Non-State Affirmative Action is Now in Congress's Court

Why, you may have wondered, is the Supreme Court telling Harvard, a private university, that it is bound by the Fourteenth Amendment? Reading the majority's opinion and its eight-page opening summary, you might miss that detail. But it's there, in a footnote:

"Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself."

Justice Gorsuch, concurring, adds: "Without question, Congress in 1964 could have taken the law in various directions."

It still can.

State schools, such as the University of North Carolina, are bound by the Fourteenth Amendment. But the Supreme Court's decision applies to private schools ONLY because of the 1964 Civil Rights Act, which Congress can amend. (Nor does the Fourteenth apply to the federal government, including wholly federal schools, such as the service academies.)

The Court's earlier rulings encouraged a veiled process and some squeamishness about exactly how race was used in permissible affirmative-action programs. But Congress can be as specific or as vague as it wants in adding exceptions to Title VI, to allow, or even to require, affirmative action.

It will be interesting to have this question back in the hands of the elected branches of government, and see if there are solutions that enough senators and representatives can agree on.

Remember: Segregation was a huge, "progressive" government program

• The Color of Law: A Book Review
• The Color of Law: A Forgotten History of How Our Government Segregated America
• Interview with The Color of Law author Richard Rothstein on National Public Radio’s  Fresh Air 

Economic-liberty case Buchanan v. Warley kept segregation from becoming outright, literal Apartheid

Here's the story:

The Party of Jefferson: What the Democrats can learn from a dead libertarian lawyer

By DAMON ROOT in Reason

Before "rights," the invention of "we," "mine," and "not" made us human -- Bart Wilson

Book Interview: The Property Species: Mine, Yours, and the Human Mind

"In his new book The Property Species, Chapman University law professor Bart Wilson offers a strikingly original look at the origin and meaning of private property.  Unlike scholars who argue that property is a 'social construct,' Wilson argues that property is a deeply and uniquely human practice.  Incorporating insights from history, linguistics, law, and his own laboratory experiments, Wilson illuminates the means by which our ideas of private property originate and gain their moral and legal force.   In this conversation our Teleforum will examine how the institution of private property marks human beings as 'the property species.'" LISTEN

Longtime ACLU leader champions the right to donate anonymously and bigly in politics:

... Philanthropy: Do you consider private giving a form of free speech? 

Strossen: Absolutely. And, much more importantly, so does the U.S. Supreme Court! In philanthropy, as well as in campaign contributions, what the court has held is that whether it’s on behalf of charitable assistance, some social-justice movement, a policy cause, a political candidate, a publishing platform, whatever, if the government says, “You may only spend X amount of money, and not more than that,” it is limiting your ability to convey your message effectively.

Philanthropy: Do you think donors have a right to be private or anonymous in their giving?

Strossen: Absolutely. And the Supreme Court supported this, interestingly enough, in a case that involved a corporation. Corporations include not just businesses but also nonprofits and other groups where individuals band together. But some critics dislike corporations and ask why they should have free speech, why they should they have the right to spend money in support of their ideas. The Supreme Court, though, has recognized both of those rights, and the right of incorporated groups to do their work anonymously. This came together in a historic case in 1958, involving a corporation some people considered disreputable—the NAACP. Like most other social-justice organizations, like most public-interest organizations all across the ideological spectrum, the NAACP is organized as a not-for-profit corporation.

Back in 1958, Southern governments were upset with the NAACP’s crusade against racial segregation, and they used whatever tools they could to try to stop the NAACP. One of their most potent threats was to require the NAACP to turn over lists of its members and donors. The Supreme Court recognized that if people had to reveal their identities, they would be exposed to hostility from critics, and many of them would have to end their support of the NAACP. If the court had not protected donor anonymity, NAACP and its civil-rights causes would have been completely undermined if not destroyed.

. . . 

Philanthropy: One argument in your book is that when speech rights are curtailed, even on behalf of a vulnerable population, the vulnerable end up suffering for it.

Strossen: Yes. If you allow restrictions on speech where there are sharp differences in viewpoint, then of course over time it’s predictable those who are likeliest to be silenced are marginalized groups. That is exactly the pattern that we’ve seen throughout history and around the world. 

It seems ironic to me that those who support censoring hate speech usually start with the premise that there is overwhelming oppression built into our society—systemic injustice. Well, if they are right, the last thing they should want is to hand over to our government more discretionary powers to discriminate. 

Philanthropy: There was a hearing on Capitol Hill last year titled “How the Tax Code Subsidizes Hate,” asking if “hate groups” should have their charitable status revoked.

Strossen: One person’s hate group is somebody else’s love group. Black Lives Matter has been labeled a hate group. The Southern Poverty Law Center has labeled as hate groups people who just have a different perspective from the Southern Poverty Law Center. 

