Wednesday, October 23, 2013
The Civil War Must Be Refought In Every Generation: Obamacare and the Common Core Learning Standards
The Civil War Must Be Refought In Every Generation: Obamacare and the Common Core Learning Standards: Just about everything that people say is wrong with Obamacare can be said to be wrong about the Common Core learning standards. It wa...
Monday, October 21, 2013
Obamacare and the Common Core Learning Standards
Just about everything that people say is wrong with
Obamacare can be said to be wrong about the Common Core learning
standards. It was forced into law by
self-appointed experts over the objections of large segments of people more
familiar with how things really work. No
one knows what the law really says or means, including the people who wrote the
law and are responsible for implementing it.
The launch has been a shambles.
Instructions change wildly every day.
Resources are not in place to do the things the law requires. Professionals (Doctors and Teachers) are
being held responsible for results they have no control over. Things that were designed to measure one
thing are being used to measure a number of totally different things. It can take years to get things right, and in
the meantime, lives and careers will be destroyed. Maybe things will never be right. Entire systems which had been developed over
a 100 years or more are being discarded.
The old way worked for most people pretty well, but it wasn't working at
all for certain other people. And maybe
it isn't the system that's the problem, but maybe those certain people (or
their families) aren't preparing themselves properly. They're relying on the system to do things
that they could do better themselves. If
they only had better personal habits.
There are great suspicions that all these changes were manufactured so
that certain special interests can get paid.
But still, a problem seems to exist in both education and health
insurance. In the case of the Common Core, we're told to suck it up, that we
all need time to experiment and work out the glitches. In the case of Obamacare, we shut down the
government. We're told to root for
failure.
Saturday, June 23, 2012
Obamacare and the end of Medicare
Since I am a bundle of pre-existing conditions, I feel like I have a great big
stake in the success of Obamacare. What scares me is that the Supreme Court will
declare Obamacare unconstitutional because it places too much of a burden on
state governments trying to administer Medicaid. I fear that the Supreme Court
will find large parts of both Obamacare and Medicare unconstitutional, as an
overreach of enumerated powers and the Commerce Clause.
I find it hard to believe that the Supreme Court is going to strike down Obamacare simply on the basis of the individual mandate. I can't believe the Supreme Court would do all that work on striking down Obamacare only to leave the door open for true "single payer" socialized medicine the next time the Democrats controls Congress and the Presidency.
My wishful thinking is that the Supreme Court will rest on this politically unpopular, but Constitutionally defensible argument (from a conservative standpoint) --- Romneycare good -- Obamacare bad.
My biggest fear is that this Supreme Court will throw themselves in the political thicket in a major way. The Court would say that Obamacare and Medicare and Medicaid are basically unconstituional. They would then go on to say that the only way to wind down the government's involvement in health insurance is to adopt the Ryan Plan, which grandfathers in healthcare for the older, whiter population, and leaves the younger hispanic and asian populations to pay for something that they will never get. I feel so cynical writing all this. But I just wanted to be on the record that the possibility exists that the Supreme Court will issue another Dred Scott like decision on Monday, and blow away decades and decades of how we think things work.
From what I am reading other people engaged in wishful thinking hope that either (a) Justice Kennedy will uphold Obamacare rather than blow up all the prior precedent, or (b) Chief Justice Roberts will uphold Obamacare under the more cynical calculation that at the end of the day no one in Washington really wants more power to go to the states. Chief Justice Roberts may also surprise us and admit that Obamacare is a political question, best left for the political branches to decide.
I find it hard to believe that the Supreme Court is going to strike down Obamacare simply on the basis of the individual mandate. I can't believe the Supreme Court would do all that work on striking down Obamacare only to leave the door open for true "single payer" socialized medicine the next time the Democrats controls Congress and the Presidency.
My wishful thinking is that the Supreme Court will rest on this politically unpopular, but Constitutionally defensible argument (from a conservative standpoint) --- Romneycare good -- Obamacare bad.
My biggest fear is that this Supreme Court will throw themselves in the political thicket in a major way. The Court would say that Obamacare and Medicare and Medicaid are basically unconstituional. They would then go on to say that the only way to wind down the government's involvement in health insurance is to adopt the Ryan Plan, which grandfathers in healthcare for the older, whiter population, and leaves the younger hispanic and asian populations to pay for something that they will never get. I feel so cynical writing all this. But I just wanted to be on the record that the possibility exists that the Supreme Court will issue another Dred Scott like decision on Monday, and blow away decades and decades of how we think things work.
