I saw this item concerning the recent death of comedian George Carlin:
http://tinyurl.com/3z2p48
Quipped Carlin in one of his routines,
"This country was founded by a group of slave owners who told us that all men are created equal. That is what's known as being stunningly, stunningly full of [expletive]."
One never takes a comedian too literally, as comics paint in a medium where laughs are important, accuracy is irrelevant. But the item on the late funnyman did get me to wondering just how many of the founders owned slaves. Obviously, with his connection of "slavery" and "all men are created equal," Carlin is referring to the Declaration of Independence in general and to Thomas Jefferson in particular. But where slaveholders are concerned, I'm more interested in the Constitution, as this was the document that essentially founded the country, and this is where the compromises on slavery are found, like the three-fifths clause.
So how many of the delegates to the Constitutional Convention had slaves? There were fifty-five of them, although only thirty-nine ultimately signed the finished product. According to Forrest McDonald, "at least" thirty of the fifty-five were slaveholders (Novus Ordo Seclorum: The Intellectual Origins of the Constitution, 1985, p. 220). I'm not sure about the Professor's use of the qualifying phrase "at least." Maybe there are a couple of delegates we don't know about. Perhaps some of the men were involved in confusing ownership arrangements where it isn't clear if they owned land or also the slaves toiling on it, an interesting possibility since there was some legal disagreement and confusion as to whether slaves were real property or personal property (see Fehrenbacher, The Dred Scott Case, 1978, p. 32). And of course, one could make the argument that a New England delegate in the business of exporting textiles made from southern cotton was involved with slavery, whether or not he personally was a slaveholder.
With those codicils, if there actually were thirty slaveholders out of fifty-five men at the Constitutional Convention, that's just a little more than half, 54.5%. So the country wasn't really founded by slaveholders; some slaveholders were founders.
I'll bet they'd all have laughed at Carlin's routine about his dog farting, however...
Wednesday, June 25, 2008
Tuesday, June 24, 2008
Just how great was the Great Writ?
Everybody is buzzing about the Supreme Court's recent decision in Boumediene v. Bush, 553 U.S. ___ (2008). Here are the Oyez Project's summary and a good example of an article critical of the five to four ruling:
http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/
http://online.wsj.com/article/SB121366596327979497.html?mod=rss_opinion_main
The case involves the guarantee of habeas corpus, also called "the Great Writ," defined as "judicial determination of the legality of an individual's custody" (Gifis, Barron's Law Dictionary, 1996). It's origins have been traced all the way back to the Magna Carta (Corwin, The Constitution and What it Means Today, 1978, p.124). As to it's significance in America, consider this remark by Alexander Hamilton in The Federalist #84:
"The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains."
That's his emphasis; the words "our constitution" refers to the New York State Constitution of Hamilton's era.
Well here is the interesting part. Regardless of the New York Constitution's omission of prohibition of ex post facto laws and titles of nobility, once the federal Constitution was ratified the hands of New York and all other states were tied on these matters. Article 1, Section 10, listing powers denied to the states, declares:
"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."
Notice anything missing? Right, habeas corpus. There was nothing requiring states to observe or establish it, and nothing prohibiting them from dispensing with it altogether. So why didn't Hamilton or any of the other framers insist on a habeas corpus clause applicable to the states?
If you look through the debates in the 1787 Constitutional Convention, there isn't really anything to tell why the delegates thought they had to specify no titles of nobility or ex post facto laws at both the federal and state levels, but only mentioned the writ of habeas corpus where the federal government was concerned. At the August 28th session, John Rutledge of South Carolina said he was for was for "declaring the Habeas Corpus inviolable" but he didn't say why if it was inviolable the Constitution shouldn't also prohibit states from suspending it.
Why not? Well, probably the answer comes in this description of Mr. Rutledge in Carol Berkin's 2002 book A Brilliant Solution:
"(Rutledge in the 1760s) began a successful legal career. He made his fortune, however, from his plantations and slaves." (p. 257.)
Having habeas corpus in all cases would, I think, make it a bit more difficult to enforce slave law. While the Thirteenth Amendment ended slavery, it is the Fourteenth Amendment's mandate that states observe due process that essentially insures that habeas corpus is the law of the land for both the federal government and the states (see Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, 1986, p. 129).
