Posts Tagged ‘Supreme Court’
“Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”*…
Franklin’s caution was, of course, premonitory. David W. Blight explains why in his review of James Oakes‘ new book, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution…
Historians can and do change their minds about interpretations of events and the uses of evidence. We may be dead certain, or even mildly sure, about facts and the stories we tell about them, but our craft requires us to remain open to new persuasions, new truths. James Oakes used to believe that the United States Constitution was essentially proslavery in its foundations, and that any attempt to breathe antislavery meaning into it was strained or rhetorical and not textually supported. But no more. In his remarkable and challenging book The Crooked Path to Abolition, he makes the case that there were effectively two constitutions written in Philadelphia that summer of 1787, one proslavery and one antislavery, which would be in conflict with each other for more than the next fourscore years.
Oakes, a distinguished professor of history at the CUNY Graduate Center, is not the only historian to have changed his view on this matter. In my first book, in 1989, I treated Frederick Douglass’s development of an antislavery interpretation of the Constitution as a slowly evolving perspective on his road to becoming a pragmatic political abolitionist and as a form of wish fulfillment in the absence of alternatives. I called his antislavery constitutionalism “dubious”—a search for political and moral ground on which he could stand to avoid embracing violent revolution by the 1850s. But I have come to see him as a deeply committed political thinker who argued his way, through what he called “careful study,” using legal and moral logic, to a vision of an antislavery Constitution. Guided by the natural rights tradition, Douglass found the core meaning of the American crisis. “Liberty and Slavery—opposite as Heaven and Hell,” he wrote in 1850, “are both in the Constitution.” What divided the nation was a Constitution “at war with itself.”
It has long been understood that without the compromises that were struck to bolster the interests of the slave states, there might have been no constitution achieved in 1787, and the thirteen original states might have careened off into regional coalitions at best…
he original Constitution reeked of complicity with the peculiar institution. It contained prominent proslavery features: a fugitive slave clause requiring retrieval of escaped bondspeople (although ambiguous about adjudication), the provision that the end of the foreign slave trade would be postponed until at least 1808 (both sides claimed victory in this matter), and the numerous elements that embedded federalism deeply into the document, enabling the doctrine of states’ rights to flourish. Above all, the three-fifths clause counting enslaved people in such a robust fraction for the purpose of representation in Congress and the Electoral College, which enhanced significantly the slave states’ power in the legislative branch and presidential elections, explicitly gave the United States, it seemed, a permanent proslavery future.
Proslavery advocates made the Fifth Amendment’s guaranteed protection of property ownership their “linchpin,” Oakes shows, in one crisis after another in the antebellum era, including the dangerous controversy around the admission of Missouri as a state in 1820. The Fugitive Slave Act of 1850 drew its power, at least slaveholding southerners believed, from original, if vague, constitutional guarantees of the return of escapees. But so did the passionate resistance to that hated provision in the North because of the Constitution’s equally explicit guarantee in the Fifth Amendment of due process to “all persons.”
Southerners would, of course, claim that the Constitution permitted their secession in 1861, following the argument of John C. Calhoun of South Carolina, who maintained that the United States had been from its inception a contractual arrangement balanced between slave- and free-state interests. And they confidently held that, according to the Tenth Amendment, all powers not delegated to the federal government were reserved to the states. The proslavery Constitution had previously sustained slaveholders’ faith in their power within the Union, and in “King Cotton” as economic leverage, down to the late 1850s, despite their increasing minority status.
On the other hand, Oakes identifies several parts of the Constitution as inherently antislavery. The preamble’s call for a “more perfect union” inspired abolitionists, who also pointed to section 4 of article 4 and its “guarantee to every state in this Union a republican form of government.” Section 2 of article 4 buttressed a growing antebellum claim of Black citizenship, rooted in the privileges and immunities clause. Antislavery constitutionalists also found support for their principles in the Fourth Amendment: the rights of Americans to be “secure in their persons…against unreasonable searches and seizures” offered language to protect fugitive slaves and promote human rights.
