Ellen on gay marriage

As I see it, American liberty exists in the dynamic tension between two magnetic poles. Before I describe exactly what these "two magnetic poles" are, let me say that I've been looking for a good issue to elaborate on this, and courtesy the chat between John McCain and Ellen Degeneres on gay marriage, I've got it. Here is the exchange on youtube:
http://www.youtube.com/watch?v=A7addd1-SY8

Here is what Ellen said that I want to talk about, because it so beautifully highlights my Two Poles theory:


"Blacks and women did not have the right to vote. Women just got the right to vote in 1920; blacks didn't have the right to vote until 1870."


Give Ellen credit; she got the dates correct, at least as far as the U.S. Constitution is concerned. The Fifteenth Amendment, prohibiting disenfranchisement based on race, was ratified in 1870 while the Nineteenth Amendment, prohibiting disenfranchisement based on gender, was ratified in 1920. One minor quibble: it's not correct to imply that women and blacks could not vote anywhere before these dates. In the early nineteenth century state restrictions on voting eased a bit, and so before the Civil War African-Americans could cast ballots in five of the six New England states (Connecticut excepted); if they owned property they could also vote in New York (Goldman, Reconstruction & Black Suffrage, 2001, p. 10). As for women, the ladies in Wyoming, Colorado, Utah, and Idaho had full voting privileges even before the end of the nineteenth century (Tsesis, We Shall Overcome, 2008, pp. 153-54).


My more substantial argument with Ellen here is that in standing up for gay marriage, she is embracing the wrong pole. I guess now before it gets anymore complicated I should say what these two poles are.


It's very simple: one pole is the idea that in a democracy, usually the majority's will should carry. This was perhaps best expressed a century ago in Oliver Wendell Holmes's dissent in Lochner v. New York, 198 U.S. 45 (1905). Here's the background story: social reformers in New York state were concerned about the health of bakers working long hours. (This was before the prominence of the eight hour work day.) The legislators of New York eventually listened to their constituents and passed a law that declared:


"No person shall be required, permitted, or suffered to work in a biscuit, bread or cake bakery more than sixty hours in one week, or more than ten hours in one day."


This legislation passed the New York general assembly unanimously: 90 votes for, none against. In the state senate the story was the same: 29 votes in favor, none opposed. The governor then signed the bill (Kens, Lochner v. New York: Economic Regulation on Trial, 1998, pp. 65-66).


Sounds like looking out for the health of the bakers was the overwhelming will of the majority, doesn't it? Well, the law was challenged, and it went all the way to the U.S. Supreme Court.


Where, by a five to four vote, the old justices struck the law down. The majority declared that the law "interferes with the right of contract between the employer and employees" (Lochner at 53).


There were actually two dissents issued, but it is the one written by Justice Holmes that has garnered the most attention in the ensuing hundred years. A part of what he wrote is excerpted at the left of this column, so I won't repeat that bit, but Holmes also exclaimed:


"I strongly believe that my agreement or disagreement (with the wisdom of the bakery statute) has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract... " (Lochner at 75, emphasis mine.)


Now as I said, the observations Holmes made came in dissent. Nevertheless, as time went on, Holmes's minority opinion was treated with great respect while the majority opinion was looked at as an unwarranted overturning of majority rule; see Ferguson v. Skrupa, 372 U.S. 726 (1963). In fact, by the 1960s, Holmes was such a legal icon that the creators of the TV show Green Acres named Eddie Albert's character, an attorney turned farmer, "Oliver Wendell Douglas." You know you've made it when you are referenced in pop culture!


Well anyway, even Mr. Haney and Mr. Kimball could see that in a democracy, the majority view should usually prevail. And that's where the problem comes up with the analogy Ellen Degeneres used in making her point in favor of gay marriage. She brought up voting rights, which logically leads to voters, which passes naturally to the right of the majority of those voters to embody their opinions in law, as Holmes would say.


But if you support gay marriage, frankly, the LAST thing you should do is bring up voting. Because if there is one thing about gay marriage that can't be denied, it's that wherever and whenever the voters have had a choice, they have said "no" to same sex matrimony. Ellen alluded to the California Supreme Court's legalization of gay marriage; take a look at the dissent in that very case. In the wake of the Massachusetts Supreme Court's legalization of gay marriage in 2003, the dissent notes:


"(A)s of January 2006, ‘39 states [had]either passed laws or amended their constitutions (or done both) to prohibit same-sex marriages, to deny recognition of same-sex marriages from other jurisdictions, and/or to deny recognition to other types of same-sex relationships’]." (Citing a law review article), http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF , p. 138.


