Snippets

When has the Senate filibuster aided non-conservatives?

You have some new bodily lump, pain, or discoloration. Do you feel better if you learn that this condition has a name?

John is the ranger, as his father was before him, for the community’s 4,000 mostly wooded acres. Recently I have worked with John on a conservation easement for a portion of this land. My admiration for him has grown. He seems to know every inch of the land, and his conversation is filled with landmarks such as Turkey Hill field, the path going from Fox Run Creek to Porcupine Parade, the Hardy’s 1930s hunting grounds, and much more. I nod as if I understand. His devotion to the conservation of the lands is palpable, and he has been invaluable as I and others have worked on the easement. I have known who John was for a long time, but only because of this recent project have I felt comfortable in trying to get to know him a bit better. He is about to retire, and I asked him what he was going to do. He was vague as I might have expected from someone who retains something of a mountain man from yesteryear. Thinking that perhaps this might be an activity in his retirement, I asked him if he hunted. He replied, “I used to hunt with a lot of the old-timers here,” and rattled off a host of names I did not know. He continued, “I haven’t hunted in six or seven years.” And then, almost blushing and with a shy tone, he said, “I have gotten soft. I’ve killed enough deer in my life.”

“The key to success was having parents who had succeeded.” Rumaan Alam, Leave the World Behind.

Old joke: Southern Baptists do not believe in making love standing up. It could lead to dancing.

The Olympics are upon us. Margaret MacMillan in War: How Conflict Shaped Us (2020) points out that the modern Olympics have taken on many attributes of war. The competitions are by nations, award medals, incorporate national anthems, and have teams in uniforms behind national flags.

Growing up and well into adulthood, I could stand alongside a Wisconsin farm fence, moo, and cows would amble to me. The spouse, once again doubting me on the important stuff, thought I made this ability up until I demonstrated it to her several times. But then after a considerable absence from Wisconsin I found that I was out of practice or the voice timbre had changed, I had lost my cow-calling trait. I have had many sad moments in life.

I watched videos of the invasion of the Capitol on January 6 and was reminded of the words of David Hume: “Everyone has observed how much more dogs are animated when they hunt in a pack, than when they pursue their game apart. We might, perhaps, be at a loss to explain this phenomenon, if we had not experience of a similar in ourselves.”

Baptists-American, South, and Right (concluded)

          In the days when I attended the church, Baptists seldom mentioned abortion. That may have been because then there was little public discussion of it. I have learned since then that there were many private conversations about the practice because many people sought one. The lack of a Baptist discussion, however, may also have been due to Baptists’ reverence for the Bible and for liberty of conscience. The last time I checked a biblical concordance—admittedly quite some time ago, but surely this has not changed—the word “abortion” was not in it. One has to interpret or extrapolate from verses and contexts to conclude that the Bible condemns abortion. Biblical passages can be construed to say that life begins at conception, but what “conception” meant in biblical times is not clear. I doubt to ancient Israelites it meant a sperm fertilizing an egg. Other biblical passages, however, indicate life begins with the first breath. But even though the Bible does not explicitly, and may not implicitly, condemn abortion, it is also hard to suggest that it supports the view that abortion should be the choice of the woman and her doctor.

          A Baptist, however, might extrapolate from Baptist principles and conclude that because there are ambiguities in the Bible on the matter, whether an abortion is sinful must remain a matter of conscience. The opinion would hold that the state cannot dictate what is sinful and should not dictate that a woman cannot have an abortion. In fact, when some states began to change their absolute proscriptions of abortion before Roe v. Wade in 1973, many Southern Baptist leaders held quite liberal views on the subject. For example, a poll in 1970 found that 70% of Southern Baptist ministers supported abortion to protect the mental or physical health of the pregnant woman; 64% supported abortion in cases of fetal deformity; and 71% supported abortion in cases of rape. The next year the Southern Baptist Convention passed a resolution stating, “We call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such circumstances as rape, incest, clear evidence of severe fetal deformity and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”

          This liberal viewpoint, however, soon vanished. Since Roe v. Wade, the Southern Baptist Convention has passed many resolutions about abortion that are much different from the 1971 pronouncement. On the thirtieth anniversary of Roe v. Wade, the Convention stated that that Supreme Court “decision was an act of injustice against unborn children as well as against vulnerable women in crisis pregnancy situations. . . . We lament and renounce statements and actions by previous conventions and previous denominational leadership that offered support to the abortion culture. . . . We pray and work for the repeal of the Roe v. Wade decision and for the day when the action of abortion will be not only illegal but unthinkable.”

In the last quarter of the twentieth century, then, Southern Baptist shifted away from dogmatic opposition to school prayer and aid to religious school and towards dogmatic opposition to abortion.

And now comes Critical Race Theory, a slogan that appeals to the emotions more than a meaningful phrase that can be rationally discussed. (See posts of June 23, 2021 Advice About Critical Race Theory – AJ’s Dad (ajsdad.blog) and May 10, 2021 From “Socialism” to “Diversity” – AJ’s Dad (ajsdad.blog)) I gather that Southern Baptists are not agreed about CRT, but many maintain that it is anti-Christian. I confess to not fully understanding why. I think all agree that it is neither condemned nor praised in the Bible, but somehow, to some, it promotes a worldview that is “unbiblical.” Perhaps I have not applied myself enough, or perhaps I don’t care enough, but I don’t understand this worldview stuff. I do note, however, that income inequality, incarceration of children at our southern border, a low minimum wage, or the blind eye turned toward sexual abuse apparently do not promote an unbiblical worldview.

Perhaps the changed views about public aid to non-public schools, abortion, and critical race theory are religious ones, but they are assuredly different from those about adult baptism or transubstantiation (I think it was Mark Twain who said, “Do I believe in adult baptism? Yes. I have even seen it.”) They are all opinions that affect how people vote, not how people worship. Southern Baptists, for example, now want their elected officials to be strongly against abortion, generally friendly to public support of religion (or at least some forms of religion), and against the promotion of the concept of structural racism. This certainly has had importance for the country since the Southern Baptists, even with a membership decline, remain the country’s largest Protestant denomination.

