On This Day in 1789 [repost]

[Repost from Rational Rant, 15 August 2009, slightly updated. I am dedicating this repost to the memory of Ed Brayton, without whose influence this post might never have been written.]

It’s Saturday, 15 August, 1789. Congress is in session in New York—the first congress under the new constitution. Up for discussion: a proposed constitutional amendment, to be inserted between the sentence guaranteeing habeas corpus and the one prohibiting ex post facto laws. It was one part of a political compromise, a series of amendments to the new constitution meant to keep doubters in the fold and to entice the undecided off the fence. We know the result today as the Bill of Rights. This proposed amendment read:

No religion shall be established by law, nor shall the equal rights of conscience be infringed.

Peter Silvester (P, NY), an Albany lawyer who had held (and would continue to hold) a variety of governmental positions in the new republic, immediately spotted a problem with the wording. The opening words could be taken two ways. The intention was to keep the new government from passing a law that would establish religion, but could it not also be taken as a command to the congress to establish “no religion” as the law of the land? He “had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether.”

Where on earth did this fear come from? Well, you have to remember that the issue of disestablishment (we would call it “separation of church and state”) was hot at the time, and that Virginia had recently emerged from a bruising battle on the subject when Patrick Henry had proposed a bill levying a tax to support all teachers of religion, a bill famously opposed and defeated by the efforts of James Madison—the author of the present amendment. You have to remember that in European states of the time the established church was generally tax-supported, and that there was no guarantee that religion could survive without that support. (And as we will see from a later point made by Benjamin Huntington, there was some sentiment afloat that people ought to be required to support some religious institution, at any rate.) So, at any rate, the first order of business was to rewrite Madison’s proposal to rule out the possibility of the Federal government being called upon to establish “no religion” by law.

John Vining (P, DE) proposed fixing the problem by “transposing the two members of the sentence.” I suppose he had in mind a wording like “No law shall be [enacted] to establish religion,” or something in that vein. Elbridge Gerry (A, MA) suggested the reading “no religious doctrine shall be established by law”—a version considerably narrower than anything else proposed so far, in that it would have allowed Congress to set standards for religious practice, presumably, or at least left that door wide open, even if it kept the government from establishing doctrine.

Roger Sherman (P, CT), Framer and Declaration signer, now derailed the discussion altogether. Even though politics had already decreed this was a dead issue, he reiterated that he “thought the amendment altogether unnecessary, inasmuch as Congress had not authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out.” Daniel Carroll (P, MD) quickly reminded him of these political realities, “As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.”

James Madison, Jr. (A, VA) patiently explained again the intended meaning of the amendment: “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” He once again went over the political necessity of the amendment: “Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.”

Benjamin Huntington (P, CT) now took the bull by the horns. He said “that he feared, with the gentleman first up on this subject, that the words might be taken in such a latitude as to be extremely hurtful to the cause of religion.” The underlying fear, no doubt, was the possibility that if state support for religion was removed, religion itself might wither away altogether. Huntington made a rather lame argument that “The ministers of their congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship, might be construed into a religious establishment.” He felt that the 1663 Rhode Island Charter (then over a century old) was radical enough; it guaranteed that dissenters from the Church of England would be tolerated (as long as they kept quiet about it) but didn’t actually encourage them. “He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.” And with this display of bigotry and intolerance Benjamin Huntington vanished from the debate.

If James Madison (or anybody else for that matter) thought Huntington’s remarks were worth responding to it doesn’t appear in the record. He went back to the main point of the wording, and suggested adding the word national before religion, which would have created the following result:

No national religion shall be established by law, nor shall the equal rights of conscience be infringed.

He thought (wrongly) that this “would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.”

Samuel Livermore (P, NH) was impatient with this nit-picking; “he did not wish them to dwell long on the subject.” He proposed a substitute amendment:

Congress shall make no laws touching religion, or infringing the rights of conscience.

This is an electrifying moment; suddenly we see the beginning of the actual language that will become the First Amendment. It's not there yet, of course; we still have “infringing the rights of conscience” rather than “prohibiting the free exercise thereof”, but it’s on its way. For the moment, however, the proposal just lies there; under consideration is Madison’s proposal to add the word national to his version of the amendment.

Elbridge Gerry (A, MA), Declaration signer and opponent of the new constitution, who had earlier in the debate suggested the language “no religious doctrine” to replace “no religion”, now objected strongly to the term national, in that a Federal, and not a National, government was under consideration. Madison defended his suggestion by observing “that the words ‘no national religion shall be established by law,’ did not imply that the Government was a national one,” but he withdrew his motion regardless in favor of Livermore’s version. The vote was then taken on that, and the amendment passed 31-20. Thus, had this been the end of the story, the First Amendment would have read:

Congress shall make no laws touching religion, or infringing the rights of conscience.

