned on appeal, n. 143 p. 593.)
I don't approve of many of Code Pink's present day activities, but thank goodness we now live in an America where the First Amendment isn't just marks on paper and mere expression of disapproval of the war isn't grounds for arrest. Of course, protestors have an obligation to keep it civil; I think one should at least face misdemeanor charges for thrusting blood stained hands in the Secretary of State's face:
http://www.nypost.com/seven/10242007/news/nationalnews/protestor_attacks_condoleezza_.htm
And in the specific case of Berkeley and the Marines, I don't think putting imprints of bloody hands on Saran wrap and taping it to the recrutment center's window is acceptable conduct:
http://www.zombietime.com/berkeley_marine_corps_2-1-2008/
So to sum up: I say no to women in 1918 being sentenced to a decade in prison for making antiwar statements, and I also say no to women in 2008 thrusting bloody hands in faces or pasting them to storefront windows. Society has a hard time finding an acceptable middle ground sometimes, doesn't it?
3. I haven't seen anything written on this, but it's pretty obvious to me that what the Berkeley City Council did was unconstitutional. Article 1 § 8 of the Constitution grants Congress the power to raise military forces and to use means necessary and proper to staff the troops. It's rather difficult to see how this could be done without having recruiting centers. Never mind whether the Marines can recruit a voluntary force, the Supreme Court in 1918 unanimously upheld federal authority to hold a draft, see Selective Draft Cases, 245 U.S. 366. What the heck, the following year the Court without dissent even ruled that the feds could shut down brothels near military bases as a necessary and proper exercise of the military powers, see McKinley v. U.S. 249 U.S. 397 (1919). (So that's why some young men who could have used family connections to remain stateside during the Vietnam War chose to go to IndoChina instead...)
And remember: a power specifically granted to Congress, the President, or the federal courts may NOT be interfered with by a state or local government. We've got almost two hundred years of precedent on this, going back to Justice Marshall's famous opinion in McCulloch v. Maryland, denying Maryland the power to tax the Second Bank of the United States. Argued Marshall:
"If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this principle would transfer the supremacy, in fact, to the States." 17 U.S. (4 Wheat.) 316, 432 (1819).
Clearly what the Berkeley City Council intended to do was just that, prostrate at their feet the federal military power. Thanks to numerous voices raised in protest, it seems likely they won't get away with it.
I love it when the Constitution wins.
Tuesday, February 5, 2008
Super books for Super Tuesday
Georgia is one of the many states holding a Presidential primary today. I just got back from casting my vote, and it occurred to me that this is a fine time to recommend a couple of books on the history of the vote in America. One is The Right to Vote: The Contested History of Democracy in the United States by Alexander Keyssar, first published in 2000. When it was reissued in paper, a new afterward was added in which Keyssar tackled the electoral college and how that Constitutional provision played out so controversially in the 2000 Presidential election.
This is one of those books that having read several years ago, I realize that at some point I'll have to read it again, so fascinating and important is the story it tells. While the main text is interesting, the charts and tables in the back of the volume alone are a valuable reference worth the purchase price. For example, pages 399-402 list the states and territories that allowed women to vote before passage of the Nineteenth Amendment; this is not easy information to find anywhere else.
Another good little book is Robert M. Goldman's Reconstruction & Black Suffrage: Losing the Vote in Reese & Cruikshank, published in 2001. In 156 pages of text, Goldman chronicles the Supreme Court's regrettable nineteenth century decisions that limited the scope of the Fifteenth Amendment and enabled states to easily deny suffrage to African-Americans by in effect declaring "We're not keeping them from voting because they are black, we are doing it because they are illiterate, or can't pay a poll tax, or can't recite Washington's First Inaugural Address word for word, etc." (That's an exaggeration on reciting Washington's speech, but not by much.) Here's an election day tip of the hat to Thurgood Marshall, Dr. King, LBJ, and everybody else who made sure that nearly a century after the Fifteenth Amendment, it would finally be honored.
This is one of those books that having read several years ago, I realize that at some point I'll have to read it again, so fascinating and important is the story it tells. While the main text is interesting, the charts and tables in the back of the volume alone are a valuable reference worth the purchase price. For example, pages 399-402 list the states and territories that allowed women to vote before passage of the Nineteenth Amendment; this is not easy information to find anywhere else.