Laws are passed, state constitutions are amended, by the will of the people, either voting directly or thorough their elected representatives. And if in less than three years following the Massachusetts high court authorizing gay marriage you had majorities in thirty-nine states clearly expressing their displeasure with the idea, you know that this is an issue many people feel just as strongly about as Ellen does, but they've reached the opposite conclusion. Even in California, where gay marriage is legal, for the moment, this is not the will of the majority, where a recent poll showed that 54% of the electorate would vote in favor of a state constitutional amendment to overturn the recent court decision:


http://www.townhall.com/news/religion/2008/05/23/poll_54_in_calif_back_marriage_amend

Let's face it: we only have same-sex marriage now in two states, Massachusetts and California, and in both of these states the reason it exists is not due to the will of the people, but rather because of a four to three vote by the state's highest court. Regardless of your position on this issue, it is a bit troubling that the Massachusetts Supreme Court, by one vote, overturned four hundred years of precedent in the Bay State, going all the way back to when the Pilgrims landed. One could argue that these courts have done exactly what the U.S. Supreme Court did in Lochner, disregarding clear evidence of the will of the majority.


So does that leave Ellen and people who feel as she does completely out in the cold?


Not necessarily. You will note if you reread what I've written to this point that the one pole of American liberty is that the majority should usually have it's way. But usually isn't always, and the other pole of American liberty protects individuals from the majority. And, as with the first pole, the concept is clearly and memorably expressed in a case heard by the U.S. Supreme Court.

In 1943, the Court delivered its ruling in West Virginia State Board of Ed. v. Barnette, 319 U.S. 624. At issue was a law that required all students in public schools to participate in a salute to the American flag. Refusal to do so was regarded as insubordination, for which the student could be expelled. The problem is, the Jehovah's Witnesses believe that the flag is a graven image and thus to salute it would be a violation of their interpretation of Exodus 20: 4-5. (Barnette at 629). So what of the children of Jehovah's Witnesses in the public schools; would they be excused from the flag salute for religious reasons or could they be expelled if they failed to comply with the rule?

The Court ruled that these children must be excused from saluting the flag; the religious freedoms guaranteed by the First Amendment mandate it. But just as Holmes in his Lochner dissent outlined a general theory of majority rule, in Barnette Justice Robert Jackson's opinion spoke to the limits of rule by the most numerous:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (Barnette at 638, emphasis mine.)

This was a stunning reversal, by the way; just three years earlier in a similar case the Court ruled over a single dissent that a school board could require every student to salute the flag, even those who objected due to their religious beliefs; see Minersville School District v. Gobitis, 310 U.S. 586 (1940). Funny how a couple of years fighting Nazis serves to make people uncomfortable with the notion of forcing conformity, isn't it?

So those are the two "magnetic" poles. One pole is Holmes's point about majority rule. The other is Jackson's reminder that there are some things the majority cannot touch. And the reason we have controversies in a democracy is that sometimes it's appropriate to embrace one pole; sometimes it's best to stand by the other pole. These poles are rivals, but they are not enemies, and it is essential for us to understand the creative tension between them. My use of the phrase "magnetic poles" implies a global metaphor, and to carry that analogy further, free government functions best when we stand on the symbolic equator midway between the poles and carefully consider which one to lean towards.

Which brings me back to Ellen's point about voting. In the context of her argument in favor of same-sex marriage, she is undermining her position by leaning towards the wrong pole. Voting is all about what fifty percent plus one of the voters want, and it's pretty clear that fifty percent plus one of the folks do NOT want gay marriages to be legal. What Ellen and others who agree with her must do is demonstrate that same-sex marriage is, to paraphrase Justice Jackson, a "fundamental right that may not be submitted to vote."

In other words, Ellen has to show that denying any woman a marriage certificate because her intended spouse is also a woman is more like making Jehovah's witnesses salute the flag than it is like making bakery bosses observe a ten hour day for their employees. How would she best do that?

Well, one drawback she has is that unlike the Barnette case, where freedom of religion was at issue, gay marriage advocates are not dealing with something that is specifically mentioned in the Bill of Rights. The first eight amendments to the Constitution require that the press be free, that property may not be searched without a warrant, that no one can be convicted of a crime except by jury verdict, etc. These amendments say nothing at all about marriage, homosexual or heterosexual.

Then again, Justice Jackson didn't simply write that freedom of worship, speech, and other things specified in the Constitution were protected, he spoke of "fundamental rights" not being subject to policing by the majority. So that raises the question: is marriage a fundamental right that might "depend on the outcome of no elections" even though it's not enumerated in the Bill of Rights?