Over the last generation or two Southern Baptists have moved even further to the political right than they were before. Theology does not define them as much as their rightist political views, which often includes a commitment to gun rights and exemptions from laws because of religious beliefs.

Baptists and other evangelicals, have become a major political force. Baptists are at the core of the modern conservative movement even though these Baptists no longer seek the traditional principles that defined Baptism. They now advocate the intermingling of church and state. Toleration of private consciences no longer seems a defining principle.

Nevertheless, when I see one of those white frame New England Baptist churches, I still hope that their congregants believe that religion should not be founded on ritual or coercion or enforced rules. Instead, it should be founded on the consciences of individuals, persuasion, reason, and toleration. I want those bedrock principles of Baptism, and of the country, to remain.


 

Baptists–American, South, and Right (continued)

When I attended the Baptist church, their views of separation of church and state, liberty of conscience, equality, and religious toleration espoused by Roger Williams were strong. Tolerant Baptists may not have been publicly militant about much, but they were militant about the separation of church and state.

  It was easy to predict how American Baptists would react in those days to some prominent church-state issues: prayers in public schools and government aid to parochial schools. For American Baptists the answers were a simple: no and no.

The public prayers profaned God. If one prayed because the state required it, then the prayer came not out of devotion to God, but because of devotion to or fear of the state. This made such a prayer unholy and defiled true religion. If the prayer was uttered, not out of devotion and faith, but merely out of a habit, like saying “Good morning, Miss Ketter” to the teacher each morning, the prayer was still sinful.

          We American Baptists thought that the United States Supreme Court got it right when it held in 1962 that a recitation of a state-written prayer in the public schools violated the First Amendment, which prohibits an establishment of religion. Furor around the country, however, resulted. Godlessness would prevail. Communists would ascend. At the time I found this panic amusing. My public school did not have prayers. I believe they were outlawed in Wisconsin, as they were in many–perhaps most–other states. I listened to the rants about the Court’s decision and looked about me and could not figure out what they were going on about. Wisconsin, to my keen eye that was on a vigilant lookout for such things and disappointed when I could not find them, did not seem to be more a hotbed of iniquity than the places that required public prayers. It was clear to me that there was no connection between morality or godly behavior and the recitation of prayers in public schools.

          American Baptists were not alone in accepting the Supreme Court ruling banning school prayers. Southern Baptists agreed. The Southern Baptists came into being in the1840s when they segregated themselves from other Baptists. It should come as no great surprise that race was the dividing factor. The specific issue, as I understand it, was whether slave holders could be missionaries.

But even with the split, Southern Baptists maintained the same doctrinal positions as other Baptists. They believed that the Bible only authorized two sacraments—adult baptism by immersion and the Lord’s Supper. They also were without a hierarchy. There was a Southern Baptist Convention to which churches sent “messengers,” but the pronouncements of the SBC did not bind anyone; they were just recommendations or urgings or food for thought. As with American Baptists, the church was congregation-based with the congregants selecting a minister. And Southern Baptists also believed in the strict separation of church and state. Shortly after the Supreme Court held that public school prayers were unconstitutional, the President of the Southern Baptist Convention, praising the decision, said that it was “one of the most powerful blows in our lifetime, maybe since the Constitution was adopted, for the freedom of religion in our lifetime.”

          Soon thereafter, however, Southern Baptists started changing their positions. In 1982, the SBC supported a constitutional amendment that would have allowed individual or group prayer in public schools as long as the government did not require participation in the prayer. (This was a curious proposal since individual prayer was never outlawed, and, of course, silent prayer could not be. Surely, I am not the only one who reached out to the Almighty before a calculus exam. A spoken prayer might run into troubles with school authorities, not because it was a prayer, but because any vocalization in a classroom might be disruptive to school order. Part of the power of prayer, it seems to me, is that at least silent ones can be said anywhere, including in government facilities.)

When I was young, American Baptists opposed government aid to parochial schools on the grounds that it forced people, through taxes, to support religious practices, and no one should be forced—especially through government-imposed taxes–to support religion. Southern Baptists also opposed government aid to religious schools. Thus, in 1971, when a voucher system was proposed to allow public money to go to parochial schools, the Southern Baptist Convention passed a resolution that said, “We reaffirm our belief that the use of public funds for education in church-controlled schools, regardless of the manner in which these funds are channeled to church schools, is contrary to the principle of religious liberty.” The Convention went on to “reaffirm its commitment to our system of public education.”

          But times change, and, apparently, so do religious principles. That adamant opposition to state support for parochial schools has shifted. The Convention passed a resolution in 2014 entitled “On the Importance of Christ-Centered Education.” The SBC now encourages lawmakers to enact policies and laws that maximize “parental choice.” It goes on to say, “We affirm and encourage support for existing Christ-centered K-12 schools as they engage in Kingdom work.”

          What, you might ask, accounts for this 360-degree shift? Although religiously tolerant, Baptists were quite opposed to Roman Catholics, who were not seen as real followers of Christ. (A Sunday School teacher of mine once announced that the United States had three major religions: Christians, Jews, and Catholics.) A generation or two ago, the term “parochial schools” was often seen as a coded term for “Catholic schools,” even though other denominations also had religious schools. (The father and a nephew went to Lutheran schools.) The adamant opposition for aid to parochial schools that then existed might have sprung from opposition to Catholicism, but, in fact, the position was consistent with long-held Baptist views that go back to Roger Williams.

