Governmental Birds and Bees – Where Do Rights Come From?

Where do rights come from?  Are they God given?  Arise from Nature?  The whims of government or humans? From religion?  The answer is none of the above.  Rights are, instead, social constructs meant to foster more stable societies, ones that are likely to lead to more general satisfaction among its members. 

Before explaining this let me first make a prediction.  Many are going to say that this definition of rights is nothing more than whims of government and people.  That it is totally subjective without anything objective to it. 

No, it does not mean that. 

I am always slightly amazed that people think that if something doesn’t have a physical body and is not composed of molecules and atoms it is not real. Or that if something does not have a hard and fast trigger – like gravity and stepping off a cliff – then it is not real.  Or if something has fuzzy edges and can change it is not real and has no objective existence.  Sorry, but reality is both bigger and more complex – and more wonderful – than that limited view.  Being objectively real does not come in just one form. 

So what are rights and in what way are they real.

One relevant aside here.  Many people have a hard time wrapping their minds around the concept that something can have fuzzy edges and be without hard and fast triggers and yet still be real and objective.   Let me give an example of exactly this by using individuals. 

People like to stay warm.  When it gets cold, they wear more clothes, stay inside more, turn up the heat.  Now, none of those actions are hard wired.  People can still choose not to do any of those things.  Yet it would be a safe bet to predict that the vast majority of people will chose to at least one of those things. 

Those actions are not hard wired into our nature.  What is hard wired though is an aversion to being cold.  The reason that is hard wired into us is because those of our ancestors who did not have this aversion froze and died. 

What specific temperature people will find cold will vary – it is fuzzy.  How they react and what they do will vary.  Again fuzzy.  No hard and fast triggers, but variable ones with variable responses.  But a very limited variability.  And the fact that the very vast majority will act in ways to be less cold is an objective fact.  Fuzzy without hard and fast triggers, yet still objectively real. 

So too with so much else of human beings, especially those regarding our constructs such as ethics and morals.  Including as well the idea of rights.  And just as creating clothes and wearing them, as well as using fire and finding homes that provide cover arose partly as a response to our hard wired need not to be cold, so too did our creation of rights arise from our hard wired evolutionary nature of being social animals. 

Rights are human constructs, arising from our evolutionary derived human nature. Without humans there are no rights.  Just as without humans there are no books, no religion, no science. 

Further, rights are specific to governments and the relationship between a government and its people.  And just as with humans, without a government there are no rights. 

Finally, governments are necessary.  Humans are social animals.  That is one of our primary survival strategies.  Without forming and living in groups humans would be extinct.  And when there are groups of differing people living together there has to be some means of resolving disputes, assigning work, distributing resources, and providing supports.  These means can be informal and implicit, or more formal and explicit.  With the increase in size of these groups from a collection of family groups to tribes to cities to city states to nations these systems became, of necessity, more formal and complex. 

These large groups are a recent thing in our history – out of homo sapiens 200,000 years on this planet only in the last 12,000 years have we as a species developed larger groups than the kinship groups.  As a result we are still figuring out the best ways to create and maintain such large groups.  What worked for smaller kinship groups did not work for the larger mixed groups. 

While our need to form social groups is part of our nature, the specifics of how to do so is not.  We are not ants or bees.  That means that we find out through trial and error what ways of forming and maintaining large groups work and what doesn’t.  Find out what ways to reduce and resolve inevitable conflicts both within the group and outside of it.  Ways to provide supports and needed services to those who live within that group.  It is a messy process and one that is still very much on -going.  One fairly recent innovation in doing all of this is the rise of various types of democracies.  And along with democracies came the concept of Rights.   

The function of both, broadly speaking, is to protect those who are members of that society, and to allow them a voice. In a way this is actually something that our original societies already had, consisting as they did of smaller family groups.  Everyone’s voices could already be heard and considered by the others.  That got lost though as larger societies were created.  Not purposely so, but just as a result of the changes needed to unite different kinship groups with different beliefs and ways of doing things into one identity. 

However, the traits that caused us to form groups in the first place – empathy, a sense of fairness and justice, and others – also caused governments, these larger groups, that did not find ways to listen to the voices of their people and did not protect them to become unstable and difficult.   And their citizens to suffer.

Rights then are human social constructs meant to protect those things that people have found of overwhelming importance, as well as those necessary for the support and promotion of a democracy.  Or of their government even if not a democracy – although off the top of my head I cannot think of any other type of government that is not a democracy that has a good record on rights or that does more than just give lip service to Rights.

Rights are also still in the process of becoming.  And I think, given time, will eventually be not only given lip service to but also applied and followed by almost all the countries in the world.  It has only been 12,000 years since humans first started forming large groups.  Only a few hundred years since the concept of human rights really started to gain ground (there were precursors to this that go back almost 3,000 years).  This is short by the standards of life and history.  For being such fuzzy and imprecise human creations, they are doing well.  

I should, though, also mention in closing that though human rights, in a sense, are inevitable, that the when and where they become real differs.  And gains can be lost.  Remember this, Rights are a human creation and need to be promoted and protected by humans.  The moment they are not they die.  Furter, remember that we as individuals live human lifespans, and not that of history and evolution.  If we want our moments and those of our fellow humans to be good and well we need to act and not become complacent that history is on our side.  History is dependent upon our actions. 

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The Constitution, Rights, and Abortion

After having done the last three blogs on various aspects of the Hamas/Israel war I think it time to move on to a less controversial subject – abortion. 

I recently read this column by Mark Davis titled “The Republicans Can Still Win on Abortion, But Messaging Matters”.  He starts it with these words:

“For more than 50 years, we pro-lifers argued that Roe v. Wade was unconstitutional and should be overturned. We were correct for every single day of that half-century, not because of our anti-abortion opinions but because there simply never was a right to abortion in the Constitution, where matters unmentioned are left to the states. The overturning of Roe was a cause for proper celebration among those of us who knew the 1973 court had falsely concocted a federal right to terminate a pregnancy.”

While there is so much wrong with this piece, I am only going to focus on this part – “…there simply never was a right to abortion in the Constitution, where matters unmentioned are left to the states.”  I focus on this because it vividly illustrates a common failing in regards to conservatives and Constitutional Rights.  A failing that impacts not only abortion and a woman’s health rights but also gay marriage, contraception and so on. 

Those who believe like Mark like to mention the 10^th amendment saying that this leaves rights and powers not mentioned in the Constitution to the states.  However, to make this claim they only look at part of the 10^th amendment.  Here it is in its entirety. 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Please note that it does not end at “are reserved to the states” but, instead, continues on to “or to the people”.  That’s the part that gets left out by many conservatives.  Now, this last part is not used much in regard to individual rights decisions, but it is there to be used, and is something that conservatives ignore.  Especially since with the passage of the 14^th amendment the federal government protects those individual rights, even against state “rights”.  Much to the benefit of the nation.

However, even more importantly, they ignore the 9^th amendment, which reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

So, conservatives who argue that this or that right is not explicitly stated in the Constitution and therefore should be solely left to the states are, in fact, ignoring part of the Constitution itelf.  Not only that, but they are also ignoring the history of why the Bill of Rights came about. 