From what I am reading other people engaged in wishful thinking hope that either (a) Justice Kennedy will uphold Obamacare rather than blow up all the prior precedent, or (b) Chief Justice Roberts will uphold Obamacare under the more cynical calculation that at the end of the day no one in Washington really wants more power to go to the states. Chief Justice Roberts may also surprise us and admit that Obamacare is a political question, best left for the political branches to decide.
Thursday, August 05, 2010
Repeal The 14th Amendment?
My friends at the exciting new blog American-Rattlesnake want us to stay open to the idea of repealing the 14th Amendment.
That just raises the hair on my neck.
I responded:
The reason the 14th Amendment had to be enacted was because the United States had already experienced a situation where there was no birthright citizenship. That situation was called slavery.
The purpose of the 14th Amendment is to avoid the creation of a permanent underclass in this country that would have no ability to exercise their freedom. Over time, this permanent underclass would depress wages, depress rights, and drag everyone else's wages and freedoms down the drain as well.
That understanding is a big reason why so many Northerners risked their lives during the Civil War to give freedom to a certain group of people, despite the fact that few Northerners in the 1860s considered that group of people to be their true equals.
The 14th Amendment, as finally written into the Constitution, has nothing to do with immigration. I don't know how people can say that the Constitution is really about the things that got voted down during debate. I don't know how so many people (not necessarily your particular post, but certainly great swatches of the Tea Party movement, purported spokesmen for the Republican Party, and even the current Chief Justice) can act as if America's story is only about what the Revolutionary founders wanted, or how the Revolutionary founders might have reacted to events in the 21st Century. Equal attention, and perhaps greater attention has to be given to Abraham Lincoln, what happened during the Civil War, and what it continues to mean today.
Obviously I cannot prove this, but it seems to me that repealing the 14th Amendment or even implementing laws enforcing a strong guest worker program, would ultimately lead to the reintroduction of some form of slavery into the United States. That result is far worse than any immigration problem we have currently or will ever have.
That just raises the hair on my neck.
I responded:
The reason the 14th Amendment had to be enacted was because the United States had already experienced a situation where there was no birthright citizenship. That situation was called slavery.
The purpose of the 14th Amendment is to avoid the creation of a permanent underclass in this country that would have no ability to exercise their freedom. Over time, this permanent underclass would depress wages, depress rights, and drag everyone else's wages and freedoms down the drain as well.
That understanding is a big reason why so many Northerners risked their lives during the Civil War to give freedom to a certain group of people, despite the fact that few Northerners in the 1860s considered that group of people to be their true equals.
The 14th Amendment, as finally written into the Constitution, has nothing to do with immigration. I don't know how people can say that the Constitution is really about the things that got voted down during debate. I don't know how so many people (not necessarily your particular post, but certainly great swatches of the Tea Party movement, purported spokesmen for the Republican Party, and even the current Chief Justice) can act as if America's story is only about what the Revolutionary founders wanted, or how the Revolutionary founders might have reacted to events in the 21st Century. Equal attention, and perhaps greater attention has to be given to Abraham Lincoln, what happened during the Civil War, and what it continues to mean today.
Obviously I cannot prove this, but it seems to me that repealing the 14th Amendment or even implementing laws enforcing a strong guest worker program, would ultimately lead to the reintroduction of some form of slavery into the United States. That result is far worse than any immigration problem we have currently or will ever have.
Tuesday, July 03, 2007
The Civil War Must Be Refought In Every Generation
This essay is called "The Civil War Must Be Refought In Every Generation"
I wrote it 1996, after listening to Robert Dole accept the Republican nomination for President. I did not try to update it, as I feel that even my references to things that are not currently discussed are about things just lurking under the surface.
It is my bedtime story, and it informs everything political and historical that I write.
It is a little pedantic, as I cover points that you all know about. When I re-read it, some of it seemed contradictory, but I realize that what it proves, again, is that I stand in an odd place politically. There is a little more conservative blood in me than in most self-described liberals, but not enough to be a Republican!