Of course as we know these were not the words that were going to become enshrined as part of the first article of the Bill of Rights; the Senate would have to pass its version, and a compromise would be hammered out between them, but for the moment their work was done, and it was on to consider such matters as freedom of speech, freedom of the press, and the freedom to peaceably assemble (one representative compared the last to the freedom to wear a hat). But the big effort of the day was over an amendment that would have given the right to the people to instruct their representatives. The argument over that one was heated, and ended with the defeat of the proposal. That debate in fact appears to have taken much longer than the debates about the various freedoms altogether.

And that's the way it was on this date in history two hundred thirty-one years ago.

Sic Transit

W

ell, it looks like the Supreme Court has ruled that “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” It’s about time. I never could see what business the state has telling any two unmarried adults whether they could get married or not. The only plausible reason ever advanced was eugenic—the prohibition on close relatives marrying was supposed to minimize the occurrence of unsound offspring—and with that concept having fallen into disrepute the whole point seems moot.

People can yammer all they like about marriage being redefined, but that ship sailed centuries ago. Parents may still arrange marriages in the backwoods parts of the world, wives may be legally required to obey their husbands in societies mired in the mud of medieval superstitions, marriage may be a very unequal partnership in the tribes of tradition, but not here in the United States. Marriage was redefined out of its traditional existence a long time ago. And frankly, that marriage was nothing more than a form of legalized slavery, a kind of forced prostitution, and there is nothing to mourn in its passing.

Quotation of the Day

You cannot call yourself pro-liberty, even including the word in your name, if you are unwilling to recognize that the greatest oppressive force opposing freedom in America is unregulated greed. Libertarianism is a philosophy for the well-off, the privileged, and those who dream someday of being a wealthy boss with power over the peons. When capital is the measure of success, those who have it thrive at the expense of those who don’t; when we don’t have redistribution of wealth, we do not have equality of opportunity.

The US is already a libertarian paradise, and look what it gets us: a widening gap between rich and poor, a rotting infrastructure as the exploiters look for short term gains while neglecting services vital to those who can’t afford a limousine service, a corrupt and decadent privileged class, and thriving new political parties that are simply nuts. To use one of Ayn Rand’s favorite words, this country is infested with looters: only they’re not the poor, they’re not the mythical “welfare queens”, they’re bankers and obscenely overpaid executives and corporations that demand the right to buy elections.

And there stand the libertarians, the useful idiots who cheer them on.

P. Z. Myers (“So I Invented a New Law the Other Day”)

Quotation of the Day

We should treat others well because we wish to be treated well. We should seek justice for others because we want justice for ourselves. We should protect the rights of others because we want our own rights protected. Our shared humanity demands it.

Ed Brayton (My Interfaith Thanksgiving Service Talk)

Redefining Marriage: Anyone Can Play

I don’t know how I stumbled onto this story out of Minnesota—I know somebody I read sent me there, but I can’t retrace my steps now—but a Federal judge there sent down this absolutely blistering opinion (Radtke v Local #638 Fund, PDF) against a union’s medical fund that decided on its own bizarre interpretation of state law that a man and his wife were not legally married. The Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund denied benefits to Christine Radtke, claiming that she was not legally Calvin Radtke’s spouse. In point of fact Calvin Radtke and his wife Christine were legally married under Minnesota law on 10 August 2005, as the fund in question was fully aware, as they were supplied with copies of the documents in question. But the fund decided that the marriage was not valid because Minnesota law explicitly rejects marriage “between persons of the same sex”. Apparently “Lawful marriage may be contracted only between persons of the opposite sex”.

So how on earth does this affect the Radtkes’ marriage? It is a matter of record that Calvin was recognized as male and Christine as female by the state of Minnesota at the time of their marriage. But the fund argued that as Christine was assigned male at the time of her birth, that should be the governing factor, and their marriage was therefore not valid under Minnesota law.

It was on this point that Judge Michael J. Davis waxed sarcastic, explaining the obvious as though trying to simplify matters so that a two-year-old could understand:

Minnesota’s requirements for the capacity to enter into a marriage contract, by their very nature, apply at the time the marriage is entered into. For example, both parties must have “attained the full age of 18 years.” Minn. Stat. § 517.02. Both parties must not be married to anyone else. Minn. Stat. § 517.03, subd. 1(a)(1). To apply these requirements as of some time other than the time of the marriage would be absurd—divorced individuals would be prohibited from marrying, and adults could not marry because they once were children. There is nothing in Minnesota law indicating that the opposite-sex requirement of § 517.01 should be treated differently from the other capacity requirements. Therefore, the opposite-sex requirement must be determined as of the time of the marriage, rather than as of the time of the participants’ births.

