Food Markets and Sidewalks of Merida

Visiting Yucatan, we went for a food tour in its capital city, Merida. In addition to the spouse, the NBP, and me, three others participated. Two were a couple from the Netherlands. Both were medical doctors finishing up their training. In the small world department, the third person was also from the Netherlands and a medical doctor who had just finished up her training. She had never met the other couple until we started the tour, destroying my preconception that everyone in Holland knows each other—not even the doctors. In fact, the country is so large that none of them knew the queen personally. (Did you know that the Netherlands had a queen? Are you one of those mystifying Americans who love English royalty gossip? But, quick, do you know the Dutch queen’s name? If you are fascinated by the unAmerican practice of royalty, how come you don’t?)

There is a special connection between Yucatan and Holland that was not known to the three Dutch people (or the three Americans). The Yucatecans love Edam cheese and use hollowed out balls of it for one of their signature dishes. According to Jose, the food tour guide, Yucatan recently sent representatives to the Netherlands to discuss Edam cheese. Apparently, we are all connected.

Yucatan and the Netherlands reminded me of Norway and Japan. A story on TV said that Norway subsidized its salmon fishing, and as a result, more salmon was caught than the Scandinavians could consume, and so, a lot of fish was in expensive storage in Norwegian freezers. Officials sought to expand salmon’s market and turned to Japan. While I thought the Japanese ate all sorts of things, I was surprised that at one time they did not eat salmon. They regarded it as yucky and salmon sushi as nauseating. Norway took on a lengthy, expensive campaign to change that Japanese view. So, if you eat and enjoy salmon sushi, you should thank the Norwegians.

And, of course, if you eat tortillas, you can thank the Mexicans. Jose said that Yucatecans ate tortillas at every meal and often in between. They are so important that they are price controlled with the cost of a kilo of tortillas set at about $1. Although tortillas are everywhere in Yucatan, the Yucatan cuisine varies considerably from other parts of Mexico. Yucatan is separated by mountains and deserts from much of the rest of the country. It was essentially isolated from Oaxaca, Mexico City, and Juarez for much of its history. Trade with Europe and North America was often easier, and the Yucatan diet was influenced by these contacts.

Merida Food Market. Photo by the NBP
Fish in the market. Photo by the NBP

Our food tour took us through the narrow, crowded passageways of the major food market of Merida where fruits and vegetables, honey and vanilla, spices and chiles are sold. (Another nearby market sold meat.) Food stalls were abundant, and Meridians crowded around them for lunch and snacks. Jose would stop and procure the specialties of an establishment generally not more than a few feet wide. We tried things we otherwise would not have and learned the difference between panuchos and salbutes, that turkey and venison are staples, what sopa de lima is, and that mole is not used. Instead, a black bean paste, sold in huge blocks in the market, is the base of many dishes. We went outside the market and had a terrific ceviche in a tiny restaurant followed by creatively flavored and delicious ice cream. This tour, coming at the beginning of the Yucatan sojourn, stood us in good stead for the rest of our stay as it encouraged us to eat items that we otherwise would not have understood on the menus. As we continued to eat panuchos at many places (they are similar to but different from salbutes—both are fried platforms to place other foods on, but panuchos have a black bean paste injected into them while hot), we found the food not only good and interesting, we found our drinks and meals inexpensive every place we dined.

Justice Blinded (concluded)

          Despite what “distinguished” commentators on Fox News say, an Attorney General does not work for the president. And a United States Attorney or those acting under him do not work for the Attorney General. A U.S. Attorney is nominated by the president and appointed with the advice and consent of the Senate. A U.S. Attorney pledges fealty to neither the president nor the Attorney General but to the Constitution. A U.S. Attorney serves the country, not particular people in the government.