          So, what changed? A generation or two ago, Baptists had few K-12 schools. (A fair number of colleges and universities have Baptist roots, including, for example, Wake Forest and the University of Chicago.) However, then came the school desegregation movement. Even though the Supreme Court outlawed segregated public schools in 1954, it was not until the 1960s and 1970s that meaningful desegregation got underway. And, surprise, surprise, Christian Academies started springing up in places–coincidentally, I am sure—where opposition to desegregation was strongest. Non-Catholic Christian Schools doubled their enrollment between 1961 and 1971. And while there were few Baptist K-12 schools before Brown v. Board of Education, they became more numerous just at the time when public schools were being desegregated.

          Many of the Christian Academies were originally unabashedly segregated. We tend to forget all the preaching that said the separation of the races was commanded by the Bible, and Brown did not apply to private schools. These schools, however, could get back-door government help in the tax code. In the 1960s, donations to the schools were tax-exempt, but that changed through a series of Supreme Court decisions into the 1970s that declared racially discriminatory private schools ineligible for the tax break.

          After these legal decisions, most, if not all, of the schools no longer claimed to be all-white, but not many became truly integrated. The schools increasingly said they existed to fight secular humanism and to oppose liberalism. That message and the costs of the schools attracted few non-whites. The schools no longer touted segregation, but that remained the implicit draw of many of them.

          Funding of a Christian Academy education, however, is difficult for many who desire it no matter what their reasons. Therefore, many of those seeking a religious education today support school vouchers. These vouchers are public moneys given to the parents for the education of their schoolchildren. Thus, parents, not the state, decide which school will get the government money. Conservative economists promoted the vouchers in the 1950s as a way to improve education. The claim was that allowing free market principles, under the slogan “school choice,” would work wonders for educational quality, but the vouchers raise questions about the separation of church and state.

          Because the voucher can be used at any private school including parochial ones, public money is used for religious purposes. The Supreme Court had earlier made it clear that governments could not directly aid religious schools, but vouchers, by giving parents control over the state money, is an indirect aid to religious schools. In a 5-4 decision, the Supreme Court in 2002 held that a school voucher did not violate the federal Constitution.

          In 1971, the Southern Baptist Convention, espousing its traditional religious view, took a strong stand against vouchers as an improper state aid of religion. The Supreme Court, of course, cannot change the religious principles of Baptists, but since that strong stand against vouchers, many Baptist schools have been created, and, for whatever the reason, that adamant opposition by Southern Baptists has disappeared. Apparently, theological opposition to public moneys for religious schools dissolves when those schools might be Baptist institutions.

(concluded June 21)

Baptists–American, South, and Right

          The Southern Baptist Convention gathered last month. It got a good bit of media attention because controversies are raging within the group over sex and race—volatile topics to say the least. The issues concern how the Baptists have handled sex abuse claims within its ranks and over the presentation of racial issues, particularly Critical Race Theory. A third issue–“sermongate”–has emerged over the “borrowing” without attribution by one prominent Southern Baptist minister of the sermons of other religious leaders.

The election of the head of the SBC was fiercely fought between a candidate labeled as conservative and another called a moderate with the moderate winning. “Moderate,” however, should be viewed in the context of current Southern Baptists. Elsewhere he might be seen as an extreme conservative. The controversies are especially important because Southern Baptist Churches have been losing parishioners, especially young adults. Southern Baptists are also concerned about waning political influence in a time when political power might mean choosing between conscience, religious principles, and alliance with Donald Trump, a person not well known for his conscience or religiosity.

Southern Baptists are an important institution because they are the largest American Protestant denomination, but I am especially interested in them because I was raised a Baptist. My family’s strain was that of the American Baptist Convention, which now has the name American Baptist Churches. (Earlier it was Northern Baptists.) There are many different versions of Baptists, but all practice adult, not infantile (ok, infant) baptism, and baptism not by merely the sprinkling of water but by full immersion of the believer.

          Baptists practice adult baptism by immersion because of the Bible. The Bible is divinely inspired, Baptists believe, and the ultimate authority for leading a Christian life. Baptists find no scriptural support for infant baptism. The biblical baptisms of Jesus by John the Baptist and one performed by Phillip were of adults, and there is nothing to indicate that John the Baptist’s other baptisms were not also of adults.

          According to Baptists infant baptism is a man-made ritual, and it is not Christian to use man’s rituals over those of the Bible. And while it takes some extrapolation to conclude that immersion is required, the Bible does say that Jesus and others came out of the water. Other passages also seem to support that the biblical baptism was by dunking, including the verse–I think it is in one of the Romans–that says baptism symbolizes life, death, and resurrection. Sprinkling or the thumb’s spreading of water on a forehead doesn’t really seem to be a good symbol of that.

          Baptists maintained that the only biblically-based rituals were adult baptism and the Lord’s Supper. So on the first Sunday of every month we had communion. Little cubes of Wonder Bread and shot glasses of Welch’s Grape Juice were passed around. (As frugal as the church and its congregants were, it might not have been Welch’s, but an off brand.) I liked communion, but it raised some of my first doubts. I was told to take the Bible literally, but our church also commanded teetotaling. When I asked why communion served no wine, I was told that when the Bible said “wine,” it meant grape juice. Hmmm, I thought to myself.

          Adult baptism and communion and the Bible. Any other ritual or source comes from man and not God. No genuflecting. No stations of the cross. No Book of Common Prayer. No required kneeling. No incense. No icons. No required head covering. No rosary. No “mandatory” church attendance. No prayers other than to the Trinity. No saints. (It still bothers me to hear “The Gospel According to St. Mark.” No, it is the Gospel according to Mark.)

          Baptists are not only separated from other denominations by the lack of ritual but also by the absence of an ecclesiastical hierarchy. The only churches Jesus and his apostles recognized were no larger than a congregation, and Baptists maintain that is what the Christian church should still be. Nothing is above an individual church. No one imposes a minister, priest, or vicar on a Baptist church; the congregation selects its leader. No bishops; no presbytery. Each congregation is supreme.