One organization I’m very familiar with is the Alliance Defending Freedom. ADF has been on the opposite side of the ACLU in many cases, and we could not disagree more strongly on some key issues. But I oppose their being labeled as a hate group. The idea of the IRS having the power to label hate groups is really frightening. It’s giving the government the power to suppress citizen action on the basis of ideological agreement or disagreement, which is really, really frightening.

"Interview with Nadine Strossen," Philanthropy, Fall 2020

The Final Wedge Cleaving Liberals from Progressives: Justice Alito's Speech and the "Two Minutes' Hate" Reaction.

"If you step on my foot, don't get angry when I . . . say 'Ouch!'" -- Minister Don Muhammad

---

When I was a campus ACLU leader in the 80s and 90s, I agreed with everything U.S. Supreme Court Justice Samuel J. Alito said in his speech to the Federalist Society last week. (Transcript here; video here, substance of speech starts at 17:30.) I still do. I realized even back then that some of my farther-left collaborators didn't agree with all of it, just most of it. But now, many of them don't agree with hardly any of it, especially suddenly controversial ideas like freedom of speech, freedom of religion, freedom of conscience, and an independent judiciary. In case there was any doubt, they made that clear in their instant reactions to Justice Alito's speech. No longer "liberals," they now call themselves "progressives," after the late-1800s-early-1900s reformers who declared that democracy and constitutional limited government were outmoded, and that a nonpartisan expert elite should rule instead.

In college, we were taught what was called a "Marxist" critique of the "progressives": Whether foolishly or intentionally, they viewed their own cultural and economic elite interests as impartial, non-political, universal, benevolent and scientific. They were politically, culturally and economically anti-democratic. Back in the 1970s and 80s, it was a liberal and generational imperative to make sure that everything was done absolutely democratically and inclusively. But sometime in the 90s, this was replaced by a new prime directive: to be in harmony with "the international community" of unelected, unaccountable elites.

So the Progressives are back now, in force, and apparently trying to prove the truth and urgency of everything Justice Alito said about them. Kind of like threatening violence against someone who calls you violent. He criticized the growing intolerance of even mainstream beliefs, and thousands of tweeters and Facebookers responded by calling for him to be impeached for it. He criticized five Senators who had openly threatened to "restructure" the Court* if it did not rule the way they wanted, pointedly mentioning a foreign judge who told him about having judicial independence on paper, but with a tank pointing at his courthouse -- and Senators responded with more threats, saying he shouldn't be allowed to criticize them because that's "political." ( *Well, they now say they didn't say "restructure," their amicus brief just happened to quote a poll of people who said the court should be "restructured.")

Senator Elizabeth Warren tweeted: "Supreme Court Justices aren't supposed to be political hacks. This right-wing speech is nakedly partisan. My anti-corruption bill restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow." Looking at her summary of the bill, that may be the only thing the bill does that is harmless or constitutional -- for now. But what she probably intended it to impose is a proposed reform to the judicial ethics rules, now withdrawn (for now), banning judges from the Federalist Society but not the American Bar Association. Because of course, in the fine old Progressive tradition, the ABA considers itself nonpolitical while advocating for thousands of left-wing public policies.

Los Angeles Congressman Jimmy Gomez tweeted, "Homophobic rhetoric isn’t a matter of free speech. It’s a matter of hate speech. These are stunning, harmful words from Justice Alito." To be clear exactly what he was calling homophobic, Constitutionally-unprotected "hate speech," he quoted the Justice: “'You can’t say that marriage is a union between one man and one woman' any more, Justice Alito said. 'Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.'” 

Which part of that do Congressman Gomez and the other critics even disagree with? That "you can't say" it? That the vast majority agreed with it until recently? That it's considered bigotry? If anyone would disagree with that, wouldn't it be the "religious right"? Are they still around?

Many of the instant reactions seemed to be reacting to what people imagined Alito might say, not anything he actually said. For example, that he was against masks and shutdowns. Some headlines quoted his sentence, "The pandemic has resulted in previously unimaginable restrictions on individual liberty," as if that meant that he must be denouncing all such restrictions, not just stating a universally-recognized historical fact. Actually, he criticized a recent court decision that let a state single out churches for much stricter limits than casinos and other businesses. And more broadly, he warned that the now-necessary restrictions, and the executive branch's authority to impose them, were still subject to judicial review, and should not become permanent once the pandemic is over. The Young Turks, oddly, played a clip that included him saying that he was not criticizing most of the restrictions, and only questioning the legality of a very few of them, but then they spent ten minutes responding as if he had criticized mask mandates, calling him "insanely irresponsible."