Here it is
THE CIVIL WAR MUST BE REFOUGHT IN EVERY GENERATION
We are still, 200 years later, a new experiment on the face of the earth. We are a nation conceived in liberty, and dedicated to the proposition that certain truths are self-evident. All men are created equal. We are endowed by our creator with certain inalienable rights, such as life, liberty and the pursuit of happiness. We, the people, in order to form a more perfect Union, founded a government of the people, by the people, and for the people.
It is easy to say that we fall short of these ideals every single day. For about fourscore and seven years, the ideals themselves were questioned. Some argued that all men were not created equal, and that the best way for some men to live was as the property of other men. Citizenship was not granted on the basis of where you were born, but on the color of your skin.
Some argued that the people had no legitimacy to form a more perfect Union. Some said that the people had nothing to do with the Union, that the Union was one of States, not people. It was, after all, the United States of America, and not the United People of America. Any rights that the people had came from the individual States, and not the United States.
In 1856, former President Fillmore ran for election with a third party, the Know-Nothing Party. He won 21 percent of the popular vote on a platform that sought to eliminate benefits to immigrants, whether they were citizens or not. There was a feeling that Germans and Roman Catholics were taking too many jobs from real Americans.
Then we engaged in a great civil war, in which those believed in one ideal fought against those who believed in another ideal. Meade held off Lee at Gettysburg. Sherman burned down Atlanta and Charleston. Grant marched into Richmond.The single fact of our history is that the Union won the Civil War in 1865, and those who lost it have been trying to reverse that result ever since.
When people say that the 60s are a mistake, or that such and such a thing proves that the 60s spirit is still alive, and that people have the power, or that such and such a thing proves that the 60s are over, and good riddance, I always have to ask them which 60s they are talking about.Slavery was abolished in the 60s, and the 14th Amendment gave all citizens equal rights.
Among other factors, a labor movement, a woman’s suffrage movement, a civil rights movement, and a nationalist Supreme Court, tried to inch the concept of equal rights closer to reality.Land was plentiful. If you lacked an opportunity, or could not take advantage of an opportunity, you could go west. We needed more help, and with more open-handedness and more open-heartedness than any people in the history of the earth, we invited people who were willing to work to come join us. We educated the children of these people. We demanded that the government educate them. We took advantage of this education. We succeeded and succeeded.
From another land, a power arose that believed that more people were more equal than others. That some people were slaves, and that other people really weren’t people at all. This power felt that citizenship was not to be based on who you are, or where you were born or what you agreed to do as a citizen, but on who your great-grandfather was. We smote that power and we ruled the world.
Were things better then, as Bob Dole says they were? I guess if you are the only country standing after the rest of the world is destroyed, things will be better for the winners. If we wanted to destroy the rest of the world, and be winners like that, things could be “better” again. Sexual repression and rigid religious intolerance did not make things better then. Low taxes, no Miranda rights, and lynchings did not make things better. Winning World War II made things better.
A Cold War simmered after that. We were opposed by an evil empire. Why was it evil? One reason was that it took a good idea – our idea of government of the people, by the people, and for the people --- and perverted it. We won that war, too.
After the Cold War ended, we saw something strange happening. We discovered that in places like Yugoslavia, 45 years of totalitarianism, of police state repression and fear, could not wipe out the basic centuries-old animosity that people had for their neighbors.
The same is true here in the United States. The great animosity that never quite went away and that revived itself full-throttle after the United States won the Cold War, was the great fact that the Union won the Civil War in 1865, and the losers have been trying to reverse that result ever since.
When Newt Gingrich speaks of a Contract with America, and when Pat Buchanan speaks of a cultural war, and when, most surprisingly to me, Bob Dole, the man from bleeding Kansas, in accepting the Republican nomination, denigrates the legitimacy of the executive branch to spend tax dollars, and relies on the “American people” (whoever they are), we discover that despite the fact that all Americans have fought to defend this country through two World Wars, a Cold War, and assorted other wars, despite the unparalleled success of the United States from 1865 to 1996, we cannot wipe out the basic fact that not everyone accepted the result of the Civil War.
The Civil War must be refought in every generation, and in this generation, there are times when it seems that the losers of the Civil War are winning the latest battle.
