Constitutional Amendment 14

I have written previously about the Fourteenth Amendment as an example of a law that declares a legal principle of equality but does not extend to defining a quantitative measure of the level of equality that is expected. This amendment is applicable to current political debates for two reasons. First, that we are grappling with the proper way to construct laws to protect the liberty and equality of all citizens. Second, this amendment is referenced in some debates about how to deal with the issue of illegal immigration.

Section 1 of the amendment declares the principle – and it is a debate about what it means to be “born or naturalized in the United States and subject to the jurisdiction thereof” that is applicable to some proposed legislation related to illegal immigration.

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 specifies the consequences of abridging the equality specified in the first section.

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.

Some people have argued that the non-outcome-based approach to the problem of abridging voting rights is what lead to widespread discrimination against blacks in the south for a century after this amendment was adopted. I think that it would be more accurate to say that failure to impose the declared penalty was more at fault for this practice. People cannot have their inner thoughts and desires regulated by written laws, but they generally will mold their actions to their own best interest. If the penalty of reduced representation were applied to the states that  were using intimidation and Jim Crow laws to prevent blacks from exercising their civic rights I have little doubt that those states would rather quickly have found the motivation necessary to end such practices in order to have a full voice in the actions of the federal government without needing the creation of some of the civil rights legislation of the 1960’s that focused on equality of outcomes rather than universal principles of equal protection.

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Constitutional Amendment 13

The Thirteenth Amendment is about as straightforward as any of the first ten amendments (I find it interesting to notice that the most obvious and natural amendments tend to be the shortest).

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

While there is nothing that I would dare add to that amendment and I doubt that anyone needs a lesson in the context behind its adoption I do wonder how our nation might be different if the issue of slavery had been resolved by the process of adopting this amendment rather than fighting a war before then adopting this amendment.

I would not suggest that the issue would have been “resolved” by 1865 even to the degree that it was with the Civil War, but I would not be surprised if the outcome would have been to more completely lay to rest the prejudices that were so openly accepted 100 years later and which we still feel among our society today. (No, electing a black president does not prove that we have no racism or bigotry remaining in our society – in case there was anyone who entertains such a notion.)

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Lincoln’s Second Inaugural Address

I was tempted not to include Lincoln’s Second Inaugural Address among my review of founding documents, but I have become very interested in the parallels between the struggles over slavery and some of the struggles of our day. One question I asked as I read it again was, “have we learned anything in the last 150 years about how to deal with a peculiar and powerful interest within the nation?”[quote] I could not say whether or not we have learned that lesson, but I am confident that we will have occasion(s) in the future to find out whether we have learned that lesson.

I was reminded as I read it that having conflicting opinions and resolving on a uniform course of action while we hold differing perspectives on an issue is a universal and eternal aspect of having an existence endowed with individual liberty – we must learn that lesson individually and as a nation so that we can always say as Lincoln did (whatever the issue we face):

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations. (emphasis added)

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The Opposite of Progress

by r0b0r0b

by r0b0r0b

I was just thinking today that there are two bills currently introduced in the House that clearly demonstrate how Congress acts in opposition to real progress. One is H.R. 1207 (text) and the other is H.R. 3200 (Table of Contents). Let’s have a look at some facts related to these two bills and what those facts illustrate.

H.R. 1207 was introduced just under 5 months ago. The full text of the bill easily fits on one page so every member of Congress could read the bill anytime they have two minuets to spare (admittedly members of Congress are not long on spare time). The bill currently has well over half of all members of the House listed as co-sponsors and yet there is no indication of when it will be voted on in the House Committee on Financial Services (more than half the committee members are co-sponsors but the committee chair is not among them). The Senate version of the bill now has co-sponsors and might well exceed 50 co-sponsors before it comes up for a vote.

H.R. 3200 was introduced two days ago. The table of contents for this bill is longer than the text of H.R. 1207. The bill is more than 1000 pages long (does anyone have that kind of spare time?) and there is every indication that the bill will come to a vote within the three weeks before the August recess (possibly within one week) – well before the vast majority of the members of Congress will have been able to do more than scan it briefly.

If history is any guide (which it generally is) this massive bill being rushed through Congress without adequate deliberation (just like the Patriot Act and TARP) will very soon be the cause of new government intervention (by 2016 at the latest) as we try to clean up the mess that it will leave in its wake. Continue reading

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The Gettysburg Address

Everyone should already be familiar with The Gettysburg Address and have a basic understanding of the context in which it was crafted and delivered. I don’t think there is much I could have to add to that understanding, but I submit that the basic message of the address is still applicable today and that with a bit of rewriting it would be perpetually relevant to any free society. Here is what it could say to anyone at any time in any country where the government recognizes that it truly does derive its just powers from the consent of the people:

Our fathers brought forth a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.

Now we are engaged in a great struggle, testing whether that nation, or any nation so conceived and so dedicated, can long endure. The brave men and women, living and dead, who have struggled for the liberty we have now have given us a consecrated history which we must never forget. It is for us the living, rather, to be dedicated here to the unfinished work which they have thus far advanced. It is for us to be ever dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave so much — that this nation shall have a new birth of freedom and that government of the people, by the people, for the people, shall never perish from the earth.