An article titled "Jurists Shocked by Justice Alito's 'Wildly Inappropriate' Attack on LGBTQ Equality, Reproductive Rights, and More" merely played a game with the common versus the obscure meanings of the word "jurist" --

"Although it means any attorney or legal scholar, jurist popularly refers to a judge." West's Encyclopedia of American Law.  

It quoted no judges, only two prominent legal journalists with law degrees, one lawyer/commentator, one law professor/former prosecutor, and the director of strategy at a "legal advocacy group." People certainly qualified to opine, but whose job is politics and advocacy -- very different from the impartial eminence "jurist" connotes.

Journalists who know better, or their editors who at least officially don't, began piling wild-eyed adjectives and warlike metaphors onto sometimes otherwise objective and balanced stories about the speech.  CNN called it "ireful ... infuriated" with a "gnashing ideological tone ...". Roll Call, more subdued, said he "stepped into the ring ... to throw a few punches ..." and "targeted Sen. Sheldon Whitehouse." The New York Times called it "unusually caustic and politically tinged," but admitted that it did not violate any rules and reflected his already published "judicial opinions, which have lately been marked by bitterness and grievance,"  and that several experts "said it was unexceptional for justices to describe positions they had already taken in their judicial work." 

Slate, though, was in a class by itself, taking great pains to misrepresent the speech as unethical. It led with "Grievance-Laden, Ultrapartisan" ... "railed against COVID restrictions, same-sex marriage, abortion" [uh, no, he didn't actually criticize any of those, except for the restriction that singled out churches] and put an URL ending in "insane.html" on its article. "These comments revealed early on that Alito would not be abiding by the usual ethics rules, which require judges to remain impartial and avoid any appearance of bias" ... "a bitter partisan out to settle scores with the left. Flouting his ethical obligations, Alito waded into fierce political debates" ... "notoriously cranky, but he seemed to be in relatively good spirits ...".

Hundreds of Facebook commenters immediately called for impeaching him, some saying to throw in the Black guy while we're at it. Many claimed that the speech "revealed his bias," and they really seemed to believe that now that he had publicly revealed his beliefs about the issues he has ruled on, that that actually justified impeaching him, or demanding his resignation. Some said that he must be gay, sometimes using pretty graphic terms. Some demanded that the Federalist Society, too, must be abolished. Basically, there are a lot of fascists (I'm sorry, I mean "progressives")  out there who believe -- or who pretend to believe so hard that they may actually come to believe -- that having conservative, libertarian, or mainstream-liberal-but-not-progressive beliefs should legally disqualify one from public office, and that actually advocating or working to implement such beliefs should be illegal.

I wonder what would happen if Senator Warren and the rest of the ProgMob found out that judges and Justices not only give speeches about the Bill of Rights and the need for an independent judiciary, and bristle at threats from politicians -- they actually write long opinions about every case they decide, even ones that involve political or controversial ideas, and the government actually publishes them! And they've been getting away with it for almost 700 years!

Clarification: was joke. Senator Warren was a professor at America's best law school, so of course she knows better. She just thinks that if enough of us pretend not to, for just long enough, we can pretend to rationalize court-packing by claiming the other side broke all the norms and packed the court first. And as a progressive, she honestly believes that only other people have ideologies or politics.

Before I had even finished watching the speech, my Facebook filled up with progressives suddenly convincing themselves that of course, we have always known that Justices aren't allowed to make speeches about Constitutional issues, evidently suppressing all their memories of a once-celebrated Justice named Ginsburg:

• "How can anyone have a fair hearing in front of this justice? He does not belong on the Supreme court. Who can take him on?"
• "He has abdicated his credibility and moral authority as a judge and must resign."
• "He doesn't even pretend to be impartial. Judicial sleeze."
• "Get rid of the Federalist Society."
• "They should never be allowed to put there personal ideas out publicly ...."
• "Omg....wow....what a nutcase! ... He, along with Trump, should be charged with murder for all these deaths."
• "Alito should be removed from the bench. He is making a political statement with his words about infringement of freedom."
• "Alito Outs Himself as Total Whacko."
• "He must recuse himself on all arguments involving these issues. He has revealed his bias!!"
• "Start the Impeachment process immediately. His ideas are too bias for his position."
• "Another one who could use a good boot in the neck."
• "Alito outs himself as full-on partisan crusader." -- U.S. Sen. Sheldon Whitehouse
• "Such prejudicial opinions should disqualify him to sit as a Supreme Court Justice."
• "Time for partisan Supreme Court justices to be elected by the people rather than appointed for life."
• "Alito should be censured and removed from the Court. He violates his position."
• "Republicanism is a mental and social disorder. Alito needs to be impeached for speaking to a Republican Nazi organization like the "Federalist Society." They should be declared a domestic terrorist organization like the GOP, NRA, and a dozen others."
• "It shouldn’t be permissible for a sitting Supreme Court (or any other) justice to speak to radical organizations like the Federalist Society."
• "Appalling and sickening ... There really should be ways to remove justices with mindsets that are contrary to the very core of the Supreme Court's Constitutionally mandated role."
• "When a Chief Justice in the Supreme Court feels like he has to publicly make a political statement, he should lose his seat. That is not seperation of Church & State."
• "Religion is a lifestyle choice. Sexuality isn't."
• "'Justice Alito's wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes -- and they're planning a partisan revenge tour,' said Aaron Belkin, director of Take Back the Court, a progressive group advocating court expansion."
• "'If there were enforceable recusal standards at the high court, this would be a ripe opportunity for a motion to disqualify,' said Gabe Roth, executive director of Fix the Court, a nonpartisan independent watchdog group ..."
• "How can he continue on the court with such a publicly revealed bios! I believe this is impeachable for an associate justice!"
• "Diarrhea of the mouth with prejudice aplenty!"
• "He needs to get the fuck out of OUR Supreme Court!"

 

Biden: Court-packing, even by the good guys, is "imperialist," "corrupted by power," "will lead inevitably to autocratic dominance."

"Levy's Law: When the One offers the Many an alliance against the Few, it is not for the purpose of benefiting the Many." -- Jacob T. Levy

---

"Sometimes the Senate has had to stand strong and toe the line against imperialist Presidential leanings.

"...  The Senate .. stood firm in the 1805 impeachment of Supreme Court Justice Samuel Chase. President Jefferson’s party had majorities in both the House and the Senate, and Jefferson set his sights on the Supreme Court. Specifically, he wanted to remove Justice Chase, a committed Federalist and frequent Jefferson critic, from the Court. Jefferson was able to convince the House to impeach Justice Chase on a party-line vote, and the President had enough members of his party in the Senate to convict him. But members of the President’s own party stood up to their President; the Senate as an institution stood up against executive overreaching. Justice Chase was not convicted, and the independence of the judiciary was preserved.

"The Senate again stood firm in the 1937 court-packing plan by President Franklin Roosevelt.

"This particular example of Senate resolve is instructive for today’s debates, so let me describe it in some detail. It was the summer of 1937 and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a Congress made up of solid New Dealers. But the ‘‘nine old men’’ of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress and from statehouses across the country.

"In this environment, President Roosevelt  — and remember this old adage about power corrupts and absolute power corrupts absolutely — corrupted by power, in my view,* unveiled his court-packing plan—he wanted to increase the number of Justices on the court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt’s own party stood up against this institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism. [* Italics above are words that were in spoken version but not printed.]

"In May 1937, the Senate Judiciary Committee—a committee controlled by the Democrats and supportive of his political ends—issued a stinging rebuke. They put out a report condemning Roosevelt’s plan, arguing it was an effort ‘‘to punish the justices’’ and that executive branch attempts to dominate the judiciary lead inevitably to autocratic dominance, ‘‘the very thing against which the American Colonies revolted, and to prevent which the Constitution was in every particular framed.’’

"Our predecessors in the Senate showed courage that day and stood up to their President as a coequal institution. And they did so not to thwart the agenda of the President, which in fact many agreed with; they did it to preserve our system’s checks and balances; they did it to ensure the integrity of the system. When the Founders created a ‘‘different kind of legislative body’’ in the Senate, they envisioned a bulwark against unilateral power—it worked back then and I hope that it works now.

"... In the end, Roosevelt’s plan failed because Democrats in Congress thought court-packing was dangerous, even if they would have supported the newly-constituted court’s rulings."

Sen. Joseph Biden, CONGRESSIONAL RECORD, April 27, 2005, pp. S4362-S4363

Human and political rights, as defined 330 years ago today by England's Parliament, King and Queen

... 

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;

By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

By violating the freedom of election of members to serve in Parliament;

By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;

And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;

All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

. . . 

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; ...

From English Bill of Rights 1689: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

Happy Birthday to the self-deprecating vice-president who saved the Supreme Court and the independent judiciary

My cousin and contemporary John Nance "Cactus Jack" Garner III (born November 22, 1868, d. 1967 when I was three weeks old) is known only for saying the vice-presidency "isn't worth a bucket of warm spit," or something like that. But he is actually one of the most important vice-presidents. In 1937, FDR relied on Garner, a former Speaker of the House and legendary back-room politicker, to get his "court packing" bill through Congress. The bill would have let the President appoint enough additional justices to create a compliant majority on the court. But 

"From the start, Garner loathed the plan and thought that it would be a threat to party harmony. He began covertly to rally the opposition."