          A U.S. Attorney can be removed but not by the Attorney General. Only the president can remove a U.S. Attorney. If a U.S. Attorney position becomes vacant, the Attorney General can appoint an interim U.S. Attorney, but that appointment only lasts for 120 days. Then the District Court where the U.S. Attorney is situated—neither the Attorney General nor the president–appoints another interim U.S. Attorney. In other words, the president cannot avoid the joint appointment power with the Senate for a long time when it comes to a U.S. Attorney.

          The Attorney General and U.S. Attorneys inhabit a strange territory filled with inconsistencies. The president can set criminal justice policies broadly or for individual cases. He can remove those who do not follow his directives, but they do not work for him. They serve the country, and he does not have the sole power to replace them. He holds that authority jointly with the Senate. It all makes sense, right, in this nearly perfect country with a nearly perfect constitution where at least someone makes perfect phone calls?

          We think our criminal justice system should be blind and impartial, and that is what we should expect of it, but the Constitution does not directly guarantee that. Even if you believe that “faithfully” executing the laws requires impartiality, you should realize that there is no constitutional mechanism to prevent a president from favoring friends other than through elections and maybe impeachment.

          Settled law does require that probable cause exists to believe that a person committed the crime in order for that person to be prosecuted for it. If that minimal standard is met, nothing in the Constitution prevents the president from going after his perceived enemies. And no matter how damning the evidence against or heinous their actions, nothing prevents the president from preventing the punishment of his friends. We can only depend on those asked to carry out such directives to thwart them. A determined, corrupt president can make that next to impossible.

          Our founders were aware of the dark side of human nature, or, as Alexander Hamilton put it, its “impulses of rage, resentment, jealousy, avarice and other irregular and violent propensities.” The framers of the Constitution created a government of checks and balance as a result, but they could not anticipate all mendacity, paranoia, and self-interest. Now that we have seen a president with a mob boss mentality who scoffs at norms of justice and integrity, we should think about how to regain those norms. If we do get out of this presidency with at least part of our democracy intact, perhaps we can find a way to enshrine blind and impartial justice into law.

Justice Blinded

          The Department of Justice overrode a sentencing recommendation by its frontline prosecutors. The defendant was the politically connected and presidential friend Roger Stone. The four prosecutors resigned from the case as a result.

          The Department of Justice (finally) said that it would not prosecute an FBI agent involved in the Russian investigation even though the president has asserted, without giving supporting evidence, that Andrew McCabe should be prosecuted.

          The Attorney General has appointed a special counsel for the confessed criminal and politically connected Michael Flynn, who is awaiting sentence. Reports indicate that other criminals who are connected to the president may be in line for preferential treatment.

          Attorney General William Barr claims that the president has never told him how to handle any case, and Barr has said that it is impossible for him to do his job when the president tweets about individual Department of Justice cases. This complaint comes as a shock since Barr may believe in one-person (probably one-man rule) at least as much as the president does.

          Trump in response tweets that he has not interfered but that he has the absolute right to order how criminal cases should be handled. He is the chief law enforcement officer, he pronounces.

          An open letter signed by almost two thousand former prosecutors and Department of Justice officials say that Barr should resign. Bill Barr has not.

          Swamp creatures are pardoned and set free. Others are pardoned whose supporters have connections with the president. And now we wait to see if the sentenced, frog-like Stone will be able to bound back to his bog without prison for his crimes against America. Ribbit. Ribbit.

          Just another week in the modern United States. It is hard to assess whether all this is a big deal or not because we have all become desensitized to Donald Trump and those around him.

          The events highlight, however, how imperfect our government is. It makes us realize that much of our sense of good government depends on norms that have been established over the decades and not on the Constitution itself. The Constitution does not prevent a president from breaking the norms of impartial justice that seem essential to a fair America and thus, does not prevent a president from moving us towards autocracy. And the events, rather predictably, also bring misleading or ignorant statements by kneejerk defenders of whatever the president does.

          More than a few “distinguished” commentators and hosts on Fox News say that William Barr must follow the president’s directions “because the Attorney General works for the president.” Another objecting to a headline from a news organization said that “Bill Barr can’t ‘intervene’ in a Department of Justice matter because the prosecutors work for the Attorney General.” Such statements, both wrong about who employs Justice Department officials, indicate how far along the path of the cult of personality we have traveled.