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The Emancipation Proclamation

After 17 months of what had been expected to be a short war, Lincoln issued The Emancipation Proclamation and gave a 100 day grace period before it was to be effective. I remember being taught that this was a publicity stunt with no effectiveness because it only applied to states that were in rebellion. I think that is too simple a view of what Lincoln was trying to accomplish. I think it would be more accurate to say that it was a threat – with possibly a small hope that it might convince some in rebellion to end their fight against the union in order to keep their slaves before the proclamation took effect.

The goal was not to start armed rebellions within the South. In fact, what Lincoln said to those who would be freed was:

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

I believe that the proclamation could be summed up as “things will be worse for rebels who refuse to come back and rejoin the nation within 100 days.” The effort was to end the war more than to free the slaves.

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Lincoln’s First Inaugural Address

Context is everything so I thought it very appropriate that today was the time for me to review Lincoln’s First Inaugural Address right after reading State Sovereignty and the Senate with its review of the damage to federalism that was a result of the passage of the 17th amendment. The casket of federalism was virtually sealed by the 17th amendment but a major step in weakening this important structure in our system of government came because of the Civil War which many people blame more or less on the election of Abraham Lincoln to the presidency. Lincoln was very much aware of how his election was viewed among the Southern states as seven of the then thirty-six states had announced their secession before his inauguration. It was because of those secessions that  so much of this address was given for the purpose of calming their fears while asserting his intention to not recognize their secession. It failed to calm  or reclaim any states, but  it contains some valuable food for thought as we try to restore the foundations of the liberty that was protected by the Constitution. I’d like to review some of his statements from the speech with a view to our present circumstances.[quote]

Quoting from the party platform:

Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend;

Today we have a federal government that  dictates in large measure how and where to build roads and other forms of transit (I’m not just talking about the interstate system here), what kind of medical care should be provided at government expense (and who should be aligible to receive it), what forms of energy should be pursued, and they hope to define what kind of identification states should issue for official purposes. That’s just a short list of federal intrusions upon state control over state domestic institutions off the top of my head.

All members of Congress swear their support to the whole constitution

This is still true today. Sadly it would seem that the majority of the members of Congress should be fired (replaced in elections) and charged with perjury based on their implementation of their oath of office.

Lincoln makes a compelling argument for the perpetual nature of the nation which we should consider today anytime we hear or engage in speculation on the subject of secession:

if the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade, by less than all the parties who made it? One party to a contract may violate it — break it, so to speak; but does it not require all to lawfully rescind it?

. . .

It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union, — that resolves and ordinances to that effect are legally void

This is not to say that curcumstances could never warrant the breaking of the perpatual union, but to do so peacably and legally would require the consent of the whole government as well as the desire of the seceeding state(s). Lincoln put it this way:

If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side or the other.

This absolute truth is the reason that we can predict the coming of a crisis on some issues – we are able to see instances where neither the majority nor the minority are willing to compromise of acquiesce. Whether we find ourselves in the majority or the minority on any given issue we must remember that:

A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority as a permanent arrangement, is wholly inadmissible; so that rejecting the majority principle, anarchy, or despotism in some form, is all that is left. (emphasis added)

I think that Lincoln captured the essence of what the Constitution was designed by the founding fathers to ensure:

While the people retain their virtue, and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government, in the short space of four years. (emphasis added)

The question will always remain for each succeeding generation – do the people today retain both their virtue and their vigilance?

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An Inside View on the Honduran Situation

It’s always nice to have my positions validated by someone with more inside information than I have. I just learned that Tegucigalpa Cardinal Oscar Rodriguez Maradiaga has taken the same position as I have expressed on every point of the situation in Honduras. (You have to read my posts and my comments afterwards to see me express each of these positions.)

  • Rodriguez issued a statement in a televised address declaring Zelaya’s ouster legal.
  • He recommends seeking a peaceful solution to the political crisis.
  • He has rejected international criticism of Zelaya’s ouster.
  • He has condemned the manner in which Zelaya was kicked out of the country.

To me that’s even better than scouring the Honduran constitution to back up my views on the situation (although that has been done as well).

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Massachusetts Sues Over DOMA

Well, it didn’t take any special insight to know that this would be happening. One look at the similarities between the question of slavery in the 1850’s as related by Lincoln in his House Divided speech and the issue of gay marriage today had me predicting last week that this would be happening. Notice that the argument by Massachusetts is that before DOMA the federal government recognized that defining marital status was the exclusive prerogative of the states.

In principle I would agree with them – the only problem is that while a nation may survive being divided over how high the taxes should be in each state it cannot survive being divided over the definition of marriage any more than it could survive being divided over the perpetuation of slavery.

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An Affordable Health Care System

On Sunday, July 5, Paul Krugamn laid out his argument that affordable health care for everyone was an achievable goal.[quote] Many people would be surprised to learn that I agree with him on that. He correctly argues that we already cover the bulk of the most expensive health care patients by covering the elderly under Medicare. He also argues that the uninsured already receive much care that we are already paying for so we are already paying much of the costs for their care. Finally he argues (as a corollary to the first point) that many of the uninsured are generally young and healthy so that insuring them would cost less per person than our current per-person cost of public insurance (bringing down the average cost per person and increasing the overall cost only slightly).

His conclusion is that “extending coverage to most or all of the 45 million people in America without health insurance — should, in the end, add only a few percent to our overall national health bill.” He would be right at the beginning but eventually the nightmare spiral of skyrocketing costs would take over because the fundamental problem in our health care system would not be addressed – overuse and the disconnect between the source of payment and the subject of care.

Continue reading

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