          American Baptists did not have saints, but there was a theological progenitor—Roger Williams, the founder of Rhode Island after he was “asked” to leave Puritan Massachusetts. He established the first American Baptist church in Providence. Williams should be considered one of our most important Founding Fathers, but he seems to be almost unknown today. When I used to walk by the Roger Williams Hotel on Madison and 31st Street in Manhattan, I wondered how many of my fellow passersby had any idea who Roger Williams was. The hotel was built on land leased from the neighboring Baptist church, and, I once heard, was owned by the American Baptist Church. Times change. The hotel was sold, and now has what seems like a brand-tested name, The Roger.

          Williams was a remarkable man. Unlike many of his American contemporaries of the early seventeenth century, he treated the Indians with respect maintaining that the Native’s land had to be purchased not just seized for the English to have lawful title to it. He produced a primer of the complex Algonquian language. (Bill Bryson in Made in America: An Informal History of the English Language states that this work “is a feat of scholarship deserving of far wider fame.”) But Williams should be better known because so much of his thought, expressed in his voluminous writings, broke from conventional thinking and was the foundation for many of the bedrock principles of this country—sovereignty in the people, equality of people, liberty of individual conscience, and separation of church and state.

          Williams made the radical argument for his time that governments were not divinely inspired. Nowhere in the Bible does Jesus pick a government or endow rulers with authority. Instead, Williams contended, sovereignty is with the people. Just as people come together and join with God to form a church and then pick its ministers, the people come together to form a government and grant authority to its rulers.

          This led Williams to reject the common notion of his time that the state must enforce God’s laws to prevent religious errors. Instead, since the state gets its powers from the people, government is invested with all the errors of the people. Any attempt to enforce religion by the state will always be error-filled and will, in essence, be an attempt for people to have sovereignty over God. Thus, long before Jefferson, Williams called for a “wall of separation” between church and state, a wall he called for to protect not the state, but religion. He believed that religion always suffered when it was protected or required by the state. For Williams, the church is sheltered by spiritual weapons and harmed by government efforts to enforce religion. God makes Christians, not a government. When religion and politics are mixed, the result is not true religion, but politics.

          For Williams, the progenitor of American Baptists, religion was a personal thing. A person’s conscience is God’s line of communication to the individual. Because humans are imperfect, they might be wrong about what conscience demands, but since conscience comes from God, it is a sin for a person to act contrary to her conscience, even a mistaken one. If I (or the state or a religious leader) forces you to act in opposition to your conscience, I am forcing you to sin, and by forcing you to sin, I am sinning.

          In other words, all must be allowed to worship as their conscience dictates, and no one should be required to worship or support religious practices against his conscience. Jesus did not force or coerce anyone to God. Man, then, can’t force anyone to faith.

          A mistaken conscience can be corrected only by persuasion, not by force or coercion. An appeal to conscience, for Williams, required the related God-given ability of reasoning. Conscience demands proof, and proof comes from intellectual rigor. Proof has to satisfy reason or be from the Bible or from a writing that convinces an individual that it was divinely inspired. Thus, Williams rejected the Quakers who were led to Christ by a movement of an ill-defined spirit within the person. Such movement did not, could not, satisfy reason.

          These views led not just to liberty of conscience and toleration on religious matters, but on all subjects. And since Jesus did not indicate that one soul mattered more than another and that all individual consciences should be respected, it meant that society should treat all equally.

          (I have refreshed my understanding of Williams’s life and teachings primarily from Roger Williams: The Church and the State by Edmund S. Morgan; Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty by John M. Barry; and Mayflower by Nathaniel Philbrick.)

These Baptist precepts have led me both to my religious sensibilities as a youth and to my political thinking as an adult. The religious and the American neatly coincided. Just as people come together with God to form a church, the people of America came together to form a country—“We the People . . .” Sovereignty does not belong to the authorities, but starts with ordinary individuals. Both the church and America are founded on freedom of conscience. Religion cannot be imposed, forced, or coerced; it is the result of individual reason and persuasion. In America, a political view cannot be imposed, forced, or coerced; it is the result of an individual decision.

(continued June 19)

Covid-19. No Big Deal?

Most weeknights I watch the man with the smirk and rolling eyes but only for a few minutes. I can’t stand Tucker Carlson for longer than that.

The other night he was trying to convince us that the Covid-19 concerns have been overblown. His aha information was that the median age of a Covid death in this country is eighty. “That is higher than the average life expectancy in the United States.” A few moments later I turned off the TV and resumed reading Celestial Bodies, the selection for next week’s book group, but Carlson’s information stuck in my head.

So I did some checking the next day. A chart on the CDC website breaks down deaths involving Covid-19 by sex and age groups in 2020 and 2021. It does not provide the median age of the more than 600,000 deaths, but eighty, if not the official median age, is close to it.

Carlson was also right that eighty is more than the average life expectancy in this country. That number at birth is about seventy-eight years. (Carlson did not point out that life expectancy has recently declined for several reasons including the number of Covid deaths.*)

Finding out that his figures were right, however, did not stop me from thinking that the comparison between life expectancy at birth and the median Covid death age is bizarre. Perhaps Carlson thinks that if you get to be eighty, you are living on borrowed time and death is no big deal, or perhaps he thinks you must already be dead. However, life expectancy increases each year a person survives. At age 75, for example, the average life expectancy is not 78, but about 84. At age 80, it’s about 88. He wanted us to conclude from his statistics that the concern over Covid has been overblown, but is it no big deal that hundreds of thousands who died of Covid were deprived of seven or eight more years of life? If you are older than 78 and dying of Covid, Carlson would suggest that you shouldn’t be upset because you have already exceeded the average life expectancy. Perhaps Carlson thinks we also overreact to cancer and heart attacks because they disproportionately affect older people.