In the beginning many of the writers of the American Constitution were against adding a Bill of Rights to it.  These included James Madison, Alexander Hamilton, and George Washington among several others.  One of the main reasons for their opposition was they thought it unnecessary.  The structure of the Constitution itself would protect individual rights.  In this they were wrong, it did not. 

However, another reason they opposed a Bill of Rights is that they also thought that all the rights proposed could already be inferred from the Constitution itself.  Please note the word “inferred”. They thought the Constitution could be interpreted in such ways as to protect all the rights in the proposed Bill of Rights, and more, and so were inherently already within the text. Their great concern was that a list of Rights that was protected would be taken to mean that only those enumerated rights were protected from the government and no others. In other words, it would be used to restrict rights inherent in the Constitution instead of protecting them.  In this they were correct. 

When Madison decided, for political reasons, that he had to support and create a Bill of Rights he created the 9^th amendment with this concern in mind.  What this means is that the Constitution does protect more rights than just those listed.  In other words, Mark Davis and others who argue in a like manner are wrong.  And are acting in ways that Madison, Washington, Hamilton, and many other founders and writers of the Constitution feared. 

Now, that does not make all claims of rights constitutional.  There still has to be a basis that can be rationally argued from the Constitution.  But just because something such as the Right to Privacy is not listed does not automatically mean it is not constitutional.

Some thoughts of these founders on the Constitution and how to understand it that are even more against what today’s conservatives believe about the Constitution.  One such is that the realities of the day and history can play a role in determining whether something is constitutional. 

For example, before Madison became president, he was against the creation of the First National Bank, an institution proposed by Hamilton to better establish order to the new nations financial structure, create a common currency, and to create funds for internal improvements.  Madison though strongly disagreed with Hamilton on this issue and believed that a national bank was unconstitutional.  It was created anyway in 1791.  And it shut down in 1811 after its charter expired.   

However, what is relevant to this issue of rights and the Constitution is the fact that after Madison became president he wound up creating it again in 1816, the Second National Bank.  Its charter lasted until 1836.  The reason why Madison changed his mind about the Second National Bank is of interest here.  From the National Constitutional Center:

After leaving the presidency, Madison explained that, while he believed that the First Bank lacked a constitutional basis at its start, its constitutional legitimacy grew over time through political acceptance: “It had been carried into execution through a period of twenty years, with annual recognition . . . and with the entire acquiescence of all the local authorities, as well as of the nation at large.”

Madison’s shift of position on the constitutionality of the national bank was a prime example of Madison’s following the path he had laid out in The Federalist Papers for settling a question of constitutional meaning.  In Federalist 37, he wrote, “All new laws . . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”  In Madison’s judgment, the constitutionality of the national bank had been properly “liquidated,” or fixed through a series of presidential and congressional actions.

This is a far cry from the conservative claims that the only rights possible are those that are listed.  That the only actions that are constitutional are those that are explicitly listed. 

The early letters and writings of the founders as they worked to make the bare bones of the Constitution into a living government capable of dealing with the issues of the day make for very interesting reading.  Far from being an obvious clear cut and dried affair, there were a lot of disagreements and discussions on what this passage or that passage of the Constitution meant in regard to this issue or that.  Part of these discussions were about how to determine when something is constitutional. Or when it is not.  As shown above with one of the foremost writers of the Constitution and the Bill of Rights, interpretation is needed. And that interpretation can take more into account than just the words in the Constitution.   It can take into account recent history and actions. 

It is not only the words of the Constitution and amendments that show the argument that such and such a right is not Constitutionally protected because it is not listed in the Constitution totally wrong, but the history of those who actually wrote those words and their own thoughts about this.  In the case of abortion rights, this flawed argument is tragically wrong. If this is not challenged and changed, then our future might see a greater and greater limitation of our rights due to this fatally flawed argument so that our Constitution becomes, instead of a protector of our rights, its foe.  

Rights other than those listed are in the Constitution.  The men who wrote it said so.  And the Constitution itself says so.   

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The Oft Forgotten and Ignored 9th Amendment

So many times I hear conservatives say that nothing is a right unless it is clearly and expressly named as a right in the Constitution. Usually this argument is used against the rights underpinning such things as gay marriage, abortion, contraception, etc.  In other words against the right to privacy.  While some people who hold such views are to be expected, now it has become a danger to the rights of Americans since it appears that we have a majority of justices who feel the same way. 

Rights that are not listed in the Constitution and its amendments but are, instead, inferred from those that are are called unenumerated rights. These include such rights as your right to travel freely within the United States, your right to vote, and, of course, your right to privacy.  The problem with those who say that such rights, unenumerated rights, do not exist is that the Constitution itself disagrees.  As can be seen in the words of the 9^th Amendment.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  

Strictly speaking the 9th amendment does not mean that such rights necessarily exist, only that they could.  But if they do not exist, if those who wrote the Constitution and who then passed these amendments during the first session of Congress in 1791 and who then passed these on to the states which then proceeded to ratify them by a 2/3 majority did not actually believe that unenumerated existed, then they went through a great deal of trouble and time in order to approve and ratify nothing.   

This seems a fairly substantial indication that those who were around at the writing and initial implementation of the Constitution, many of whom, such as Madison, were instrumental in its writing, believed there was a need for this amendment.  In fact, looking  at the letters written at the time it is clear that most of the country believed that there were more rights embedded within the words of the Constitution than those just listed. 

During the battle to ratify the Constitution, one of the biggest criticisms of the newly written Constitution was that it did not contain a listing of rights.  In fact, this criticism was so widespread that it almost prevented the Constitution from being ratified.  Despite this, many of the writers of the Constitution as well as those who supported the it were against providing such a list.  These included such men as Alexander Hamilton, George Washington, Edmond Pendleton, John Jay, James Madison and others.  The reason they were against a Bill of Rights is that such a list could then be taken to mean that the Constitution protects only the listed rights and no more.  Something which seems to be coming to pass now, despite the founders intentions. 

James Madison, one of those opposed to a Bill of Rights, came up with the solution though.  When presenting the Bill of Rights, a list of rights which he wound up being instrumental in creating, to Congress he said:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”

His way of guarding the existence of unenumerated rights were the 9^th amendment. And also the 10^th amendment, which says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

Most have heard of the 10^th amendment as it has been cited frequently on privacy and other rights issues.  And is also used by those who support a strong states rights positions.  However, the 9^th amendment tends to get ignored.  I would imagine because it strongly indicates that unenumerated rights exist and belong to the people – not the states. 

Justice Goldberg in his concurring opinion in Griswold vs Connecticut put it well when he wrote:

“The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”

It seems today that too many of  our Supreme Court justices in their war against unenumerated rights are wanting to ignore one of the Constitution’s enumerated, listed, and explicitly stated rights.  Sadly, and dangerously ironical, it is done the name of originalism and in defense of the idea that only enumerated rights exist.  And this paradox of reasoning poses a threat to American freedoms. 