Well consider this: over forty years ago, Chief Justice Earl Warren of the U.S. Supreme Court wrote in a unanimous opinion:

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967).

It's tempting to be a wise guy here and point out that it would strengthen Ellen's case if Warren had written that marriage is essential to happiness "between free men" instead of "by free men," but the matter at issue in Loving wasn't laws against same-sex marriage, it was laws against interracial marriage. The Warren Court struck those laws down.

Yes, there are some rather clear differences between statutes requiring potential wedded couples to be of the same race and statutes requiring they be of different genders. I'm not going to dwell on those dissimilarities here; suffice it to say that as I noted in a post a couple of weeks ago, there are nine states plus the District of Columbia that never had laws preventing a man and a woman of different races to marry, while no state ever allowed marriage between people of like gender until the Massachusetts Supreme Court acted a few years ago, http://brettsconstitution.blogspot.com/2008/05/rest-in-peace-mrs-loving.html.

Still, for those like Ellen Degeneres who hope to see gay marriage recognized by all fifty states, not just by two, the approach they must take--for now, at least--is to demonstrate effectively that in this matter it's not majority rule that counts. Rather, they must advocate that the right of gay couple to marry is, to paraphrase Justice Jackson's assertion in Barnette, "withdrawn from the vicissitudes of political controversy and placed beyond the reach of majorities."

Freedom of the press doesn't mean an unbiased press

Alexander Hamilton, John Jay, and James Madison wrote The Federalist in 1787 and 1788 as a series of newspaper articles to encourage New Yorkers to support ratification of the Constitution. My favorite bit of trivia about this is that the articles were printed in four of the five New York City newspapers operational at the time (Wills, ed. Bantam Classic Edition of The Federalist, 1982, p. x.).



Now with four papers in Gotham publishing these pro-Constitution essays in their entirety, do you think this indicates that the New York press had consciously and purposely sided with the Federalists against the Anti-Federalists, who opposed ratification?



Yes, as Jack Rakove sees it, the press was largely biased--at least in general if not specifically in New York City:



"Anti-Federalists rightly complained that many newspapers had begun to prepare their readers to accept the Constitution on trust; later they protested that a Federalist press was not acting as an impartial medium of debate. In some towns and even states--like Connecticut--Anti-Federalists found it difficult to gain access to the press; once they did, their essays were reprinted less frequently; and their speeches in the state conventions were less likely to be reported." (Original Meanings: Politics and Ideas in the Making of the Constitution, 1996, p. 146.)



Daniel Farber and Suzanna Sherry report that the essays of "Brutus" were among the most influential Anti-Federalist writings and that these appeared in the New York Journal between October 1787 and April 1788. Thus, the "Brutus" articles appeared at the same time as The Federalist, which sounds like a concerted effort to present a balanced view of those who opposed constitutional ratification--but after all, "Brutus" only penned sixteen essays while there were eighty-five installments of The Federalist. (A History of the American Constitution, 1990, p. 189.) That doesn't sound very balanced to me.



So the press was in the tank for the Federalists, in much the same manner that today one hears complaints they are in the tank for Barack Obama. Michelle Malkin's pondering over what the press would have said if Dan Quayle had gotten the number of states wrong is the closest example of this at hand:

http://tinyurl.com/5kwekt

To elaborate on this analogy a bit more, remember that the Anti-Federalists were largely reasonable folks who had principled objections to the Constitution, in much the same way Obama has principled objections to McCain's positions and vice versa. It's well-known that the Anti-Federalists decried the absence of a Bill of Rights, and that their complaints led the first Congress to draft one, but did you know that another Anti-Federalist criticism was that the Constution mandated that senators be chosen by the state legislatures rather than by the people? (Farber & Sherry, p. 180.) In other words, in some ways the Anti-Federalists were more in tune with modern democratic concepts than their rivals. One hundred twenty-five years after ratification, America decided the Anti-Federalists were right, and the Constitution was amended to provide for direct election of the Senate (Amendment XVII).



It's a bit ironic, given their difficulties with the eighteenth century media, that the Bill of Rights, so yearned for by the Anti-Federalists, included the First Amendment, with its guarantee of freedom of the press.

