Perspectives…

During family gatherings, one of my sons often retells the story of a long-ago visit to the Rice Museum in Georgetown, South Carolina, and an accompanying tour guide/docent’s  description of a couple of the displays. (Docent may be an overly grand title; the museum is tiny and its displays are, shall we say, homegrown).Georgetown was the rice capital of the world back in the 1700s, and as we viewed a painting of Black folks working in a rice field, she explained that one of the most egregious injustices of the Civil War was the fact that, when the slaves were freed, plantation owners weren’t compensated for the loss of their property.

In her view, if the government was going to deprive them of the use of their “property,” it had an obligation to reimburse them…

At the time–well over twenty years ago– it was all I could do to keep my son from delivering  some very non-genteel observations about the definition of property. The incident clearly made an impression on him, because every so often he still marvels at the culture that led this otherwise pleasant-seeming woman to view other human beings as the equivalent of cattle and their “appropriation” as tantamount to theft.

I thought about that incident when I read a Talking Points Memo report on a recent Fox “News” segment. Here’s the lede:

Today’s little Fox News gem was a segment on what a huge bummer it is to visit Thomas Jefferson’s Monticello these days, what with all the focus on slavery and what not at what was built as a slave plantation.

A bow-tied, bespectacled guest for the segment was billed hilariously in one chyron as a “recent Monticello visitor.” Turns out there’s a little more to the story.

The bow-tied visitor–one Jeffrey Tucker– complained that even Monticello hadn’t been protected from “this disease of wokeism.” It turned out that Tucker had some history of his own–and that history was illuminating.

One thing about the internet–once something is posted, it is there forever…(I hope that’s true of those deleted Secret Service texts. But I digress.)

A 20-year-old report by the Southern Poverty Law Center about the Neo-Confederate movement had identified Tucker as a founding member of something called the League of the South–a proudly racist organization. He denied being a founder, but he was listed on the League’s Web page as a “founding member,” and he has written for League publications. Furthermore, several League members have lectured at events held by Tucker’s Ludwig von Mises Institute.

As the story from Talking Points Memo concluded,

Tucker’s star turn on today’s Fox segment came just a few days after he served as a named source for a New York Post story headlined “Monticello is going woke — and trashing Thomas Jefferson’s legacy in the process.”

It’s usually a little more difficult to pinpoint the origins of the newest right wing hobbyhorse. Tucker’s presence makes this one easy.

On the right, “going woke” is a current, favorite slur. (A recent, contending meme floating around defines “woke” individuals as people “who didn’t sleep through science and history classes.”)

We all occupy informational and value bubbles. In my bubble, where conversations tend (mostly but admittedly not always) to be based on credible, verifiable evidence,  a recurring discussion revolves around the question “how can any sane person believe [fill in the blank].

It’s one thing to recognize the political lens through which MSNBC and CNN, among others, view events. It is exceedingly misleading to equate that perspective with the out and proud dishonesty of outlets like Fox and OAN. There is a significant difference between a point of view and the constant dissemination of intentional propaganda carefully crafted for, and aimed at, a constituency desperate to confirm belief in a patently false narrative.

Apparently, it would take something like cult deprogramming to dislodge the profoundly racist paradigms through which far too many Americans continue to view the world. We can only hope that most of the Americans who continue to embrace that worldview are elderly and will eventually die off–leaving Fox and its clones with a significantly smaller audience for their deliberate disinformation.

I’m a member of that older cohort, but I’m convinced it’s past time to turn the levers of government over to a younger generation. If my former students were representative, they were far more inclusive, far less credulous, and far more concerned with the common good than my cranky and curmudgeonly generation.

Comments

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

Comments

About Those Statues…

In the last couple of days, I’ve gotten two messages from friends in different (Northern) states who are troubled about the efforts to remove statues of Civil War figures. 

Here’s the first:

I am in a quandary. I am an educated, white, privileged male.  I can understand, but not empathize with, the thoughts of those who wish to see the statues of Confederate officers removed.  As an English major, I also see the statues as art.  So what is next? Paintings, then books? Are the Holocaust museum displays too emotional, the paintings at the WWII museum too one-sided, the ceiling of the Sistine Chapel acceptably historical?  And who would decide?  

Shakespeare said a rose by any other name would smell as sweet.  Is Fort Bragg any less offensive to humanity than Fort Sherman?  

I don’t want to get too deep in the weeds with the idea, but I do see the opportunity for a slippery slope.  Maybe it’s just my white, privileged male quandary? 
I look forward to your thoughts.