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All Honor to the States, Defenders of Democracy and Liberty!

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives “The permissibility of abortion and the limitations upon it, are to be resolved like most important decisions in our democracy; by citizens trying to persuade one another and then voting.” Casey 505 U.S., at 979 (Scalie J., concurring in the decision in part and dissenting in part).   That is what the Constitution and the rule of law demand.”  From draft of SCOTUS majority decision overturning Roe v Wade.

I write today to acknowledge and celebrate the true defenders of our democracy and the rights of our citizens – States.   Below are just some of many, many examples of states protecting our democracy unhindered by the Due Process clause. 

The Right to Free Speech, Free Press, and Free Assembly

The General Assembly in Missouri in 1837 passed a law to “prohibit the publication, circulation, and promulgation of the abolition doctrines.”  A first conviction resulted in a maximum fine of $1,000 and two years in he state penitentiary.  Second offenders received 20 years in prison. Third, life. 

The General Assembly in Missouri in 1847 created a law stating that “No person shall keep or teach any school for the instruction of negroes or mulattos, in reading or writing, in this State.”

Amos Dresser, a white student at Lane Theological Seminary, was publicly whipped in Nashville Tennessee for the crime of possessing abolitionist literature while travelling through the city in 1833. 

Nebraska, Ohio, Iowa and several other states had laws banning the teaching of foreign languages until a series of Supreme Court decisions from 1923 to 1927 overturned them. 

Under Oregon’s 1930 Criminal Syndicalism Act four speakers were arrested by Portland police at a meeting with over 200 attendees protesting police brutality in a recent confrontation with striking union longshoremen.  The speakers were communist.  The speakers did not advocate violence.  

In 1937 an African American member and organizer of the Communist Party, Angelo Herndon, was arrested in Georgia under Georgia’s  criminal syndicalism law.  While found with Communist publications there was no evidence that he had distributed them.

In the 1910s and 1920s many thousands of people engaged in peaceful protests were arrested in states with criminal syndicalism laws.  Hundreds were sent to prison. 

Jim Crow laws limiting where blacks could go, who they could be with, and what they could do.  And limited their right to vote.  Laws that stretched from the late 1860s up until the 1960s and 1970s. 

In Illinois women were banned from practicing law.  Upheld by the US Supreme Court in 1872. 

In the 1950s and 60s even though contraception was legal in most states many states still prohibited providing information about contraception.  Or limited who could receive them.  For example, a Massachusetts law permitted only married couples to receive contraception (struck down by the US Supreme Court in 1972). 

Homosexuality and gay marriage was illegal in most states up until the 21^st century. 

Freedom of Religion

“The people of this Commonwealth (Maryland) have a right to invest their legislature with the power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality.”

Eleven year old Thomas J. Wall palm was hit with a thick rattan stick for 30 minutes by his teacher at a school in Boston.  Wall was a Roman Catholic and refused to repeat the Lord’s Prayer and the Ten Commandments from a King James Bible. This forced reading was permitted under the Massachusetts State Constitution which stated that public schools should instruct children in “the principles of piety, justice, and a sacred regard to truth, love to their country, humanity”.  Walls repeated the King James Bible. When upheld by the state Supreme Court the court stated that Bible has long been in our common schools. It was placed there by our fathers, not for the purpose of teaching sectarian religion, but a knowledge of God and of his will.” and expressed the concern that allowing this refusal to read the Bible could lead to other “pleas of conscience”. 

Seven states banned atheists from holding public office. 

Oh my.  The list grows long of how the states have long been bastions of democracy and have taken such care to protect the rights and liberties of all citizens.  And the list has barely begun. However, in the interest of keeping this from becoming a massive tome let me just cut to the chase. 

Even though you can find many similar laws on the federal level it is also true that most of the changes to these violations of the liberties and rights of the US Constitution were accomplished through actions at the federal level – amendments to the Constitution, US Supreme Court rulings, Executive Orders and the passing of federal laws and protections. 

Upon consideration this is not too surprising.  The strength and power of a democracy lies in the fact that its citizens have a say in how the government is run and are, at its foundation, in control of the government.  However, that is also its weakness in that majority rules can oppress those not in the majority. Which is why the rights and liberties in the Constitution apply to all and cannot be violated by the majority. 

This problem is more apparent at the state level where each citizen’s vote and voice have more power and where regional differences have a bigger impact. Because of this, far from being the protector of liberties, the individual state is the one most likely to violate the liberty of those whose views are in the minority.

What makes this particular possible Supreme Court ruling even worse is that most people across the United States do not want Roe v Wade struck down and are mostly supportive of a woman’s right to abortion. 

What makes this particular Supreme Court ruling even worse is that it attacks the use of the Due Process clause and 9^th amendment in determining protected Constitutional rights. While this ruling on abortion important in and of itself, such a ruling threatens more than women’s rights.  It threatens the rights of all; women and men, blacks, whites, Asians, Protestant, Muslim, straights, LGTBQ … all.  If left unaltered and if this is close to what the final ruling will be then it will be one of the worst decisions in the history of the US Supreme Court.  And a danger to the liberties and rights of all. 

Sources and Readings

https://www.history.com/topics/black-history/abolitionist-movement

https://www.mtsu.edu/first-amendment/article/2/abolitionists-and-free-speech

https://www.mtsu.edu/first-amendment/encyclopedia/case-all

https://www.crf-usa.org/brown-v-board-50th-anniversary/southern-black-codes.html

https://www.findlaw.com/family/reproductive-rights/birth-control-and-the-law-basics.html

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Abortion, Rights, and the Constitution

“Every man has a property in his person: this nobody has any right to but himself.” John Locke

Many deny that a woman has a right to an abortion because the Constitution never mentions abortion.  Or that the right to privacy used to support this right does not exist because it is not specifically mentioned in the Constitution.  While many argue this let me now just list the ways that they are wrong. 

1. The idea that the only rights that exist are those explicitly stated in the Constitution should be totally and obviously wrong to anyone who has read the Constitution and read the history of how it came into being. 

First, consider the 9^th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Constitution itself clearly states that other rights exist besides those listed.  When reading the history of how the Constitution came to be ratified you come across something interesting.  The Bill of Rights, which we are so justly proud of, was initially opposed by some of the most important writers of the Constitution.  Madison, Hamilton, Washington and others all initially opposed a listing of rights.  The reason is because they were concerned about the very same actions and attitudes so many of those on the pro life side display today – if it ain’t explicitly in the Constitution then it is not a right. 

In reading their letters and writings, these men were concerned that such a list would be used to limit rights.  From their view, all of the rights could be inferred from the Constitution without limiting what they are to a set number.  However, when it became politically necessary to move forward with creating such a list, our Bill of Rights, they included the 9^th Amendment, making it explicit that other rights could legitimately be inferred from the words of the Constitution.  That the rights explicitly listed were not all the rights citizens had. 

These inferred rights are called unenumerated rights.  Among some of our unenumerated rights are the right of people to travel, to vote, and to keep personal decisions private.  These rights were not explicitly stated but were, instead, inferred from the words of the Constitution.  And so too was abortion. 