Anyway, when you hear talking heads on television refer to the writ of habeas corpus as "ubiquitous" or "a cornerstone of Anglo-American law since the English Parliament passed the Habeas Corpus Act of 1679," remember, this country had a huge Great Writ loophole for almost its first hundred years. The states could constitutionally ignore it.
http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/
http://online.wsj.com/article/SB121366596327979497.html?mod=rss_opinion_main
The case involves the guarantee of habeas corpus, also called "the Great Writ," defined as "judicial determination of the legality of an individual's custody" (Gifis, Barron's Law Dictionary, 1996). It's origins have been traced all the way back to the Magna Carta (Corwin, The Constitution and What it Means Today, 1978, p.124). As to it's significance in America, consider this remark by Alexander Hamilton in The Federalist #84:
"The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains."
That's his emphasis; the words "our constitution" refers to the New York State Constitution of Hamilton's era.
Well here is the interesting part. Regardless of the New York Constitution's omission of prohibition of ex post facto laws and titles of nobility, once the federal Constitution was ratified the hands of New York and all other states were tied on these matters. Article 1, Section 10, listing powers denied to the states, declares:
"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."
Notice anything missing? Right, habeas corpus. There was nothing requiring states to observe or establish it, and nothing prohibiting them from dispensing with it altogether. So why didn't Hamilton or any of the other framers insist on a habeas corpus clause applicable to the states?
If you look through the debates in the 1787 Constitutional Convention, there isn't really anything to tell why the delegates thought they had to specify no titles of nobility or ex post facto laws at both the federal and state levels, but only mentioned the writ of habeas corpus where the federal government was concerned. At the August 28th session, John Rutledge of South Carolina said he was for was for "declaring the Habeas Corpus inviolable" but he didn't say why if it was inviolable the Constitution shouldn't also prohibit states from suspending it.
Why not? Well, probably the answer comes in this description of Mr. Rutledge in Carol Berkin's 2002 book A Brilliant Solution:
"(Rutledge in the 1760s) began a successful legal career. He made his fortune, however, from his plantations and slaves." (p. 257.)
Having habeas corpus in all cases would, I think, make it a bit more difficult to enforce slave law. While the Thirteenth Amendment ended slavery, it is the Fourteenth Amendment's mandate that states observe due process that essentially insures that habeas corpus is the law of the land for both the federal government and the states (see Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, 1986, p. 129).
Anyway, when you hear talking heads on television refer to the writ of habeas corpus as "ubiquitous" or "a cornerstone of Anglo-American law since the English Parliament passed the Habeas Corpus Act of 1679," remember, this country had a huge Great Writ loophole for almost its first hundred years. The states could constitutionally ignore it.
Wednesday, June 18, 2008
The genocide
Geoffrey Stone's Perilous Times: Free Speech in Wartime (2004) is a remarkable book, one of those all too uncommon historical tomes that hold the reader's interest throughout.
It's probably inevitable that writing about current events is more difficult than writing about events that happened decades or centuries ago, because with things going on right now we're always in the middle of a forest that obscures the precise contours of the individual oaks and hickories. Thus, I'm not surprised that my only significant disagreement with Professor Stone comes near the end of the book, when he discusses the War on Terrorism. On page 554 he takes the Bush Administration to task for characterizing 9/11 as "the first stage of a "war," rather than as a heinous crime."
The problem with this assertion is that Stone, no less than the President he criticizes, is acting as though there is a clear distinction between an act of war and crashing planes into the Twin Towers. To demonstrate the fuzziness of such categorization, I would pose the following question to Stone: what about the Holocaust? Was that an act of war or a heinous crime?
If you think that my linking of the Holocaust and September 11th is strained, perhaps that's because you have not thought of 9/11 as an act of genocide. But it clearly was, and I'm actually quite surprised that this point is almost never made.
In Jared Diamond's The Third Chimpanzee (1992)--speaking of great books that really hold your attention--the Pulitzer Prize winning author defines genocide as group killing in which:
"The victims must be selected because they belong to a group, whether or not each victim has done something to provoke killing. As for the defining group characteristics, it may be racial... national... ethnic... religious..or political" (pp. 283-287).
Or, I might add, a combination of these characteristics; I would say the terrorists in those jumbo jet cockpits killed thousands of people for at least three of Diamond's five traits: national, religious, and political.
Unlike crime, in genocide the person or people being killed are not slain for the typical motives to murder--personal gain, revenge, jealousy, etc. They simply have a particular demographic taint that causes their attackers to feel justified in attempting to exterminate them from the planet. Islamic jihadists want Westerners, Jews, and Christians killed, and they've been working towards this goal at least since the 1972 Olympics, in a horrifying event that was in the news again recently due to the death of sportscaster Jim McCay, who reported the carnage.