Another good little book is Robert M. Goldman's Reconstruction & Black Suffrage: Losing the Vote in Reese & Cruikshank, published in 2001. In 156 pages of text, Goldman chronicles the Supreme Court's regrettable nineteenth century decisions that limited the scope of the Fifteenth Amendment and enabled states to easily deny suffrage to African-Americans by in effect declaring "We're not keeping them from voting because they are black, we are doing it because they are illiterate, or can't pay a poll tax, or can't recite Washington's First Inaugural Address word for word, etc." (That's an exaggeration on reciting Washington's speech, but not by much.) Here's an election day tip of the hat to Thurgood Marshall, Dr. King, LBJ, and everybody else who made sure that nearly a century after the Fifteenth Amendment, it would finally be honored.
Saturday, February 2, 2008
Groundhog Day isn't mentioned in the Constitution....
Zoologist David Barash notes that the groundhog--also called a woodchuck--is the only United States animal to have a day named after it (Marmots: Social Behavior and Ecology, 1989, p. 21). So since I'm posting on Groundhog Day, it seems a good time to point out that no animal other than human beings is mentioned in the Constitution. Not surprising, huh?
Animals would at least have been alluded to, however, had a group of Pennsylvania anti-federalists had their way when the Bill of Rights was debated. These folks from the Keystone State--ironically also the state where our Groundhog Day tradition began--wished for a different wording for the Second Amendment. They desired that it read:
"The people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game," see Akhil Reed Amar The Bill of Rights: Creation and Reconstruction, 1998, p. 47, emphasis mine.
It sounds a bit like a Jeff Foxworthy routine, doesn't it? I can picture him exclaiming, "If you think the Bill of Rights should include hunting, NASCAR, and Budweiser... you just might be a redneck!"
Animals would at least have been alluded to, however, had a group of Pennsylvania anti-federalists had their way when the Bill of Rights was debated. These folks from the Keystone State--ironically also the state where our Groundhog Day tradition began--wished for a different wording for the Second Amendment. They desired that it read:
"The people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game," see Akhil Reed Amar The Bill of Rights: Creation and Reconstruction, 1998, p. 47, emphasis mine.
It sounds a bit like a Jeff Foxworthy routine, doesn't it? I can picture him exclaiming, "If you think the Bill of Rights should include hunting, NASCAR, and Budweiser... you just might be a redneck!"
Wednesday, January 30, 2008
Take a Whizzer on the Court
Since Sunday is the Super Bowl, this seems a good time to talk about a guy who arguably held the two coolest jobs a man could have. Byron "Whizzer White was A) a star NFL running back, and B) a Justice on the United States Supreme Court. Here are his football numbers, if you're curious: http://www.pro-football-reference.com/players/W/WhitWh00.htm
A short career, due to World War II and a personal decision that there was more to life than football, but what a few years it was, with three all-pro selections. Note that in 1938 he led the league in rushing yards AND in passes intercepted. That's a reminder that back in the day, players were expected to perform on offense and on defense; obviously Justic White excelled in both.
One notes also how much the game has changed where statistics are concerned. White led the NFL in 1938 with 567 yards rushing; this would be a puny total today. In the season to be finished this Sunday, LaDainian Tomlinson topped NFL running backs with 1474 yards gained on the ground. Granted he played sixteen games to White's eleven; still, Tomlinson rushed for over 92 yards per game while White settled for about 52 yards each contest. Tomlinson's accomplishment dwarfs White's even more once you factor in that teams pass a LOT more today. In 1938 White's team, the Pittsburgh Pirates, attempted 194 passes, fewer than 18 pass plays a game (Whizzer himself hurled 73 of them from his runing back spot!) while Tomlinson's 2007 San Diego Chargers attempted 471 passes, almost 30 pass plays per game. (You can locate all this fun data by browsing on the pro-football-reference.com website).
Well this is Brett's Constitutiton, not Brett's football trivia, so I'd better stop playing fantasy geek and get back to the topic at hand, this story of a pro football player on the U.S. Supreme Court. Full disclosure: I have not read the definitive biography on White, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R White by Dennis Hutchinson (1998). I'm not an avid reader of judicial biographies; I'm more interested in reading books on how judges decided cases than on how they lived. Richard Posner, a judge himself, has gone on record as declaring that most judical biographies are not very good, see Law and Literature, revised ed. (1998) pp. 365-377. Having cited this, I'm obligated to note that Posner singles out Hutchinson's tome as one of the two best judicial biographies he'd seen, p. 373. Posner opines that a big part of the reason why White made such a good biographical subject is that he had such an interesting life before he took his seat on the Supreme Court. (Professor Sanford Levinson has decried that over the past several decades this very quality has been absent from judicial nominees; we don't have Hugo Blacks and Thurgood Marshalls named anymore, men whose pre-Supreme Court careers would make an interesting biography, see The American Supreme Court, 4th ed. (2005), pp. 260-261.)
