Happy Birthday, Fourteenth Amendment

On this day 150 years ago, the people of the United States formally welcomed five million of the nation’s residents into the American family.  That day would mark the end of a long and brutal pathway to citizenship.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Senator Collins, Abortion, and the Supreme Court

Justice Anthony Kennedy announced on Wednesday that he will be retiring from the bench, effective July 31.  President Trump is expected to nominate his successor by July 9.  The Senate Committee on the Judiciary will hold hearings on the nomination in the coming weeks.  Assuming the nomination moves out of the Committee, the full Senate will vote to decide whether to approve the nomination.  Among those voting will be the Republican Caucus’s most liberal member, the senior Senator from Maine, Susan Collins.

Senator Collins (R-Maine) stated on This Week with George Stephanopoulos on July 1, 2018, that the most important quality in a potential justice for the U.S. Supreme Court is respect for precedence.

I believe I am in good company in believing that the most important quality in a potential justice would be fidelity to the Constitution of the United States.  After all, the justice upon taking office would pledge an oath to God to support and defend the U.S. Constitution, NOT to support and defend prior rulings of the Court.

The issue for Senator Collins is not fidelity or respect for precedence; it is the abortion rulings from 1973 (Roe v. Wade) and 1992 (Planned Parenthood v. Casey).  She does not want these rulings, which guarantee a Constitutional right to an abortion, overturned.

It is fine for Senator Collins to have this opinion, but she ought not hide behind the legal doctrine of stare decisis (stand by matters decided).  The fact that abortion is not mentioned in the Constitution or that the legal reasoning behind both abortion decisions is legally shaky does not seem to matter to her.  As a member of the legislature, she does not seem troubled that the Court, in both cases, made law in violation of the separation of powers principle.

Had the Court come to opposite outcomes in 1973 and 1992, where not only does the Constitution not guarantee the right to an abortion, but stated that under the Fourteenth Amendment, an abortion would be the taking of a life without due process of law — thus making abortion unconstitutional — would the Senator be arguing for the respect for precedence?  I suspect not.

We should be careful about this issue of precedence.  It is true that stare decisis does promote stability in the law.  However, stability that does violence to the Constitution is not stability that should be respected.

In 1896, the Court issued its decision in Plessy v. Ferguson, which upheld the “constitutionality” of racial segregation and institutionalized the doctrine of separate but equal.  That decision was effectively overruled in 1954 – 58 years later — in the Brown v. Board of Education case.

As of this writing, Roe v. Wade is 45 years old.  Senator Collins believes that, given the longevity of this ruling, it should be considered “settled law” by any future Supreme Court.

Question: Does Senator Collins, using her own standard, believe that the Supreme Court was wrong to unanimously overturn the 58-year-old separate but equal doctrine in 1954?  I suspect not.

During her This Week interview, Senator Collins laid out the following as important qualities that a Supreme Court justice should have: judicial temperament, integrity, intellect, experience, qualifications, fidelity to the rule of law and the Constitution.  She also said, “most important of all” respect for precedent.  All the qualities she lists are important, but she is wrong that the respect for precedent should be the most important consideration.

When Senator Collins votes on the nominee, she ought to consider each of the traits she mentioned; however, the commitment to precedence should get diminished consideration.

Travel Ban

This week, possibly as early as tomorrow, the U.S. Supreme Court will issue its opinion in the federal travel ban case Trump v. Hawaii.

It is surprising that this case went all the way to the Supreme Court.  The travel ban applies to residents of seven countries (Chad, Iran, Libya, North Korea, Somalia, Syria, and Yemen).  Six countries have majority Muslim population.  Many of the President’s critics refer to his executive order as a Muslim ban.

The travel ban omits the majority of the Muslim world, including Saudi Arabia and Indonesia.  This is not a Muslim ban.

The countries covered by the ban are instead ones that fail to provide the minimum baseline of information needed to vet their nationals.  Given that the U.S. continues to face the threat of terrorism from the Muslim world, this policy would seem rational; but in my view, it does not go far enough toward providing security to residents of the United States.

A portion of the oral arguments focused on the First Amendment: does the travel ban violate the Free Exercise Clause?  The answer is no, since the U.S. Constitution does not apply to foreign nationals on foreign soil.  This would be true even if the executive order were an outright Muslim ban.  There would be no constitutional problem with excluding Muslims on account of being Muslim.  It may, however, violate federal law.

Unfortunately, because of our country’s history of discrimination based on race, nationality, and religion, American today are very sensitive and will make great efforts to distance themselves from that history, even if doing so makes the country less safe.

This sensitivity also leads to an incentive to identify bigotry where none exists, then publicly and loudly oppose it.

The critics of the President are desperate to demonstrate that he is, among other evils, some sort of bigot.  And they are willing to endanger the American people to prove it.