What we are dealing with in the War on Terrorism is, I think, not quite a war as President Bush would have it, but also not quite a heinous crime, as Stone seems to maintain. Genocide really doesn't fit neatly into either of those categories. It's easy to see that the Battle of Gettysburg was war and Charles Manson's actions were a heinous crime; what's happening now in Darfur occupies a shade of gray between such simply distinguished events.
In any case, even if you believe as Professor Stone does that 9/11 was a crime rather than an act of war, I think it's important to recognize that such a distinction actually has little bearing on the constitutional authority the President has to respond to the crisis. It's a cliche' to point out that where military action is concerned "The President shall be Commander in Chief of the Army and Navy of the United States" (Article II, Section 2) but one far less often hears it mentioned that the Constitution also requires the President to "take Care that the Laws be faithfully executed" (Article II, Section 3).
The September 11th terrorists violated a plethora of federal laws; it's the president's job to see that these laws are enforced and to do all in his power to see that they are never broken again. During his term in office, President Bush has observed this constitutional mandate and obeyed it well, thus we've had no additional days as sad as that fall morning in September nearly seven years ago. In other words, Mr. Bush has done a wonderful job keeping us from being victims of genocide.
Our next President, whether it is Obama or McCain, has an obligation to the American people to enforce the laws and thus keep us safe. We should hope he succeeds in this enormous duty as well as the current President has, and we as a people need to recognize that regardless of his political affiliation, our Chief Executive should be given great latitude in carrying out his constitutional commands.
It's probably inevitable that writing about current events is more difficult than writing about events that happened decades or centuries ago, because with things going on right now we're always in the middle of a forest that obscures the precise contours of the individual oaks and hickories. Thus, I'm not surprised that my only significant disagreement with Professor Stone comes near the end of the book, when he discusses the War on Terrorism. On page 554 he takes the Bush Administration to task for characterizing 9/11 as "the first stage of a "war," rather than as a heinous crime."
The problem with this assertion is that Stone, no less than the President he criticizes, is acting as though there is a clear distinction between an act of war and crashing planes into the Twin Towers. To demonstrate the fuzziness of such categorization, I would pose the following question to Stone: what about the Holocaust? Was that an act of war or a heinous crime?
If you think that my linking of the Holocaust and September 11th is strained, perhaps that's because you have not thought of 9/11 as an act of genocide. But it clearly was, and I'm actually quite surprised that this point is almost never made.
In Jared Diamond's The Third Chimpanzee (1992)--speaking of great books that really hold your attention--the Pulitzer Prize winning author defines genocide as group killing in which:
"The victims must be selected because they belong to a group, whether or not each victim has done something to provoke killing. As for the defining group characteristics, it may be racial... national... ethnic... religious..or political" (pp. 283-287).
Or, I might add, a combination of these characteristics; I would say the terrorists in those jumbo jet cockpits killed thousands of people for at least three of Diamond's five traits: national, religious, and political.
Unlike crime, in genocide the person or people being killed are not slain for the typical motives to murder--personal gain, revenge, jealousy, etc. They simply have a particular demographic taint that causes their attackers to feel justified in attempting to exterminate them from the planet. Islamic jihadists want Westerners, Jews, and Christians killed, and they've been working towards this goal at least since the 1972 Olympics, in a horrifying event that was in the news again recently due to the death of sportscaster Jim McCay, who reported the carnage.
What we are dealing with in the War on Terrorism is, I think, not quite a war as President Bush would have it, but also not quite a heinous crime, as Stone seems to maintain. Genocide really doesn't fit neatly into either of those categories. It's easy to see that the Battle of Gettysburg was war and Charles Manson's actions were a heinous crime; what's happening now in Darfur occupies a shade of gray between such simply distinguished events.
In any case, even if you believe as Professor Stone does that 9/11 was a crime rather than an act of war, I think it's important to recognize that such a distinction actually has little bearing on the constitutional authority the President has to respond to the crisis. It's a cliche' to point out that where military action is concerned "The President shall be Commander in Chief of the Army and Navy of the United States" (Article II, Section 2) but one far less often hears it mentioned that the Constitution also requires the President to "take Care that the Laws be faithfully executed" (Article II, Section 3).
The September 11th terrorists violated a plethora of federal laws; it's the president's job to see that these laws are enforced and to do all in his power to see that they are never broken again. During his term in office, President Bush has observed this constitutional mandate and obeyed it well, thus we've had no additional days as sad as that fall morning in September nearly seven years ago. In other words, Mr. Bush has done a wonderful job keeping us from being victims of genocide.