The battle manifests itself in a platform that attempts to deny the basic rights of citizenship to children born in America. It defines citizenship, just as Millard Fillmore and the Know-Nothings did, just as slave owners did, totally on who your grandparents were. If there is an “American people” as Bob Dole say, and not “American citizens” as the Constitution says, you wind up with a nativist Republican platform plank.
The battle manifests itself in any and every discussion of block grants. Only in an environment which values states rights over the rights of people could we pass laws where a taxpayer from New York or California pays money to Washington and then be told by Washington that the money was being transferred to Little Rock and Jackson without any oversight, without any right of the person from New York or California to know what the money was being used for. This is neither a state tax nor a Federal tax. It is a state with certain values trying to assert primacy over a state with other values.
The battle manifests itself in any and every discussion of the legitimacy of Federal taxes. If we the people tried to form a more perfect Union, and the Federal government, over the long term, is somewhat responsive to we the people, then the government is worthy of our financial support. After all, without the Federal government, we would not be as prosperous. Through the coordination of the Federal government, we the people built canals, built turnpikes, built the railroads, supported the transcontinental cable, built the interstate highway system, launched telecommunications satellites, flew to the moon, and through the military, developed the Internet. People made financial fortunes standing on the shoulders of the efforts of we the people. Everyone’s tax dollars went to developing the tools through which many of these efforts were possible.However, if the government of the United States is to the individual states what the United Nations is to the individual nations, then paying taxes to the Federal government can be seen as intrusive, redundant, and illegitimate, despite the Constitutional amendment expressly allowing Federal income taxes. If the Federal government is not worthy of financial support, it is not that important, and it should not be too worrisome to shut the Federal government down.
The very notion of a “Contract With America,” the very choice of the words “Contract With America.” no matter what its contents, implies that the government is not of the people, by the people, and for the people. The very notion of a Contract “with” America implies that government is an outside alien entity that needs to enter a contract with the American people (whatever that means) to be legitimate.
That, however, was not the result of the Civil War. The result of the Civil War was that there is no Contract with America. There is a contract of, by and for America. It is called the Constitution. It is made among people with American citizenship, which is a privilege that comes with being born on the land, or comes by meeting certain minimal citizenship requirements. I hold these truths to be self-evident. Pat Buchanan does not.The people who wish to defend the Constitution better wake up and go to war to defend it. The people against the Constitution have been wide awake for a very long time.
I wrote it 1996, after listening to Robert Dole accept the Republican nomination for President. I did not try to update it, as I feel that even my references to things that are not currently discussed are about things just lurking under the surface.
It is my bedtime story, and it informs everything political and historical that I write.
It is a little pedantic, as I cover points that you all know about. When I re-read it, some of it seemed contradictory, but I realize that what it proves, again, is that I stand in an odd place politically. There is a little more conservative blood in me than in most self-described liberals, but not enough to be a Republican!
Here it is
THE CIVIL WAR MUST BE REFOUGHT IN EVERY GENERATION
We are still, 200 years later, a new experiment on the face of the earth. We are a nation conceived in liberty, and dedicated to the proposition that certain truths are self-evident. All men are created equal. We are endowed by our creator with certain inalienable rights, such as life, liberty and the pursuit of happiness. We, the people, in order to form a more perfect Union, founded a government of the people, by the people, and for the people.
It is easy to say that we fall short of these ideals every single day. For about fourscore and seven years, the ideals themselves were questioned. Some argued that all men were not created equal, and that the best way for some men to live was as the property of other men. Citizenship was not granted on the basis of where you were born, but on the color of your skin.
Some argued that the people had no legitimacy to form a more perfect Union. Some said that the people had nothing to do with the Union, that the Union was one of States, not people. It was, after all, the United States of America, and not the United People of America. Any rights that the people had came from the individual States, and not the United States.
In 1856, former President Fillmore ran for election with a third party, the Know-Nothing Party. He won 21 percent of the popular vote on a platform that sought to eliminate benefits to immigrants, whether they were citizens or not. There was a feeling that Germans and Roman Catholics were taking too many jobs from real Americans.