          Our federal government is complicated, but one thing is clear: Our chief executive is not the equivalent of the chief executive of a family business. An Attorney General and other federal officials do not work for the president. He does not pay them, and no one in the government openly pledges fealty to the president. To take office, an attorney general and other federal officials must vow: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office. So help me God.”

          The Attorney General is supposed to work for all of us (we do pay his salary after all), not for the president alone. The lines of authority, however, are muddled. The president does have a power akin to an employer; he can remove an attorney general. Furthermore, since the president has been given the constitutional duty to “take Care the Laws be faithfully executed. . . .” he can set the priorities and policies for the Department of Justice and the Attorney General. There has been an established norm that a president should not dictate how a particular case must be handled, but the president has the constitutional authority to break that norm. Of course, if what is commanded is unconstitutional, the AG cannot–consistent with the oath of office–carry out the command, but if the directive is only unwise, the AG can be expected to be removed if she does not comply with the presidential wishes.

          The president can then seek a new attorney general, but that also is complicated. The Constitution does not give the president the power to appoint any Attorney General he wants. Instead, it says that the president “shall nominate” candidates to be federal officials, but the Constitution goes on to say, “and by and with the Advice and Consent of the Senate, shall appoint” the Attorney General and other federal officials. The appointment power is a joint one of the president and the Senate. The Constitution does not constrain the Senate in how it should use its power. It is only a norm or a convention that the Senate gives great deference to the presidential nominations. Nevertheless, the Senate has the right, for any reason it finds sufficient, to reject a particular person as Attorney General.

(Concluded February 24)


          I went to a theater production of “Paradise Lost,” based, it claimed, on the words of John Milton. I did not think much of the play’s quality, but the group putting on the play was a Christian group. On some level they succeeded with me. Eve was not initially naked as Biblical authenticity should have required but was clothed in a filmy fabric that moved and flowed and shaped over her body. She was lovely, and well before that consequential bite of the forbidden apple, all was foreshadowed because I was thinking about ripe, luscious fruit.

          Whenever the president speaks, I keep hoping in vain for more splendid flashes of silence.

          “Silence is the unbearable repartee.” G.K. Chesterton.

          At Madison Square Garden, Hammer of the Harlem Globetrotters got us in the audience to do a wave, then a reverse wave, and finally a slow motion wave. Even though this is all a hokey cliché, I hope you, like me, can still find pleasure in the wave.

          It’s such a surprise to hear people discussing cheating in American professional sports and find out that they are not talking about Boston.

          When I looked over to see who had sat next to me at the bar, I was surprised because he seemed close to my age, and few of the patrons of this place can remember Eisenhower, much less Truman, as president. He nursed his beer and was quiet for a few moments before he pointed to the book I had placed on the counter and asked what I was reading. It was clear that he was not really interested in that but that he wanted to talk. (Note. I did not say that he wanted to converse.)

          He told me that he was a retired real estate attorney from Atlanta and had been in a big firm. He was now living in Portland, Oregon, which he and his wife had picked after exploratory vacations.

          He was in Brooklyn to visit his son, who was a freelance cinematographer after graduating from Boston College. He has given his son, he told me more than once, advice about things the son should do to be a successful freelancer. I wondered what this big-firm real estate lawyer knew about either freelancing or cinematography.

          He was not staying with his son who lived in Bed-Stuy but at a downtown Brooklyn hotel. He said, “His apartment is even too squalid for me.” I wondered what he knew of squalid.

          I said that I was leaving soon. He was quick to tell me that he was meeting his son at the bar in a few minutes and said that I would enjoy meeting him. And then he said it again. I wondered if he was uncomfortable meeting his offspring. After a few more minutes, he looked at his phone and said that his son was not coming. He left three minutes later. And I wondered whether this was as sad as it seemed.