So, that is the first way they are wrong. 

2. The idea that the right to privacy cannot be legitimately inferred from the other rights and words of the Constitution.  

Once we understand that rights not listed can be legitimately inferred from the words of the Constitution, then it is fairly easy to see that there is a right to privacy nested within the words and other rights.  Specially:

• The First Amendment, which provides the right to choose any kind of religious belief.  And to not have to disclose it.  As well as the right to freely associate privately.
• The Third Amendment, which defends the home against unwarranted government intrusion, and thus your privacy.
• The Fourth Amendment, which in protecting us against unreasonable searches and seizures also protects our personal privacy.
• The Firth Amendment, which provides you the right to avoid self-incrimination, to keep your views and actions private. 

Each of these amendments strongly imply that a person has a right to privacy, a right to make decisions, to hold opinions to own property, to think and not have to present them to the government without due process. And for 100 years this unenumerated right of privacy has supported such ideas and rights: the right to choose who or if to marry; the right to decide if and when to have children, the right to decide how people raise their child; the right to refuse medical treatment even if it may result in your death.  All rights which we now take for granted.  

This unenumerated right to privacy have caused laws to be struck down in several states such as the Nebraska law that prohibited the teaching of German and other foreign languages until the ninth grade (Meyer v Nebraska (1923)) and the Oregon law that required all students to attend public school (Pierce v Society of Sisters (1925)). Or, more directly relevant to the issue of abortion, when, in 1965 the Supreme Court struck down a Connecticut law that prohibited the sales, possession and distribution of contraceptives to married couples (Griswold v Connecticut).

In other words, as Justice Sotomayor said during the oral arguments the other day, there is “inherent in our structure, that there are certain personal decisions that belong to individuals and the states can’t intrude on them.”

“We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We recognize that in their right to choose who they want to marry,”

Given this, the only question is does this right to privacy also cover the right for a woman to choose an abortion.  After all, it does seem a natural extension of the right to use or not use contraceptives. 

3. The idea that the Constitution cannot and does not support a woman’s autonomy over her own body, including the right to choose an abortion. 

The argument goes something like this – all Americans have the right to privacy.  A right which, like all rights, has limits.  In this case, the question of when does state have an overriding interest.  The Supreme Court decided that for abortion this point was when the fetus became capable of living outside of the mother’s womb.  Until that point, the mother’s needs and wants take precedent. These needs and wants include financial, emotional and health. The justices saw, quite rightly, that it is not all the rights of the fetus, but that the mother has rights too as an individual.  Rights beyond just being an incubator. 

It’s not a bad argument.  In fact, it is a good one.  However, I somewhat agree with Justice Ruth Ginsberg in “Some Thoughts on Autonomy And Equality In Relation to Roe v Wade” when she said that it “…presented an incomplete justification for its actions”.  Incomplete because the court tried to go too far with the privacy argument and, instead, should have based abortion rights upon the equal treatment sections of the Constitution. From the same article:

“The conflict, however, is not simply one between a fetus’ interests and a woman’s interests, narrowly conceived, nor is the overriding issue state versus private control of a woman’s body for a span of nine months. Also in the balance is a woman’s autonomous charge of her full life’s course-as Professor Karst put it, her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”

What this means though is that there are two good Constitutional reasons for saying that a women’s right to abortion is Constitutional – privacy and equal protection.   A woman’s right to control her body is Constitutionally protected.  

4. The idea that abortion should be solely a state matter.  Justice Brett Kavanaugh, a Trump appointee, asked whether the court would be better off withdrawing completely from the abortion issue and letting states decide.

Let me start by pointing out the relevant section of the Constitution in deciding on this.  The Fourteenth Amendment which “prohibits states from making laws that infringe upon the personal autonomy protections provided for in the first thirteen amendments

Before the Fourteenth Amendment states could and did create laws favoring one religion over another, laws banning the freedom of association, laws banning certain publications due to their political and social views, ban certain groups of people from voting, ban certain groups the freedom to move, and so forth. After the Fourteenth, such were no longer Constitutional – although it took far too long to make this a reality and we still have more to do.

The right for a woman to control her body, including the decision on whether to abort or not, is an issue of personal autonomy and as such should not be up to the whims of the states.  Or the feelings of the majority. 

In baseball it would be three strikes and you’re out.  With four strikes you would have hoped that the same would be true for the radical anti-abortionists, the anti-choicers and anti – autonomists. Unfortunately, most of those who think and believe that abortion is evil even against a group of cells will not be convinced by reason and evidence. They know abortion is terribly wrong and therefore must be unconstitutional.  Anything that conflicts with that truth must be wrong.  And so reason becomes twisted and evidence denied and ignored.

Even more unfortunately, those who think and believe this are also politically in the ascendant on this issue, greatly harming the protections the Constitution provides to American citizens.  To us

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Protecting the Voting Rights of Geography

1824: Andrew Jackson received 152,901 votes for President.  John Quincy Adams received 114,023 votes for President.  John Quincy Adams won and became President. 

1876: Samuel Tilden received 4,288,546 votes for President.  Rutherford B. Hayes received 4,034,311 votes for President.  Rutherford B. Hayes won and became President. 

1888: Grover Cleveland received 5,534,488 votes for President.  Benjamin Harrison received 5,443,892 votes for President.  Benjamin Harrison won and became President. 

2000: Al Gore received 50,999,897 votes for President.  George W. Bush received 50,456,002 votes for President. George W. Bush won and became President.

2016: Hillary Clinton received 65,853,514 votes for President. Donald Trump received 62,984,828 votes for President.  trump won and became President. 

After the 2016 election there was, again, another cry to get rid of the electoral college.  Those advocating for this argued that it was not democratic and not right that the person who received the most votes could lose. Those arguing for the electoral college usually did so by pointing out that if you looked at a map those who voted for trump were spread across the most land, whereas those voting for Hillary were concentrated in cities.  The argument was that without the electoral college the minority of people who live in the country would lose out to those who live in the cities.  That the decision of the majority of the people would win out over that of the minority of the people, and this cannot be allowed.

Now, there are a great many things wrong with that argument.  However, I am only going to deal with one, the defenders of electoral college’s treatment of geography as if it were voting.  Or as if those who lived in rural areas needed to be protected just by virtue of living in rural areas. 

The Unit of Measure

Let’s start with what is a democracy. There are several types of democracies – direct democracy, constitutional democracy, constitutional republic, and so forth. What they all have in common, what makes them all Democracies, is that the government ultimately derives its power and authority from the people through elections and voting. 

Please note, it is people voting. Not land. Not that strand of trees, not that stream, not that wheatfield.  Not that multilane highway, not that metal and glass tower, not that park surrounded by concrete and towers.  The voting entity is the people who live amidst that strand of trees, travel on that highway, stroll in that park, float in that stream, work inside that tower. It is people, not land, that votes.  Honestly, I have to say, I am not sure how you are going to get a field of wheat to vote.  People though, that is easily done.  Or should be at least. 