Should the Supreme Court do the unthinkable, Donald J. Trump, President of the United States, in his role as Commander-in-Chief of our Armed Forces, must defy the Court’s ruling, striking down the executive order.  The Court has no business second guessing how the President defends the nation.  This could create a constitutional crisis and may lead to impeachment, but the President simply cannot let stand such a dangerous ruling from the Court.

Media Mind Control

I once had a colleague who shared a similar interest in politics and public affairs.  One morning I popped over to chat with him.  I had a something on my mind and I shared my thoughts with him.  Oddly, where I thought we had similar views on this topic, I saw a nearly blank stare back at me.  He had no verbal response to what I had said.  He either did not agree with my assessment or was indifferent to my take on the issue.

Two days later, the same colleague came over for a visit and spoke to me about the same topic I had shared with him two days earlier.  There was an enthusiasm in his voice and body language.  He recited to me almost the same points I had raised.  It was almost as if we had not had the original conversation, but he did reference the fact that I had spoken about the issue with him.  I discovered that his newly-found interest in the topic was the result of listening to radio talk show host, Mark Levin.  Turns out, Levin was reacting to the news of the day as I was and brought the same issue up on his daily talk show.  Mark Levin shares my view on this topic and it is no surprise that he raised the same legal and historical arguments that I shared with my colleague.

The difference in my colleague’s level of interest – from zero to interested in two days – had to do with who gave voice to the issue: Mark Levin was a trusted source.  It was not that he did not believe what I was saying to him – he was aware of my knowledge of legal and constitutional matters.  He just did not understand the level of importance I placed on the issue; or just did not see me as a figure of authority.  He is a consumer of talk radio and the Drudge Report.  If he did not get it from either source, it simply was not news to him.  I was not his trusted source of news and analysis.

Over recent years, when I share with family or friends my thoughts on issues that I find important, I get similar non-responses.  I often bring up topics that I feel get ignored by mainstream media sources.  While I rarely get any disagreement with what I am sharing, I do not anywhere near the enthusiasm I feel, if I get a reaction at all — unless Wolf Blitzer or George Stephanopoulos is reporting it, it’s not news.

The media has lots of control over what we discuss with friends and family, how important an issue is, and, very often, what we think.  The media – television especially – shapes public opinion.  To the extent that there is a political bias in how an issue is presented, the media can greatly affect how we vote.

In recent days, we have heard and read a lot about the separation of families at the border.  Specifically, young children are taken from illegal alien parents, who cross the southern border of the United States.  When U.S. authorities arrest parents with children for unlawfully entering the country, the children are placed into detention centers.

It is unfortunate when children, especially young children, are separated from their parents.  U.S. border officials are enforcing the law.  The adult foreign nationals are violating the law.  They are aware that they are violating U.S. sovereignty when they enter the country without permission.  If adult illegal aliens want to keep their families intact, they should not enter this country unlawfully.  This is a problem of the illegal alien’s own making.  Apparently, the fact the U.S. officials have not been very serious about securing the border over the past few decades has inspired foreign nationals to feel that coming to the U.S. to live is an entitlement.  There is no doubt that some come here for a better life (jobs, personal safety, etc.), but that does not entitle anyone to come here without the permission of the U.S. government.  They make matters worse by involving children in their decision to trespass into the United States.  Each of these acts is an abuse of children.

Our media does not report this violation of U.S. sovereignty.  Reporters simply report on the “inhumanity” of the family separation and our country’s role in that inhumanity.  Former First Lady Laura Bush calls the policy cruel and immoral.  Former Secretary of State Hillary Clinton, also a former First Lady as well as a U.S. Senator, calls the border situation a moral and humanitarian crisis.  Former Republican National Committee chairman Michael Steele compares detention centers to concentration camps.

This story will continue to be covered.  It will be covered to paint President Donald Trump and his administration as evil.  Many in the media find Trump’s presidency an offense.  This story, among others, is a way to fight back.  They will use their platform to shape public opinion in the runup to the mid-term Congressional elections in November.

The fact that some Americans are killed by some illegal aliens, including MS-13 gang members, gets very little media coverage.  The fact that many Americans, even young children, in urban centers are victims of violence is virtually never discussed on cable news shows.  The fact that American children are separated daily from their law-breaking American parents does not create the same level of outrage.

Our media today has created noble victims at our southern border.

The question remains whether the American people will continue to be the gullible dupes of television anchors.

Black Identity: Out with the Old . . .

On November 4, 2008, our country elected Senator Barack Obama President of the United States.  Every U.S. presidential election in recent decades gets worldwide news coverage but this one was especially newsworthy because the voters elected a black man to the office.  This had never happened before and many of the country’s residents — black and white — thought, given the nation’s racial history and the nation’s racial demographics, electing a black American to the highest office in the land would never happen.