Then we engaged in a great civil war, in which those believed in one ideal fought against those who believed in another ideal. Meade held off Lee at Gettysburg. Sherman burned down Atlanta and Charleston. Grant marched into Richmond.The single fact of our history is that the Union won the Civil War in 1865, and those who lost it have been trying to reverse that result ever since.
When people say that the 60s are a mistake, or that such and such a thing proves that the 60s spirit is still alive, and that people have the power, or that such and such a thing proves that the 60s are over, and good riddance, I always have to ask them which 60s they are talking about.Slavery was abolished in the 60s, and the 14th Amendment gave all citizens equal rights.
Among other factors, a labor movement, a woman’s suffrage movement, a civil rights movement, and a nationalist Supreme Court, tried to inch the concept of equal rights closer to reality.Land was plentiful. If you lacked an opportunity, or could not take advantage of an opportunity, you could go west. We needed more help, and with more open-handedness and more open-heartedness than any people in the history of the earth, we invited people who were willing to work to come join us. We educated the children of these people. We demanded that the government educate them. We took advantage of this education. We succeeded and succeeded.
From another land, a power arose that believed that more people were more equal than others. That some people were slaves, and that other people really weren’t people at all. This power felt that citizenship was not to be based on who you are, or where you were born or what you agreed to do as a citizen, but on who your great-grandfather was. We smote that power and we ruled the world.
Were things better then, as Bob Dole says they were? I guess if you are the only country standing after the rest of the world is destroyed, things will be better for the winners. If we wanted to destroy the rest of the world, and be winners like that, things could be “better” again. Sexual repression and rigid religious intolerance did not make things better then. Low taxes, no Miranda rights, and lynchings did not make things better. Winning World War II made things better.
A Cold War simmered after that. We were opposed by an evil empire. Why was it evil? One reason was that it took a good idea – our idea of government of the people, by the people, and for the people --- and perverted it. We won that war, too.
After the Cold War ended, we saw something strange happening. We discovered that in places like Yugoslavia, 45 years of totalitarianism, of police state repression and fear, could not wipe out the basic centuries-old animosity that people had for their neighbors.
The same is true here in the United States. The great animosity that never quite went away and that revived itself full-throttle after the United States won the Cold War, was the great fact that the Union won the Civil War in 1865, and the losers have been trying to reverse that result ever since.
When Newt Gingrich speaks of a Contract with America, and when Pat Buchanan speaks of a cultural war, and when, most surprisingly to me, Bob Dole, the man from bleeding Kansas, in accepting the Republican nomination, denigrates the legitimacy of the executive branch to spend tax dollars, and relies on the “American people” (whoever they are), we discover that despite the fact that all Americans have fought to defend this country through two World Wars, a Cold War, and assorted other wars, despite the unparalleled success of the United States from 1865 to 1996, we cannot wipe out the basic fact that not everyone accepted the result of the Civil War.
The Civil War must be refought in every generation, and in this generation, there are times when it seems that the losers of the Civil War are winning the latest battle.
The battle manifests itself in a platform that attempts to deny the basic rights of citizenship to children born in America. It defines citizenship, just as Millard Fillmore and the Know-Nothings did, just as slave owners did, totally on who your grandparents were. If there is an “American people” as Bob Dole say, and not “American citizens” as the Constitution says, you wind up with a nativist Republican platform plank.
The battle manifests itself in any and every discussion of block grants. Only in an environment which values states rights over the rights of people could we pass laws where a taxpayer from New York or California pays money to Washington and then be told by Washington that the money was being transferred to Little Rock and Jackson without any oversight, without any right of the person from New York or California to know what the money was being used for. This is neither a state tax nor a Federal tax. It is a state with certain values trying to assert primacy over a state with other values.
The battle manifests itself in any and every discussion of the legitimacy of Federal taxes. If we the people tried to form a more perfect Union, and the Federal government, over the long term, is somewhat responsive to we the people, then the government is worthy of our financial support. After all, without the Federal government, we would not be as prosperous. Through the coordination of the Federal government, we the people built canals, built turnpikes, built the railroads, supported the transcontinental cable, built the interstate highway system, launched telecommunications satellites, flew to the moon, and through the military, developed the Internet. People made financial fortunes standing on the shoulders of the efforts of we the people. Everyone’s tax dollars went to developing the tools through which many of these efforts were possible.However, if the government of the United States is to the individual states what the United Nations is to the individual nations, then paying taxes to the Federal government can be seen as intrusive, redundant, and illegitimate, despite the Constitutional amendment expressly allowing Federal income taxes. If the Federal government is not worthy of financial support, it is not that important, and it should not be too worrisome to shut the Federal government down.