Here’s the second:

I’ve been thinking a lot about the new wave of dismantling Confederate statues, not displaying the Confederate flag, dropping Gone with the Wind from Netflix, Lady Antebellum changing their name to Lady A, etc. I agree with a lot of this, but I wonder if we’re going too far? Where do we draw the line? I noted on Facebook that Washington and Jefferson were slave owners. Should we tear down their monuments while we’re at it? Is it rewriting history? I would love for you to write a blog about this and help me figure it out!

Both of these individuals are progressive, thoughtful and public-spirited. If they are uncomfortable with removing these monuments and renaming bases, I’m sure many other people are equally conflicted.

Here’s my “take” on the issue:

First of all, I see a profound difference between statues and monuments that honor historical figures, and museum and other displays that educate about those figures. The placement of statues in public places pretty clearly falls into the first category. (In a couple of instances, Confederate statues have been moved to museums rather than destroyed–an implicit recognition of the difference, and in my view, an entirely satisfactory resolution.) With respect to the names of military posts, same thing—we don’t name streets, buildings, etc. for “bad guys,” we reserve naming rights for figures we admire.

Germany doesn’t have statues of Hitler, but German history certainly hasn’t been lost.

The men who fought for the South in the American Civil War were defending slavery– an indefensible system–and they were traitors to their country. We should remember them, but we certainly shouldn’t honor them. (There’s also the fact that most of these monuments were erected long after the war, to signal white resistance to the civil rights movement.)

So I think removing Civil War statues is a relatively easy call. But I understand the concern about “slippery slopes.”

None of the historical figures we admire were perfect people. As the second message notes, Washington and Jefferson (among others) were slaveowners. But we don’t honor them for slave-holding; we honor them for their willingness to risk their “lives, fortunes and sacred honor” to bring a new nation into existence, and for their crafting of the Constitution and Bill of Rights.  

If being a flawed human being was reason to ignore significant contributions made by historical figures, there wouldn’t be many statues. (Maybe Mother Teresa, although who knows? There might be something in her past….)

Before we either defend or dismantle a monument, I think we need to ask why it exists, and what it is that we are honoring.

It’s pretty clear that the only reason there are statues of Robert E. Lee and other Civil War figures is because they were central figures in an uprising–a rebellion– against our country. We are honoring their decision to be traitors, and implicitly sending a message that although they lost, their “cause” was honorable.

In the case of figures like Jefferson, Madison, Washington, et al, we are honoring their undisputed service and the importance of their contributions–and those contributions are clearly worthy of honor.

Anyway–that’s my take on the issue. I welcome the perspectives of my readers.

Comments

Quotes From The Founders of Our “Christian Nation”

One of the many things Thomas Jefferson was known for was creating his own version of the bible: he famously excised all of the metaphysical portions, leaving only the moral teachings. (This may be why, when he was running for President, opponents warned that  he would order the burning of all bibles if he were to be elected.) I thought about that recently, when I came across a collection of quotations about religion and religious liberty from Jefferson and America’s other founding fathers. I was familiar with most, but not all of them. Of those I hadn’t previously seen, I particularly liked this one from Jefferson, taken from a letter he wrote to one Peter Carr in 1787:

“Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

Ben Franklin was more blunt. In Poor Richard’s Almanac, in 1758, he wrote

“The way to see by faith is to shut the eye of reason.”

Although not technically a Founder, Thomas Paine was an enormously influential figure in Revolutionary America, and a reliable critic of religion and religious establishments; in The Rights of Man, he wrote

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity.”

In 1776, in The American Crisis, he made his disdain for “faith-based” reasoning even clearer, writing

“To argue with a man who has renounced the use of reason is like administering medicine to the dead.”

(Explains the problem with several current members of Congress, the General Assembly and most of Texas….)

Madison frequently weighed in on the side of reason and the need to separate church from state. In his often-quoted letter to William Bradford, he wrote

“Christian establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

There are many similar quotes from the architects of our Constitution, easily found in textbooks, history books or a cursory visit to Doctor Google. This nation’s founders tended to agree with Gallileo that “man is not obliged to believe that the same God who has endowed us with senses, reason and intellect intends us to forgo their use.” However avid our current culture warriors may be about rewriting American history, it’s impossible to ignore the continued relevance of these sentiments. In fact, in view of the current push for explicit religious “liberty” to discriminate against LGBT folks, another Jefferson quote (from A Bill for Establishing Religious Freedom) seems especially apt:

“Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

You tell ’em, Tom!

Comments