Our Constitution itself defines the unit of measure for Democracies – “We the people”.  The unit of measure of a democracy is not the acre, the yard, the ounce, the mile, but the people. 

Advantage of a Democracy Above Other Forms of Government.

There have been and are several varieties of ways for large groups of people to be organized and governed. Dictatorships, oligarchies, aristocracies, theocracies, juntas and more.  However, the type of government that has proven the best in terms providing a stable government that protects the rights of its citizens and at meeting their needs is a democracy (please keep in mind that no government will work perfectly – it is a human creation and perfection and human creation do not go together).  Messy, chaotic, at times infuriatingly slow, it is still a better form of government than all others. 

Why is this so?  Because it is better at getting buy in from its citizens than all other forms. Because of this it is better at, eventually, resolving disputes and stresses.  Any government that exists due to the “consent of the governed” will be more stable and better able to survive and adapt to a changing world. 

The thing to keep in mind about Democracies, though, is that anytime there are two or more people gathered together there will be disagreements, differences of opinions, arguments. For groups the question is how to best deal and resolve these inevitable disputes. Democracies do so by voting, with the side getting the most votes winning. An agreement by the majority provides a legitimacy to the government, to its actions and policies, that no other form of government can do. 

However, as a natural consequence of this voting, there will be a side who loses. That is inevitable. However, they can try again in the future to change this. Further, many, or even most, losses are not total since usually compromises have to be made to get enough people to agree.   That too is a feature of a Democracy that other forms of government do not have.  And a reason for its success.

Electoral College is not Democratic

As can be seen by the listing of elections in which the presidential candidate getting the most votes loses, the electoral college is not democratic. In fact, it exists to thwart democracy.  And the great majority of people recognize this. Those that defend it do so on the basis that such a frustration of democracy is necessary to protect rights. And, I’ll agree that there are times when the concept of majority rules has to be limited. And I’ll further agree that those times deal with rights.  However, geography is not one of those rights which must be protected. 

Rights apply to individuals as individuals. As people. As the Declaration of Independence says, and as updated by the 13^th, 14^th, 15^th, and 19^th amendments to the Constitution, All Persons Are Created Equal.  These rights consist of such things as free press, free speech, freedom of association, religious freedom, the right to vote and so forth.  I can find no basis for rights based on geography, upon where a person lives.  And that is what those who defend the electoral college are claiming. 

They claim that due to cities and urban areas having a large population than rural areas that rural areas need to have their votes count more in order to protect their rights.  And yet, how are the rights of those who live in rural areas threatened?  Will they no longer be able to worship and attend the church of their choosing?  Will they no longer be able to join with others who think similarly to them?  Will they no longer be able to express their views?  Will they no longer be able to run for office or give money to those who are running for office who they support? 

In what way do they lose their rights if their votes were to count the same as everyone else’s?  Why should the fundamental workings of a democracy be thwarted on the basis of where they live?  As I pointed out, it is the nature of a democracy that, broadly speaking, some are going to win on an issue and others lose.  Why should they be kept from losing based solely upon where they live?  Or, to put it in another way, in regards to urban voters, why should where they live cause their vote to count less and their voice be muted.

Those defenders of the electoral college talk about needing to have their voice and needs heard. They are.  Even if the president was elected by popular vote, as it should be, their voice and concerns would still matter. The idea that they wouldn’t is based on flawed reasoning and assumptions.

However, even if that were true, that is the way a democracy works. And it does not negate or threaten any rights. Further, their voices can and are heard in other areas.  At the state level for example. Or in the United States House of Representatives. And most especially in the Senate, in which the small rural states have just as many representatives as do the more populous states. This gives the smaller states a loud voice indeed (another example of a antidemocratic institution, but something to talk about at a later time). 

So, no rights are being protected at all. Instead, this is nothing more than an attempt to justify an outmoded structure in order that the minority of people in the country can counter the will of the majority. 

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The Longest War of the United States

Since the United States was created in 1776 it has been at war. I am not referring to the many short wars that have punctuated its existence: the war of 1812, the Civil War, WW 1 & 2, Vietnam, and all the other named wars. Instead, the war I am referring to has been one long continuous war, one whose existence was foreshadowed by the ideals that created the Revolutionary War and were then given form in the Declaration of Independence. This foreshadowed war flamed into existence by the creation, ratification, and implementation of our flawed Constitution.

The ideals? Ones that most people already know, at least by word.

• All men are created equal.
• All men have the inalienable right to life, liberty, and the pursuit of happiness.
• That the power of government derive their powers from the consent of the governed.

The ideals expressed within our Declaration were given flesh and substance by our Constitution.  As is usual when ideals are translated into reality, a great deal was lost in translation.  Not all men were treated equal, even under the law. In fact, inequality of the most brutal kind was actually protected by the Constitution.  And, despite Abigail Adam’s words to her husband to not forget the women, women were forgotten.

The war I am referring to is the one to close the gap between the ideals and the reality of our Constitution, our government, and our society.  The two sides are those who believe that the gap between ideal and reality should be closed, and those who are fighting for the status quo, for the way things are, for a world of gaps. It is one that we are still very much engaged in and, indeed, are in the middle of a reversal, something I will discuss more later on in this blog.

Like all wars, there have been successful battles and lost ones, advances followed by reversals.  It seems that human society acts much like Newton’s universe, for every action an equal and opposite reaction.

In regards to slavery, some of the advances include the founding of the world’s first abolition society in Pennsylvania in 1775,  the Gradual Emancipation Act passed in Pennsylvania in 1780,  the passage of the Northwest Ordinance in 1787, the creation in Philadelphia of the first independent black organization/mutual aid society, the joining of several state and regional antislavery societies into a national organization in 1794, the first independent black churches in 1794, the passage of the federal Slave Trade Act of 1794, several attempts by both blacks and whites to organize a slave insurrection, Congress outlawing participation in the African Slave Trade in 1808, the creation of the Underground Railroad, and much more.

But, there were reversals and defeats too, starting with the creation of the Constitution which allowed the institution of slavery to continue and flourish, enshrining the idea that not all men are equal.  Other reversals include such things as the 1793 passage of the fugitive slave law, the passage in several slave states of laws that made organizations and speech promoting abolition illegal and punishable by expulsion or prison, anti-black and anti-abolitionist violence against blacks and abolitionists in free states such as Pennsylvania,  the taking away the right to vote from blacks in the revised Pennsylvania state Constitution in 1838, the Compromise of 1850, the repeal in 1852 of the Missouri Compromise, the Dred Scott decision, and others.