But here's the point to remember: free press does not mean a balanced press. It never has. And although I've not studied the history of this thoroughly and objectively, what I have read suggests that instances such as the ratification of the Constitution--where one side seems to have been somewhat shut out by the press--are less common that situations where different papers unabashedly took different sides on an issue, or favored one party over the other. Here are a few examples:

--In the early days of our republic, the Philadelphia newspaper Aurora was virtually a partisan instrument of the Jeffersonian Republicans. The editor, Benjamin Franklin Bache (grandson of the guy who flew the kite in the storm) called John Adams "blind, bald, crippled, toothless (and) querulous" and denounced George Washington as "apish", "monarchical," "pompous," and "tawdry." On the other hand, the Gazette of the United States was on the side of Washington, Adams, and the Federalists; it criticized the Republicans as "dismal cacklers,"propagators of calumny," and the "worst and basest of men." (Stone, Perilous Times: Free Speech in Wartime, 2004, pp. 35-36.)

--In 1856, the Supreme Court issued the notorious Dred Scott decision (60 U.S. 393). Chief Justice Taney declared in his opinion that: "The question before us is whether (people of African descent) compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States." (Scott at 404).

The Chicago Tribune knew this was gruesome, and editorialized, "We scarcely know how to express our detestation of its inhuman dicta, or to fathom the wicked consequences which may flow from it." (Feherenbacher, The Dred Scott Case, 1978, p. 417.) Of course, that view wasn't shared by newspapermen on the other side of the Mason-Dixon Line. The Constitutionalist out of Augusta, Georgia, praised Dred Scott, bragging that "Southern opinion upon the subject of southern slavery... is now the supreme law of the land... and opposition to southern opinion upon this subject is now opposition to the Constitution, and morally treason against the Government." (Fehrenbacher at 418). Nice use of the word "morally" in a sentence defending slavery, huh?

--Writing of the prevailing notions about evolution in Tennessee leading up to the 1925 Scopes Trial, Edward Larson states that the leading newspaper of Memphis, the Commercial Appeal, "could be counted on to endorse anti-evolution legislation." (Summer for the Gods, 1997, p. 48.) On the other hand, "Nashville's afternoon newspaper, the Banner, regularly denounced antievolutionism" and questioned William Jennings Bryan's motives for representing the prosecution (Larson at 49).

--During the school desegregation crisis in Little Rock, Arkansas in the 1950s, "(T)he Arkansas Gazette was waging an heroic, Pulitzer Prise-winning campaign to get the people of the state to 'do the right thing'; the rival Arkansas Democrat had become a virulent mouthpiece of the segregationists." (Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall, 1993, p. 248.)

Here's the interesting thing about the last two examples: each of them occurred just when a new media was getting set up as a rival to the newspapers. Radio was in its infancy in 1925; the decision by the Chicago Tribune to broadcast the trial live over its WGN radio station was quite the media milestone (Larson at 142). In the case of Little Rock, of course, it was television that was just beginning to exert its influence. (Alexander Bickel argued that it was images of racists shouting the "N" word at small African-American children being led to school, broadcast on TV for all the world to see, that happily helped bring down the segregationist cause, see The Least Dangerous Branch, 2nd ed., 1986, p. 267.)

So if in the 1790s you only read the Aurora, or if you only read the Gazette of the United States, you wouldn't really have a fair assessment of the positions held by the other side in the Federalist-Republican conflict. If you lived in Augusta in the 1850s, you wouldn't get a fair look at the opinions and arguments of the anti-slavery voices unless you read one of the Yankee newspapers. (Fat chance anybody in antebellum Augusta would do so; most southern states prohibited the distribution of an literature questioning the wisdom of slavery by that time, see Curtis, No State Shall Abridge, 1986, pp. 30-31.) The point is, it's always been the case that you couldn't rely on just one source for your news if you really wanted to know both sides of an issue. (Mind you--I'm not saying the side we now acknowledge as wrong on slavery or desegregation ever deserved to be given the time of day, but if you were around in the 1850s or the 1950s it would be helpful to know that such opinions existed, if only to formulate effective rebuttal.)

So that brings us up to today. The historical lesson appears unlearned. You hear people gripe that Fox News hired Karl Rove as an analyst. You hear cries of foul that Keith Olbermann not only reports the news on MSNBC, but that he also blogs on The Daily Kos. And to all that I have two replies.

First, "So what's new?" As I hope I've demonstrated, there have been media outlets favoring one political stance over another in this great country since its founding (and even before that, I'm sure).

And second, "So what?" period. It's not like when Bill O'Reilly and Karl Rove chat, everything they say will go unchallenged outside the confines of Fox News. You're welcome to log onto The Daily Kos afterwards, or pick up The New York Times the next day, and read the opinions and arguments of folks who don't see things as Bill and Karl do, and who would, in fact, enjoy seeing these two gentlemen standing directly under the rectum of an elephant with uncontrollable diarrhea. Or if you watch MSNBC, I would recommend a gander or two at olbermannwatch.com, where you'll learn that the old sportscaster generally only has Democrats appear on his show:

http://www.olbermannwatch.com/archives/2006/05/the_list.php

(I would like to have gotten the image of Olbermann out of the way to read the text underneath, but when you click on the picture you are directed to the amazon.com page on Bill O'Reilly's book Culture Warrior--that's actually pretty funny.)