-- "Court-Packing Plan of 1937," by Lionel V. Patenaude, Texas State Historical Association, citing Lionel V. Patenaude, "Garner, Sumners, and Connally: The Defeat of the Roosevelt Court Bill in 1937," Southwestern Historical Quarterly 74 (July 1970). Lionel V. Patenaude, Texans, Politics and the New Deal (New York: Garland, 1983). Bascom N. Timmons, Garner of Texas (New York: Harper, 1948). 

Garner and his allies managed to make the environment for the bill so toxic that he finally was able to tell FDR he had to withdraw it. "Eventually, Garner was given credit for smoothing over the crisis, but he had also rendered himself persona non grata with the administration." So we have John Nance Garner to thank for the U.S.'s independent judiciary, which has given us everything from racial integration to gay marriage.

When incorporating was a privilege, only the privileged got to incorporate and do business. Do we really want to go back to that?

The Warren Plan and the History of Corporate Chartering

By WALTER OLSON at cato.org, citing

 

Elizabeth Warren’s Surreptitious Socialism

by Richard A. Epstein

See also

Elizabeth Warren’s Batty Plan to Nationalize . . . Everything

By KEVIN D. WILLIAMSON in the National Review

 

and

Elizabeth Warren's Big Power Grab

Not only has it failed every time it's been tried, it's also most likely unconstitutional.

By Walter Olson at the Foundation for Economic Education

 

 

Yes, Virginia, "You, too, will meet the secret police!"

-- So Jello Biafra sang on his Spoken Word Album, which he gave me several copies of when my ACLU chapter had him come speak to an unexpectedly huge and raucous crowd at my college. But I never thought we would actually have entirely secret police in Virginia, where the Bill of Rights was invented. 

Virginia bill to keep officers' names secret would be first in the nation, experts say

By Gary A. Harki and Patrick Wilson, The Virginian-Pilot

Jefferson is why the modern world values equality, democracy, and human rights

By John Crouch

On his 275^th birthday, Thomas Jefferson is in danger of getting run out of town on a rail, his statues teetering on a slippery slope which we had been told would become dry and level as soon as Robert E. Lee was cast down it. We already knew he was a slaveowner and probably a race-mixing unwed father, but lately we’ve been confronted with the inhumane cruelties that slavery involved even at Monticello, and some are calling him a rapist and a child molester because Sally Hemings was a slave and was 16 when she first became pregnant.

But at the  same time, without Jefferson, we would not have today’s movements for racial equality and other human equality, we wouldn’t have had the Civil Rights movement and its imitators, and even Abolitionism would have been very different and less popular. Now, it’s well known that he is where Americans think that we get most of our ideas about liberty. But what we forget, in these days when we’re focused on a mostly false opposition between liberty and equality, is that he is much more uniquely, and crucially, the source of our beliefs in equality, democracy, and universal human rights. As the author of the Declaration of Independence, as the founder of the Democratic Party, and as a powerful, lifelong agitator for expanding political liberty and equality.

Without him, the American Revolution, and the American idea, would likely have been about defending the hereditary rights of free-holding Englishmen. Perhaps inspiring enough to achieve independence, perhaps not. But not much of an inspiration to the rest of the world, and far less appealing to Christians and philosophers than declaring our independence by announcing:

"That all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

This ideology and theology of radical human equality was not Jefferson’s invention: it had colorful, eccentric champions during the English Civil War and Commonwealth era (1640s-50s), Quakerism seems consistent with it if not based on it, and Hobbes and Locke used it in different ways as a starting point for their philosophies. The idea had recently been expressed in Thomas Paine’s Common Sense, and in George Mason’s Virginia Declaration of Rights. But Jefferson put it at the top of America’s founding document, its public statement of what its war was about, where everyone read it or had it read to them.

And Americans would not have their wide and deep belief in equality and democracy if it were not for the ongoing work of Jefferson and the political party he founded, which was always the democratic party even when it was still named “Republican” or “Antifederalist.” Even when it fostered and exploited racism, it did so using democratic rhetoric that ultimately arcs towards equality for all. Even now and in the days of Woodrow Wilson when it seems like the more elitist and “Progressive” party, it pays truly valuable lip service to democracy and believes it can reconcile all such contradictions; it contains multitudes with more consistently democratic impulses, which they carry with them to other parties if they leave the party in disgust, fear and sorrow. Even the Whigs and the modern Republican party inherited more from it than from the old, aristocratic Federalists.

