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Madison, Bingham and the Crapshoot of History

There was a lecture at the McKinney School of Law yesterday about Jonathan Bingham, the most important constitutional figure you’ve probably never heard of. One of the professors has just written a biography of him–“American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

I came across Bingham and the role he played in U.S. history a number of years ago, when I was researching a book of my own. He was a Republican Congressman from Ohio, a fervent believer in racial equality, who wrote the first and most famous passage of the 14th Amendment–the one forbidding states to deny “the privileges and immunities of citizenship” to their citizens, and requiring that they extend to those citizens the guarantees of due process and equal protection of the laws.

It was clear even from the brief research I did then that Bingham’s intent was to finish what Madison had tried but been unable to do–apply the entire Bill of Rights to state and local governments. (Originally, the Bill of Rights only restrained the federal government.) In the aftermath of the Civil War, he was able to get it done.

Or so he thought.

The Supreme Court declined to interpret the 14th Amendment as requiring complete and immediate”incorporation,” the weird term used by lawyers that means applying the Bill of Rights’ restrictions against government at all levels. The Court opted for “selective” incorporation–and only over a period of many years, as cases came before it, used the Amendment as a vehicle to ensure that  local government units respect the “fundamental liberties” protected by the Bill of Rights.

What too few Americans appreciate is the importance of the 14th Amendment to our current Constitutional system. Yale Constitutional scholar Akil Amar has called the post-civil rights period and the changes wrought by the 14th Amendment a second founding, and it does seem odd that even Americans who are quite familiar with the roles played by Jefferson, Madison, Franklin, Hamilton et al have never heard of Bingham, nor been taught about the profound effect of his Amendment.

Just goes to show, I guess. HIstory’s a crapshoot.

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Conflicted

I haven’t posted anything about the situation in Syria, because–to be utterly candid–I’m conflicted about it. Not about Assad–he’s a vicious dictator–but about what America should or could do that wouldn’t simply make a horrible situation worse.

I don’t consider myself either a hawk or a dove; I opposed our intervention in Iraq, but not Afghanistan, because the situations were very different. Afghanistan had harbored and supported the people who attacked us. Iraq was an obvious war of choice, trumped up by people who quite clearly had no understanding of the complex political realities of the Middle East. Furthermore, we had international support for our response to Afghanistan, and a pathetic, trumped-up “Coalition of the Willing” for our aggression in Iraq.

Justified or not, neither war went well.

Now I am listening to the arguments for and against a “targeted” action against Syria. The President’s argument–Syria has defied international norms and inaction will send a message that such violations can continue with impunity–resonates with me. But so does the argument that another “go it alone” cowboy intervention in the world’s most dangerous region is likely to end badly, doing more harm than good.

Until I read this post by Andrew Sullivan, I thought I was the only person impatient with the self-righteous moralists on both ends of the political spectrum. On the Right, we have the American Exceptionalists who believe we should be the world’s policemen, not to mention the irony-challenged chickenhawks who pontificate about saving the lives of Muslims they routinely stereotype and discriminate against here at home;  on the Left, we have the anti-imperialism scolds who loudly accuse anyone considering any intervention of any sort for any reason guilty of moral turpitude and/or commercial intent. To both camps, waging war or not is apparently a simple decision, to be made without any ambivalence or concern for the truly disastrous consequences that could flow from a wrong decision.

A recent article by George Packer in The New Yorker made all of these points far more clearly than I can. (Actually, this article from the Onion did an even better job of laying out the unattractive options–and when the Onion is the voice of sanity, that sort of sums it all up.)

Whatever we do, act or refrain from acting,  prudence requires that we think carefully about the pitfalls. What do we want to accomplish,  what decisions and tactics are likely to achieve that goal, and at what cost–not just in human lives and dollars, but to America’s long-term international interests?

I’m all for realpolitik. I just don’t know what it looks like right now.

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Nincompoopery

I do miss Molly Ivins and her tart pen. It’s hard to pick my favorite phrases/putdowns; she once characterized America’s religious extremists as “Shiite Baptists,” and in response to reports that the then-Governor of Texas was taking Spanish lessons, said “Oh good–now he can be bi-ignorant.”

Molly also noted that “Nincompoopery has never been a bar to high office in our nation,” and although she focused primarily on idiocy within the Great State of Texas–a state replete with it, then and now– current officeholders across America are competing to demonstrate how right she was.

Take Missouri. Please.

The New York Times reports, “the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them.”

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

It isn’t  just criminals. As the Times explained, “A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.”

Of course, there’s a pesky little thing called the Supremacy Clause that makes this particular exercise as unconstitutional as it is stupid.

Molly would undoubtedly have a choice phrase or two for this nincompoopery, but all I can do is shake my head. Where do these people come from? And why are they holding elective office?

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Testing….1,2,3…Testing

I’ve been watching school reform efforts for several years now, and I’m depressed.

Most of the organizations that have formed to improve our public schools are populated by wonderful, well-meaning people, and most of the men and women who have chosen to teach in those schools are caring, dedicated professionals. So you’d think they would all be talking to each other and working together to identify and eliminate the barriers to better schools.

Instead, they seem to be at war with each other.