It did happen.  On that election night, there was little to no news coverage about the issues of the campaign (Iraq, health insurance, the financial crisis).  The focus was on the fact that a racial barrier had just been broken.  One also saw videos from around the country of the American people.  There were cheers and tears.  It was a very emotional evening for the country.

In the wake of this event, I believe there was something more profound that happened; something that has gone virtually unnoticed or commented upon.  I wondered about the reaction to the election results, particularly the response of black Americans.  Television news showed many crying as it became clear that Obama would be the next president.  I felt, though, that there was something behind the tears that went beyond a reaction to a very pleasant surprise or even black pride.  It occurred to me that the tears represented something I believe that many black Americans crave but never had until that evening: acceptance.  It is like the child who wants approval from his parent and feels no matter what he achieves in life, he will never get it.  And then, one day he gets the approval he has so wanted all his life.  I suspect that for blacks, despite distrusting whites or disliking whites because of the country’s tragic history of racial oppression, want to be seen as fellow citizens without the tinge of condescension or contempt.  In many ways, the election of 2008 was a neon sign, a message from whites to blacks that said: WE REJECT WHITE SUPREMACY.

This symbolism of acceptance was, in my judgment, very moving for many black Americans.  It was as though white America finally extended the hand of friendship and sincerely said: welcome.

In the weeks and months ahead, as the euphoria of the election waned, I believe the shock of election set in.  There was talk in the media that the election of Obama could mean the beginning of a post-racial America.  I don’t believe anyone over six years of age believed that.  But it did mean that something in America had changed.  I believe that something was identity.  Since the beginning of the republic, blacks in this country knew something and that something connected all blacks in this country.  The common identity could be summed up as: WE ARE THE PEOPLE WHITE AMERICA HATES.  Having this common identity was not necessarily pleasant but it was something that defined black America.  Through that identity, a culture developed.  That culture produced, among other things, a great literature, music, television shows, and even, stand-up comedy.  That identity also produced a psychology.  It was a psychology that made blacks unsure of their place in American life.  Even after the victories of the Civil Rights Movement, there was distrust between the races, and given that blacks were a numerical minority (10% – 15% of the population throughout the 20th century), that distrust made many blacks feel that no matter how much they achieved, they would never be fully accepted as Americans by the white majority.

Suddenly, however, with the 2008 election, it appeared that blacks were fully accepted.  However, it was like the dog who, everyday, chases the car on the road and one day, the dog catches the car.  The reaction: now what?  Nearly all black Americans were very happy that Obama was elected.  They were also happy that white Americans helped make this happen.  But this historic election also meant that the identity that defined black American was a false one.  If blacks are not the people white America hates, then black America would have to ask: who are we?

That would be a difficult question to answer after centuries of having a particular identity.  Something would have to change, but how?

It turned out that not much, if anything, had changed.  Soon after Barack Obama took office, any perceived slight against the president would interpreted as racist.  The rise of the Tea Party and its opposition to liberal policies was interpreted as a negative reaction to the new black president.  Even referring to the president as Obama rather than President Obama was interpreted as a sign of racial disrespect.

This calls to mind a scene from the 1994 film, The Shawshank Redemption.  An elderly prisoner, a seemingly gentle figure, suddenly grabs a fellow prisoner and with a sharp object threatens to kill him.  What would make him do this?  He got the news that he made parole after a half century of being behind bars.  Turns out, oddly enough, he did not want to leave prison.  The thought of being on the outside was frightening; he would rather be convicted of another crime than to be set free.  After so many years behind bars, he had grown quite accustomed to prison life and freedom was of no interest to him.

Barack Obama’s election was documented proof that race was no longer a barrier in American life.  It was proof that black Americans were, in fact, free — and had been for some time.  This shock caused black America to figuratively rebuild the prison of racial oppression that they had lived under, even if it racial oppression was little to non-existent.  We see this most notably in the Black Lives Matter movement.  The movement began in the middle of Obama’s second term and it was borne out of the death of Michael Brown in Ferguson, Missouri.  Brown, among other things, attacked a police officer and the officer shot and killed him.  This episode was understood as “proof” that police brutality was alive and well in America and this brutality had its primary focus on young, unarmed black Americans.  The fact that Brown attacked the officer and the shooting was in self-defense did not matter.  Brown was made a martyr.  The level of racism in this country, especially racial violence, has dropped so dramatically in the last 50 years, many blacks, with the help of the media, must manufacture racism in situations where none exists.  The existence of significant amounts of racism, real or imagined, is the prison in which blacks are accustomed.