The point is, if you're intelligent enough to watch a news program, or read comments on a political website, or even be one of the ever-decreasing minions who actually subscribe to a newspaper, you're intelligent enough to understand that there is very likely a position contrary to the one you're reading or viewing at any particular moment. Whether you choose to seek out that opposing viewpoint is up to you.

Penumbras, emanations, and a living Constitution

Recently Republican Presidential candidate John McCain delivered a speech in which he outlined his stand on the role of the judiciary in America:

http://tinyurl.com/4fk6t6


Quoting Senator McCain:

"'(P)enumbras', 'emanations,' and other airy constructs the Court has employed over the years (are) poor substitutes for clear and rigorous constitutional reasoning... I will not seek the confidence of the American people in my nominees until my own confidence is complete -- until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution."

It's not uncommon to come across disparaging remarks like McCain's about "penumbras" and "emanations." Oh, and you'll also find harsh words about the third element in this alleged triumvirate of judicial activism, the so-called "living Constitution," of which this column is an example:



http://tinyurl.com/52fxf3



From Mr. Goldberg's essay:



"If you recall, the 'living Constitution' is the notion that the meaning of the Constitution changes over time. One day nine justices simply wake up, and when they arrive at work that day, they discover that the words in the document they studied their entire adult lives suddenly mean something new and fresh."



When I hear people direct jeers towards "penumbras," "emanations," and "a living Constitution," I always wonder if the speakers understand that the cases that were the sources of these concepts are viewed today by nearly everybody, of all political stripes, as having been decided correctly, regardless of any interpretive theories expressed within the opinions.


Let's start with the penumbras and emanations. Yes, that comes from a case which often is cited as raw judicial activism--Griswold v. Connecticut 381 U.S. 479 (1965). Robert Bork wrote a famous law review article in which he moaned that that Griswold was "an unprincipled decision" that "fails every test of neutrality" ("Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); also reprinted in Interpreting the Constitution: The Debate Over Original Intent, Rakove, ed. 1990).



But you know what the issue was in Griswold? It was whether or not Connecticut could forbid the sale of contraceptives, even to married couples. I don't think McCain or anybody else today wants to argue that the Supreme Court was wrong to tell Connecticut such a ban was unacceptable.


And let's look closer at the sentence in Justice Douglas's opinion that led to such uncommonly bizarre words as "emanations" and "penumbras" being on the lips of constitutional interpreters:


"(S)pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (Griswold at 484).


I read that to mean that when it comes to the first ten amendments to the Constitution, a broad interpretation of individual liberty is warranted. Anybody really object to that? No one, I presume, would argue that the First Amendment guarantee of free speech does not apply to blogs since computers weren't around in 1789. The general expansive view of personal liberty, so central to the philosophy of the United States, dictates that computer communication is constitutionally protected just as if it was made with a goose quill and parchment.


Speaking of goose quills, let's move to the living Constitution. If you think the idea of a state telling husband and wife they can't buy birth control is insane, what do you think of what happened in the late nineteenth century when many birds in this country were hunted almost to extinction? Kind of stupid of those nineteenth century Americans to let the passenger pigeon vanish and numbers of other bird species dwindle so dangerously, wasn't it?

Well that relates directly to the concept of a living Constitution. The classic statement outlining this is from Missouri v. Holland, 252 U.S. 416 (1920). Here is what Oliver Wendell Holmes wrote in the majority opinion:

(W)hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. (Id. at 433, see also Gompers v. United States, 233 U.S. 604, 610 (1914).

In Missouri v. Holland the Court upheld the federal government's power to make an international treaty for the preservation of migratory birds; Missouri argued unsuccessfully that the Tenth Amendment's guarantee of powers reserved to the states prohibited this. In effect, what Missouri said was, "We don't care if a bird hatches in Canada and winters in Louisiana, or that for this reason people in Canada and Louisiana or anywhere else have an interest in the fowl; when it migrates over our state we have exclusive say on whether that bird can be shot or not." (The whole story is very interestingly told in Lofgren, "Missouri v. Holland in Historical Perspective," 1975 Supreme Court Review, pp. 77-122.) Fortunately for the birds, the Court disagreed.