Our next President, whether it is Obama or McCain, has an obligation to the American people to enforce the laws and thus keep us safe. We should hope he succeeds in this enormous duty as well as the current President has, and we as a people need to recognize that regardless of his political affiliation, our Chief Executive should be given great latitude in carrying out his constitutional commands.
Tuesday, June 10, 2008
Actually, if John McCain had been president between 1919 and 1933..
... The oath he took to preserve, protect and defend the Constitution of the United States would have required him to veto every beer!
http://www.cnn.com/video/#/video/politics/2008/06/10/sot.mccain.veto.beer.cnn
The Eighteenth Amendment, prohibiting manufacture, sale, or transportation of intoxicating liquors was ratified on January 16, 1919 and repealed by the Twenty-First Amendment on December 5, 1933.
http://www.cnn.com/video/#/video/politics/2008/06/10/sot.mccain.veto.beer.cnn
The Eighteenth Amendment, prohibiting manufacture, sale, or transportation of intoxicating liquors was ratified on January 16, 1919 and repealed by the Twenty-First Amendment on December 5, 1933.
E PLURIBUS UNUM
That means,"Out of many, one."
http://www.ustreas.gov/education/faq/coins/portraits.shtml#q7
Notice the similarity in the following two quotations:
"Be strictly honorable in every act, and be not ashamed to do right."
"We must use time creatively and forever realize that the time is always ripe to do right."
Both quotations are from letters. The first one is from a correspondence Robert E. Lee wrote to his son. The second is from Martin Luther King, Jr's. "Letter From a Birmingham Jail." (For Lee: Wyatt-Brown, Honor and Violence in the Old South, 1986, p. 57; for King: Washington, ed. I Have a Dream: Writings and Speeches that Changed the World, 1986, p. 92.)
On the surface Lee and King couldn't be more different. One man lived in the nineteenth century, the other in the twentieth. One man was white, one was black. Both were respected leaders for opposite causes; Lee led military forces fighting to preserve chattel slavery while King struggled to eliminate the last remaining vestiges of bondage. These days diversity is hailed as a value, and if you had Lee and King in your workplace you couldn't get more diversity in two men, although granted you wouldn't want any contrasting viewpoints in your operation on the issue of slavery--everybody has to say "no" to it.
In spite of their dissimilarities, in thhe quotations presented here both Lee and King emphasized the importance of doing right. I'm sure Lee and King, regardless of their differences, would probably agree on about ninety percent of what constitutes doing right. Treat people with respect, treasure your loved ones, help a friend in need. In what may be a divisive election year, those are values everyone should agree on. Listen to the other person's viewpoint and try to consider his or her point of view; don't automatically dismiss opinions contrary to yours as unsound or absurd.
When we value other people we live up to the motto on our coins. Out of many, one. E pluribus unum.
http://www.ustreas.gov/education/faq/coins/portraits.shtml#q7
Notice the similarity in the following two quotations:
"Be strictly honorable in every act, and be not ashamed to do right."
"We must use time creatively and forever realize that the time is always ripe to do right."
Both quotations are from letters. The first one is from a correspondence Robert E. Lee wrote to his son. The second is from Martin Luther King, Jr's. "Letter From a Birmingham Jail." (For Lee: Wyatt-Brown, Honor and Violence in the Old South, 1986, p. 57; for King: Washington, ed. I Have a Dream: Writings and Speeches that Changed the World, 1986, p. 92.)
On the surface Lee and King couldn't be more different. One man lived in the nineteenth century, the other in the twentieth. One man was white, one was black. Both were respected leaders for opposite causes; Lee led military forces fighting to preserve chattel slavery while King struggled to eliminate the last remaining vestiges of bondage. These days diversity is hailed as a value, and if you had Lee and King in your workplace you couldn't get more diversity in two men, although granted you wouldn't want any contrasting viewpoints in your operation on the issue of slavery--everybody has to say "no" to it.
In spite of their dissimilarities, in thhe quotations presented here both Lee and King emphasized the importance of doing right. I'm sure Lee and King, regardless of their differences, would probably agree on about ninety percent of what constitutes doing right. Treat people with respect, treasure your loved ones, help a friend in need. In what may be a divisive election year, those are values everyone should agree on. Listen to the other person's viewpoint and try to consider his or her point of view; don't automatically dismiss opinions contrary to yours as unsound or absurd.