As most know, this battle on this front resulted in the Civil War and ended in bloody victory with the passage of the 13^th Amendment abolishing slavery, the passage of the first Civil Rights Act in 1876, the passage of the 14^th amendment granting blacks citizenship and the passage of the 15^th amendment granting black men the right to vote,

The problem with all such victories is that they are never complete and become the impetus of an opposite and, at times, equal reactions.  In this case, the reactions were the creation of the KKK, the numerous Jim Crow laws, the lack of protections for blacks across the country as well as the lack of help for those who were freed from slavery with no possessions, no money, and limited opportunities, the separate but equal ruling and much more.  This front of the war continued on, with the side of regression holding the upper hand for the most part, through both laws and terror, for almost 100 years. And, although great strides were taken with the Civil Rights movement of the 50s, 60s and 70s and the Civil Rights laws passed then, victory has still not been achieved.  The nature of the battle and the front has changed, but the battle to view and treat blacks equally as whites is still on-going.  In fact, it is an ironic truth that the very success of the Civil Rights movement has led to a new tactic by those against full equality – the belief that victory has been achieved and nothing further need be done.

This war though has several fronts, two old and one new.  The other older front is the battle for women’s rights. As with the battle for racial justice and equality, it too had its victories and defeats, its advances and retreats. In fact,  in the beginning there was a tight alliance between those organizations promoting the rights of women to vote and the anti-abolition movement, with women and men often active in both.  Both Harriet Tubman and Sojourner Truth were two such individuals.  However, the split between the two occurred early, when in 1840 the American Anti-Slavery Society split over the issue of public involvement of women, with one group against having women involved and saying they should have no formal role.  And, after passage of the 13^th, 14^th, and 15^th amendments, the abolitionist societies disbanded and their members no longer actively supported the women’s suffrage movement.   The women were on their own.

Many today do not realize how hard fought that battle was. It officially started in 1848 with the Seneca Falls women’s rights convention.  For the next 100 years these women tried to educate the public of the need for women to have the vote. Petitions were created and given and Congress was lobbied for the passage of a Constitutional Amendment; most of which were largely ignored. After all, why should these male politicians pay attention?  Women couldn’t vote, and their place was in the bedroom creating a baby, and in the kitchen feeding the children and her husband.  Some women tried to vote, or even run for office, in the hopes of forcing a Supreme Court ruling. They successfully forced a Supreme Court ruling in 1872. However, the court ruled against them.

Around the turn of the 20^th century, more active measures were taken – mass protest and demonstrations, with a great many women being arrested and jailed.  And, when those women then went on hunger strikes, they were force fed.  Eventually, they succeeded in getting the vote with the passage of the 19^th amendment in 1920.  However, just as gaining the right to vote was not the end of the war for blacks, so too gaining the right to vote did not end the war for women.  Having the vote was not the same as being equal, and just as with blacks, women were still considered inferior.

Laws and standards and mores existed which served to enforce women’s inferior status.  They could not go into certain jobs and what jobs they could get paid less than men’s.  Even doing the same work, women were paid less than men. Women were considered the ward of their husband or other male relative and usually could not enter into financial agreements by themselves.  Husbands were allowed and often expected to beat their wives if they got out of hand (think of the many movies in the 1950s and 1960s in which the women were spanked with the message she deserved it, or the commercials of that same time).   College was a rarity and taking science and engineering and other such masculine courses discouraged.  Women, like blacks, learned that being able to vote did not make them equals in the eyes of government or whites or men. Further, sexual harassment as well as rape was usually considered the fault of the woman.  And thus was created the Feminist movement.

Recently, there has been a third front on the war to live up to the ideals of our founding.  This one is attacking the restriction of the rights of those who do not follow the norms established for heterosexual desire, identity, and attraction, the LGBTQ.  Although the conflict and laws and debates have been around for millennia, in the US the push for equal rights for the LGBTQ could be said  to have started in 1924 with the founding of the Society for Human Rights, the first gay rights organization.  In 1950 another gay rights group, the Mattachine Society was formed.   In 1955 the first lesbian rights organization in the US was formed, the Daughters of Bilitis.

Laws against homosexuality have existed since its founding in the US. However, as gays started speaking out more and worked to gain societal acceptance new laws and actions were taken in reaction.  In 1952 the American Psychiatric Association’s diagnostic manual listed homosexuality as a “sociopathic personality disturbance”.  In 1953 President Eisenhower signed an executive order banning homosexuals from working in the federal government. However, in 1969 the one event that most people have heard of in regards to gay rights, the police raid of Stonewall Inn in New York City  launched the gay civil rights movement in the US.

After years of strife – Matthew Shephard, Don’t Ask Don’t Tell, California’s Proposition 8 – a series of important victories in this war occurred. In 2003 the Supreme Court struck down homosexual conduct law, in 2004 the first legal same sex marriage in the US took place in Massachusetts, in 2013 the Supreme Court ruled that legally married same sex couples are entitled to federal benefits, and in 2015 the Supreme Court ruled that states cannot ban same  sex marriage.

However, as with women and blacks, this was not the same as being considered and treated equally.  In fact, this was still in the process of being worked out amid much opposition before being derailed in 2016.  And the work to just protect the lives of transsexuals, never mind protect their rights, was just beginning before 2016.

The year 2016, the year that the forces of the status quo, of inequality, of regression struck back. And did so supporting a most unlikely champion – a man of limited intellect and ability, rich and spoiled, abrasive and abusive.  A man of towering inflated ego. trump.  At first glance trump seems an unlikely champion for a group that wants a return to “traditional values”, since he has never exhibited any such thing in his personal life, nor has he demonstrated any commitment to a belief outside of pure self-interest.  However, he knows how to condemn and demean, to attack and push and tear down.  He knows how to harness the emotions of anger and fear. He knows how to destroy.  The fact that trump has no idea how to build matters not, because those supporting him do not want something built, they want something destroyed.

From eight years of a black president, of significant gains in regards to LGBTQ rights, continuing gains in regards to minorities and women, we are now going backwards.

I started this by stating that this war has been about making this country meet the ideals of its founding. However, I freely admit that many, probably most, and possibly all, of the founders and creators of the Constitution and the US would be horrified at where this push to live up to the ideals they espoused has led. Many would be against women voting, against blacks being equal, and feel disgust at the thoughts of LGBTQ equality.  However, they are the product of their times, no matter how great and visionary.  And they were visionary, visionary beyond their ability to accept. Although I do think some might have accepted all of this, whether they would have or not though doesn’t really matter.  The ideal of equality for all humans has an existence separate from them.  One that it is up to us to continue to form and create.

After such a long war, and after having made such significant gains, it is no wonder many of us are fatigued and stressed, seeing hard won victories for our fellow citizens and humanity in general being torn down and destroyed; seeing the pain and the suffering engendered by this reversal.   However, I agree with Martin Luther King Jr. that “The arc of the moral universe is long, but it bends toward justice.”

I agree because of what I see in history, both of the world and of the United States. Even with the reverses since 2016, we are still further towards the realization of our nation’s ideals than we were during its founding, than at the dawning of the 20^th century, and even than during the turn of the 21^st century.  I also realize from history that progress is most often three steps forward and two steps back, each step labored and often bloody.  Although frustrating and depressing at times, there is some comfort to have that we are doing better than the universe with our reaction being slightly less.