          “The opposite of talking isn’t listening. The opposite of talking is waiting.” Fran Lebowitz.

The Road Through Morocco

In Morocco, we went through the Middle Atlas Mountains. A road through the mountains was built by the French. The construction took over a decade and was completed in 1939. Learning this made me think a bit about all the consequences of colonialism.  

A few days before this trip snow had unexpectedly fallen there. I did not expect to see skiers and sledders in Morocco, but I did.  

Along the way, we saw Berbers. Although many Berbers have now settled in villages and cities, a sizeable number continue a nomadic life of herding sheep and goats, which can graze on communal lands throughout the country. Morocco no longer has much, if any, of a Bedouin population. Bedouins are nomadic, too, but they are traders with, traditionally, camel caravans. 

When we got through the mountains to a high, desolate plain, the land looked surprisingly familiar, much like Arizona or Utah. I was not surprised to learn that when all the earth’s land masses formed one continent, Morocco was adjoined to Sonora Mexico and Arizona. 

The landscape stopped looking familiar when we got to the Saharan sand dunes. Yes, I rode a camel. Unfortunately, no one mistook me for Omar Sharif or Peter O’Toole, but maybe that would have been different if my eyes were not brown or I had kept my mustache. The sand-colored sand dunes stretching into the offing, however, were not the most memorable sight. As it always is for me in a desert, it is the night sky. As Richard Powers put it in The Gold Bug Variations, “There were so many stars that the sky seemed black gaps pasted over a silver source.” 

One of the most memorable manmade sights in Morocco, however, is devoid of the sky. A medina is the walled, old part of a town, and every city we visited had one. Fes had the most remarkable one. It has 9,000 streets, many of which are two to four feet wide, none of which seems to go straight for more than fifty yards. The buildings’ upper stories overhang the street slightly, and the sky was all but gone. This is not merely a tourist attraction. About 120,000 people live there. The streets are so narrow that there weren’t even scooters or bicycles. Goods were moved either in a handcart or by burro or donkey. The animals stop for nothing, and pedestrians have to leap aside. Of course, the medina could seem claustrophobic and frightening, or at least a set for an Indiana Jones movie, but the streets were teeming with life and were not scary. I would have liked to have seen an apartment there. I couldn’t imagine how you could get a stove, refrigerator, or even a big chair through the pathways and upstairs. I did vow, however, that I would never enter this medina without a guide. After only a few hundred yards into this medina, I had no idea how to get out. 

The second most impressive manmade sight we saw in Morocco was a mosque. 

Text BoxWe saw a lot of mosques in Morocco, or I should say, we saw the exterior of many mosques. We non-Moslems were not allowed to enter them. I found this a bit strange since I remember being in mosques in Turkey on a visit there ten years ago. But non-Moslems can enter only one mosque in Morocco. It is the Hassan II Mosque in Casablanca. 

Text BoxKing Hassan II, father of the present king and regarded by our guide and almost all others as a tyrant, commissioned the mosque. Its construction started in 1986, and the mosque opened in 1993. We were told that the mosque, with a 690-foot minaret, was the third largest in the world after two in Saudi Arabia. 

It is spectacularly situated on a promontory on the Atlantic Ocean and is huge—more than two football fields long and one wide. Part of the roof is retractable, but, unfortunately, it was closed on our visit. It is elaborately decorated. 

This, of course, cost a lot of money to build. The fundraising caused controversy in Morocco, a country which is not rich. Almost every family “voluntarily” contributed to the construction. The mosque is expensive to maintain, and that is why I could see its interior. Visitors pay an entrance fee, money that is necessary for the mosque’s upkeep. And that is why this is the only Moroccan mosque open to the public. Of course, this is hardly the only place where principles bend under the weight of the desire for money.  

The Hassan II mosque, however, is a spectacular building. 


          When I went to college, I heard for the first time the expression that someone was going to have “an ice cream.” I thought then and now that you can have an ice cream cone; an ice cream bar; a cup of ice cream. But not “an ice cream.” Once again, I appear to be standing against the majority in favor of common sense.