Now, I understand that focusing on common goals has been made more difficult by  the “take no prisoners” attitudes of ideologues like the departed-but-certainly-not-missed Tony Bennett, whose arrogance and autocratic tactics created a backlash of resentment among the teachers he regularly and unfairly bashed. (It shouldn’t surprise us when people who’ve been told they are overpaid and underperforming nitwits are unenthusiastic about collaborating with those who leveled the accusations.) But Bennett and his equally tone-deaf boss are gone, and the folks on the front lines–the teachers–need to help the real reformers understand what they need.

I haven’t been a high school teacher for nearly 50 years; neither do I have mastery of the reform literature. I’m just an interested observer who believes that public education is an immensely important public good, so you should take the following observations with the appropriate amount of salt.

Reformers are absolutely right to want teacher accountability. But teachers are absolutely right that high-stakes testing is not accountability.

Testing to figure out what kids know is a time-honored necessity; testing as a way to evaluate teacher performance is deeply problematic. For one thing, poor people move so frequently that turnover in many inner-city schools exceeds 100% during the school year, and the kids being tested at the end of the year aren’t the same kids who were tested at the beginning. Tests in such classrooms are meaningless.

Even in more stable environments, the current testing regime does significant damage–to students, who are being taught that there is always a “right” answer, and to teachers who are forced to focus their efforts on the subjects being tested and neglect other, equally important lessons. Furthermore, years of research demonstrate that more affluent kids test better for lots of reasons unrelated to the quality of classroom performance. If teachers are going to be evaluated and paid based upon test results, a lot of good teachers are going to leave the poorer schools that need them most and head for precincts where the students are better off and easier to teach.  (And yes, I know the theory is that we are testing for improvement, not absolute knowledge, but that theory is too often just that–theoretical.)

Here’s a heretical thought: before we engage in programs to assess accountability, let’s see if we can achieve agreement on what we mean by “education” and “quality instruction.” In other words, let’s be sure we know what instructors are supposed to be accountable for.

Too many of the self-styled “reformers” (not all, but too many) equate education with job training and quality instruction with (easy to test) rote learning.  For that matter, too many teachers agree with those definitions.

The people who genuinely want to improve public education–and there are a lot of them in both reform organizations and classrooms–  start by tackling the hard questions: what do kids really, really need to know in order to function in 21st Century America? What skills are essential? What are the barriers to imparting that information and those skills?  What additional resources do poorer kids need?  How much money does it take to provide a  good education, and how much does ignorance cost us?

Here’s how you can separate out the genuine education reformers from the ideologues and shills: real reformers understand the importance of public education’s civic mission. Because they understand the constitutive function of the public schools–because they understand that education is more than just another consumer good–they want to fix public education by working with teachers and parents and policymakers to make our public school systems work.

The genuine reformers aren’t the ones insisting that we  privatize or abandon those schools.

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Freedom Indiana

Last Wednesday, a coalition of civic and business groups announced the formation of “Freedom Indiana,” created to oppose the effort to constitutionalize Indiana’s ban on same-sex marriage.

Because the existence of a law banning such unions is evidently not emphatic enough.

The proposed constitutional amendment would also forbid legal recognition of any status “structurally similar” to marriage. There’s no agreement on what that language might mean beyond the obvious preclusion of civil unions.

I’ve written a lot about equal rights for GLBT folks, and the irrational fear and hostility exhibited by homophobic individuals and organizations. (Not to mention the outright lies in service of “Christian” principles by the likes of Eric Miller, who rely on the ignorance of their audiences when they insist that pastors will be forced to perform same-sex marriages if such unions are legally recognized.) There’s no point repeating here the principled arguments against this mean-spirited proposed Amendment. Most of the people who read this blog already know them.

More interesting than once again repeating the arguments for and against the ban is the question this current effort raises about Hoosier values.

Indiana is sometimes described as the buckle of the bible belt (or the middle finger of the South), but that has never been entirely true. The political culture of the state has had a strong libertarian streak–real libertarian, not Ron or Rand Paul libertarian. Hoosiers have endorsed “live and let live” as a workable philosophy to a much greater extent than the religio-political South.  Results of the recent Ball State poll demonstrated the persistence of that approach; respondents were divided about same-sex marriage, but a comfortable majority was opposed to the ban.

There appears to be a consensus that the legislature will endorse this bit of culture-war detritus, and that a referendum will be held. There is less of a consensus on the results of that referendum.

When you consider both the Hoosier political culture and the rapid shift in attitude that has manifested itself across America on issues of gay rights, I think it is by no means certain that Hoosiers will endorse this insertion of discrimination in the State’s constitution.

A few years ago, when the Amendment was first introduced, the idea that major corporations would step up and oppose it would have been ludicrous. The likelihood that a Republican insider would run the “Nix on Six” campaign would have been unthinkable.

Actually, putting this measure on the ballot in 2014 puts the state GOP in something of a box. In an off-year election, without prominent candidates heading the ticket and getting out the vote, they run the risk that a “non-traditional” electorate focused upon defeating the ban will show up, and will vote for Democrats while they’re there.

If Freedom Indiana gets its voters to the polls, we could have a very interesting election.

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