We Can Not Take The Future for Grqnted

The Second Founding:  How the Civil War and Reconstruction Re-Made the Constitution by Eric Foner

I found this a challenging book  because of the complexity and oscillating changes  over time in the Supreme Court’s  interpretations of the meaning and intent of the 13^th and 14^th and 15^th Amendments.

The 13^th Amendment outlaws slavery and involuntary servitude, except as a punishment for a crime for which the party has been convicted. It  gave Congress the power to enforce this article.  

The 14^th Amendment rules that “all persons born or naturalized in the United States are citizens of the United States  and the states...and that no state shall make or enforce any law that 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 or deny to any person within its jurisdiction the equal protection of the laws and also gave Congress the power to enforce the provisions of this article.”  (There are two other sections, three and four, which are not really relevant today.)

The 15^th Amendment rules that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

This Amendment, too, conveyed the power to Congress to enforce it through appropriate legislation.

What I took away from the book is how widely the interpretation of these amendments has been by the Supreme Court.  Even today, the potential expanse of these amendments to enforce true equality has been by no means tapped.

The force of these amendments was greatly strengthened by legislation passed from 1866-1875, principally the Civil Rights Acts.

Tragically however, h the Supreme Courts that ruled during the last quarter of the 19^th century were extraordinarily conservative. Indeed many members racist, and they sharply limited the scope of the impact of these amendments.  The key means by which that was done was to not allow the 14^thAmendment to apply to private actions (individuals and groups) but only to state and federally mandated laws.  This reflected a strong desire to maintain Federalism but also a very strong political bias to maintain what were very strong counter actions to Reconstruction and its commitment to advance the quality and freedom of blacks.

There are two major lessons I took away from reading this book:

1. The notion that the nation’s Supreme Courts have been “impartial” or “apolitical” is wrong.  Unfortunately, they have often been both.  In recent years, Republicans have recognized this and fought hard to gain the Presidency and hence appointment of judges sympathetic to their views.  In fact, this desire may well have been a decisive factor in the election of Donald Trump. And earlier,  Democrats did it too.  Witness Roosevelt’s ultimately defeated effort to “pack” the Supreme Court to uphold New Deal legislation.

 A major point of dispute in interpreting what was acceptable or not under the 13^th and 14^th Amendments has hinged on the question of what represented  badges of slavery.  For decades, for example, it was argued that segregation in transportation and education did not represent badges of inferiority; witness Plessy vs. Ferguson and numerous other cases.  Brown vs Board of Education changed that.

Today, we have the irony (from my perspective) that whites are claiming to be disadvantaged because of the application of a reasonable consideration of race as one of many factor sin constituting an incoming college class as recognition of the long-lasting discrimination against blacks.                

2. It is notable to see how even a judge like John Marshall Harlan, while ahead of his time as he lodged the one dissent in Plessy vs. Ferguson, came back with other rulings which supported what amounted to segregation.

This history underscores that we cannot take the future for granted.

 As Eric Foner writes, “rights can be gained and rights can be taken away.  A century and a half after the end of slavery, the process of equal citizenship remains unfinished.  The ideals of freedom, equality and democracy are always contested.”

Positively and with hope, Foner writes,  “the counter interpretation developed in Reconstruction and its aftermath, with its more powerful assertion of the rights enshrined by the Constitution of the Second Founding and the power of the federal government to enforce them, remains available, if the political environment  changes”.

I agree: There is no reason why the 13^th Amendment cannot be reinvigorated as a weapon against enduring inequalities rooted in slavery, or the 14^th’s clause related to the privilege or immunities of citizens cannot be understood to encompass rights denied by slavery and essential to full membership in American society today, such as access to an adequate education, or even the ‘reasonable wages’ to which Lincoln said that freed slaves were entitled in the Emancipation Proclamation.”

Why, Foner asks,”in the 21^st century should the right to vote not be considered a privilege 

of citizenship enjoyed by all adult Americans?” Why indeed? 

  

The Charge of Impeachment is Compelling—What Should The Senators Do?

The Charge of Impeachment is Compelling—What Should The Senators Do—Democrats and Republicans

My answer:  hold a serious trial in the Senate; hear testimony from all sides with an open mind; decide whether Trump has committed an impeachable offense based on all the evidence and the dictates of your individual conscience. Recognize this is almost certainly the most important decision you will ever be called on to make as a Senator. 

 The Nation deserves this—for today, tomorrow and the future.

Trump's phone call to President Zelensky and facts presented in testimony from multiple people over the last three weeks provide the basis, I believe, for a charge of impeachment against President Trump for trying to use the power of his office for political gain. 