Holmes's opinion has been criticized for having "ambiguities" ( White, The Constitution and the New Deal, 2000, p. 58) and for being "cryptic" (Golove, "Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power," 98 Mich. L. R. 1075 (2000), p. 1257). Well what I take from the Justice's words is this: when the Constitution was written in 1787, the treaty power was considered proper for war, peace, and trade; not for protection of birds. So if the Constitution was interpreted not "in the light of our whole experience, but merely in that of what was said a hundred years ago," obviously the federal government would have no business making conservation treaties.

But of course, times change. The first wildlife treaty--dealing with fishing regulations in the Rhine River--was made between Germany and Switzerland in 1869 (Gobel & Freyfogle, Wildlife Law: Cases and Materials, 2002, p. 675). By the time of Missouri v. Holland, the U.S. was no stranger itself to international wildlife treaties, having negotiated ones concerning Great Lakes fishing and fur seal hunting in the North Pacific (see generally Dorsey, The Dawn of Conservation Diplomacy: U.S.--Canadian Wildlife Protection Treaties in the Progressive Era, 1998).

So a "living" Constitution as outlined by Holmes did no more than recognize that the treaty power had come to embrace more subjects by 1920 than it had in 1787. Sure, it would have been unthinkable in 1800 to see a treaty protecting migratory birds, but it also was unthinkable to almost everyone in 1800 that passenger pigeons could ever vanish from the earth. I'm all for interpeting the Constitution carefully, maybe even "strictly" but I don't see that concept as being inconsistent with what Holmes was talking about. I prefer a living Constitution over a lot of dead birds.

A former one-fifth of "The View" on the three-fifths clause

You know how when one celebrity dies and then another one does so a few days later, people talk about how stars leave us in threes? They may even morbidly start wondering who will go next.

Well, if celebrities misstating the meaning of the infamous three-fifths clause of the Constitution comes in threes, any day now we should have a third Hollywood biggie offering an incorrect interpretation. The other day I posted about Tom Hanks misconstruing the three-fifths clause:

http://brettsconstitution.blogspot.com/2008/05/tom-hanks-is-only-three-fifths-correct.html

And now here's Rosie O'Donnell earlier this week on the Today Show:


http://tinyurl.com/4prmnb


Refering to Reverend Wright, Rosie declared:

"But what it came to, boil down to in his mind is the fact that, you know, this man is, is following a tradition of black preachers and that there is a righteous indignation about people who were only considered three-fourths a person until fairly recently in our history."

She's got her fractions confused, of course; she meant to say three-fifths, not three-fourths. That's the most glaring error, but there's more. As I pointed out in my May 4th entry, the Constitution does not quite say that slaves were three-fifths of a person, but that only three-fifths of them would be counted in the census for purposes of representation and assessment of direct taxes.

I should also point out something I didn't in the Tom Hanks post: when the Constitution was adopted there were free blacks in this country. African-Americans in states where slavery had been eliminated were thus counted fully. So even if you think I'm quibbling on the difference between what Rosie O'Donnell and Tom Hanks said and what is accurate, remember that it was slaves counted as three-fifths, not blacks counted as three-fifths, and the two terms were not identical since a number of blacks were free. (Pennsylvania and the New England states had adopted emancipation legislation before the Constitution was ratified, New York and New Jersey had both done the same by 1804, see Currie, The Constitution in Congress: Descent Into the Maelstrom, 2005, p. 3.)

Parenthetically, let me add that it's a bit peculiar for an American like O'Donnell, to refer to Reconstruction--when the three-fifths clause was jettisoned through constitutional amendment--as "fairly recently in our history." For a Frenchman or an Englishman to call the 1860s recent in his country's history doesn't seem unreasonable, considering how long their nations have been around, but 140 some years ago doesn't seem all that recent when your country only goes back 232 years.

Practically resigning Government into the hands of that eminent tribunal

Recently to protest abortion, students at one university erected crosses to represent aborted fetuses. This did not go over well with some other students on the campus, which led to this exchange making the rounds on youtube:

http://www.youtube.com/watch?v=t5NeLyMZUYM

Here's what the young man yanking the crosses out of the ground said:

"In 1973, it was made a constitutional right for a woman to be able to have an abortion... Since it's a right, you don't have the right to challenge it... Do not put this in front of all of us; this is not your right."

Abortion was made a right in 1973, you will recall, by a 7 to 2 ruling by the Supreme Court in Roe v. Wade (410 U.S. 113).

Now here's somebody else talking about a 7 to 2 ruling by the Supreme Court:

"(T)he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

That was Abraham Lincoln in his First Inaugural Address, speaking of Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857).

You will notice that the young man in this video of 2008 is taking the same approach as the southern slaveholders in 1858, saying, in effect, "The Supreme Court has ruled that slave holding/abortion is a constitutional right, thus nobody has any right to criticize slavery/ abortion."