          I believe you should support Elizabeth Warren or Amy Klobuchar for the Democratic nomination. Only if one of them gets the nod can there be a meaningful debate with Trump about hair care. Wait. I am being closed minded. Bernie could participate in that debate.

          In one of my last public defender stints, I learned about a man in his 40s charged with murder who was being returned for trial after being found incompetent to stand trial two years before. His parents had been divorced but werestill living in the same house where he also lived. The father had a heart attack. The defendant called 911. When it became clear that the father might not survive, the defendant suggested to the mother that she ought to go to the hospital. She indicated that that was too much of a bother and said, “It’s pizza night; get me a beer.” (Larry the Public Defender thought that “It’s Pizza Night” would make a great title for his book.) The next evening the defendant apparently tried to stab the mother, or at least she had some stab wounds and a broken knife was found in the home, but he eventually killed her with a frying pan. He called 911 again and said that he had killed his mother and would wait outside and that he was not armed. (All true.) He then covered his mother’s head and placed a Valentine’s Day card on her chest.

          What question would you have asked?  The establishment prominently displayed a sign that read, “Voted the Second Best Chinese Restaurant.”

My favorite restaurant sign in Morocco was “O’Tacos, Original French Tacos.”

          At the Nespresso store I bought the decaffeinated capsules in a few minutes. As I was leaving, I told the salesclerk that I wished all my transactions were as efficient and as a pleasant as this one had just been. She replied, “Me, too.”

          The sidewalk graffito: “Today is a good day to have a good day.”

Does this scare you, too: 10% of U.S. children are Texans?

          “You turn your back on your parents for one moment and they get up to all sorts of mischief!” Marina Lewycka, Two Caravans.

          As he came into the theater lobby, the playgoer said, “Actually I didn’t think it was going to be this cold.” “That just shows,” his companion retorted, “how poorly you think.”

The First Was Not Always the First (concluded)

          First Amendment rights do not have primacy because they come first. The initial Congress submitted twelve amendments to the states, and our First Amendment was then the Third Amendment. The states in the eighteenth century, however, did not ratify the first two proposals, and the Third became the First. But, you ask, what about the two proposed amendments that were not ratified with the Bill of Rights? Each is an interesting story providing several lessons.

          The first proposal, passed by a two-thirds majority of each house, said that after the initial census, “there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.”

          Got that? The Constitution mandated that the original House of Representatives have 65 members, and after the first census, it grew to 105. It continued to grow but was capped in the early twentieth century at 435 members where it now stands. But what if that proposal had been ratified? (And it almost was, falling one state short in 1792.) Its meaning has been debated, but since that proposed amendment did not take effect, we don’t have an authoritative reading. Some scholars, however, have maintained that the unclear language would require a House of Representatives today with as few as 800 and as many as 5,000 Representatives. We dodged a bullet that the first proposed amendment was not ratified, and we should learn that those early constitutional drafters like James Madison and his fellows were not unbridled geniuses with accurate crystal balls.

          The second proposed amendment that did not get adopted with the Bill of Rights reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Here the language and purpose are clear. Our representatives should not be able to raise (or lower, ha ha) their pay until the voters have had the chance to consider the remunerative change. Clear, and to the real constitutional nerd, the language is recognizable. It is the text of the Twenty-Seventh Amendment, the last to have been adopted.

          Say what? The proposed second amendment was largely forgotten after it failed to be ratified in the 1790s, but in 1982, Gregory Watson, a University of Texas sophomore, wrote a political science paper contending that the old proposal could still be ratified since it had no time limit for ratification. His essay received a “C.” His grader thought Watson’s thesis was farfetched, but Watson set out to show up his teachers. He lobbied state legislatures to adopt the proposed amendment and met with success. States ratified what was once labeled the Second Amendment, and the amendment was certified as ratified on May 7, 1992, as the Twenty-Seventh Amendment. A proposal submitted by Congress to the states in 1789 became part of the Constitution two centuries after it was first proposed because of an incredibly determined, or pissed-off, student. (Watson’s grade in the course was retroactively changed in 2017 to an A+.)