If Byron White's career led to an insightful biography, it also makes for what I hope is an interesting essay here. Let it be noted that while he was nominated to the Court by President Kenney, a Democrat, White has the distinction of being the only Justice who voted nay in Miranda v. Arizona AND in Roe v. Wade. In A History of the Supreme Court (1993), author Bernard Schwartz refers to White as a "moderate" (p. 272), but I don't think most liberals would consider a dissenting voice in Miranda and Roe as anything other than that of a conservative. Furthermore, White also wrote the majority opinion in Bowers v. Hardwick 478 U.S. 186 (1986), the since overturned decision that upheld Georgia's law against homosexual sodomy.
If there is one lesson to be learned in White's votes in Miranda, Roe, and Bowers it is this: you can't tell how a Supreme Court Justice is going to decide cases based on the political party of the President appointing him. Whizzer was rather conservative in spite of being placed in his seat by a Democratic President. We not uncommonly hear pro-life voices deriding Roe v. Wade as the work of activist liberals, but remember: five of the seven Justices in the Roe majority were appointed by Republicans Eisenhower and Nixon. Remember this point during the ongoing Presidential campaign when we'll hear a million times that the most important reason we should vote for Clinton or McCain is because of who they will nominate to the high court when Justice Stevens finally decides it's time to retire. No President ever knows what he'll really get from his judicial nominees.
Let's look at White's opinions a little. By way of preface--and getting back to Whizzer's gridiron career--have you ever noticed that most of the former pro football players who go into politics speak against Roe and abortion in general? Jack Kemp, Steve Largent,--even Heath Schuler, a Democrat, opposes abortion rights: http://tinyurl.com/2ulqcg. (Admittedly, unlike White, Kemp, and Largent, Schuler wasn't much of a pro football player.) Sociologists and psychologists could have a field day speculating why a bunch of guys who made a living in a sport where players beat the hell out of each other until the strongest wins usually end up all on the same side on abortion, but I'll leave that alone and just quote a few things White wrote in Doe v. Bolton 410 U.S. 179, a companion case to Roe that follows it in the United States report:
"The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
"With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." (Doe at 221-222).
And here are some choice bits from Whizzer White's dissent in Miranda v. Arizona 384 U.S. 436 (1966), the famous "you have the right to remain silent" case:
"In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined." (Miranda at 542).
I just can't reconcile White's statements in Doe and Miranda with Bernard Schwartz's characterization of him as a moderate. These assertions sound to me far more like what one would hear from the host or the callers on the Rush Limbaugh program. Two of the most prominent right-wing positions are there: in Doe that judges shouldn't take away the power of the people to decide, and in Miranda that it's wrong to put concern for the criminal ahead of concern for keeping the peace.
But whether you agree with Justice White or not, isn't it something for a man to star in the NFL and be a Supreme Court Justice. I certainly would like to see high school and college football coaches telling their teams about Whizzer White, the great running back who was a Rhodes Scholar and who later became a judge. How wonderful it would be for young athletes to make up their minds that like White, they were going to try for excellence on the field and in the classroom.
A short career, due to World War II and a personal decision that there was more to life than football, but what a few years it was, with three all-pro selections. Note that in 1938 he led the league in rushing yards AND in passes intercepted. That's a reminder that back in the day, players were expected to perform on offense and on defense; obviously Justic White excelled in both.
One notes also how much the game has changed where statistics are concerned. White led the NFL in 1938 with 567 yards rushing; this would be a puny total today. In the season to be finished this Sunday, LaDainian Tomlinson topped NFL running backs with 1474 yards gained on the ground. Granted he played sixteen games to White's eleven; still, Tomlinson rushed for over 92 yards per game while White settled for about 52 yards each contest. Tomlinson's accomplishment dwarfs White's even more once you factor in that teams pass a LOT more today. In 1938 White's team, the Pittsburgh Pirates, attempted 194 passes, fewer than 18 pass plays a game (Whizzer himself hurled 73 of them from his runing back spot!) while Tomlinson's 2007 San Diego Chargers attempted 471 passes, almost 30 pass plays per game. (You can locate all this fun data by browsing on the pro-football-reference.com website).