Carlson’s data, of course, also mean that half of the over 600,000 Covid deaths occurred to people younger than eighty. It is also the case that more than 120,000 deaths were of people under sixty-five. Starting at age forty, more than ten percent of deaths from all causes during the pandemic involved Covid, and overall, Covid was involved in about one in every eight deaths in 2020 and 2021. Remember how some people tried to tell us that this coronavirus was no worse than the flu? Influenza killed fewer than 10,000 people in 2020 and 2021; Covid-19 killed sixty times that number.

But even if they aren’t much concerned with the pandemic, the conservative news outlets do seem exercised about the recent rise in murders, and it is true that the sharp increase of gun homicides–about 25%–that occurred under President Trump has continued into this year. In 66 major cities, homicides were 33% higher in 2020 than in 2019 and have increased further by 29% in major cities in the first three months of 2021 over 2020.

The conservative news reports those homicides, but seldom, if ever, do they explore possible causes for the increase. These might include the rise in gun sales during the pandemic–a 64% increase in 2020 over the previous year. And alcohol sales, surveys indicate, were more than 50% higher during the pandemic. More guns; more alcohol. Is anyone surprised that there was a surge in gun violence? But guns, alcohol, and the pandemic–which put strains on the police, courts, probation offices, and social services agencies–are seldom considered on the conservative outlets; instead, they point to protests against the police and calls to defund the police as the only possible causes for the increase in homicides. If these were the only causes, there should be a concomitant rise in all street crimes, but this is not the case. While murders have increased, the rate of other crimes has not. Moreover, they fail to present any historical perspective. As it turns out the present rate is much less than recent highs. For example, the homicide rate in a group of cities was 19.4 per 100,000 residents in 1995; it was 11.4 in 2020 in those same locations.

The conservative fixation on city gun violence also leaves out a salient fact: more people die from gunshot suicides than from firearm homicides. The conservative commentators don’t mention suicides perhaps because they have nothing to do with police protests and reforms and are not a big-city problem. Gun suicides, in fact, are disproportionately rural—two-and-a-half times higher in rural than urban areas–and overwhelmingly white—about 85%. The states with the five highest suicide rates in 2020 were New Mexico, Montana, Wyoming, Alaska, and Idaho. They were lowest in New York and New Jersey. While the conservative media likes to emphasize the murder rates in a handful of cities with Democratic mayors, it is interesting to consider which states have the highest homicide rates. So far this year, the states with the five highest rates are Louisiana, Missouri, Nevada, Maryland, and Arkansas.

Conservatives may avoid discussion of suicides because these people cannot be subliminally transformed into an image of dangerous minorities and because it might lead to a serious consideration of guns in the hands of those whom we don’t think of as criminals. While the success of attempted suicides by all methods is low—about 4%–attempted suicides by gun result in death over 90% of the time. And a study concluded that the chances of a suicide in a household with a gun is about three times higher than in a home without a firearm. Shouldn’t we be talking about this?

The Tucker Carlsons of the world (I write that fervently hoping it is in error and that there is only one of him) want to downplay the importance of Covid-19 and disregard the suicides. But they continue to harp on the homicide rate without mentioning a stable overall crime rate. Yes, we should be concerned about the increase in murders, which has now risen to fifty murders a day in the country. Meanwhile, there are about sixty daily gunshot suicides, and about 250 people each day are still dying from Covid. But, apparently, since half of the pandemic victims have lived longer than the average life expectancy at birth, it is no big deal.

*Part of the reason that the median age of Covid deaths is higher than life expectancy at birth is because America does not have an exceptionally long life expectancy. The United States places forty-sixth is the world. It is always surprising to me when I learn that that life expectancy in Cuba, where medicine is socialized and poverty widespread, is longer than it is here.

Originalism? Living Constitutionalism? Who Cares?

Conservatives are ecstatic to have Amy Coney Barrett on the Supreme Court, but have you considered what makes a judge “conservative”? Is it the results they reach or the methods they use to make a decision? Conservative judges promise that they are wedded to a process of constitutional and statutory interpretation and follow that process to the outcome no matter what that outcome is. They maintain that they would never, ever, start from wanting a certain result and work backwards from it seeking reasons for that favored result. No, no. They merely use neutral legal interpretive tools in a consistent manner to reach their decisions about the constitution and the laws. They apply originalism, original public meaning, textualism or some other text-based method to tell us what the constitution and laws allow or forbid. (I have written about methods of legal interpretation several times including on August 22, 2018, Originally it was not Originalism – AJ’s Dad (ajsdad.blog), and on March 24, 2017 Originalism to Textualism – AJ’s Dad (ajsdad.blog).)

          I suspect that most of us, however, don’t give a hoot about the analytic methods used by the Court. Few of us could explain the methodologies. We are concerned with the results. I thought of this a few years ago when the Supreme Court held that firing a gay or transgender employee violated a federal statute that prohibits employment discrimination “because of . . . sex.” The opinion was written by Neil Gorsuch, a conservative favorite. Gorsuch’s analysis relied on what is called textualism, a method championed by Antonin Scalia and other conservative jurists. I am simplifying somewhat, but the method basically says that the statutory words should be applied as written. So, Gorsuch reasoned that if a man is fired for having sex with a man when a woman would not be dismissed for having sex with a man, then the firing is discrimination based on sex. If a woman were fired from a job when a man would not be, it is sexual discrimination. Thus, if a man is fired from a job when a woman would not, that is also sexual discrimination. Gorsuch reasoned that the dismissal of a man because he has sex with another man when a woman would not lose her job for having sex with a man violated the statute.

          A conservative outcry ensued. Some conservatives discussed Gorsuch’s methodology and concluded that he had misapplied textualism, but many others merely decried the outcome without discussing the majority’s analytical method. They felt that a result that furthered the so-called “homosexual agenda” had to be wrong no matter how the decision was reached. They cared about the outcome, not the methodology. But I think that liberals were similar. They cheered the outcome but did not care about the method used to reach it.