For reasons best known to themselves the Fund’s lawyers chose to drag in various irrelevancies concerning same-sex marriage—how it is seen by the Federal government and the state of Texas, for example. As the Radtkes were not claiming benefits on the basis of a “same-sex marriage” none of this had any conceivable relevance, as the Judge Davis correctly noted. The sole question at issue was whether the state of Minnesota recognized Christine Alisen Jensen as female at the time of her marriage—which it clearly did, as legal documents (including her amended birth certificate) showed, and her status as female was accepted by the IRS, the Minnesota Department of Public Safety, and the Social Security Administration.

The summary of the decision reads in part:

The Plan was unambiguously written to allow all persons who are legal spouses under Minnesota law to be eligible family dependents. The Fund’s role was to ascertain Minnesota law. It was not the Fund’s role to impose its own definitions of gender and marriage upon its participants. In this case, the Fund ignored all evidence of the State of Minnesota’s view of Plaintiff’s sex and marital status. The Fund’s decision was not only wrong, under a de novo review, it was a flagrant violation of its duty under any standard of review.

As if to make clear that their redefinition of marriage was not an honest misunderstanding of Minnesota law but only a cloak behind which they were hiding their prejudices, the union fund chose to rewrite its plan explicitly to exclude transgender spouses from all coverage:

[T]he Plan defines a spouse as a male or female member of a legally recognized marriage between a man and a woman. . . . For purposes of deciding whether a marriage is between a man and a woman, in all cases, the Board will only recognize the anatomical sex of the individual at the time of birth.

Nothing like an honest bigot, I guess. George Wallace would be proud.

Samuel Chase and the First Amendment

In the course of my wanderings today through various thickets of the underweb I stumbled on this quotation on a long-forgotten comment thread:

By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty.

It is there attributed to Samuel Chase, described as a member of the Continental Congress and an Associate Supreme Court Justice. I’ve seen this thing before, but I can’t find my notes on the subject, so I’m going to wing it here, relying on my aging memory. Bear with me.

A 2003 article entitled “Not Separation of God from State” attributed to Fr. Bill McCarthy sheds a little more light, after a fashion. McCarthy writes:

The process of drafting the First Amendment made the intent of the Founders abundantly clear; for before they approved the final wording, the First Amendment went through nearly a dozen different iterations and extensive discussions.

Those discussions—recorded in the Congressional Records from June 7 through September 25 of 1789—make clear their intent for the First Amendment. By it, the Founders were saying: “We do not want in America what we had in Great Britain: we don’t want one denomination running the nation. We will not all be Catholics, or Anglicans, or any other single denomination. We do want God’s principles, but we don’t want one denomination running the nation.”

This intent was well understood, as evidenced by court rulings after the First Amendment. For example, a 1799 court declared:

“By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed on the same equal footing.”

Again, note the emphasis: “We do want Christian principles—we do want God’s principles—but we don’t want one denomination to run the nation.”

Now, just to be clear, the business about “God’s principles” that McCarthy placed between quotation marks is not a quotation—it is something McCarthy apparently invented out of his own head. It is neither a quotation, nor a paraphrase, of anything that was recorded during the discussions on what would become the first amendment. But he does note that the quotation we’re interested in—“The Christian religion is the established religion” one—comes from a 1799 case.

Another source is even more helpful:

One of the first cases that came before the Supreme Court in which religious principals were invoked:

1796 – Runkel vs. Winemiller

The Supreme Court stated:

“By our form of government, the Christian religion is the established religion, and the sects and denominations of Christians are placed upon the same equal footing.”

Now in 1799 Samuel Chase was an associate justice of the Supreme Court, as advertised—but these words are not from a Supreme Court decision. They were in fact written in 1796, when Chase was Chief Justice of the Maryland General Court. The case was indeed Runkel v. Winemiller, in which William Runkel, a former minister in the Dutch Reformed Church, sued to get his position back, alleging that his replacement was not qualified according to the laws of his institution. (He won the case, incidentally.) In the course of the decision Chase wrote:

Religion is of general and public concern, and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people. By our form of government, the christian religion is the established religion; and all sects and denominations of christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty. The principles of the christian religion cannot be diffused, and its doctrines generally propagated without places of public worship, and teachers and ministers, to explain the scriptures to the people, and to enforce an observance of the precepts of religion by their preaching and living.