Lately both the elitist Progressives, and a few loud, immature, shallow Libertarians, like to pit liberty and equality against each other. They envision a wealthy and antisocial Individual exercising individual liberty for his own amusement and benefit, at the expense and indulgence of a democratic government that seeks to constrain him for the common good of the many and the poor. But that wasn’t the situation in Jefferson’s time, nor for most of our history, nor today. Jefferson and generations of his contemporaries feared governments that suppressed individual rights in order to suppress the majority and subvert or prevent democracy. They saw absolutist governments create privileged elites, not equality. They knew that democracy can’t function as democracy if individuals aren’t free to express their actual beliefs, spread news, and try to persuade each other and their representatives. Nor without the other freedoms in our Constitution. And they fought for individual liberty, not because it let them do selfish things or express their unique selves, but to be free to do what they thought was their duty to God and to society.

On Jefferson’s birthday, we remember that he was far from perfect on issues of liberty and of equality. But he worked to expand both of them, and so should we.

"Investigating" citizens who lobby against you (AKA "petition for redress of grievances") has a long and un-American history

"At the behest of the Roosevelt administration in 1935, the U.S. Senate established a special committee to investigate lobbying activities by opponents of the ... Public Utility Holding Company Bill. Chaired by Hugo L. Black (D-Ala.), the “Black Committee” expanded its mission into a more general probe of anti–New Deal organizations and individuals. The committee used highly intrusive methods, notably catch-all dragnet subpoenas, to secure evidence. It worked closely with the IRS for access to tax returns and with the FCC to obtain copies of millions of telegrams. When the telegram search became public information, there was a major backlash from the press, Congress, and the courts. Court rulings in 1936, resulting from suits by William Randolph Hearst and others, not only limited the committee’s powers but provided important checks [on] future investigators, including Senator Joseph McCarthy."

New Deal Mass Surveillance: The “Black Inquisition Committee,” 1935–1936

 

David T. Beito, Journal of Policy History,Volume 30, Issue 2, April 2018 , pp. 169-201

Other formats, publication info and abstract

"Corporations are people" is irrelevant to "Citizens United" and other federal-law cases -- just read the case's name!

The phrase "corporations are people" deliberately conjures up images of huge money-grubbing businesses that don't care about people, getting favors from a government that cares more about them than people.  It's widely known to come from from early, "Gilded Age" pro-business interpretations of the 14th Amendment. And yet the very name of the "Citizens United" case should be a giveaway that the freedom of non-profit groups of citizens, advocating about political issues, was at stake in the case. Do those who scoff at Citizens United, for supposedly saying corporations are people, really believe that civil rights groups, women's groups, antiwar groups, veterans' groups, and religious groups, have no Constitutional rights?

The second half of the case's name, "v. Federal Election Commission", is a big clue that 14th Amendment case law about "persons" has nothing to do with it. The part of the 14th Amendment about persons and rights, Section 1, solely restricts what states can do to people or "persons". It reads:

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.

But the First Amendment, which works directly on the federal government, and indirectly on states through the 14th Amendment, focuses on prohibiting the government from violating freedom of speech, press, or religion, with absolutely no exceptions concerning who or what is speaking, publishing, etc.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ...

There is a reference to "the people" in the second half of it:

"... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Justice Kennedy's majority opinion in Citizens United does not say corporations are people. Instead it points out that the First Amendment does not make exceptions for who is doing the speaking or publishing; that all effective speech costs money, and that an argument that "corporations aren't natural persons" is not wrong, but irrelevant to the First Amendment.

Joe Albanese pointed out this crucial but apparently never-noticed distinction today, reveling in the irony of Ben & Jerry's using its free-speech rights to argue against corporations having free-speech rights, in "Is Big Ice Cream Trying to Hijack Our Democracy?" Former Federal Election Commission member Brad Smith says more about groups' free speech rights, and another threat to them, in "Tester’s assault on corporate rights is an assault on people’s rights."

I wish people would read the case opinion before criticizing it, but if you don't do that, you could at least read the case's name and the most important sentence in our Constitution.

The Burgering of Buchanan and JQ Adams; the apolitical Golden Age never was

 One last leftover from my attempt to provide a full history of "Borking" and "Burgering" during the Garland nomination:

"Justice Robert Trimble died in August 1828 as the election campaign between President John Quincy Adams and Andrew Jackson was concluding. Adams allegedly asked Henry Clay to consider replacing Trimble, and Adams then nominated John Crittenden in December 1828, after Jackson won the general election. The Senate postponed any vote on Crittenden until Jackson became President. After Jackson became president the following March, he named John McLean to the position.

Justice Peter Vivian Daniel died in late May 1860 during the race that saw Abraham Lincoln win the White House. President James Buchanan failed to get Jeremiah Black confirmed as Daniel’s replacement in February 1861. Lincoln finally had Samuel Miller confirmed in July 1862 to replace Daniel.