A final thing I know. Just because I see this in our history does not mean that there is some mechanism that will ensure this journey will continue onward, that we will not fall back and back and back and not move forward again.  Whether it does or not depends on us, on our individual actions.  I know that many are tired, I know that I am tired of what I see going on, that there are times I have to take some time to turn away from what is happening or else despair. For so many to support this man, and these actions….  I had thought us at least slightly better than this.

At the same time, I know that I also have to come back and move forward to change things, to help us take those three steps forwards before the next two steps back are upon us. All  in all, a good New Year’s resolution.

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Growing Balls and Backbone: A Memorial Day Blog

“These are the times that try men’s souls.” Thomas Paine

I started writing this blog after learning that Trump was sending more troops to the Middle East to contain and protect our interests from the national emergency that is Iran.  That he had just cleared a massive arms deal for Saudi Arabia and other countries, which Congress had specifically blocked, by using the claim of national emergency.  That he had sicced his FBI lapdog on those who had dared to investigate him, the start of making the FBI into a political tool to protect Trump and destroy his enemies.  Earlier he declared a national emergency on the border to get the money for the wall that Congress would not give him.

 

This is on top of refusing to provide any House or Senate committee with documents they have requested and invoking executive privilege and other excuses to prevent his people, both current and former, from testifying, something never done by any President before,  and obstructing Congress from the performance of their Constitutional duties.

Trump, when he first took office, did not understand the limits and nature of Presidential power. He thought he could decree, and it would be done. It is one reason why his initial Muslim travel ban failed so miserably.  Now he understands that his power does have a check on it in how our government is structured.  Two in fact.  One is the courts, the other Congress.  Trump does not believe his power should have any checks. Because of this belief he is busily at work confirming justices who he believes will give him carte blanche to be the dictator he wants to be.  Which now leaves Congress.

The Republicans in the Senate are not a problem for him. Those who would stand up to him have lost in primaries, been forced out, or retired; leaving only those without balls or backbones and who put political gain over both Constitution and Country.  But the House, with its Democratic majority, is a problem. So, he ignores the Constitution and them. He throws lawsuits at them. He twits insults about them, he stages angry planned “ad hoc” press conferences about them, he bellows and blusters.  He is loud in his denial of their Constitutional role.

However, the United States has other organizations and groups that hold politicians in check.  One of these is the free press.  And that, Trump has called the enemy of the people, cut back and reduced chances of them to question him, denied those he finds most bothersome, and created a narrative that all of the free press are in a grand conspiracy to bring his presidency down.  That they are the enemy. Yet the free press still perseveres.

Then there is one more check, one that has become active but needs to become even more so.  The people. Trump never won the majority of the people to his side. He lost bigly on the popular vote, and his popularity and polls are the worst of any modern president.  He has a hard core group of supporters who continue to support him no matter what, for various different reasons.  But, for those of us who are not, now is the time to step up our efforts.

With the help of the Republicans Trump is working to turn our government, the republic, into a dictatorship.  Many of his supporters and those who strongly lean conservative may scoff at this. Many of these are so blinded by getting laws passed that they support that they overlook the cost to our nation.  Others seem to believe that the turn from a functioning democracy and a free people happens in one stroke.  However, except for violent takeovers, it doesn’t.  It occurs over a period of time, years or even decades.  Protective dams are eroded. Watchdogs have their teeth pulled.  Those institutions which protect and sustain a democracy are questioned, then condemned, and then prohibited.  And all of this is done in the name of freedom. After all, very few are going to say “Hey, let’s make me a dictator.”

What we see with Trump and the Republicans is the beginning of this process.  One that is accelerating now that Trump has his puppet in charge of the DOJ.

Trump’s attack on the press is typical of dictators.

Trump’s use of law enforcement to attack his political enemies is typical of dictators.

Trump’s calling for this and that national emergency to justify his actions and to allow him to bypass Congress, is typical of dictators.

His use of invective and portraying those who oppose him as dangerous lunatics, dangerous people, threats to the United States, and treasonous are typical of dictators.

For the last, let us add that he is failing to uphold one of his primary responsibilities as President of the United States: protecting the country. Each and every US intelligence agency has stated that Russia worked to interfere in our election.  The Mueller report detailed much of that. We are finding that several polling sites were hacked by the Russians.  And all of our intelligence agencies are telling us that the Russians will be doing so again in 2020.  Yet, despite this, Trump has refused to take action, to speak about it, to even mildly admonish Russia on this. Congress has pushed for actions. Trump largely has not, instead choosing to ignore or to say that the Russians did not meddle. This is a reason to impeach Trump too.

The free press is still free and largely doing their job, with the exception of the extremist press who let ideology and agenda take precedent over good and accurate reporting.   The House is largely doing its job. The Senate, though, is failing miserably and is an accomplice to the process of changing our country from a free republic to a dictatorship.

The people have started to do their part. The people need to do more though. We are now at a point that I honestly did not think we would get to, in serious danger of becoming a dictatorship. I had thought our Constitution and the government created by it would weather the aberration that is Trump. However, the Republicans have proven more gutless and more driven by politics that I had thought they would.  I knew many would be. But, I thought that there would be enough who value the Constitution and their oath over politics and who had the courage of this conviction to make a difference.  I was wrong.

So now is the time to press the Republicans to grow some balls and a backbone, and to become more concerned with protecting the Constitution and the United States than their political future.  How?

Vote. Vote in every election.  Encourage others to vote. Help register new voters. Speak out against reducing polling stations, even to the point of physical protests.  Speak out against voter ID laws, even to the point of physical protests.  Speak out against voter fraud, such as South Carolina.

Vote against Republicans, period.  I never thought I would advocate that, but they as a party are now the party of Trump and until they can show that they have shaken off Trump, they need to be shunned.

Write letters to the editor, post on Facebook, use Twitter and other social media. Not only to voice your opinion, not only to correct the lies coming out in such a torrent, but to let others know of events and happenings and organizations that are working to protect our Constitution and our country.

Be part of a protest.

Join an organization that is working to protect our country and doing what is right – whether it be in immigration, in reproductive rights, in civil rights, in voting rights, environment, climate change, in whatever.  There is enough going wrong right now that there are many areas to choose from. Pick what resonates with you and step up.

Send frequent letters and emails to your representatives, whether federal, state, or local. Sign and spread petitions.

And that is just the start.

So far, the violence of our times has remained below that of the 60s. But, that may change, and it may have to.  Our Constitution and country are under attack, this time not by an external enemy, but an internal one.

I had thought to post this tomorrow, the day after Memorial Day. However, I decided it was more appropriate to post it on Memorial Day. Today is the day we honor those who gave their lives to protect our ideals, our nation, and our people. It seems appropriate to post this today at a time when the ideals embedded within the Constitution, and our country, for which these men and women fought and died to defend and protect, is under attack and is in grave danger. Not from dangers external, but internal.

Today we honor those who died to protect our country from enemies external.  The best way to honor them, their sacrifice and memory, is to protect our country from enemies internal.