          I thought of this again when the recent Supreme Court term ended. The Court rendered two decisions on its last day. Almost immediately I received an email from a right-wing group praising one of the decisions: “Today, the U.S. Supreme Court issued an important decision in Americans for Prosperity v. Bonta, a donor disclosure case with direct implications for religious liberty. In its 6-3 ruling, the Court held that a California law requiring the disclosure of donor names is unconstitutional.” The notice from this religious group continued, “Forcing charities to hand over and make their donor information public is unconstitutional—and it’s also very dangerous. Coupled with the toxic ‘cancel culture’ that’s all around us, government having at its fingertips a compiled list of religious people and/or those who support faith-based groups is a recipe for disaster. The ability to associate with others of like mind is indispensable to freedom. We’re very pleased that the Court recognized the disclosure of names and addresses of citizens simply for donating to a cause is chilling to the freedom of association—including the freedom to associate with, join and donate to the faith-based organizations that are near and dear to us.” (This group was clearly wrong when it thanked me “for generously supporting” it and labeled me a “courageous” supporter. I am on their email list only because I requested a free copy of the Constitution from them, which they generously supplied.)

          The point here is not to discuss whether the Supreme Court decision was correct but rather to emphasize that these words of praise are for the outcome of the case, not for the methodology that led to the result. There was no mention of the conservative buzzwords of originalism, original public meaning, or textualism.

          On the same day, the Supreme Court also decided that changes to Arizona voting laws that made it more difficult for some voters to cast a ballot did not violate the Voting Rights Act even though the Arizona measures had a disproportionate effect on minorities. I have read some good commentaries contending that the conservative majority was not properly reading the text of the statute, but was, in effect, rewriting the law which forbids all changes in voting law with a disparate impact on minorities, while the Court decided that the disparate effects were so small that under the Voting Rights Acts they did not matter  Others, however, without addressing the Court’s methodology, simply placed a Jim Crow label on the decision.

          I felt something similar when I watched a documentary about Ruth Bader Ginsburg a few years ago. The movie presented her inspiring life story and claimed that as a lawyer and judge, she helped move the law in directions that many approve of. But the film did not begin to explain her analytic methods or how her methodology may have been the appropriate way to examine constitutional questions. She was a heroine to many not because of her methodology but because of the results that she reached.

          In short, many on both the right and the left have little interest in the analytic methods the Supreme Court uses. They are concerned only with the outcomes.

Snippets

The length of the Arizona “audit” of the 2020 election makes me admire those who stole the election. Their thieving was so effective that evidence of it is very, very, very hard to find.

How often when the clouds open do you start to sing, “You and me and rain on the roof”?

The nine-year-old boy skidded to a stop on his bike. He looked up at the rapidly darkening sky with lightning moving in his direction and shouted to his friend, “We are going to die!” After a few moments, he said more softly to no one in particular, “That was a metaphor.”

          As I passed a group of toddlers on the sidewalk after some rain, I heard the teacher calmly state, “It is your choice whether you walk in any puddles. But first think about whether that is a good choice.”

“If a kid asks where rain comes from, I think a cute thing to tell him is ‘God is crying.’ And if the child asks why God is crying, another cute thing to tell him is, ‘Probably because of something you did.’” Jack Handey.

It was a philosopher (or maybe a comedian) who said, “If you want to prepare your child for real life, give her a Where’s Waldo book without any Waldos.”

Heard on the subway: She said with what I took to be a loving smile, “I never said I was a good mother.” The eleven-year-old boy sitting next to her replied, “And I never said you were a good mother.” “I am only being a mother until I can get you out of the house.” “Fine with me. [Pause, then, somewhat anxiously.] But you are always going to keep my room as it is. You aren’t going to make it into a study!”

While crossing the street at a busy intersection, I heard a young man say to a young woman, “Would you rather have your best friend murdered, or . . . .” And it faded away.

After the building collapsed in Surfside near Miami Beach, an official there said, “This doesn’t happen in America. This is a third world phenomenon.” And this makes Florida what?

The news story said that Florida has some of the strictest building codes in the country for the construction of high-rise buildings, but the codes have had lax enforcement. Building codes are regulations, a word that is uttered by some as an epithet. Politicians tout that they have eliminated regulations without making any distinctions among them. As Florida’s building codes indicate, however, regulations are protections. Some protections may not be useful and can be removed, but we might think more about their elimination if we started calling regulations protections. The call for the blanket removal of regulations would seem different if we saw them as the call for the blanket removal of protections.

Bill Cosby is Free. So is Oliver North.

The Pennsylvania Supreme Court overturned Bill Cosby’s conviction for sexual assault. After three years in prison, he was released.

A fundamental right, the protection against self-incrimination, was at the heart of the court’s decision. Popular culture has made us aware of this constitutional provision. The Miranda warnings are based on it. From an earlier era, many remember witnesses at congressional hearings droning that they would not answer questions because of the possibility of self-incrimination. Fictional and real trials teach that criminal defendants cannot be forced to take the stand in their criminal trials because of their rights against self-incrimination.

 However, if witnesses are given immunity against prosecution, they can be forced to testify in criminal trials even if their testimony implicates them in crimes. This is because immunity is a governmental promise that the witness will not be prosecuted or that their forced testimony will not be used against them in a criminal prosecution. If this promise is followed, the testimony cannot legally incriminate the witness, and the prosecution can force the witness to testify.

Civil cases are different. They are not prosecutions, and the parties can be forced to testify. The usual practice is for the defendant in a civil case to take the deposition of the plaintiff and often to call the plaintiff to testify at trial. The plaintiff has the same right to have the defendant testify at a deposition or trial. Even though private parties are the litigants, such testimony is forced by the government because it is the court that orders the testimony. The required testimony can be enforced by contempt sanctions carried out by government officials.