--

From "Why the current Supreme Court nomination situation isn’t that unique"

Constitution Daily, February 14, 2016, by Scott Bomboy

 In February 1861, President James Buchanan had nominated Jeremiah Black to the Supreme Court, but congressional Republicans awaiting Lincoln's arrival and inaugural in barely a month sought to save the seat for a Lincoln appointment.

The Supreme Court and Military Justice by Jonathan Lurie - 2013

Yet, there is one glaring error in almost all commentaries on disputes over judicial selection over the past few decades—the absence of any substantiation of an earlier, so-called “golden era” in which there actually was general deference within the Senate to Presidents’ nominations to federal district and appellate judgeships.  ... Nor was the antebellum Senate uniformly or reflexively deferential, occasioning the forced withdrawals of some nominees, rejections based on concerns about the nominees’ integrity, or their positions on the hot-button issues of the day—most importantly, slavery. There was deference, but it was not automatic. Further, there was no systematic or sustained consensus on “merit.” Judicial nominations were often made to reward political allies, and opposition fomented to punish political foes. Political and ideological concerns were almost always a backdrop, if not expressly important factors, in the dynamics of the judicial nomination and confirmation process during the pre-Civil War period. Strikingly, despite the existence of a greater absolute number of judicial seats (and allegedly more bitter politics), the ultimate percentage of confirmed nominees between the antebellum period and the modern one is comparable. Moreover, the confirmation process in each of these eras largely functioned as it was designed by the Framers and paid special attention to nominees who lacked integrity or were obviously unqualified or unsuited for the bench.

... Critics of the current system often point to the increased politicization of the process as the cause of departure from some prior “golden era.” The ideal approach to federal judicial selection would presumably focus primarily, if not exclusively, on personal qualifications, integrity, and strength of character in place of the apparent current preoccupation with political party affiliation. In fact, the process has never had that kind of focus, and a closer look at the early years of judicial selection reveals an era of controversial nominations that was by no means halcyon. ... Every antebellum President took political considerations into account in making nominations; ... political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. 

... It might appear that there is a better chance today that one party’s members will unify against a candidate based on their dislike for a President and their hope to preserve the vacancy for the next President, whom they hope will be from their own party. Of course, this circumstance is not new to American politics. It is no different than how Democrats had obstructed some of Tyler’s judicial nominations, particularly his last efforts to fill a Supreme Court vacancy, because of their dislike for Tyler and hope to preserve the vacancy for the next President, whom they expected to be from their party. Similarly, Democrats blocked Fillmore’s efforts to fill a Supreme Court vacancy because they did not want Fillmore to make it. When Republicans obstructed or successfully blocked confirmation proceedings in anticipation of the 2012 presidential election because they disliked President Obama or simply did not want him to fill vacancies, their actions were not unprecedented. They were doing what partisan Senators had done since the early 1800s.

... It is plainly evident that nominees’ outlooks or ideologies played a central role in the selection and confirmation process, just as they do today. ,,, There is ample evidence indicating both Presidents and Senators took political connections, ties to themselves and/or their parties, and even ideological considerations into account in assessing judicial nominees. Moreover, there is no evidence to suggest that any consensus or even express preoccupation with merit existed. Merit was, and still is, a contested concept within this process. ... When all is said and done, politics or political considerations have played a significant role in a process that the Constitution explicitly placed under the control of the nation’s political leaders. 

 -- From "The Politics of Early Justice: Federal Judicial Selection, 1789–1861", by  Michael J. Gerhardt & Michael Ashley Stein

 

"Two main factors controlled [Lincoln's]appointments to the Court: Lincoln's demand that the selectees have sound political views on the great issues of the Civil War, and the political forces that guided his selections. Lincoln did not require political training and judicial experience as primary requirements."

In 1861, Lincoln was very busy and the Supreme Court was adjourned from March until December, so he did not find it very urgent. But by December there were three vacancies and two Justices were too sick to participate, so he realized he needed to appoint at least one. Each of the three appointments were hard decisions about which political supporter, and group of supporters, to reward; and it was also made harder because Associate Justices were supposed to be replaced with men from the same federal judicial circuit, and Congress was in the middle of revising these because of westward expansion. Miller was his second appointment. The third was ... 

Lincoln's Supreme Court

By David Mayer Silver, U. Ill. Press, 1956

"Lincoln advised Davis on August 27, 1862, that he intended to appoint Davis to the Court. Lincoln waited seven weeks, until October 17, to officially appoint Davis to the seat, which had been vacated by Justice Campbell, of Alabama, when he resigned on April 30, 1861, to join the Confederacy. Thus, Lincoln left the seat vacant for more than seventeen-and-a-half months before filling it."