Well this is Brett's Constitutiton, not Brett's football trivia, so I'd better stop playing fantasy geek and get back to the topic at hand, this story of a pro football player on the U.S. Supreme Court. Full disclosure: I have not read the definitive biography on White, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R White by Dennis Hutchinson (1998). I'm not an avid reader of judicial biographies; I'm more interested in reading books on how judges decided cases than on how they lived. Richard Posner, a judge himself, has gone on record as declaring that most judical biographies are not very good, see Law and Literature, revised ed. (1998) pp. 365-377. Having cited this, I'm obligated to note that Posner singles out Hutchinson's tome as one of the two best judicial biographies he'd seen, p. 373. Posner opines that a big part of the reason why White made such a good biographical subject is that he had such an interesting life before he took his seat on the Supreme Court. (Professor Sanford Levinson has decried that over the past several decades this very quality has been absent from judicial nominees; we don't have Hugo Blacks and Thurgood Marshalls named anymore, men whose pre-Supreme Court careers would make an interesting biography, see The American Supreme Court, 4th ed. (2005), pp. 260-261.)
If Byron White's career led to an insightful biography, it also makes for what I hope is an interesting essay here. Let it be noted that while he was nominated to the Court by President Kenney, a Democrat, White has the distinction of being the only Justice who voted nay in Miranda v. Arizona AND in Roe v. Wade. In A History of the Supreme Court (1993), author Bernard Schwartz refers to White as a "moderate" (p. 272), but I don't think most liberals would consider a dissenting voice in Miranda and Roe as anything other than that of a conservative. Furthermore, White also wrote the majority opinion in Bowers v. Hardwick 478 U.S. 186 (1986), the since overturned decision that upheld Georgia's law against homosexual sodomy.
If there is one lesson to be learned in White's votes in Miranda, Roe, and Bowers it is this: you can't tell how a Supreme Court Justice is going to decide cases based on the political party of the President appointing him. Whizzer was rather conservative in spite of being placed in his seat by a Democratic President. We not uncommonly hear pro-life voices deriding Roe v. Wade as the work of activist liberals, but remember: five of the seven Justices in the Roe majority were appointed by Republicans Eisenhower and Nixon. Remember this point during the ongoing Presidential campaign when we'll hear a million times that the most important reason we should vote for Clinton or McCain is because of who they will nominate to the high court when Justice Stevens finally decides it's time to retire. No President ever knows what he'll really get from his judicial nominees.
Let's look at White's opinions a little. By way of preface--and getting back to Whizzer's gridiron career--have you ever noticed that most of the former pro football players who go into politics speak against Roe and abortion in general? Jack Kemp, Steve Largent,--even Heath Schuler, a Democrat, opposes abortion rights: http://tinyurl.com/2ulqcg. (Admittedly, unlike White, Kemp, and Largent, Schuler wasn't much of a pro football player.) Sociologists and psychologists could have a field day speculating why a bunch of guys who made a living in a sport where players beat the hell out of each other until the strongest wins usually end up all on the same side on abortion, but I'll leave that alone and just quote a few things White wrote in Doe v. Bolton 410 U.S. 179, a companion case to Roe that follows it in the United States report:
"The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
"With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." (Doe at 221-222).
And here are some choice bits from Whizzer White's dissent in Miranda v. Arizona 384 U.S. 436 (1966), the famous "you have the right to remain silent" case:
"In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined." (Miranda at 542).
I just can't reconcile White's statements in Doe and Miranda with Bernard Schwartz's characterization of him as a moderate. These assertions sound to me far more like what one would hear from the host or the callers on the Rush Limbaugh program. Two of the most prominent right-wing positions are there: in Doe that judges shouldn't take away the power of the people to decide, and in Miranda that it's wrong to put concern for the criminal ahead of concern for keeping the peace.
But whether you agree with Justice White or not, isn't it something for a man to star in the NFL and be a Supreme Court Justice. I certainly would like to see high school and college football coaches telling their teams about Whizzer White, the great running back who was a Rhodes Scholar and who later became a judge. How wonderful it would be for young athletes to make up their minds that like White, they were going to try for excellence on the field and in the classroom.
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