The Fifth Amendment served both sides, but abolitionists drew increasingly on its stricture that no “person” shall be “deprived of life, liberty…without due process of law.” They avoided the word “property,” which followed “liberty” in the text, not just out of convenience but because of their long-standing legal and moral rejection of the idea of “property in man.”…
The combination of all these clauses and principles allowed some abolitionists to declare the Constitution a bulwark for human equality and not merely, as Oakes says, a “hypocritical fantasy” crushed by white supremacy and a larger history. Some modern readers who are now conditioned to see the United States only as a progenitor of racial inequality may, misguidedly, find this claim on behalf of abolitionists a bridge too far...
[There follows an illuminating recounting of the arguments between the two sides over the nexts several decades, then of Lincoln’s reading and the Civil War…]
We still have two Constitutions on many issues: the nature of federalism, voting rights, election laws, the right to bear arms, and much more. We have a majority on the Supreme Court determined to return every power possible to the states, reverting the “Union” to many decades ago when it was a collection of battling legal sovereigns with common borders. The historical template for these and other future debates may always be the profound failures and triumphs of antislavery constitutionalism’s struggle against proslavery constitutionalism in the 1850s and 1860s. The heat in our public history wars today needs the light of this kind of scholarship, however difficult it is to sustain faith in truth, persuasion, and historical consciousness itself…
Too timely: “The Two Constitutions,” @davidwblight1 in @nybooks.
An apposite piece on the several ways that American’s “read” the founder of modern economics: “America’s Adam Smith” from Branko Milanovic (@BrankoMilan).
* Benjamin Franklin, in a November, 1789 letter to French scientist Jean-Baptiste Le Roy
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As we choose a side, we might recall that it was on this date in 1967 that President Lyndon B. Johnson nominated Solicitor-General Thurgood Marshall to become the first black justice on the U.S. Supreme Court. A storied civil rights attorney and jurist (Federal Court of Appeals), Marshall served on the highest bench from 1967 until his retirement in 1991.
“A republic, if you can keep it”*…
Democracy’s meaning has always been contested. The problem with substantive definitions of democracy, Michael Ignatieff argues, is that there’s no agreement on what democracy is nor what it should be. Democracy itself is not just an unruly contest for power, but also the site of an ongoing debate about what democracy is or should be. Yet letting that struggle become a battle between existential foes risks upending the whole democratic project…
The problem with substantive definitions is that democrats with plenty of substantive commitment to democracy do not agree what it is or what it should be. When conservatives talk about democracy, they often express the desire to use democratic institutions to contain and control change. When liberals and progressives talk about democracy, they turn it into a vessel of aspiration into which they pour longings for civility, community, and justice.
What gets missed, in either side’s definitions, is that actual democratic politics is a fierce, no-holds-barred competition for power. Those who think of democracy as a way of life risk framing partisanship as an abnormal rupture in democratic practice, when in fact partisanship is the driver of all democratic competition. When we theorize civility as the norm and competitive partisanship as a threatening exception, liberals and conservatives alike risk being hypocrites about their own partisanship or being helplessly nostalgic, bemoaning the breakdown of a comity that may have been a fantasy in the first place. It is thus a mistake, with large practical consequences, to confuse what we wish democracy could be with what it actually is.
This elision between what democracy is and what we wish it to be occurs, in part, because the democratic theory we teach, and the civics lessons we imbibe in school, lift democracy into an abstract realm of ideal types and pious ideals that is indifferent to historical context. There is no such thing as democracy in a pure state. All actual democracies bear the contours of the historic struggles that gave them shape. While there is a family resemblance in democracy’s basic form—majority rule as the source of legitimate authority—this feature is enacted in and through institutions specific to the societies that created them. Democracy displays crucial historical variations over time and from one society to another.