 

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Of Republics and Democracies and Rights, and Why This Meme Is Wrong

I have seen this meme making the rounds among many conservative sites and people, especially among those who strongly support Trump. It is used to justify the results of the last Presidential election by protecting the whole idea of the electoral college. I won’t go over the problems I see with the current electoral college (I don’t think it has to be eliminated,  just changed, which can be done without a constitutional Amendment), except to say that the flaw should be obvious when the candidate who receives three million more votes loses.  Instead, I am going to focus on two problems with this meme; one of definition and categorization, the other a severe error of historical fact.

Problem the First; Definition.  This meme seems to claim that a Republic and a Democracy are two separate conflicting ideas.  The truth is that they are not.  A Democracy is a broad category of which a Republic is a subset.

A Democracy is a form of government in which the people ultimately have the power.  A Democratic country is one in which its citizens ultimately rule. Contrast this with the various other forms of governments: monarchies, dictatorships, oligarchies.  In these other forms of governments, forms which most of humanity throughout history have lived under, the people do not rule.

As I said earlier, a Democracy, as opposed to the other forms of possible government, is one in which the people rule.  However, how the people have rule can vary.

I believe the type of Democracy being referred to by this meme is one in which citizens directly vote on issues and bills and do not delegate their power.  This type of democracy works best for small and relatively homogenous  population, and is often referred to as a direct democracy.  And in a pure direct democracy those holding  minority view’s can have their rights not only infringed but eliminated, although minority views can be somewhat protected if the direct democracy also has a Constitution setting out which rights are protected for all citizens.  However, the meme is correct that the rights of minority views are at much greater risk in a direct democracy.

Now though, what about a Republic.  Unlike what this meme implies, a Republic is not something different from a Democracy.  Like all forms of Democracies, the power to rule ultimately lays with the people.  In a Republic though this power is delegated to others.  Others who can be voted out of office if the people are not satisfied with their performance.  In other words, it is not something separate from a  Democracy but is, rather, a form of Democracy.

Now, a Republic does do a better job of protecting the rights of minority views.  But, it does so by virtue of a Constitution defining it powers and organization.  It does so by requiring supermajorities on certain issues and by dividing up the powers of government into three branches, Most importantly, it does so by stating rights that all individuals have within the country, one that cannot be taken away by majority votes or the power of the government.   While there needs to be a separate judiciary that can rule on whether a law or actions is Constitution or legal, and a separate legislative and executive branch, these are not enough to protect  individual and minority rights.

A Republic without a strong bill of rights is no defender of the rights of those whose views are in the minority. It never has been.   A look at United States in the years before the Civil War shows this to be true; a look to a time when the Bill of Rights did not apply to states (although Madison argued that they should apply to the actions of the states. He lost that argument by two votes if I remember correctly).

Even though each Southern state was a Republic, and not a direct democracy, they trampled on the rights of those with minority views.  They restricted the rights of abolitions to speak freely and argue their views.  They made it illegal to publish abolitionist literature and so restricted freedom of the press. They made it illegal for abolitionist groups to meet, restricting freedom of assembly.  For those who violated these laws, they were fined, imprisoned, whipped, deported, and, in some cases, executed.

However, it is also true that having a Bill or Rights and making them apply on paper to all citizens by itself does not protect the rights of minority views or prevent the tyranny of the majority. Even after being given a right that should have been theirs all along, the right to vote, look at how the views, the thoughts, and the rights of blacks were violated and restricted time and time again; by Jim Crow laws, by laws regulating where they could live, and other laws.  Even though we were a Republic with a Bill of Rights, blacks suffered under the tyranny of the majority.  As did women, even after they were given what should have been theirs from the beginning, their right to vote.   As have religious minorities and those of differing sexual views and outlooks, and on and on.

A Republic is no protector of rights.  However, what did protect those rights , eventually is the Constitution with its Bill of rights that gave every individual certain rights that could not be infringed by the majority. Once this was made to apply to the state governments as well as to the federal government after the Civil War then the framework for what was needed for true protection of the rights of minority views and beliefs from that of the majority were in place, although it would take almost a century before they were finally made use of as they should have been.  Something that is still very much on-going and far from finished.

Our rights are not protected by virtue of us living in a Republic. Instead, in our democracy, our rights are protected by them being written into our Constitution and by us having an independent judiciary.  Something that would still exist even if the electoral college were abolished.

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Why is Religion a Right?

As usual, Trump and his administration are in the news. For many things. The two that caught my eye for this blog are:

• Trump putting into place a rule allowing more employers to opt out of buying insurance that provides coverage for birth control if they have religious objections to it.
• The DOJ memorandum excluding transgendered people from legal protections, along with two follow on memos outlining the new view on religious liberty and federal law, views that will likely have a large and negative impact on LGBT rights. .

And let me add one more story relevant to this blog.  This one from Kansas, where the state has taken a child from his mother and grandparents and , over their religious based objections based,  the state is going to vaccinate him.

Now, I am not going to go into who is right and wrong here – although those who know me probably can take a good guess at what my views are.  Instead, I am going to briefly discuss why freedom of religion is on a par with the right of free speech, a free press, freedom of assembly and so forth.

First let me provide the list the rights from the Constitution’s Bill of Rights (note – many of our founders would object to my use of the word “list”. For the reason why, consider the 9^th Amendment.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Now, almost all of the rights listed here have rather a rather obvious relationship to a working government, especially a democracy.  Free speech, trial by jury, freedom of assembly, and so forth.  But freedom of religion?  How is that related to a functioning government?

To answer this, first, consider the freedom of religion might more properly be called the freedom of conscience, the right for a person to believe as they chose.  In many ways that is a more basic right than freedom of speech and such, since if you are not free to believe as you see fit then what does it matter if your speech is free?  Of course, you could argue then that political thoughts and ideas are free and protected, but not religious ones, not ones dealing with God and the afterlife and the moral teachings of a religion.  The problem with this is that so often, in fact most often, a person’s ideas and thoughts about politics are going to be influenced by his thoughts about morality at the very least. And for most, morality was associated with religion.  In other words, making a clear distinction is much more easily said than done.

Which leads us into the second reason. Religion is important to people. Their views of the universe, of life and what may lie beyond it, about how to live in this world, and all the rest of it are of critical importance to individuals and groups.  In fact, people consider these views so important that religion has had a prominent role to play in most of the violence in the world (note, I did not say cause, there is a difference).   This is something I wrote about in my blog What Most Have Forgotten.

The point here is that our founders, the creators of the Constitution, knew this history just as well as anyone did. Better than most actually. Along with this is the fact that most of them believed religion to be of critical importance to a society too.  The best way they saw to avoid the violence was to give everyone the right to believe as they think best, without the government taking a side or promoting one view over another.  In other words, to have a free and functioning democracy, freedom of religion is just as essential as any and all the other rights.

 

As for the proof of it- well, our history has been free of the degree of religious conflict that afflicted both Europe and Colonial America. And that still afflicts much of the world.  It is also an idea that has been taken up by many nations around the world, to their betterment.  The challenge now that we have successfully created the separation of church and state so necessary for a stable democratic government is to maintain that separation in the face of those who  do not realize its importance.  One of the many challenges facing us in our suddenly changed times.

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