Now a naïve reader might imagine from this that Chase was saying that the United States had an established religion, namely Christianity, notwithstanding the first amendment prohibition on any law respecting such an establishment. It’s pretty clear that that’s what people mean us to gather when they produce this with a flourish from their bag of tricks. Nothing could be further from the truth, of course.

The case took place in Maryland, under Maryland laws, and the federal constitution didn’t come into it at all. At that time Maryland was under its constitution of 1776—written, I might add, before either the federal constitution or its first amendment had come into being—and the Maryland constitution did in fact make Christianity (in effect) the established religion. Of Maryland.

XXXIII. That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain, or contribute, unless on contract, to maintain any particular place of worship, or any particular ministry; yet the Legislature may, in their discretion, lay a general and equal tax for the support of the Christian religion; leaving to each individual the power of appointing the payment over of the money, collected from him, to the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or the poor in general of any particular county…

XXXV. That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion.

Thus in 1796 this statement was true, for Maryland, and it would remain true until this constitution was replaced in 1851, at which time the Christian requirement was dropped from the guarantee of religious liberty, and Jews as well as Christians were allowed to hold office in the state. Further, it was not until the passage of the fourteenth amendment to the Federal Constitution that the provisions of the First Amendment became binding on the states as well as the Federal government—so, regardless of what McCarthy and his allies would like us to understand, this decision was absolutely irrelevant to any possible interpretation of the First Amendment.

So how did these various commentators come to make such a bonehead mistake? My guess, and it is only a guess, is that none of them did any actual research. I suspect they were all copying from a common source, and my guess is that whoever it was probably hadn't bother to look into the background of the case, but just seized words that looked shiny to him, like the magpie is supposed to do when building a nest. The thing is, as one writer accurately observed, “There is really nothing extraordinary about this case.” The only thing extraordinary here is how gullible some people can be when they are determined to swallow a lie.

Quotation of the Day

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

George Washington

"Son, Let's See Your Identity Card"

The Pew Research Center for the People & the Press has just released an appalling new survey that says that nearly three-quarters of Americans polled approve of a law requiring all Americans to carry documents showing that they are in the country legally. Two-thirds think the police should be allowed to detain anybody who does not have such a document on him or her.

Now I have to say that this requirement is something I’ve always thought of as characteristic of a police state. I don’t even have such a document, unless you count my certificate of live birth, and I normally keep that locked away safe somewhere. I sure as hell don’t carry it around with me. Is the government supposed to issue some sort of new universal ID card certifying to our citizenship? Or are we all supposed to get passports? Or what?

For no good reason I’m reminded of somebody’s—James Thurber’s maybe—description of a scene from a French novel set in the American Old West. The setting is a small town somewhere in the southwest. A stranger has arrived, and people are wondering who exactly the newcomer is. Some of the townsfolk are convinced that he’s the notorious Billy the Kid. The sheriff comes by, listens for a moment, and then says, “I’ll settle this.” He strolls over to the newcomer, and says to him, “Son, let me see your identity-card.”

The humor in this is that nothing of the sort could possibly occur on American soil. And yet, and yet, apparently damn near three-quarters of the American people now think these sorts of police powers are just dandy. The American Way incarnate. Prove that you’re a citizen on the sheriff’s demand, or spend the night in jail—or however long it takes till you can get a copy of your birth certificate mailed out to you.

Actually I don’t think appalling begins to cover it. What are we trading our rights for, here, exactly? What the hell are we so afraid of? I’m just asking—because I, for one, don’t see anything whatsoever to justify this level of response. As somebody-or-other is supposed to have once said, anybody who trades in his liberty for a little gilt-edged security deserves to be walled up in a dark cell with the rats and the spiders—or words to that effect. If America can’t do better than this, it doesn’t deserve to survive. And it probably won’t.

Peace on Earth, Good Will Toward Men

10 December is Human Rights Day, commemorating the adoption of the Universal Declaration of Human Rights by the UN General Assembly on this day in 1948. And how appropriate it is to the season. Consider Article 1:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Damn right. In a way it’s sad that the remaining twenty-nine articles have to exist at all, spelling out that people should not be tortured (Article 4) or enslaved (Article 5), or deprived of employment (Article 23) or leisure (Article 24) or education (Article 26). Shouldn’t this all go without saying? Apparently not; when the nation that prides itself on being the city on the hill and the beacon of hope for the world descends to torture and degradation of human beings for political ends all bets are off.