Of course, by the time of the Dred Scott ruling, slaveholders were old hat at this. As Michael Kent Curtis noted, "Starting about 1830 southern states adopted laws restricting freedom of speech and of the press in an effort to suppress antislavery ideas" (No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, 1986, p. 30; see also Feherenbacher, The Dred Scott Case: Its Significance in American Law and Politics, 1978, p. 120.) In 1858, a North Carolina court sentenced one Daniel Worth to a year in prison for circulating a book hostile to slavery; this conviction was upheld by the state's supreme court (State v. Worth 52 N.C. (7 Jones) 488 (1860).

Mind you; by pointing out the similarity between the ideas of the man in the video and those of the powerful in the antebellum South I'm not saying everybody who praises Roe v. Wade thinks it's acceptable to try to shut down pro-life displays. But Lincoln got it right, for goodness sakes, a ruling by the Supreme Court does not end debate on issues people feel strongly about. This is, after all, a free country for everybody, in part because Honest Abe spoke up.

Rest in peace, Mrs. Loving

Mildred Loving has died. She and her husband Richard, who passed away in 1975, were plaintiffs in Loving v. Virginia (388 U.S. 1), the 1967 case in which the U.S. Supreme Court struck down state laws against interracial marriage:

http://weblogs.baltimoresun.com/news/politics/blog/2008/05/loving_in_black_and_white.html

In this and many other articles you read on Mrs. Loving's passing, you will see the appalling ruling of Judge Leon Bazile at the Virginia trial in which they were convicted:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

To get rid of that bad taste in your mouth, I offer words from Chief Justice Earl Warren when he spoke for a unanimous Supreme Court striking down the Virginia miscegenation statute:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies (the Virginia law) . The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause... These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (Loving at 11-12).

For a thorough discussion of the case, and the history of laws against interracial marriage, I recommend Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving by Phyl Newbeck (2004). I'll share a few tidbits from this fine book with you:

1. To their credit, nine states plus the District of Columbia never had miscegenation statutes; those states are: Alaska, Connecticut, Hawaii, Minnesota, New Hampshire, New Jersey, New York, Vermont, and Wisconsin (see Appendix C). Not to get off the subject, but you who argue for gay marriage need to remember that this is the big difference between homosexual matrimony and the Loving case. Nearly a fifth of the states never said you couldn't marry outside of your race, but every state said you couldn't marry within your own gender until the Massachusetts Supreme Court spoke up a couple of years ago.

2. When Loving was decided, interracial marriage bans were still on the books in every southern and border state except one: Maryland. The year before the ruling was handed down, the Maryland legislature voted overwhelmingly to end the ban (p. 102). The bill was then signed by the governor, which means that Spiro Agnew--yes, Spiro Agnew--has the distinction of being the only governor of a state south of the Mason-Dixon line to sign legislation ending a miscegenation statute before the Supreme Court said such laws were unconstitutional. For that one shining moment, Agnew was as good as any statesman we've ever had.

3. You will notice Earl Warren's reliance on equal protection and due process as grounds for overturning the Virginia law. Well, one state, Mississippi, didn't even believe in free speech where interracial marriage was concerned. Their law stated that:

"Any person, firm or corporation who shall be guilty of printing, publishing, or circulating printed, typewritten, or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes, shall be guilty of a misdemeanor and subject to a fine not exceeding $500 or imprisonment not exceeding six months or both." (Pp. 35-36, citing Murray, ed., States' Laws on Race and Color, 1950).

4. The Lovings, by the way, actually did spend time in jail, being arrested by the Caroline County sheriff on July 13, 1958. Richard was bailed our after one night because he was white, but since his new bride was black, she had to remain imprisoned four more nights until her hearing. Richard, of course, tried to bail her out, but was told if he did so he'd be tossed back into the slammer himself (p. 12). Fun place, that Caroline County in 1958, huh?

Thanks to the Lovings, their attorneys, and the Warren Court, that little bit of unpleasant American history got flushed away in 1967. Good riddance. And Godspeed to Mrs. Loving.

Tom Hanks is only three-fifths correct

Tom Hanks has posted an endorsement of Barack Obama for president on myspace:

http://vids.myspace.com/index.cfm?fuseaction=vids.individual&videoid=33546997

Not a big surprise. But Mr. Hanks in his commentary engages in a very common misunderstanding of the infamous "three-fifths" clause of the Constitution. It's a misconception one doesn't like to bring up, because nobody wants to defend the indefensible, but truth embraces accuracy, not aesthetics.