Normally a civil proceeding does not raise self-incrimination problems because the civil case raises no criminal issues. However, a problem arises when a civil case potentially intertwines with a criminal prosecution. That was the Bill Cosby situation. He was sued civilly for a sexual assault that could lead to criminal charges. Under accepted self-incrimination law, he could be forced to testify in the civil case, but he had the right to refuse to answer any question that might incriminate him in a criminal prosecution. The state prosecutor who had jurisdiction over the potential criminal matter stated that he would not prosecute Cosby for the sexual assault. With that promise of immunity, Cosby did not have a self-incrimination right to assert in the criminal case, and he testified.

Years later, a new prosecutor, who, if memory serves, campaigned promising a Cosby prosecution, disregarded the former prosecutor’s decision and criminally charged Cosby with the sexual assault Moreover, he used Cosby’s damaging statements from the civil proceeding in the criminal trial. At the time, I and many others thought that this was a due process violation, and now the Pennsylvania Supreme Court has agreed.

Cosby’s release,of course, brought reactions about sexual violence, black lives matter, and unjust convictions (so far I have not seen anyone trying to tie this outcome into defunding the police).  His release for me, however, dredged up memories of Oliver North, a frequent commentator on conservative news outlets. North was a key figure in the Iran-Contra affair of the 1980s. This is not the time to rehash those scandals, but I urge all to read about it. It was a dangerous time for the country as members of the Reagan administration worked to subvert the Constitution by secretly selling arms to Iran, our supposed enemy, and using the proceeds to fund groups fighting in Nicaragua, violating a congressional mandate. In the Iran-Contra aftermath, many high officials were indicted, including North, who was convicted of several felonies. He appealed, and something I have not heard North mention on his many television appearances on Fox and elsewhere, his appeal was supported by the ACLU.

Before North’s trial, he was called to testify by a joint congressional committee in a televised hearing. In order to compel his testimony, the Committee gave him immunity. Congress, the legislative branch of government, does not have the authority to prevent prosecutions, which are done by the executive branch. Instead, as Supreme Court cases had made clear, a grant of congressional immunity, while not preventing a prosecution, does prevent a prosecutor from using the compelled testimony or anything derived from that testimony. However, a prosecution that did not rely on the immunized testimony was permissible. Hoping to bring a criminal prosecution against North and to satisfy the self-incrimination clause, the prosecutors in the North case insulated themselves from North’s compelled testimony. They did not watch North’s congressional testimony, did not read a transcript, and refrained from being exposed to the news outlets reporting it. They segregated the evidence they had gathered before the testimony to show that this evidence was not influenced by the congressional hearing.

None of the congressional testimony was used at trial and nothing at the trial revealed that the prosecutors were in any way influenced by it. Even so, the Fourth Circuit Court of Appeals, then known as one of the most conservative federal courts, reversed the conviction. The court concluded that witnesses at the trial may somehow have been affected by the televised public proceedings, even though there was not a scintilla of proof of such influence. This court standard, new at the time and (I don’t think) ever applied again, meant that there was no way for the prosecution to establish that North’s immunity would not be violated in a new trial. All charges against him were dismissed. The other Iran-Contra participants who had also been convicted but did not have their convictions reversed, were later pardoned by President George H.W. Bush.

Oliver North did not spend one day in prison.

The Inclusive Declaration of Independence and the Founding of America (concluded)

          Of course, slavery existed throughout the country when the Declaration of Independence was signed, and we should not forget how that institution shaped our country. Nevertheless, for their time, the Founders also created an egalitarian and inclusive government in ways we now seldom appreciate. For example, unlike many of the state and foreign governments of the time, the United States had no property qualifications to hold office. In an era when they were common, no religious tests were required for holding office. And we seldom notice that the new country paid its officials. Many governments did not, so only the rich who could afford to be uncompensated could hold office. Unlike in other countries, all whites, or at least all white males, could hold office

The new country also broke from history and the practices of most countries by having no hereditary offices. A formal aristocracy died in the United States. Revolutionary America also moved to a more equal society by repealing primogeniture laws, which dictated that the firstborn male child would inherit his parent’s entire estate. This extraordinarily egalitarian reform, whose importance is seldom noticed today, was led by Thomas Jefferson in Virginia.

A related change in property law was also happening during this time. Under English law, aliens could buy property, but they could not inherit it. Aliens could sell the land they owned, but they could not grant it in a will. Instead, on death, an alien’s property went to the state. Revolutionary America began to repeal such inegalitarian laws helping to make the country more inclusive and prosperous.

The country’s first naturalization law had some of the same characteristics as the Declaration of Independence. It showed simultaneously both racial restriction and inclusiveness. The law limited naturalization to free, white citizens who had lived in the country for two years. We, of course, notice that nonwhites were excluded. (“Free” meant indentured servants could not be naturalized until they completed their periods of indenture.) Blacks could not be naturalized until 1870, and other nonwhites could not be naturalized until well into the twentieth century. (There was no legal definition of whiteness. When areas of Mexico became part of the United States in the early1850s, the former Mexicans of those lands were made citizens, and there was an implicit recognition that they were white. The Supreme Court dealt with whiteness and naturalization several times and concluded that Asians and South Asians were not white but that Syrians and Armenians were. In 1922 the Supreme Court held that a high caste Sikh was neither white nor black and could not be naturalized. He had fought for this country in World War I.)

However, in addition to noting the racial restriction, we should also consider the inclusiveness of this law. It did not impose a property requirement. The rich and the not rich could become citizens. Aristocratic origins did not matter. There was the racial limitation, but no national origin requirement. There was no religious test. At a time when Catholics could not become citizens in England and Jews could not become citizens in many places, they could in the United States.

We should keep both racial restrictions as well as these inclusions in mind when we consider this country’s origins. The founding era accepted an institution whose ramifications have troubled us throughout our history, but it also gave us foundations for much of what is good in this country.

I am sure that some will mostly criticize America on the Fourth, which is their right. And I am sure that some will call such critics unpatriotic, which is their right.