The very notion of a “Contract With America,” the very choice of the words “Contract With America.” no matter what its contents, implies that the government is not of the people, by the people, and for the people. The very notion of a Contract “with” America implies that government is an outside alien entity that needs to enter a contract with the American people (whatever that means) to be legitimate.
That, however, was not the result of the Civil War. The result of the Civil War was that there is no Contract with America. There is a contract of, by and for America. It is called the Constitution. It is made among people with American citizenship, which is a privilege that comes with being born on the land, or comes by meeting certain minimal citizenship requirements. I hold these truths to be self-evident. Pat Buchanan does not.The people who wish to defend the Constitution better wake up and go to war to defend it. The people against the Constitution have been wide awake for a very long time.
Saturday, January 07, 2006
The Civil War Must Be Refought In Every Generation --- A Radical Footnote
I reposted what I call my "bedtime story" The Civil War Must Be Refought In Every Generation .
I wrote it in 1996 on an old Brother Word Processor, and I edited it slightly, when I retyped it into Blogger on the day after Election Day 2004.
When I put it up today, I did not re-edit it at all.
One prominent school of scholarship says that the Civil War occurred because the elite class in both the North and the South became more radical than the people they were representing. The Southern leadership was more secessionist than the Southern people. The Northern leadership was more abolitionist than the Northern people. Instead of the leadership (basically the older men) cooling the passions of the rabble (basically the younger men), they inflamed them into fighting, where there may have, in fact, been more room to compromise.
My own view of the matter, which I have discussed at various points on this blog, is that although the South seceded over something called "states rights," they meant something very different (in the 1850s) from what the term came to mean (basically in the 1950s). The states righters of the 1850s, I contend, did not feel that the Federal government was too strong.
They felt that the Federal government needed to be very strong to protect the "states rights" -- i.e. -- the rights of the states to make and enforce state laws regarding whatever they liked, notwithstanding the objections of the other states. In those days, they liked slavery.
When the South lost control of the Federal government, for the first time really, in the Election of 1860, they did not want the strong Federal government they created to be turned against them. Therefore, the South seceded.
"States Rights" in the 1850s context, especially in the radical notion espoused by John Calhoun, refers to the notion that the States, not the people, are the sovereign players in the Federal government. In order for me to make that claim, or for Calhoun or Cobb, or any of the other Fireeaters to make that claim, you have to assume that in the Preamble to the Constitution, either the phrase "We The People" refers to the States, or more likely, that the people give their power to the States.
In either context, under this theory, individuals are not direct players in the Federal government.
The Civil War changed that context on the ground, and the 13th Amendment and the 14th Amendment changed that result in the Constitution. The South lost the Civil War, and have spent the last 140 years trying to reverse that fact I am free to assume, and of course, I do assume, that whenever someone talks about longing for a Constitution that goes back to the "original intent of the framers" that they are looking for a Constitution that ignores the fact that the Civil War was fought, and ignores the Amendments that arose because of the War. Of course, the Supreme Court does that themselves all the time. But, its more than that.
If I am right in saying that the Civil War was fought because the South did not want the strong Federal government that they themselves had created to be used against them, then the South has managed to re-write history (fiction) that states rights meant a weak Federal government. And with the election of George W. Bush, they moved a long way, if not all the way, to success.
That, of course, is a library and a lifetimes worth of research and assumptions ploughed into one paragraph, but we'll deal with the specifics some other day.
But for now, it leads to the following conclusions: The Federal response to Hurricane Katrina -- "it's not my job man" -- is the direct result of the refusal to face the fact that the States Rights was not a cause of the Civil War. Slavery was.
Although States Rights could have other meanings, States Rights, as an actual doctrine in the world, has only been used as an excuse for racism early (as an excuse for free labor) and later on in the contexts of "right to work" -- (an excuse for cheap labor)
I wrote it in 1996 on an old Brother Word Processor, and I edited it slightly, when I retyped it into Blogger on the day after Election Day 2004.
