Tag Archives: history

Originalism And The Second Founding

Constitution, , , ,

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!

 

 

Two Possibilities….

Public Policy and Governance, , , ,

A few days ago, a clearly exasperated reader of this blog asked “the” question–the question I ask myself daily and am unable to answer. He agreed with my “diagnoses” of the myriad  problems we face, but wanted to know what we can do about them. We know what the problems are–what can individuals do to solve them?

If only I had an answer! We’d both feel better.

Not only do I not have a solution to “the question,” I vacillate between two competing analyses of the problems we face. As I have previously noted, I’ve been reading a lot more history lately, in an effort to determine whether we’ve been here before, or whether the severity of America’s divisions is something unprecedented. (That’s another question to which I have no answer…).

As I used to tell my students, it depends–and it’s complicated.

Like many of the people who read this blog, I take the daily letter from historian Heather Cox Richardson, who provides helpful historic context to the issues of the day. Recently, she addressed the question of Trump’s stolen documents, and Senator Lindsey Graham’s threat that holding Trump accountable would be met with violence in the streets.

Richardson pointed out that arguments about the theft of those documents  are arguments about the rule of law–not about contending political opinions. Graham’s threats about gangs taking to the streets is an authoritarian’s argument for the use of violence to overturn the rule of law. Richardson then provided valuable context, noting that resort to violence is not new to this country, citing to  the Reconstruction South–a period during which “white gangs terrorized their Black neighbors and the white men who voted as they did, suppressed labor organization at the turn of the last century, and fed rising fascism in the 1930s”.

Right-wing activists have been an ever-growing threat since the 1990s. Under Trump, rightwing gangs became his troops. But as Richardson reminded us,  even the incidents of domestic terrorism aren’t new.

Such gangs have always operated in the U.S., and they gain power and momentum when they engage in violence and are unchecked. After several years in which they have seemed invulnerable, we are now in a period when, as we learned on Saturday, an armed man in a truck chased Independent Utah senatorial candidate Evan McMullin with a gun after an event in April and forced the vehicle carrying McMullin and his wife into oncoming traffic. That incident echoes one from October 2020, when a bus carrying Biden staffers and volunteers through Texas was harassed by Trump supporters, some of whom appeared to be trying to force it off the road. When the terrified Biden workers called the police, officers allegedly refused to help.

What I take from Richardson and other historians–as well as the upheavals most of us personally experienced in the 1960s and 70s– is the lesson that the times we are living through are not unique. We can take some comfort in the fact that we got through those ugly episodes, and reassure ourselves that we can make it through these times as well.

Or–as a part of my brain whispers–maybe this time really is different.

Previous periods of unrest didn’t occur in the face of the existential threats posed by climate change, and new technologies that facilitate mass murder and Orwellian surveillance. Obsolescent rules weren’t bringing federal governance to a grinding halt…

Ultimately, it doesn’t matter which of these analyses is accurate. Whether we’ve been here before or we really haven’t–we need to find a way out. But the solutions available to us will ultimately depend upon understanding what is happening now, and how unprecedented (or not) our challenges are.

Choose your preferred diagnosis–but neither sparks an epiphany pointing to a cure.

The single thing that each of us can do is to vote, and work to ensure that other rational Americans do likewise. Gerrymandering and vote suppression tactics may win the day– but a truly overwhelming Blue turnout would keep the GOP from furthering its march to fascism, and would begin the long and difficult job of mending American government.

Voting Blue in November won’t be an endorsement of whatever Democrats stand for. The party certainly isn’t above criticism. It is, however, largely sane and pro-democracy.

Conservative Republican Adam Kitzinger recently made the same point.

A Blue vote is a vote for women’s reproductive autonomy, for the civil rights of LGBTQ citizens,   for sensible restrictions on firearms, and for prioritizing the interests of working and middle class Americans. We can–and will– argue about the details of those basic commitments, but only if we defeat the unAmerican cult that stands firmly against them all.

This November, we must vote Blue for America.

 

 

 

Restoring Trust

Random Blogging, , , ,

I’ve concluded that we Earthlings are in a race between self-destruction and human ingenuity.

On the one hand, we have what I’ll call the “forces of darkness” (okay, probably more accurately described as the forces of human cupidity and stupidity)–rejection of lifesaving vaccines, denial of climate change, what’s-in-it-for-me political corruption, belief in wack-a-doodle conspiracies, and the massive amounts of propaganda and fake news that reinforce our divisions into warring tribes.

On the other hand, there are all sorts of promising efforts to address these threats to humane (and human )civilization. I’ve posted about some of them. The question, of course, is: will humanity descend into a destructive and possibly terminal dark age before these  corrective measures can take effect?

Scientific and technological efforts to combat pandemics and the worst effects of climate change will either prove themselves effective or not. Misinformation, disinformation and propaganda will actually be much more difficult to defeat, and as a mountain of research has shown, the result of our current information environment has been a massive loss of trust–in government, in the media, and in a wide variety of social institutions.

There are a number of efforts underway to combat misinformation and propaganda, to sift the wheat from the chaff–to distinguish what is factual from what is Foxified–so that citizens and future historians (assuming we make it to a future) can have confidence in the  veracity of the information they rely upon.