In many ways a noble document, the Universal Declaration of Human Rights has a couple of anomalies. Consider Article 16 section 1:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

There is nothing here that any segregationist of the Post-Reconstruction South or strict Roman Catholic could object to; whites are free to marry whites just as coloreds are free to marry coloreds; Baptists are free to marry Baptists just as Roman Catholics are free to marry Roman Catholics, “without any limitation due to race, nationality or religion”. Nobody is stopping African-Americans or Baptists from marrying, so long as they marry within their own kind. As interracial marriage was prohibited in most states of the union at the time the United States voted for the UDHR, this almost has to have been its understanding of this passage.

Or again, consider this from Article 26 section 1:

Elementary education shall be compulsory.

I know there’s a story behind this; the idea is to prevent parents or employers from depriving children of an education by exploiting their labor on farms or in factories when they should be in school. My father used to tell of an old farmer in North Powder who saw no reason why his kids should be wasting time in school when they could be doing chores at home. But this seems to me to be a mite on the extreme side. At the very least it seems odd to see anything described as “compulsory” in a list of human rights. And as an ex-homeschooler somewhat in the tradition of Neill and Holt, I find this concept a trifle troubling. There’s something akin to slavery in it, seems like.

But on the whole the UDHR favors good things—equality before the law (7), equal pay for equal work (23), the right to privacy (12), freedom of thought (including the “freedom to change his religion or belief”) (18), freedom of opinion and expression (19), freedom of movement (13), the right to an adequate standard of living (25), the right to enjoy and arts and share in scientific advancement (27), and so on. It lies squarely in the tradition represented by classic US documents like The Declaration of Independence and the Bill of Rights.

If there’s a single document that spells out the meaning of the season in practical terms, this is it. It was supported in 1948 by states as disparate as Afghanistan and Mexico, Egypt and Thailand, Syria and the United States, Iceland and Turkey. No one voted against it, though a handful of states (including unsurprisingly Saudi Arabia, the Soviet Union, and the then-segregated Union of South Africa) abstained from voting.

The UDHR is said to be the most-translated document in the world, having been put into more than 300 languages. (The “complete” Bible [minus the Apocrypha / Deuterocanonical works] has been translated into 438 languages according to the United Bible Society, however. Parts of the Bible have been translated into many more.) It is probably the most generally accepted statement of basic rights anywhere ever (and my Wikipedia editing experience immediately pops up with “citation needed”.) Oh, yeah, there are critics out there, especially among the states committed to a single religious tradition, Islamic states being the noisiest current offenders. Consider the Cairo Declaration version of religious liberty (Article 10) as a contrast:

Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.

How degraded is that? The filth of that document makes the Universal Declaration of Human Rights stand out all the more brightly, holiday lights in the darkness of winter ignorance.

"Everyone is Suspect, and There is No Peace"

We talked about the rage and the ways in which it steals your peace. I have been so angry that my whole body shakes and my vision blurs. It’s a rage that consumes you. You want to lash out but where. You have questions but what answers can ever fully explain why? You sleep without dreaming and move through the world like a zombie.

I'm not a regular reader of Womanist Musings, but I stop by occasionally (there's a great blog roll, for one thing), and today Renee has up a powerful piece that everyone ought to read. "My Friend Called To Say She Was Raped." There's a title to conjure with. What do you say? I've been there myself, actually, though not on the front lines like this. There's a sense of inadequacy, combined with absolute rage. The desire to somehow make things better combined with the knowledge that there is nothing that can ever put things right. And I have nothing to draw on, no comparable experience, no basis to offer any comfort or hope...

You see, you can theoretically understand rape but living with the after effects is another story entirely. Rape is evil. It is fucking evil. I don’t think you really know it, until it happens to you. It makes you sick inside...

Exactly. This is one of those things you really have to have been through to know how to deal with. A rape survivor—somebody who's been there—maybe she'd know—

I don’t know how to deal with this. She was talking and I kept flashing back to my own rape. People tell you that in time that you get over it, but I don’t think that is the case. In time you may learn to put it beside you, however; I don’t think that you ever put it behind you.

Oh, wow—but—but—surely—

Each day that I walk through this life, I feel his hands on my throat, I see his face, and feel his breath on my skin.

But—well, there's the transformative effect, the opportunity to use an experience, however horrific, to help somebody else? to make a change for the better?

I want to live in a world where rape is non existent. I want to live in a world where women matter. Thing is, I don’t even have the courage to write about it. ... God help me, I’m still scared.

No, there's no lemonade here. Read the damn piece. It's not going to make your day, and it may make you cry (I did anyway), but—well, just read it. It's worth it.