I have written this piece in response to an op-ed, “What else do we need to believe racism exists?”  Here is the piece. http://www.charlotteobserver.com/opinion/editorials/article206517019.html

For one thing, I know of no one who believes racism does not exist, so I do not know who the author’s intended audience is.  She attributes all inequities between blacks and whites, from school discipline to household income, to racism.  She does not allow for the fact that culture may have a little (or a lot) to do with racially disparate outcomes.  There are loads of opportunities for all Americans in this country.  Since the 1960s, through civil rights laws, affirmative action, diversity outreach, and just plain good manners, black Americans can fully participate in American life.  If you have any doubts about that, ask the nation’s 44th chief executive, President Barack Obama.  The author clings to the racism excuse in much the same way the Peanuts character, Linus, clings to his security blanket.  The author lives in that prison of racial oppression; if she did not contribute to its construction, she certainly helps to maintain it.

Bakers, Cakes, and Same-Sex Weddings

Last week, the U.S. Supreme Court heard oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Division.  The issue in this case is whether a baker is compelled by law to bake a cake for a same-sex wedding ceremony; or can the baker legally refuse to participate in a same-sex wedding because it violates his religious beliefs.

Some of the argument focused on First Amendment free speech and expression claims.  Does baking a cake for wedding constitute speech?  If so, can one compel another to engage in speech making, and to engage in speech making that communicates a message that the speech maker fundamentally disagrees with?  The argument also focused on the interpretation of anti-discrimination laws as applied to public accommodations.  Can a business open to the public refuse to sell a product to someone based on that person’s identity?

The back and forth between the justices and the attorneys was very interesting to listen to.

I think, however, the issues surrounding this case should be framed differently.  It seems to me that at the heart of this case is the notion of liberty.  A person who runs a business should not be compelled to conduct business with someone if he does not want to.  In this country, however, we now have anti-discrimination laws that apply to public accommodations, so there may be limits of the business owner’s liberty.  Let’s examine this a bit more closely.

The same-sex couple who wants the baker to provide a cake for their wedding claims that the baker’s refusal to do so is based on their homosexual identity.  This refusal, they claim, violates Colorado’s Anti-Discrimination Act.  This is incorrect.  The baker did not refuse to bake the cake based on the couple’s sexual orientation.  We know this because the baker was happy to sell the couple other baked goods in the store.  Also, when couples plan a wedding, they often involve family and friends in the process.  Someone may be in charge of getting flowers.  Another may have the responsibility to find a DJ or a band for the reception.  It is possible that the married parents of, say, the bride may be asked to find a baker to provide the wedding cake.  In this case, the married parents of one of the men could have gone to the Masterpiece Bake Shop to order the cake.  The baker would have similarly told the parents that he would not provide the wedding cake.  It would be difficult to charge the baker with discrimination based on sexual orientation given that the ones in the bakery ordering the cake were a married man and woman.

The baker simply does not want to use his talents to design a cake used for a purpose that he finds violates his conscience, no matter who requests it.  The baker’s refusal does not amount to discrimination on account of sexual orientation.

The First Amendment protects the baker’s right to free exercise of his religion.  To coerce the baker to engage in activity that is counter to his beliefs violates his right to free exercise.

Let us assume, for the sake of this discussion, that the baker did refuse to provide the cake for the couple on the basis of their sexual orientation and said so.  That would violate the Colorado anti-discrimination law but it would not violate federal law.  The Civil Rights Act of 1964 does not extend protections to individuals due to their sexual orientation.  Also, I am fairly certain that no one in Congress in 1866 voted to propose the Fourteenth Amendment thought they we were providing legal protection for homosexuals on account of being homosexual.  The same can be said of those in state legislatures who voted to ratify the Amendment.

The reason we have the Civil Rights Act of 1964 and the Fourteenth Amendment is because we wanted to protect the rights of people of African descent in the United States.  Blacks were first brought to America nearly 400 years ago.  They were brought here against their will and sold as slaves when they arrived.  By the time of the 1860s, this would be the only home their descendants had ever known.  By the 1960s, those descendants would be fully Americanized Americans.  The primary goal of civil rights legislation of the 1960s was to integrate blacks into the fullness of American life.  This included guaranteeing access to public accommodations.  This guarantee is at odds with the liberty of those who own businesses.  However, given the history of racial oppression and the potential of creating two tiers of citizenship by denying access to public accommodations, an exception to the liberty interest was made.  Homosexuals do not have the same claim to this exception.

This brings us to June 26, 2015.  On that day, the U.S. Supreme Court issued the Obergefell v. Hodges decision.  This decision compelled states to recognize marriages between people of the same sex.  This decision was not based on anything written or implied in the Constitution.  This decision is why the Court is grappling with this issue of religious liberty and the “civil rights” of homosexuals today.  Today the Supreme Court is dealing with a mess of its own creation.  The can of worms the Court has opened could have and should have been avoided.  The five members of the Court, led by Justice Anthony Kennedy, should never have voted to inflict the Obergefell v. Hodges opinion on the nation.