One of those efforts is using blockchain technology to confirm that accuracy. Starling Lab, a nonprofit academic research center, is using blockchain’s decentralized ledgers to help preserve historical data of importance to humanity. The goal is to restore integrity both to asserted facts and to the internet itself.

Jonathan Dotan is the founder of Starling.

The ultimate goal, says Dotan, is to help curb misinformation at a time when images are often used out of context to advance political and ideological agendas. But doing so requires more than building tech to facilitate the authentication and the storage of data. Starling is also creating an interface that allows third-party experts—lawyers, historians, forensic analysts, journalists, and more—to offer context and clarity about an image or video, creating what Dotan calls “a distributed form of consensus.”

“Capture, store, and verify—that’s critical in our minds to help create a proper chain of custody,” he says. And unlike other organizations that are working on similar ways to attach metadata to images, Starling, which operates between USC and Stanford, is academic, not-for-profit, and entirely open source. Its system doesn’t require a centralized entity to put a stamp of truth on any content.

Starling’s system can also be used to document the historical record in real time. In a Reuters pilot, the news service’s photographers used the lab’s technology to certify images of the 2020 presidential transition, even as its legitimacy was under attack. Starling has also built prototypes with Syrian human rights organization Hala Systems, which has been exploring how to use the lab’s so-called image provenance technology in court to present evidence of war crimes. Starling and Hala are currently working to encrypt, authenticate, and preserve social media content from Telegram and TikTok that documents the war in Ukraine.

The initial project–and the largest–involves downloading and preserving the USC Shoah Foundation’s Holocaust archive.

Stephen Smith, the foundation’s executive director, says this is particularly important at a time when disinformation campaigns seek to downplay the greatest horrors of our shared past. “The competition over history is very real,” he warns.

No kidding. (Ask teachers in Tennessee...)

My techie son has explained blockchain to me. Several times. I still don’t understand it, but I’m willing to believe that the technology builds trust. With Bitcoin, for example, every transaction is recorded on a ledger that’s shared among several “distributed nodes.” The sheer number of copies of the ledger make it hard to change or manipulate.

Blockchain’s uses aren’t limited to finance.

With the Starling Framework, Dotan is applying the same basic idea to storing information. “The idea is that end users could host a critical piece of data—be it a testimony of genocide or record of transaction,” he says. “The end result is that, paradoxically, the more that you spread out information and provide computation in a distributed fashion, the more trusted it could be.”

Dotan has started hiring and partnering with experts across disciplines, including law, journalism, and human rights. The goal is to ensure that important information is accurate, and becomes part of the historical record, from Syria and Ukraine to Washington, DC.

The linked article has much more detail on the social and technical challenges involved.It’s  long, but worth your time to read. It gives me hope at the same time as it gently reminds me that I have no idea how today’s technology works….

 

 

Texas, Education And The Holocaust

Random Blogging, ,

It sounded like snark.

When the reports first emerged that a Texas school administrator was advising schools to teach “both sides” of the Holocaust, I assumed that some late-night comedian was making a point. After all, what are the arguments for genocide? But I was wrong. Texas–where the governor insists that life-saving vaccines are optional–wants schoolchildren to have the benefit of “both sides” of the argument whether it’s okay to murder six million people.

The Guardian, among other news sources, has the story.

A Texas school district official told educators if they kept books about the Holocaust in their classrooms, they would have to also offer “opposing” viewpoints in order to comply with a new state law.

In an audio clip obtained by NBC News, Gina Peddy, the executive director of curriculum and instruction for Carroll independent school district in Southlake, offered the guidance to teachers during a training on which books teachers can keep in classroom libraries.

The directive came as part of a training session during which a fourth-grade teacher was reprimanded for having a book on anti-racism in her class.

It followed the passage of a new Texas law that requires teachers who discuss “widely debated and currently controversial issues of public policy or social affairs” to examine the issues from diverse viewpoints without giving “deference to any one perspective”.

At the training, Peddy advised teachers to remember the requirements of the new law, according to the audio. “And make sure that if you have a book on the Holocaust,” she said, “that you have one that has an opposing, that has other perspectives,” which prompted a teacher to ask how one could oppose the Holocaust.

Given that this is Texas, one distinct possibility is that Gina Peddy has no idea what the holocaust was. Teaching accurate history–okay, history–is evidently not a priority for Texas school systems. After all, this is a state that celebrates a fictitious version of the Alamo, a state that passed a law banning the teaching of Critical Race Theory, despite the fact that it wasn’t being taught and despite considerable evidence that the legislators and governors involved in the frenzy couldn’t have defined it if their lives depended on it.

If Texas’ governor and legislature weren’t so determined to make themselves ridiculous–not to mention dangerous– it would be unfair to pick on the state. After all, twenty-two states have passed laws prohibiting their public schools from discussing “uncomfortable” elements of the nation’s historical bigotries.

The directive to “teach the other side” joins the equally asinine efforts to “teach the controversy” over evolution. Religious zealots who denied science created the “controversy” and then used it to justify bringing religious dogma into science classrooms. People desperate to protect their children from the less glorious aspects of American history seized on a theory being pursued by a subset of legal scholars–creating the “controversy”– and are using it as blunt instrument to defend the indefensible.