When we value other people we live up to the motto on our coins. Out of many, one. E pluribus unum.
Wednesday, June 4, 2008
Race and the White House race
There are four states in which fewer than 0.8% of the residents are black: South Dakota, Wyoming, Idaho, and Montana. According to polls, John McCain will win these states handily in November.
There are three states in which more than 29% of the residents are black: Mississippi, Louisiana, and Georgia.
Guess what? According to polls, John McCain is going to take those three states with ease as well.
Before I go any further, I should link to my sources for the analysis I'm doing here. First, here is the Rasmussen Reports poll site, which I like because it's updated daily, and which you Obama heads will like because it says your guy has about a 65% chance of prevailing this fall:
http://tinyurl.com/2zx5mc
Polls are simply predictions gauging what the voters will do, not a report on what they actually do. Maybe somehow between now and November Obama might turn it around in Georgia or McCain might pull ahead in Colorado. We don't know for sure; but one can't do pre-election analysis like this without resorting to polls. Oh, and please note I'm counting every state for Obama whether it's in his "safe," "likely", or "leans" column, and the same goes for McCain. With those caveats out of the way, now here's the Census Bureau page I'm getting data from:
http://tinyurl.com/5vhu2f
I note that the table is labeled: "Percent of the Total Population Who Are Black or African American Alone." That word "alone" really stands out, in that this would seem to exclude Obama himself from the 14.8% figure for Illinois. As we have more and more people in this country like Obama, Halle Berry, Mariah Carey, Tiger Woods, etc. of mixed race, the significance of charts like this will be less and less; which I regard as a plus for America. But for the moment, we have distinctions on who is black and who isn't and for better or worse--mostly worse--we continue to act on these distinctions.
Anyway, I'm bringing this up because with Obama clinching last night, and all the stories generated about how this is the first time an African-American has been a major party's nominee, I got to thinking about circumstances in my state, Georgia. The Peach Tree State has a greater percentage of African-Americans that any of the other ten largest states; nevertheless, it's considered safely Republican for the fall. That inspired me to look at the data and so I discovered the surprising thing I led this article with: McCain is beating Obama in the four states where blacks are the fewest AND in the three states where they are the most numerous. Let's investigate this phenomenon a little more.
When I said the three states with the greatest percentage of blacks were in McCain's column, I admittedly disregarded the District of Columbia, which isn't a state, but does participate in presidential elections courtesy of the Twenty-third Amendment. Now let's bring it into the discussion. There are sixteen states plus the D.C. that have a higher percentage of black or African-American residents than the U.S. national average of 12.4%. According to Rasmussen, McCain is ahead in ten of these seventeen places, and the only reason it's that close for Obama is that he is ahead in the three states ranked fifteen through seventeen: Illinois, Michigan, and New Jersey. If you make the cutoff point states where fifteen percent or more of the folks are black, McCain has an absurd lead, ten states to four. Or, since in our presidential elections it's all about the electoral college, McCain leads Obama in electoral votes in these thirteen states and the District by a whopping 119 to 47! Even if Obama were to capture Florida, which Rasmussen has down as only "leaning" towards McCain, the Arizona senator would still be ahead in this group of states 92 electoral votes to 74.
There are three states in which more than 29% of the residents are black: Mississippi, Louisiana, and Georgia.
Guess what? According to polls, John McCain is going to take those three states with ease as well.
Before I go any further, I should link to my sources for the analysis I'm doing here. First, here is the Rasmussen Reports poll site, which I like because it's updated daily, and which you Obama heads will like because it says your guy has about a 65% chance of prevailing this fall:
http://tinyurl.com/2zx5mc
Polls are simply predictions gauging what the voters will do, not a report on what they actually do. Maybe somehow between now and November Obama might turn it around in Georgia or McCain might pull ahead in Colorado. We don't know for sure; but one can't do pre-election analysis like this without resorting to polls. Oh, and please note I'm counting every state for Obama whether it's in his "safe," "likely", or "leans" column, and the same goes for McCain. With those caveats out of the way, now here's the Census Bureau page I'm getting data from:
http://tinyurl.com/5vhu2f
I note that the table is labeled: "Percent of the Total Population Who Are Black or African American Alone." That word "alone" really stands out, in that this would seem to exclude Obama himself from the 14.8% figure for Illinois. As we have more and more people in this country like Obama, Halle Berry, Mariah Carey, Tiger Woods, etc. of mixed race, the significance of charts like this will be less and less; which I regard as a plus for America. But for the moment, we have distinctions on who is black and who isn't and for better or worse--mostly worse--we continue to act on these distinctions.