Absolute Idiocy

This piece from CBS News (h/t Jennifer McCreight) contains an entire month's worth of stupid. Examples:

John Boehner claimed, apparently with a straight face, that "Republicans believe that all lives are created equal, and should be defended with equal vigilance." When did Republicans start opposing capital punishment, again? I missed that day. Gee, one of the reasons I remain a Republican (though In Name Only, I'm constantly told) is that I believe strongly that certain people (mass murderers, killers motivated by ideology or money, and people who poison wells, for example) should be put to death. Most Republicans will defend a person's right to kill somebody for breaking into his home, or even for breaking into a neighbor's home. Are they willing to defend the trespasser's life "with equal vigilance"? I doubt it very much.

John Boehner's spokesman (and I suspect soon-to-be former spokesman) Kevin Smith adds that Boehmer supports existing hate crime legislation based on immutable characteristics, like religion and gender, but not on changeable characteristics like (apparently) sexual orientation or disability. (Uh, fact check: gender isn't actually covered under existing law; its part of the proposed expanded legislation.) I am again surprised to learn that the Republican Party is apparently endorsing the extreme position taken by Islamic militants—a person who has once joined a religion is a member for life. Doesn't this conflict with the First Amendment—you know, that whole pesky "freedom of religion" thing? Oh, yeah, that's right—the words "freedom of religion" don't actually appear in the Constitution; that's some fantasy cooked up by historical revisionists and activist judges. God, it's getting harder to keep up with the lunacy.

Republican Tom Price (whom I've never heard of before, thank the gods) calls all hate crime legislation "a despicable and unconstitutional bill that penalizes thought and places a premium on some classes of individuals over others". He claims to believe that "All violent crimes demonstrate hate"—this in the teeth of common sense. You don't have to hate your grandma to murder her for her money; you just have to put your own wishes above her continued existence. And what about "premeditation"—the thing that distinguishes first-degree murder from its lesser cousins? Doesn't that penalize thought? I mean, the victim is just as dead whether he was killed in the heat of an argument or in cold blood with malice aforethought. Murder vs. self-defense, rape vs. consensual sex, theft vs. borrowing—all of these involve reading minds, as the pro-hate-crimes crowd looks at it, that is, determining the motives of the people involved. All of these in Tom Price's idiotic world must then be written off as crimes, since we don't want to penalize thought, or place a premium on some classes of individuals (women who don't consent to sex, say?) over others (women who do, for example?).

And Price's spokesman Brendan Buck added a further touch of lunacy: "We believe all hate crimes legislation is unconstitutional..." I'm not sure under what clause they think the absolute right to commit crimes motivated by hate falls, but no, there is nothing in the Constitution that forbids looking into a person's motives for committing a crime, and for judging the severity of the crime accordingly. Our entire penal code is shot through with just those sorts of issues.

And finally, another gem from Kevin Smith: the present changes in the law "could eventually invite the prosecution of Americans for their thoughts and religious beliefs, basic provinces protected by the First Amendment." First I would point out that thoughts and religious beliefs are not actually covered by the First Amendment, which protects only religious expression (the "free exercise" clause). Thoughts and beliefs are nowhere mentioned in the Constitution; they are protected only by an implied right to privacy without which the First and Fourth Amendments at least make little sense. I can think all I like about how much I'd like to go out and murder my noxious neighbor. I can believe, if I like, that he is a blight on humanity and the world would be a better place without him. I may even hold as a religious view that I am required to go out and eliminate this pestilence from the face of the earth. I can make plans about how I would go about murdering him. Hell, I even have the right to go out and buy the materials I'm going to need to carry out my plan, assuming that no illegal substances are involved. But fantasy is one thing, and reality another. If I carry out the crime, if I murder this obnoxious fellow, then my thoughts and beliefs and the actions I carried out in furtherance of my plans are all fair game to determine my motive, and in particular, whether the crime was premeditated.

I can see no valid reason why anybody who is not planning on running about murdering gay men or beating up women or whatever depraved fantasy turns him on should be opposed to this bill. If the idea is that it may have a chilling effect on people advocating violence against women (whether from the pulpit or from any other venue), or against various minority groups, well, yeah, I kind of hope it does. People shouldn't actually urge their followers to commit violent acts. And if your religion says that you should murder your daughter for bringing shame on her family, or that you have a right to beat a man to death for your perception of his sexual orientation, then maybe it's time to change your fucking religion.

Oh, yeah, I forgot—religion is one of those immutable things.