As Peggy Noonan (a former speechwriter for President Reagan) described in a recent op-ed in the WSJ regarding the testimony, “Gordon Sondland was both weirdly jolly and enormously effective in doing President Trump damage.  He followed the president’s orders:  there was a quid pro quo; “everyone was in the loop, it was no secret.”  It was his third try at truthful sworn testimony and it was completely believable.

Fiona Hill, an undisputed expert on Russia and Ukraine, tied it all together.  Her testimony, combined with what came before, in Peggy Noonan’s words, made it clear “in a new and public way that pretty much everyone around the president has been forced for three years to work around his poor judgment and unpredictability in order to do their jobs.  He (the president) no doubt knows this and no doubt doesn’t care.  Because he is the boss, they will do it his way.”

As to impeachment itself, Noonan writes, “The case has been so clearly made you wonder what exactly the Senate will be left doing.  How will they hold a lengthy trial with a case this clear?  Who exactly will be the president’s witnesses, those who testify he didn’t do what he appears to have done, and would never do it?”

Noonan opines, “The reasonable guess is Republican Senators will call to let the people decide.  In a divided country, this is the right call.  But they should take seriously the idea of censuring him for abuse of power.”

In fact, based on a few discussions I have had, I believe many if not most Republican Senators will decide to do exactly what Peggy Noonan has opined.

I fear they will rationalize the decision to not hold a truly serious trial and not convict President Trump based on their conviction that this decision should be left for the American people to resolve in the upcoming 2020 election.  As support for their position, they will assert, with good reason, that the decision to convict would leave the country as bitterly divided as ever, if not more so.

This is a beguiling line of thought.  It is a rationale that honorable men and women can draw on to persuade themselves they are doing the right thing, despite the evidence that Trump has engaged in behavior not only unfitting for the President of our country but the leader of any organization.

However, make no mistake, this line of thought is fatally flawed and dangerous.

  

Why do I say this?

Most importantly because I believe we need to follow the constitutional provision of having a bona-fide trial.  It will allow the Trump administration to present witnesses and testimony that may exculpate Trump.  Maybe he would testify himself.  He has sometimes said he would want to do that. 

And it should present the opportunity to hear from other witnesses who so far have refused to appear and who may be in the best position to testify to Trump's actions and intent.

My basic point is that we are dealing with a critical matter, the resolution of which will impact more than today or tomorrow.  It will impact the Nation's enduring future. The question is, will the possibility that the President violated his sacred oath and broke the law be decided by the constitutionally ordained process or not.

While based on the facts as I now know them and the testimony I have heard, l believe President Trump has committed an impeachable offense, I would not be willing to reach a verdict on whether he should be removed from office until a fairly conducted Senate trial.

Some will say that a decision to convict on the part of the Senate would leave the country sharply divided despite the evidence.  That is probably correct. But consider the alternative—honestly, seriously. 

What if, after hearing testimony from all sides, the overwhelming evidence indicates that indeed President Trump did hold up military assistance and did ask the leader of a foreign country to help his campaign by asking its leader to investigate his principal opponent?  

Wouldn't we then want, indeed demand, the jury—members of the Senate—vote on whether Trump should be convicted of the charge.  I would. Indeed, it is what the Constitution demands they do.

Assuming the charge is proven so compellingly that it leads to a bi-partisan vote to convict and remove Trump from office, it would remove the grave risk that his demonstrated behavior and character and unpredictability pose to our nation if he were to occupy the Presidency for the remainder of this term and what could be another four years. 

The point of this essay is not to argue that as the necessary or eventual outcome.*

It is, however, to strongly argue that the evidence that a serious crime has been committed is clear enough that it deserves the trial the Constitution provides for. 

There is much more at stake for the future than what we can foresee in these closing moments of 2019.  What's at stake is our ability as a Nation to pursue truth wherever it leads and to hold everyone accountable to the law and to the provisions of the Constitution. 

* I would not want this statement to mask my utter disdain for Trump's character and behavior and my conviction that it is vitally important that he be defeated in his bid for a second term. We cannot afford a continuation of his erratic, unprincipled behavior and the sublimation of the character values of integrity and respect which define our Nation at our best. However, my deep "disdain" does not itself justify impeachment. That should await the findings and decisions reached by the Senate after a fair and thorough trial.

P.S.  On the importance of character, the words of the poet Robert Law ring true: 

Watch your thoughts; they become your words.

Watch your words; they become your actions.

Watch your actions; they become your habits.

Watch your habits; they become your character. 

Watch your character; it becomes your destiny.