Anyway, I'm bringing this up because with Obama clinching last night, and all the stories generated about how this is the first time an African-American has been a major party's nominee, I got to thinking about circumstances in my state, Georgia. The Peach Tree State has a greater percentage of African-Americans that any of the other ten largest states; nevertheless, it's considered safely Republican for the fall. That inspired me to look at the data and so I discovered the surprising thing I led this article with: McCain is beating Obama in the four states where blacks are the fewest AND in the three states where they are the most numerous. Let's investigate this phenomenon a little more.
When I said the three states with the greatest percentage of blacks were in McCain's column, I admittedly disregarded the District of Columbia, which isn't a state, but does participate in presidential elections courtesy of the Twenty-third Amendment. Now let's bring it into the discussion. There are sixteen states plus the D.C. that have a higher percentage of black or African-American residents than the U.S. national average of 12.4%. According to Rasmussen, McCain is ahead in ten of these seventeen places, and the only reason it's that close for Obama is that he is ahead in the three states ranked fifteen through seventeen: Illinois, Michigan, and New Jersey. If you make the cutoff point states where fifteen percent or more of the folks are black, McCain has an absurd lead, ten states to four. Or, since in our presidential elections it's all about the electoral college, McCain leads Obama in electoral votes in these thirteen states and the District by a whopping 119 to 47! Even if Obama were to capture Florida, which Rasmussen has down as only "leaning" towards McCain, the Arizona senator would still be ahead in this group of states 92 electoral votes to 74.
Okay, let's go to the other end of the spectrum. I led with McCain winning in the four states with the lowest percentage of blacks, but that's too small a sample to have much meaning. We tallied the electoral vote count for states with fifteen percent or more black residents, now let's take a peek at the states with five percent or fewer blacks.
There are twenty such states--and by the way, I wouldn't have guessed that West Virginia, which we think of as a border state, was one of them. Let's toss out Colorado and New Hampshire, because Rasmussen has these as toss-up states this fall. What about the other eighteen?
McCain is ahead in ten of them. Again, however, it's the electoral college that matters, and McCain suffers from his strength being mostly in places like Alaska and North Dakota. Tally the electoral votes for the eighteen states categorized here and Obama wins, 51 to 45. If you want to consider the impact of those two swing states, New Hampshire has four votes, so McCain would not jump ahead by winning that; he only beats Obama in states with fewer than five percent blacks if he wins Colorado OR Colorado and New Hampshire.
So what states are left? Right, the ones with over five percent but fewer than fifteen percent black denizens. There are seventeen of these; again let's toss out the states Rasmussen says could go either way, Ohio and Nevada. What results do we get for the other fifteen?
We get an Obama rout, that's what. McCain only leads in six of these states and among the nine Obama is predicted to win is California with it's 55 electoral votes. That works out to a 162 to 77 edge for the man from Chicago. Put Ohio and Nevada in McCain's column and he's still nowhere close; the count would become 162 to 102.
So let me put this in one block of text to facilitate comparison. Here, I'm leaving out those four pesky toss-up states that I get the feeling may be crucial this fall. Taking the other forty-six states plus DC and dividing them into three groups, you get:
Group 1: Over fifteen percent black: McCain kicks butt, 119 to 47.
Group 2: Five to fifteen percent black: Obama in a cakewalk, 162 to 77.
Group 3: Under five percent black: Obama narrowly, 51 to 45.
And you know what? If you add together groups 2 and 3 to make one super group of states with fewer than fifteen percent people of African descent, it's still an Obama rout: 213 to 122. If all four toss-up states went for Obama he'd have 251 electoral votes, and by winning New York he'd be well over the 270 votes needed to win. In other words, theoretically Obama could lose almost all of the states with high percentages of blacks and still win the election; McCain could win almost all of the states with high percentages of blacks and still lose the election--and if Rasmussen is accurate, this is a very real possibility.
Look, we'll hear an awful lot about the significance of race in the 2008 election in the months to come. Some of it may be profound, much will be profane. But if someone tells you it's all going to be about race, maybe you'll remember what you've read here and point out to that someone that the way it looks right now if only the states with a large percentage of blacks were permitted to vote, the white candidate would win, and if only states with a medium to small percentage of blacks could cast ballots, the black candidate would win.
Ironic, huh?
Thursday, May 22, 2008
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
"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."
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