Shortly into the video, Hanks describes America as:

"A country that once said that people of (Obama's) skin color were only three-fifths of a human being."



Here's what the Constitution actually says in Article 1, Section 2:


"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons,including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

The Fourteenth Amendment, of course, threw this bit of text into the dust bin, thank goodness, but you will notice it doesn't say that where the human race is concerned, blacks are only three-fifths of a being. It says that for every five people "bound to Service" only three will figure in calculations for taxes and seats in the House of Representatives. That's a significant difference.

Let's give Gouverneur Morris of Pennsylvania credit for being the delegate to the 1787 Convention who explicated the meaning of this clause most accurately in debate, and gave a stirring condemnation of slavery while he was at it. Madison's note for August 8th report that Morris:

"He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed... Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city [Philada.] are worth more than all the wretched slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice."

Think of how much death, misery, and suffering this country would have avoided had everyone in 1787 been as wise as Mr. Morris. But notice in the midst of his diatribe the keywords "representation," "votes," and "property." That's what the three-fifths clause was all about.

As usual, Akhil Amar puts it cogently:

"Modern laypersons and law students confronting the words "three fifths" for the first time often suffer... confusion, recoiling at the idea of valuing slaves at less than 100 percent. This initial reaction misses the point. The clause did not aim to apportion how much a slave was a person as opposed to a chattel. Had this been the question, the anti-slavery answer in the 1780s would have been to value slaves fully: five-fifths. Yet in the context of House apportionment, a five-fifths formula would not have freed a single slave, or endowed any bondsman with more rights of personhood against his master or the world. Five-fifths would simply have given slave states even more voting power vis-a'-vis free states. The precise Article I question concerned Congress's proportions, not the slaves'. The principled antislavery answer to this question in 1787 was that for legislative purposes, slaves should be valued not at five-fifths, or even three-fifths, but rather zero-fifths." (America's Constitution: A Biography, 2005, p. 89, emphasis his.)

It's kind of jarring to learn that slavery, a curse we eradicated in the nineteenth century, is so closely linked in the Constitution to taxes, a curse we've not eliminated to this day. I'll bet Tom Hanks wishes he only had to pay taxes on three-fifths of his movies. Imagine how much money he'd have saved if he only had to write the IRS a check for his profits from "Joe Versus the Volcano," "Bonfire of the Vanities," and "Turner and Hooch" while keeping to himself the gross from "Sleepless in Seattle" and "Forrest Gump"!

Hooray! A Chicagoan with a positive outlook on America!

I've just begun reading a brand new book, We Shall Overcome: A History of Civil Rights and the Law by Alexander Tsesis. Professor Tsesis teaches at the law school at Loyola University--that's the Loyola in Chicago, not the one in Baltimore or New Orleans or California or Uranus, or anyplace else an institution called "Loyola" is found. In the acknowledgments, Tsesis mentions that he did much of his research at the Northwestern University Library, then warmly observes "I have been using that library since my first major writing project in eighth grade and have always found it a delightful place to spend my days" (p. ix). I was born and raised in Chicago; Tseisis goes me one better in that he lived there as a child and as an adult.

I'm not very far along in the volume, but the Professor writes something in the introduction (p. 5) that I find very true and inspiring:

"Slavery, lynching, Indian removal, Japanese internment, employment discrimination, and restrictive economic laws are among our failures to live up to the universal freedoms on which the nation is founded. The many racial, gender, ethnic, and nationalistic discriminations perpetrated pursuant to both laws and cultural norms have been miscarriages of justice, not indications of American values. They were not central to the U.S. mission but an abrogation of it. I take liberal equality to be not a national myth but a driving force of social and civil improvement. Without the ideal of liberal equality to strive for, the United States could not have advanced from the clutches of slavery, provided women with the right to vote, and punished segregation in public places." (Emphasis mine).


America has had an imperfect past but was founded on nearly perfect ideals. We've made mistakes--what country hasn't?--but we've also seen great social advances that every American should be proud of. If we hadn't, there would have been so successful civil rights movement for Tsesis to chronicle.

As a man who grew up in the Windy City, it's nice to read words like those quoted above written by someone from Chicago. Not everyone there is a preacher who tells his cheering congregation that God damned America and it deserved 9/11 for our collective sins. Not everyone in Chicago is a University of Illinois at Chicago professor who still thinks he did nothing wrong when he planted bombs in public buildings thirty-five years ago.

Some folks with Chicago addresses, like Tsesis, understand that, to paraphrase Winston Churchill, America is the worst country on earth except for all the others. One can cheer at Wrigley Field and still be a patriot.