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One salient feature that makes democracies differ from one another is the way each democracy has been shaped by its encounter with violence. Some democracies were born in the violence of revolution. Others that have replaced authoritarian or colonial rule with free elections have struggled to contain the violence unleashed once democracy was achieved. Encounters with violence are recurrent even in successful democracies. Violence cannot be understood as an exceptional irruption overturning democracy’s natural resting state. Many a democracy owes its birth to violence, and violent challenges to democratic order continue to defend themselves as necessary last resorts to save democracy itself.
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The modern version of democracy created by the American and French revolutions began its life… with the task of converting violence into politics. In our own time, national-liberation struggles in Africa and Asia have faced the same challenge. This has remained democracy’s core purpose ever since. When democracy achieves this, it realizes what defines it as a form of government. The prohibition of violence—whether as an instrument of politics or as an instrument of rule over citizens—and the related commitment that all coercive measures must be justified to citizens and receive their consent, are the core principles that separate democracy from all forms of authoritarian rule…
In the late nineteenth and early twentieth centuries, European liberals, faced with working-class and feminist demands for the right to vote, reluctantly agreed that inclusion was the best way to maintain democratic order in the face of revolutionary challenge. These classic liberals accepted as a basic premise that societies are not natural equilibria, but sites of constant social, cultural, and economic struggle, with a potential to boil over into violence. Democracy’s function was to keep conflict political and to prevent the war of all against all.
Today, in democracies that are more diverse and pluralistic than anything nineteenth-century liberals could have imagined, the priority they placed on democracy’s role in preventing political conflict spilling over into violence is more relevant than ever. In this perspective, democracy’s ultimate purpose is peace rather than justice, or rather, sufficient justice to secure peace, defined as a minimal, constantly tested and renegotiated willingness by competing groups, factions, and parties, to obey the rules of the democratic game. When competitors accept democratic outcomes as legitimate, they accept closure, at least until the next contest starts. If they win, they do not seek to crush their opponents. If they lose, they do not seek to take revenge or seize power. Legitimacy is thus contingent and performative and always conditional on the willingness of political competitors to abide by the same rules.
The saving grace of democracy is the possibility that losers get to become winners. Whenever a group, faction, or party believes that victory was stolen from them or that they are fated to be permanent losers, violence becomes a possibility in the democratic game. Successfully managing peaceful democratic transitions between competing elites is the sine qua non of democratic legitimacy.
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Democratic assemblies and elections have regulatory codes that restrain extremist speech, but such codes will always be vulnerable to being gamed and manipulated by scheming opportunists. Democratic systems are built to moderate political competition, but moderation sometimes surrenders to hatred. As Tocqueville warned us more than a century and a half ago, more social justice need not make us more civil.
Neither is it the case that virtue and courage can always hold the line when institutions fail. Men and women of both parties did their duty during the insurrection at the Capitol, while others betrayed their oath of office. The result, as the Duke of Wellington famously said about the Battle of Waterloo, was the “nearest run thing you ever saw.” The most effective measures taken since the insurrection have been the holding of Congressional hearings to establish exactly what happened, so there is a true record for the future, and also the prosecution of leaders. This should discourage others from a similar course.
Even so, it is America’s very revolutionary traditions that will continue to provide justifications for the use of violence in the defense of liberty. These traditions, whether we like it or not, will continue to give desperate and misguided citizens the belief that they must take the law into their own hands.
Democracy is fragile, because it is a sacred thing vital to our liberty, easily lost, easily damaged, and like all such sacred things dependent for its survival on prosaic, daily acts of faith and sacrifice that are made in its defense.
In the end, there are simply no guarantees of democratic order. There is only the inherited belief—transmitted across generations among citizens and politicians alike, reproduced election after election, vote after vote, year after year, in speeches, classrooms, media outlets, civics courses, and all the various fora that a free society uses to figure out what it is doing—that violence can kill democracy and that violence endangers everyone, especially those who would use it to defend democracy itself…
“The establishment of our new Government seemed to be the last great experiment, for promoting human happiness, by reasonable compact, in civil Society” – George Washington, in a 1790 letter to Catherine Sawbridge Macauley.