Patriotism has often been a tenuous concept. Vicksburg, Mississippi, offers an example of its fragility. Exactly four score and seven years ago to the day after the signing of the Declaration of Independence, confederate General John C. Pemberton surrendered Vicksburg to American General Ulysses S. Grant after a forty-seven–day siege. This was certainly one of the most important actions of the war because it gave control of the Mississippi River to the Americans and severed the confederacy.

Thus, July 4, 1863, is another Fourth of July for patriotic Americans to celebrate, but Vicksburg didn’t see it that way. The town did not honor the Fourth of July for the next eight decades. They continued to identify as confederates, not as Americans. Vicksburg simply ignored Independence Day until after World War II when General Dwight Eisenhower visited the town on the Fourth. Even so, Vicksburg did not want to celebrate the United States. It called the celebrations during Eisenhower’s visit a Carnival of the Confederacy, a title I am told that was dropped only when the country and Vicksburg celebrated the Bicentennial in 1976. I’m not sure what to make of their tenacious grasp of a different brand of “patriotism.” I guess I’m just glad that they finally celebrate along with the rest of us.

And I hope all Americans can find something to celebrate this Fourth of July.

The Inclusive Declaration of Independence and the Founding of America

The Fourth of July celebrates the United States of America and its birth, but with our current mood many only want to point out the country’s present and historical shortcomings. Every Fourth, I urge all to read the Declaration of Independence  (Declaration of Independence: A Transcription | National Archives), and in doing so, it is natural to focus on the multiple ironies of its most famous phrase: “all Men are created equal.” However, as we know, in eighteenth century America, women, Native Americans, and indentured servants were not seen as equal. And, of course, slaves were not equal. Any fair assessment of our history acknowledges, as Thomas E. Ricks states in First Principles: What America’s Founders Learned from the Greeks and Romans and How That Shaped our Country (2020), that slavery was not a stain on this country, it was woven into the original fabric. And that weft and warp made the celebration of liberty painful to many Americans throughout our history, which was perhaps most powerfully stated by Frederic Douglass on July 5, 1852. Just as the Declaration should be regularly read, so too should this speech. (Africans in America/Part 4/Frederick Douglass speech (pbs.org.)

The Fourth of July is our birthday, however. Some might temper a child’s birthday celebration with a discussion of the child’s shortcomings, but I would hope that the major thrust of the party is, in fact, to celebrate the kid. We should be realistic in assessing our country, but there has always been much to celebrate, and the Fourth is a time of celebration. Because it is so easy to mock the Declaration’s equality statement, it is too easy to overlook the many ways that in its founding the country also furthered egalitarianism and inclusiveness.

We know many of the Declaration’s phrases—“When in the Course of human Events”; “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and Pursuit of Happiness”; and others. But we often miss something about the tenor of the Declaration as a whole. There are no classical allusions or references. By eighteenth century standards, the language is simple. The document was not written for the elite peers of those who signed the document but for a wide swath of what were to become Americans.

Its logic demanded an inclusive appeal. The Declaration asserts that a government derives “their just Powers from the Consent of the Governed” not from the Divine Right of Kings. It summoned on “the Right of the People” to change government. The Declaration with these contentions could not just be addressed to an elite, aristocratic audience. It not was not directed to the enslaved, but it was seeking the approval of almost everyone else—the farmer, the joiner, the tavern owner, the schoolteacher, the sailors, the ship captain, the log splitter, and yes, the slave owner and trader. For an eighteenth-century document, its intended audience was remarkably inclusive

The notion of the consent of the governed was a radical, egalitarian break from America’s English roots, and the emerging country’s conception of “the people” was much broader than almost anywhere else in the world. This is reflected in who could vote. We now note the shortcomings of a franchise limited to propertied white males, but we seldom consider, as Jill Lepore does in These Truths: A History of the United States (2018), that a higher percentage of people could vote in the colonies than in England. The franchise was narrow by modern standards, but it was broad for its time.

Part of the reason for the inclusiveness of the Founding Era’s America was the high rate of literacy among its people, perhaps the highest of any country of its times. The seventeenth-century Pilgrims, Puritans, and others who settled here held beliefs that rejected an authoritarian church. They believed that the eternal truths came from the Bible, not from an authoritarian church, and, therefore, it was important that people could read the Holy Book. Literacy was stressed as well as the ability of each person to reason. Jefferson and the others may have expected that the Declaration would be read out to those assembled in taverns and inns, but they also knew that many people would read it for themselves, and all were expected to think and reason about the document, which led to its inclusive appeal to the people.

The Declaration did mention “the Laws of Nature and of Nature’s God,” and the signers said that they had acted with “a firm Reliance on the Protection of divine Providence,” but it did not beseech God, a god, or Jesus Christ for independence. Just as some only criticize the Declaration for its hypocrisies without recognizing its advances, some focus on the listing of God and divine providence and somehow conclude that the Declaration was an act of religious faith, or, more particularly, the signers’ Christianity. But these references, which include the almost anti-Christian formulation of “Nature’s God,” were not invocations of any particular divinity to grant them a new country. Government depended on the consent of the governed, not on divine will, and the appeal was to the people, not to some version of God. The Declaration’s wording was inclusive; it did not exclude any particular believer or any nonbeliever from its ambit. It rejected the too-often divisiveness of religion and relied on the reason of the people.

This lack of a religious appeal is not surprising. Thomas Ricks shows in First Principles that neither Christianity nor any other religious influence was prominent in the Revolutionary period. This only began to change in 1815. He reports that there was one minister for every 1500 people in 1775 America while there was one for every 500 in 1845. Scott L. Malcomson writes in One Drop of Blood: The American Misadventures of Race that in 1790 only one in ten white Americans was a member of a formal church. Jill Lepore in These Truths agrees that the country was founded in one of its most secular eras.

(concluded July 5)