Quotation of the Day

Don't talk to me about government-instituted "death panels". The real death panels are the ones in that building in downtown Philadelphia, and similar ones belonging to other health insurance companies around the nation. The ones who attempt to stymie you at every turn in your efforts to access your "covered benefits". The ones who hope you will give up, go away, or die before they ever have to get around to paying anything on any of your claims.

Zuska (h/t Dan J.)

On this Day in 1789

It's Saturday, 15 August, 1789. Congress is in session in New York—the first congress under the new constitution. Up for discussion: a proposed constitutional amendment, to be inserted between the sentence guaranteeing habeas corpus and the one prohibiting ex post facto laws. It was one part of a political compromise, a series of amendments to the new constitution meant to keep doubters in the fold and to entice the undecided off the fence. We know the result today as the Bill of Rights. This proposed amendment read:

No religion shall be established by law, nor shall the equal rights of conscience be infringed.

Peter Silvester (P, NY), an Albany lawyer who had held (and would continue to hold) a variety of governmental positions in the new republic, immediately spotted a problem with the wording. The opening words could be taken two ways. The intention was to keep the new government from passing a law that would establish religion, but could it not also be taken as a command to the congress to establish “no religion” as the law of the land? He “had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether.”

Where on earth did this fear come from? Well, you have to remember that the issue of disestablishment (we would call it "separation of church and state") was hot at the time, and that Virginia had recently emerged from a bruising battle on the subject when Patrick Henry had proposed a bill levying a tax to support all teachers of religion, a bill famously opposed and defeated by the efforts of James Madison—the author of the present amendment. You have to remember that in European states of the time the established church was generally tax-supported, and that there was no guarantee that religion could survive without that support. (And as we will see from a later point made by Benjamin Huntington, there was some sentiment afloat that people ought to be required to support some religious institution, at any rate.) So, at any rate, the first order of business was to rewrite Madison's proposal to rule out the possibility of the Federal government being called upon to establish "no religion" by law.

John Vining (P, DE) proposed fixing the problem by “transposing the two members of the sentence.” I suppose he had in mind a wording like “No law shall be [enacted] to establish religion,” or something in that vein. Elbridge Gerry (A, MA) suggested the reading "no religious doctrine shall be established by law”—a version considerably narrower than anything else proposed so far, in that it would have allowed Congress to set standards for religious practice, presumably, or at least left that door wide open, even if it kept the government from establishing doctrine.

Roger Sherman (P, CT), Framer and Declaration signer, now derailed the discussion altogether. Even though politics had already decreed this was a dead issue, he reiterated that he "thought the amendment altogether unnecessary, inasmuch as Congress had not authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out.” Daniel Carroll (P, MD) quickly reminded him of these political realities, "As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community."

James Madison, Jr. (A, VA) patiently explained again the intended meaning of the amendment: "that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." He once again went over the political necessity of the amendment: “Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.”

Benjamin Huntington (P, CT) now took the bull by the horns. He said “that he feared, with the gentleman first up on this subject, that the words might be taken in such a latitude as to be extremely hurtful to the cause of religion.” The underlying fear, no doubt, was the possibility that if state support for religion was removed, religion itself might wither away altogether. Huntington made a rather lame argument that “The ministers of their congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship, might be construed into a religious establishment.” He felt that the 1663 Rhode Island Charter (then over a century old) was radical enough; it guaranteed that dissenters from the Church of England would be tolerated (as long as they kept quiet about it) but didn’t actually encourage them. “He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.” And with this display of bigotry and intolerance Benjamin Huntington vanished from the debate.

If James Madison (or anybody else for that matter) thought Huntington’s remarks were worth responding to it doesn’t appear in the record. He went back to the main point of the wording, and suggested adding the word national before religion, which would have created the following result:

No national religion shall be established by law, nor shall the equal rights of conscience be infringed.

He thought (wrongly) that this “would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.”

Samuel Livermore (P, NH) was impatient with this nit-picking; “he did not wish them to dwell long on the subject.” He proposed a substitute amendment:

Congress shall make no laws touching religion, or infringing the rights of conscience.

This is an electrifying moment; suddenly we see the beginning of the actual language that will become the First Amendment. It's not there yet, of course; we still have "infringing the rights of conscience" rather than "prohibiting the free exercise thereof", but it's on its way. For the moment, however, the proposal just lies there; under consideration is Madison's proposal to add the word national to his version of the amendment.