 

Some Legal Myths About Lincoln

By ROBERT FABRIKANT

SJnl A. Lincoln Assoc., Volume 29, Issue 1, Winter 2008, pp. 38-50

Founders valued assassination, but said constitutional government made it obsolete

 

"Impeachment and Assassination" by Josh Chafetz in the MINNESOTA LAW REVIEW, Vol. 95 p. 347

Police successfully justify killings with irrational fears, some based on training & jargon

The Unwritten Law That Helps Bad Cops Go Free

by DAVID FRENCH in the National Review

And that's because of "jurors with an authoritarian mindset," Brian Lambert writes:

“... the “authoritarian” aspect refers to those on the receiving end, people who have been acculturated to give uncritical respect to any authority figure, be they parents, teachers, government leaders or cops.

Justice for Castile v. the Authoritarian Juror

by Brian Lambert on wrywingpolitics.com

Civil forfeiture's worse than we thought; blurs difference between cops & robbers, compliance & bribery.

I already knew Civil Asset Forfeiture was often horribly misused and somehow started affecting people who hadn't been convicted of crimes. But people who aren't even charged? In some places, it has taken America back to the bad old days where it isn't safe to travel if you're a minority or from out-of-state. Worse, some counties have become like those corrupt third-world countries where there's no real difference between cops & robbers; bribes & "fines". Where innocent travelers might get stopped at any time for a bogus crime and have to sign over whatever cash they have with them to get out of jail and -- a particularly American twist on this barbarity -- to not have their children taken away.

And sometimes, as described below, public servants are so focused on grabbing the cash etc. that when they do stop actual, serious drug-runners, they let them go, as long as they literally "get the goods" off them. 

There have been bipartisan efforts in many states, most recently Virginia, to reform "civil forfeiture" so it only applies to convicted criminals. (If something's actual evidence of a crime that someone's charged with, it would still be kept temporarily as evidence anyway.) But what this New Yorker article has to say makes it far more urgent than I knew.

TAKEN: Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?

 

By Sarah Stillman in The New Yorker

CBS edit totally changes what Bill Clinton told Charlie Rose on Big Question of the Day -- HRC health

If you saw the headline you may have thought, as I did, that it was a vague hook about something that probably amounted to nothing ("CBS News Edits Out Embarrassing Verbal Slip"). Well, it's not nothing, it's big. CBS, in its broadcast, removed Bill's first and most revealing answer and retraction, changing “frequently—well not frequently, rarely”  to simply "rarely". The full sentence and other context are in CBS's article about the interview:

“Well if it is, it’s a mystery to me and all of her doctors,” he said, “because frequently—well not frequently, rarely—but on more than one occasion, over the last many, many years, the same sort of thing happened to her when she got severely dehydrated.” 

Sorry, if anyone, but ESPECIALLY Bill Clinton, says something like, "frequently, I mean rarely, multiple occasions, but I mean over many many years", the public deserves to hear all of that and decide for themselves which parts to believe, which part of his teeming brain to listen to as its more and less honest and dishonest hatchlings jostle and trample each other in the rush for his mouth. The guy is a master: he really doesn't hardly ever lie, he talks in a way that makes you want to believe he's totally on your side, and to stop listening before he gets through all of the qualifiers and reversals at the end of the sentence, but you have to doggedly listen to all that while reserving all judgment on what impression to form, or you'll misunderstand him every time. So if you ever take a jot or a tittle out of one of his sentences, you'll change the meaning a hundredfold.

Depressing that this was with Charlie Rose. Rose gives every impression of setting the gold standard for thoughtful, nuanced discourse and intellectual honesty that brings everyone together around his table. "Talking with Charlie Rose" is almost a sacred rite, even more so than testifying to a court under oath on penalty of perjury. 

I may have only clicked on the story because the part of the article that showed up in Facebook's link had a word missing, and I have a pet peeve about people who leave mistakes uncorrected when they are criticizing someone else's minor wording mistake or writing about how important good grammar is. But that typo had been fixed in the article although it remains in Facebook's display, and it wasn't in an article about a trivial mistake, as it turns out.

CBS News Edits Out Embarrassing Verbal Slip in Bill Clinton Interview

By Alex Griswold on mediaite.com

Bill Clinton Says Hillary Has Had Fainting Spells ‘On More Than One Occasion’

By Chuck Ross on The Daily Caller. (The key part of the story is "below the fold" -- or rather below the ribbon of "Sponsored Content" ads.)

CBS article that contained the full sentence as of this writing, 4:00 p.m. 9/13/16: 

Bill Clinton: Hillary Clinton "doing fine" after incident at 9/11 ceremony

By EMILY SCHULTHEIS