          There are lessons here. One person can make a difference. A liberal arts education can have value besides asking about French fries. Modern politicians can be responsive. A poor grade can motivate some students. Perhaps there are other lessons to be drawn, but I’ll leave them to you.

The First Was Not Always the First (continued)

          We take the basic right of freely exercising religion for granted. You can go to your chosen house of worship; read the Bible in any of the multitude of versions of it or the Koran or even Dianetics; pray together with others in your home or elsewhere; watch sermons on TV; give money to religious missions; solicit money for religious purposes; and so on. When people claim that free exercise of religion is under attack, they don’t mention that our right to worship whatever Being we want in the fashion we choose is as secure as it ever has been.

          Instead, claims that the free exercise of religion is under attack often come from those who maintain that their behavior must be exempted on religious grounds from the duties placed on the rest of society. For example, even though the law says businesses may not refuse to serve someone because of race, sex, or sexual orientation, a person claims that because serving a gay person violates his religious belief, he should be exempted from the law. An employer maintains that contraception violates his religious beliefs, and therefore although the law mandates that he provide health insurance that covers the costs of contraception, he feels he does not have to.

          The claim is not that the government has prevented anyone from being allowed to attend the church they want or study the text they hold sacred or pray in the form they desire. It is the assertion that because of their religious beliefs, they must be allowed to behave differently in society and ignore the laws that the rest of us must obey. Even though others must follow certain laws, they don’t have to because of their religion.

          The advocates for these kinds of free exercise claims seldom mention the First Amendment’s other religion clause, the one that actually comes first and is perhaps the most unusual part of that constitutional provision. It bars the establishment of religion.

          The First Amendment, apart from the Establishment Clause, guarantees individual expression and belief and helps ensure a responsive and responsible government. These rights are essential for a free and open society. The prohibition of the establishment of religion, however, arises from different sources.

          The founders knew that free societies and representative democracies could have an established religion. At the time the Bill of Rights was proposed by Congress, several states, including those ratifying the First Amendment, had established churches. These establishments were not regarded as inconsistent with a free, representative government. The Constitution’s Section 4 of Article 4 commands, “The United States shall guarantee to every State in this Union a Republican Form of Government. . . .” If established churches were detrimental to that form of government, Congress would have had the duty to disestablish the state churches. They, instead, did not interfere with the established churches. (Even today countries that seem to have at least as much liberty as ours have established churches, including Denmark, Iceland, Scotland, and England.)

          The Establishment Clause is striking because it has a purpose that is different from the rest of the First Amendment, but also because of its broad language. Picking a church to be established nationally would have been divisive—state-aided churches in the south were Anglican and in New England were Congregational—but the Bill of Rights does not just prevent an established church. It bars any establishment of religion, and it does not just prohibit a formal establishment of religion, it goes much further and says there shall be “no law respecting” such an establishment. The founders did not just want to prevent an established church or the establishment of religion; their language indicates that the United States should not even be on a road that could possibly lead to such an establishment. (This divorce from religion was also evident in Article VI of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Some states did have religious requirements for office-holding that lasted into the nineteenth century. New Hampshire, for example, required state officials to “be of the Protestant religion.”)

          Neither the placement of the Establishment Clause at the beginning of the First Amendment nor the fact that it serves purposes different from the rest of the amendment means that it is more important than the others. On the other hand, it should be viewed at least as equally important as the Free Exercise Clause. All interpretations of free exercise must consider whether a law respecting the establishment of religion is being made.

          The original notion of the free exercise right—I can worship as I choose–produces no tension or conflict with the Establishment clause. I can join the congregation of my faith; read my desired sacred texts; fill the collection plate of my selected church; label my god by my preferred title; worship more than one god; insist that women should be segregated from men during a service; maintain that divorce, homosexuality, contraception, and looking at the behinds of the opposite sex are sins. None of this raises an issue of the government moving towards the establishment of religion.