Elbridge Gerry (A, MA), Declaration signer and opponent of the new constitution, who had earlier in the debate suggested the language "no religious doctrine" to replace "no religion", now objected strongly to the term national, in that a Federal, and not a National, government was under consideration. Madison defended his suggestion by observing "that the words ‘no national religion shall be established by law,’ did not imply that the Government was a national one,” but he withdrew his motion regardless in favor of Livermore’s version. The vote was then taken on that, and the amendment passed 31-20. Thus, had this been the end of the story, the First Amendment would have read:

Congress shall make no laws touching religion, or infringing the rights of conscience.

Of course as we know these were not the words that were going to become enshrined as part of the first article of the Bill of Rights; the Senate would have to pass its version, and a compromise would be hammered out between them, but for the moment their work was done, and it was on to consider such matters as freedom of speech, freedom of the press, and the freedom to peaceably assemble (one representative compared the last to the freedom to wear a hat). But the big effort of the day was over an amendment that would have given the right to the people to instruct their representatives. The argument over that one was heated, and ended with the defeat of the proposal. That debate in fact appears to have taken much longer than the debates about the various freedoms altogether.

And that's the way it was on this date in history two hundred twenty years ago.

Defending the Indefensible

Well-known literary critic Henry Gates, Jr., was arrested 16 July 2009 after a passer-by mistakenly thought he was breaking into his own home. According to the police report:

On Thursday July 16, 2009, Henry Gates, Jr. ([censored]), of [censored] Ware Street, Cambridge, MA) was placed under arrest at [censored] Ware Street, after being observed exhibiting loud and tumultuous behavior, in a public place, directed at a uniformed police officer who was present investigating a report of a crime in progress. These actions on the behalf of Gates served no legitimate purpose and caused citizens passing by this location to stop and take notice while appearing surprised and alarmed.

Now at this point I imagine you're asking, so what was the crime, exactly, that he was arrested for? Well, that was it—"caus[ing] citizens passing by this location [his house] to stop and take notice while appearing surprised and alarmed."

Now arguments have erupted over exactly what was said when and to whom in this whole business, and (essentially) who was the bigger asshole, Gates or the officer who arrested him, but none of this matters. Ed Brayton puts it well:

Look, this whole issue is quite simple. Is it possible that Prof. Gates was being a jerk during the arrest? That he presumed racism and had a chip on his shoulder when the police got there and berated them for badgering him? Sure it is. I wasn't there and neither were you so we have to admit this is a possibility. But here's the thing: It doesn't matter.

Exactly. This isn't a playground dispute between two kids or a barroom fight. One of these guys was a supposedly trained professional, out to do a specific job. The other guy was an ordinary citizen at his own home. Different standards apply. If the ordinary citizen was not breaking the law—and no evidence is presented that he was—then the trained professional had no business arresting him. Period. No matter what the damage to his ego may have been.

The only reason I am writing about this at all is that there are a lot of clowns out there trying to defend the officer in this case. As far as I know this fellow may be a nice guy—but the arrest report itself shows that in this case he acted unprofessionally. That his feelings were hurt, that he was being berated and yelled at (and I have no idea whether he was or not) is no excuse whatsoever for arresting somebody. That's an abuse of power, pure and simple.

Police powers are not granted to individuals so that they can gratify their egos, or take private revenge for fancied slights. And that this officer's defenders seem to expect people to take their excuses seriously leaves me flabbergasted. Do we live in a police state? Is this what we have come down to?

A commenter called Brent put the case in a nutshell here:

Setting aside all of the other meta-discussions on race and class that surround this issue, the thing about all of this that creeps me out the most is that so many people are willing to defend this officer who, assuming the most charitable possible interpretation, arrested a guy because he didn't like his attitude. That is what Barnicle is defending. That is what the execrable Mika Brzenski is defending. That is what I have read numerous commenters on a multitude of sites from the entire political spectrum defend.

They are, as far as I am concerned, defending the indefensible and it is what Carlos and, surprisingly reasonably, Ford was trying to get through in that clip. They were saying that if you cannot agree that arresting Gates was just plain wrong then there is no possibility of moving the argument forward. There is no good faith argument to be had without starting from the point that officers do not get to arrest a guy because he says unkind things to him.

I have decided that I no longer have anything to say to people who can, with a straight face, defend this nonsense. Forget about race. Forget about class. Forget whether or not Gates or Officer Crowley are nice guys who treat their mothers well. The bottom line here is that an officer used the authority of law to restrict the liberty of a man who was expressing displeasure with him. If you think that is right, then you fundamentally disagree with the basic principle of a free society.

That is not hyperbole. If you are willing to grant any individual with a gun and a badge the authority to arrest people because they don't like them, then you and I share no common principle on liberty and the right of people to be free from oppression. None.

Damn, I wish I'd said that.