In fact, Texas’ current embarrassment is just the latest iteration of the persistent American divide between people who want the public schools to educate and those who want them to indoctrinate–between those who want to limit the nation’s schools to the inculcation of skills needed to participate in the economy, and those who want educators to encourage intellectual curiosity and growth.

The order to “balance” condemnation of the holocaust with–what? Mien Kampf?–was entirely foreseeable. After all, the attacks on school boards (in all fairness, not just in Texas but around the country) have come almost exclusively from parents and others demanding that history be whitewashed (pun intended), turned into soothing stories that allow Americans to brag about “exceptionalism” and who believe political rhetoric about the country’s past, unblemished “greatness.”

Unfortunately, their preferred stories aren’t history, and if they are taught in place of history, they’ll ensure that we keep making the mistakes that have kept us from greatness in the past.

 

 

 

 

Vouchers And Disinformation

Religious Liberty, , ,

I have posted numerous times about the myriad ways in which advocates of “privatization” and “choice” in education have contributed to the hollowing out of America’s civic structure. “Choice” sounds great. Providing citizens with a wide freedom of choice–of religion, politics, lifestyle– is a quintessentially American goal. The problems occur when institutionalized choices promote division and undermine civic cohesion.

In far too many communities today, the “educational choice” being offered is the opportunity to shield one’s children from intellectual and cultural diversity. Vouchers provide parents with tax dollars that allow them to insulate their children from  one of the very few remaining “street corners” left in contemporary American society. Whatever their original intent, as vouchers work today, they are mechanisms allowing parents to remove their children from public school classrooms and classmates that may be conveying information incompatible with those parents’ beliefs and prejudices.

In virtually all states with active voucher programs, including Indiana, well over 90% of participating schools are religious– vouchers have allowed sympathetic courts to do an end-run around the First Amendment’s separation of church and state. I’ve previously posted evidence that fundamentalist religious schools are teaching creationism rather than science--but it isn’t simply the science curriculum that is being corrupted by dogma. As a recent article from The Guardian reports, those schools are equally likely to distort accurate history.

One history textbook exclusively refers to immigrants as “aliens”. Another blames the Black Lives Matter movement for strife between communities and police officers. A third discusses the prevalence of “black supremacist” organizations during the civil rights movement, calling Malcolm X the most prominent “black supremacist” of the era.

Legislatures and boards of education around the US are currently engaging in acrimonious battles about how issues of race and equity are taught in public K-12 classrooms – the latest culture war in a decades-long fight around whose stories and contributions get highlighted in school. But largely left out of this conversation has been the education provided in private schools, thousands of which have quietly been excluding diverse voices and teaching biased versions of history for years.

The textbooks reviewed by the Guardian are used in thousands of private religious schools–schools that receive tens of thousands of dollars in public funding every year. They downplay descriptions of slavery and ignore its structural consequences.  The report notes that the books “frame Native Americans as lesser and blame the Black Lives Matter movement for sowing racial discord.”

As Americans fight over wildly distorted descriptions of Critical Race Theory–a manufactured culture war “wedge issue” employed by parents fighting against more inclusive and accurate history instruction- -the article correctly points out that there has been virtually no attention paid to the curricula of private schools accepting vouchers. As the article notes,

Private schools, unlike public ones, receive little oversight or restrictions when it comes to curriculum. In truth, thousands of private schools are currently teaching history through a racially biased lens.

Shades of the old segregation academies.

The Guardian reviewed dozens textbooks produced by the Christian textbook publishers Abeka, Bob Jones University Press and Accelerated Christian Education, three of the most popular textbook sources used in private schools throughout the US. These textbooks describe slavery as “black immigration”, and say Nelson Mandela helped move South Africa to a system of “radical affirmative action”.

The Abeka website boasts that in 2017, its textbooks reached more than 1 million Christian school students. The Accelerated Christian Education website claims its materials are used in “tens of thousands of schools.” One of its textbooks still refers to the civil war as the “war between the states,” and has a section titled “Black immigration”–characterizing the slave trade as “sometimes unwilling immigration.”

With respect to Reconstruction, the Accelerated Christian Education textbook contained the following characterization:

Under radical reconstruction, the south suffered. Great southern leaders and much of the old aristocracy were unable to vote or hold office. The result was that state legislatures were filled with illiterate or incompetent men. Northerners who were eager to make money or gain power during the crisis rushed to the south … For all these reasons, reconstruction led to graft and corruption and reckless spending. In retaliation, many southerners formed secret organizations to protect themselves and their society from anarchy. Among these groups was the Ku Klux Klan, a clandestine group of white men who went forth at night dressed in white sheets and pointed white hoods.

Unsurprisingly, the books were equally biased against homosexuality and same-sex marriage.Science denial, bogus history and homophobia are unlikely to prepare students for life in contemporary American society.

The U.S. Constitution gives parents the right to choose a religious education for their children. It does not impose an obligation on taxpayers to fund that choice, and we continue to do so at our peril.