Eminently worth reading in full: “The Politics of Enemies,” from @M_Ignatieff in @JoDemocracy.
See also: “America Can Have Democracy or Political Violence. Not Both” (gift article from the New York Times— no pay wall).
* Benjamin Franklin, in response to a question from Elizabeth Willing Powel as he walked out of Independence Hall after the Constitutional Convention in 1787
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As we cope with conflict, we might recall that on this day in 2000, the U.S. presidential election ended in a statistical tie between Democrat Al Gore and Republican George W. Bush, only to be settled on December 12 by the U.S. Supreme Court after a bitter legal dispute.
“Those who believe that politics and religion do not mix, understand neither”*…
Authoritarian leaders who play the religious card are not mere hypocrites, Suzanne Schneider suggests; there’s something far more troubling going on…
Viktor Orbán reportedly does not attend church. Benjamin Netanyahu eats at non-kosher restaurants. New York libertine Donald Trump lacks all manner of evident religious virtue.
Yet it is a fact that today’s crop of aspiring authoritarians invoke religious themes and symbols, despite not being strict adherents to their respective traditions. Of course, there is nothing new about the opportunistic use of religion by politicians. The scholars Garret Martin and Carolyn Gallaher have remarked that ‘Orbán’s use of religion is no different from Ronald Reagan’s embrace of Christian evangelicals in the late 1970s.’ According to these explanations, such figures cynically appeal to religion, despite not being true believers. Given this purported sincerity deficit, a conversation in this register toggles between accusations of hypocrisy and instrumentalism. How can such obviously corrupted figures claim to speak on behalf of a Christian or Jewish nation? And how can voters who claim to be animated by religious values be so blind?
Tempting as it is, the hypocrisy diagnosis does not quite map onto the emerging social landscape. There is instead a deeper and more interesting shift occurring in the world toward a new post-liberal or illiberal order of religion and politics. Understanding the nature of this transformation enables critics to break out of the cycle of allegations of hypocrisy or inconsistency, and to grasp an emergent worldview that is both coherent and deeply troubling…
Read on for her (troubling) explication: “An unholy alliance,” from @suzy_schneider in @aeonmag.
For the Washington Post‘s examination of the global tilt toward authoritarian nationalism: “Leaders of democracies increasingly echo Putin in authoritarian tilt” (gift article, so no paywall).
Apposite: “When the Hindu Right Came for Bollywood” (“The industry used to honor India’s secular ideals—but, since the rise of Narendra Modi, it’s been flooded with stock Hindu heroes and Muslim villains…”)
* Albert Einstein (also attributed to Gandhi)
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As we take the measure of the metamorphosis, we might recall that it was on this date in 1789 that John Jay was sworn in as the first Chief Justice of the U.S. Supreme Court. A founding father (co-author of The Federalist Papers with Hamilton and Madison, and President of the second Continental Congress), he had previously served as the young nation’s Secretary of Foreign Affairs (in which position he helped negotiate the Treaty of Paris), as the first Secretary of State, then as Governor of New York.
Jay was an ally of Hamilton, a proponent of a strong national government. While Governor of New York, he presided over a state constitutional convention in which religious tolerance was enshrined… within limits: he succeeded in adding special provisions for Catholics to the constitution’s article on the naturalization of foreigners. Under Jay’s amendment, aliens were required to take an oath of allegiance to the state that included renunciation of all allegiance and subjection to “all and every foreign king, prince potentate and state, in all matters ecclesiastical as well as civil.” Scholars suggest that the persecution of Jay’s Huguenot ancestors by the Catholic Church and his adherence to traditional Whig views identifying Protestantism with liberty and Catholicism with oppression, foreign influence, and sedition motivated his actions.
“He said that there was death and taxes, and taxes was worse, because at least death didn’t happen to you every year”*…
There are lots of questions that surround taxation: how much? on what? for what? Scott Galloway (@profgalloway) explores a couple of others: how efficient? how fair?