          The modern claim of free exercise that says a law cannot force a person to behave contrary to religious principles is, however, different. If a person is exempt from following the law others must obey because of religious beliefs, then that person is put in a favored spot over the non-religious or those with a different religion. Does creating this privileged position based on religion violate the injunction that there can be no law respecting the establishment of religion?

          If your answer is no, consider this possibility: Assume a law requires employers to provide insurance to employees when ten people are employed. Assume that Sam, the owner, believes in something akin to Christian Science and that healing comes only through prayers without medical intervention. He maintains that it would violate his free exercise of religion to provide the legally mandated health insurance. Of course, if he is exempted from that general law, not only do his employees not get the coverage, Sam gets a financial advantage over other businesses, and perhaps competitors might think about joining Sam’s church.

          I am not pretending that I know how those claims should be decided, but in examining them, we should realize that many of the free exercise claims bring a tension with the Establishment Clause.

(concluded February 12)

The First Was Not Always the First (continued)

          The rights of the First Amendment cannot be considered the most important because they come first; they were proceeded by freedoms in the main body of the Constitution. But perhaps we still should regard the First Amendment rights as the most important in the Bill of Rights because, of course, they come before all the other ones in those ten amendments. That placement, however, was not the intention of those who drafted these provisions. The First Amendment rights come first not because of the drafters’ design but because of a historical happenstance.

          The original Congress passed twelve, not ten amendments, by the required two-thirds majority of each House. These proposals were submitted to the states, but the requisite three-quarters of the states only ratified ten of the twelve, and those ten, the Bill of Rights, went into effect December 15, 1791. The two that were not adopted were the first two provisions passed by Congress, and not surprisingly, were labeled by Congress as the First and Second Amendments. What is now our First Amendment was labeled the Third Amendment. Indeed, well into the nineteenth century courts referred to the amendments by the numbers Congress used, and early judges wrote about our First Amendment as the Third Amendment.

          The congressional framers of our Bill of Rights did not place our First Amendment rights first. And there is nothing to indicate that the states somehow concluded that the Third Amendment, as it came to them, contained the most important rights and consequently refused to ratify the first two proposals to bump that Third Amendment to the head of the queue. It is a mere fortuity that the protections in our First Amendment come first in the additions to the main body of the Constitution, and no importance should be accorded its placement. The notion that our country’s founders regarded First Amendment protections as the most important because they placed them first in the Bill of Rights is revisionist history.

          On the other hand, while the First Amendment’s placement does not indicate the importance of its protections, its rights are foundational to what we would consider a “free” society. That is not true for much of what is in the rest of the Bill of Rights. Many of its provisions are America-specific. We have them but other countries have not considered them necessary for freedom. Most nations do not have the constitutional equivalent of our Third Amendment, which restricts the quartering of soldiers in homes. Many free societies have justice systems that do not rely on juries as we do. Most countries do not have in their constitutions the right to keep and bear arms. Indeed, our overall structure of government mandated by the Constitution with a President selected by an electoral college, a Congress, and separation of powers has not been deemed necessary for many free societies.

          Free nations do not need all of what is in our Constitution, but it is hard to imagine a country we would consider free that did not have free speech and a free press. We may not think about the ability to assemble as much as speech and press, but people need to be able to come together for many reasons: comradeship, grieving, exchanging ideas, protestation, worship, laughter, dinner, and much, much more. Without a right to assemble peaceably, a society would not be free. And a society is not free if governmental communication only goes one way, from the government to the people.  In a free society, the government is the instrument of those it governs. Freedom requires citizens and others to be able to tell the government of perceived problems and improvements. Whether we label this the right to petition the government or something else, it is essential.