When I put it up today, I did not re-edit it at all.
One prominent school of scholarship says that the Civil War occurred because the elite class in both the North and the South became more radical than the people they were representing. The Southern leadership was more secessionist than the Southern people. The Northern leadership was more abolitionist than the Northern people. Instead of the leadership (basically the older men) cooling the passions of the rabble (basically the younger men), they inflamed them into fighting, where there may have, in fact, been more room to compromise.
My own view of the matter, which I have discussed at various points on this blog, is that although the South seceded over something called "states rights," they meant something very different (in the 1850s) from what the term came to mean (basically in the 1950s). The states righters of the 1850s, I contend, did not feel that the Federal government was too strong.
They felt that the Federal government needed to be very strong to protect the "states rights" -- i.e. -- the rights of the states to make and enforce state laws regarding whatever they liked, notwithstanding the objections of the other states. In those days, they liked slavery.
When the South lost control of the Federal government, for the first time really, in the Election of 1860, they did not want the strong Federal government they created to be turned against them. Therefore, the South seceded.
"States Rights" in the 1850s context, especially in the radical notion espoused by John Calhoun, refers to the notion that the States, not the people, are the sovereign players in the Federal government. In order for me to make that claim, or for Calhoun or Cobb, or any of the other Fireeaters to make that claim, you have to assume that in the Preamble to the Constitution, either the phrase "We The People" refers to the States, or more likely, that the people give their power to the States.
In either context, under this theory, individuals are not direct players in the Federal government.
The Civil War changed that context on the ground, and the 13th Amendment and the 14th Amendment changed that result in the Constitution. The South lost the Civil War, and have spent the last 140 years trying to reverse that fact I am free to assume, and of course, I do assume, that whenever someone talks about longing for a Constitution that goes back to the "original intent of the framers" that they are looking for a Constitution that ignores the fact that the Civil War was fought, and ignores the Amendments that arose because of the War. Of course, the Supreme Court does that themselves all the time. But, its more than that.
If I am right in saying that the Civil War was fought because the South did not want the strong Federal government that they themselves had created to be used against them, then the South has managed to re-write history (fiction) that states rights meant a weak Federal government. And with the election of George W. Bush, they moved a long way, if not all the way, to success.
That, of course, is a library and a lifetimes worth of research and assumptions ploughed into one paragraph, but we'll deal with the specifics some other day.
But for now, it leads to the following conclusions: The Federal response to Hurricane Katrina -- "it's not my job man" -- is the direct result of the refusal to face the fact that the States Rights was not a cause of the Civil War. Slavery was.
Although States Rights could have other meanings, States Rights, as an actual doctrine in the world, has only been used as an excuse for racism early (as an excuse for free labor) and later on in the contexts of "right to work" -- (an excuse for cheap labor)
Sunday, October 30, 2005
The Intent of the Framers -- Roe v Wade and Terri Schiavo
I seem to keep coming back to the following point --- I believe that even a conservative Supreme Court will leave Roe v Wade stand until it can find a way to hold that abortion is illegal as a Constitutional matter. It can then hold that decisions regarding abortions never should have been, and therefore cannot now be, a matter of State law (or to close the circle, a matter of Congressional legislation).
The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.
In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)
Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)
On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.
Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.
I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.
The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.
In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)
Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)
On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.
Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.
I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.
The Intent of the Framers -- The Dred Scott Decision
The Supreme Court in Dred Scott said that Congress had no right to ban slavery in the territories that were not yet states. (In the case of Dred Scott it was Wisconsin, but as a political matter, Wisconsin was really a stand-in for Kansas and Nebraska and New Mexico. Nebraska and New Mexico both being much larger then than now.)
Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.
Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.
And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slave
Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.
Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.
And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slave
The Intent of the Framers -- Marbury v Madison and the Civil War Amendments
When originalists say that the Supreme Court should interpret the Constitution solely by the intent of the Framers, and the Supreme Court should have no more power than a Surrogates Court, one of the points some of the originalists are trying to make is that MARBURY v MADISON (1801 -- one of the key cases regarding Judicial Review) itself was wrongly decided
Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".
In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.
One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.
For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.
About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.
Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?
Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".
In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.
One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.
For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.
About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.
Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?
Subscribe to:
Posts (Atom)