* Terry Pratchett
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As we ruminate on returns, we might recall that it was on this date in 1920 that the U.S. Supreme Court decided a case on the constitutionality of the income tax for the second and last time (so far). The Income tax had been authorized by the Sixteenth Amendment in 1913, and created later that year via the Revenue Act of 1913. In 1915 stockholders filed a brief in the U.S. Supreme Court, which arguing that the Sixteenth Amendment covers “many taxes other than on income”; in 1920, the Court affirmed the constitutionality of an income tax. Then came a second suit…
The United States Supreme Court last decided a federal income tax case on constitutional grounds in 1920, a century ago. The case was Eisner v. Macomber , and the issue was whether Congress had the power under the Sixteenth Amendment to include stock dividends in the tax base. The Court answered “no” because “income” in the Sixteenth Amendment meant “the gain derived from capital, from labor, or from both combined.” A stock dividend was not “income” because it did not increase the wealth of the shareholder.
Macomber was never formally overruled, and it is sometimes still cited by academics and practitioners for the proposition that the Constitution requires that income be “realized” to be subject to tax. However, in Glenshaw Glass , the Court held in the context of treble antitrust damages that the Macomber definition of income for constitutional purposes “was not meant to provide a touchstone to all future gross income questions” and that a better definition encompassed all “instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.”
In the century that has passed since Macomber , the Court has never held that a federal income tax statute was unconstitutional. This behavior of the Court constitutes a remarkable example of American tax exceptionalism, because in most other countries income tax laws are subject to constitutional review and are frequently ruled unconstitutional…
Reuven Avi-Yonah, “Should U.S. Tax Law Be Constitutionalized? Centennial Reflections on Eisner v. Macomber (1920)“
“If You Can’t Fix It, You Don’t Own It”*…
A just-issued report by the US Federal Trade Commission confirms that anti-repair actions by large companies are hurting small businesses, undermining your ownership rights, and hurting the planet. Of course, these are the very problems that we’ve been fighting for the past fifteen years—but it’s validating to see US government confirmation of the market imbalance.
The unanimous report, nearly two years in the making, follows public hearings and testimony from the FTC’s “Nixing the Fix” workshop in July 2019, and a demand from Congress in 2020 to report back. iFixit and other repair advocates told the Commission then how manufacturers design products that frustrate repair and force owners to use the manufacturers’ branded repair services, hurting consumers and stifling competition. Manufacturers claimed the market was working fine, and that opening up repair access would undermine the safety and security of their products. Today’s report is a rebuke to their arguments.
The FTC’s long-awaited report provides a thorough analysis of broad market failures, and recommendations for government action to address those failures. Some major findings included in the report:
– Warranties are being routinely voided, in violation of the Magnuson Moss Warranty Act. “The Commission takes these allegations seriously and will continue to address illegal practices in the marketplace.”
– “[T]he burden of repair restrictions may fall more heavily on communities of color and lower-income communities.”
– “The pandemic has exacerbated the effects of repair restrictions on consumers.”
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The report summarizes the problems that consumers are facing from a variety of monopoly strategies. “Many manufacturers restrict independent repair and repair by consumers through:
– Product designs that complicate or prevent repair;
– Unavailability of parts and repair information;
– Designs that make independent repairs less safe;
– Policies or statements that steer consumers to manufacturer repair networks;
– Application of patent rights and enforcement of trademarks;
– Disparagement of non-OEM parts and independent repair;
– Software locks and firmware updates; or
– End User License Agreements.”
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A rebuke of Apple, John Deere, and other manufacturers whose practices frustrate repair by “owners”: “FTC Report Finds Manufacturers’ Repair Restrictions Unwarranted.” Via @kwiens and @stewartbrand
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As we resist rentiers, we might recall that it was on this date in 1893 that the U.S. Supreme court unanimously ruled that a tomato is a vegetable. In reaching their decision in Nix v. Hedden, a dispute over the appropriate duties to be levied pursuant to the Tarriff Act of 1883, the justices found that the “ordinary” understanding of a tomato as a vegetable should take precedence over the scientific fact that it is a fruit.
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