          But when Education Secretary DeVos and Attorney General Gonzalez were referring to the primacy of the First Amendment, they were not drawing attention to speech, press, assembly, and petition rights, guarantees that tend to complicate the lives of government officials. (Right now, I am looking at you, Mike Pompeo.) Instead, they were stressing the importance of the free exercise clause, a guarantee that may not be even needed when other First Amendment rights are preserved. When there is freedom of speech, a person can preach, pray, and proselytize. With freedom of the press, Bibles and Korans can be printed as can religious tracts of every sort. With a right of assembly, people can come together to worship, hear sermons and homilies, and join together in singing and praying. The provisions of the First Amendment that generally guarantee a free society also guarantee freedom of religion. Seventeenth century England had criminalized Quaker services. Even without the free exercise clause, that could not happen in America with free speech, a free press, and the right to assemble.

(continued February 10)

The First Was Not Always First

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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment to the Constitution of the United States of America.

          Betsy DeVos, the Secretary of Education, recently wrote in an op-ed piece: “There’s a reason why the First Amendment comes first. Our country was founded upon the ‘first freedoms’ it protects. The freedom to express ourselves — through speech, through the press, through assembly, through petition and through faith—defines what it means to be American.” 

          Her statement seems to say something learned about our country, and surely First Amendment rights are important, but can her words be profound when they are misleading and misapprehend and misrepresent history? DeVos says the collection of First Amendment rights “defines what it means to be an American.” DeVos should remember the old story in which the teacher asked, “Who was the first man?” Glen shouted out, “George Washington.” Miss Wilson responded, “What about Adam?” Glen, showing disappointment in his teacher, said, “Well, if you are going to count foreigners.

          America is not alone in what we label First Amendment rights. Citizens of many countries have the right to express themselves. If that right defines what it means to be an American, many foreigners must then be American.

          Perhaps what DeVos really meant to say is that we would not be Americans without these guarantees, but they do not define what it means to be an American. Happily, we are not the only people in this world with such rights. (The Democracy Index has scores for civil liberties and about twenty countries are ranked higher than the U.S.)

          DeVos made another point. These are our most important rights, she says, because the “First Amendment comes first.” Alberto Gonzalez, Attorney General for George W. Bush, said something similar years earlier, stating that religious freedom is the country’s first freedom because our founders saw fit to place it first in the Bill of Rights. We should give primacy to First Amendment rights because they come first, he said, and following that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. It all seems so obvious a third grader using vouchers could follow the reasoning. But this elementary school reasoning is misleading and historically inaccurate.

          The rights of the First Amendment don’t come first in the Constitution. They come after the seven articles of the Constitution that were drafted in 1787; the initial amendments were drafted in 1789 and went into effect in December 1791. Our Constitution granted rights before the Bill of Rights existed, and if rights are to be measured by their placement, then these original freedoms coming years before the First Amendment must be more important than the religious and speech provisions.

          Section 9 of Article I of the Constitution prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The next paragraph prohibits a bill of attainder or an ex post facto law. The next Section 9 provision gives another right: No direct taxation unless it was based on the census. This was an important right until it wasn’t a right. The Sixteenth Amendment, ratified in 1913, wiped out the no-direct-taxation provision by explicitly authorizing an income tax. Our rights, it turns out, are not immutable.

          Section 9 contains two other provisions that we seldom think about but were truly essential foundational rights for this nation, because without them we would not be one country: “No Tax or Duty shall be laid on Articles exported from any State. No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another.” We are welded into one entity because goods and transport can freely travel among the states. Without that, we would only be a collection of fifty fiefdoms.

          The founders also placed important rights in Article III, which provides a narrow definition of treason and requires “the Testimony of two Witnesses to the same overt Act, or on Confession in open court.” It also eliminated punishments for treason that had existed in Europe. Finally, Article III, Section 2 guarantees jury trials for crimes. (If the importance of a right is measured not by its placement in the Constitution, but by the frequency of its protection, then juries are the most important constitutional right since juries are guaranteed not only in Article III but also in the Fifth, Sixth, and Seventh Amendments.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.

(continued February 7)