Posted on by rjonakait

Snippets

How is “alack” different from “alas”?

The CVS anniversary card section had five “To My Wife” cards for every “To My Husband” ones. What does that signify?

Trump’s assault on diversity, equity, and inclusion seems to be based on the notion that whites have been discriminated against in hiring and that more whites should be hired in the future. To help accomplish this, grants and contracts have been suspended or canceled at universities and other institutions. In response, universities and other institutions have let people go or suspended hiring. In other words, the war on diversity, equity, and inclusion means that fewer people will have jobs, and therefore fewer whites will have jobs. Who thinks up these policies?

Is the arresting, non-human character in Remarkably Bright Creatures by Shelby van Pelt right? He says, “Humans. For the most part, you are dull and blundering. But occasionally, you can be remarkably bright creatures.”

I picked up Trillin on Texas at a flea market. The book depressed me a little. Calvin Trillin is the writer I would like to be and never will be. The stories are dated, but I still loved them.

I gave up on another of my purchases from the flea market, Amish Front Porch Stories. I take a certain perverse pride in being the only person I know who has read several Amish romances. Who knew they even existed? Nevertheless, I learned something about the Amish from them, but perhaps most amazing to me is that there are many Amish romances, and they have sold millions. However, they are written at a sixth-grade level, and this time with Stories, I could not get past that and set the book aside. We have a weekly Amish greenmarket in the country. I was going to give the Amish cashier Annie some of the Amish romances, but I learned that the Amish don’t read them. But if you want to read Amish Front Porch Stories, it’s all yours.

I don’t think our current president ever sang along on the car radio with Buddy Holly, the Rascals, Stevie Wonder, Aretha Franklin, the Stones, or any other performers from his youth. If so, isn’t that sad?

“In that moment, silently, we agreed that we were indeed in the presence of an exceptionally delusional white man—which is, of course, one of the most dangerous things in the world.” Mat Jonson, Pym.

Nearly 90% of American students attend public secondary schools. Only three of the present nine Supreme Court justices did. None of the justices attended a public college, university, or law school.

“Power does not corrupt men; fools, however, if they get into a position of power, corrupt power.” George Bernard Shaw.

I am not proud that in scanning the obituaries I feel some satisfaction when I find that a vegan has died of cancer.

In a pseudonymous essay written as the American colonies moved towards independence, John Adams wrote that a republic is a “government of laws, not of men.” He was contrasting a system with a despotic emperor who is “bound by no law or limitation but his own will.” In contrast, Adams wrote, a republic “is bound by fixed laws, which the people have a voice in making.”

Posted on by rjonakait

Laws Changed by the Few

In a pseudonymous essay written as the American colonies moved towards independence, John Adams wrote that a republic is a “government of laws, not of men.” He was contrasting a system with a despotic emperor who is “bound by no law or limitation but his own will.” In contrast, Adams wrote, a republic “is bound by fixed laws, which the people have a voice in making.”

Following Adams, we often proudly proclaim that the United States is a nation of laws, not of men. The Supreme Court is about to begin a new term. This should remind us that it is only partially true that we are a nation of fixed laws. Instead, our laws change through the actions of a handful of people who sit on the Supreme Court.

We have seen dramatic evidence of that recently, but this is not new. Franklin Roosevelt’s plan to expand the Supreme Court was triggered by the actions of Supreme Court men. (We didn’t believe in women justices in those days.) As Jeff Shesol writes in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), between 1933 and 1936, the Court overturned congressional acts at ten times their traditional rate often citing long-neglected doctrines. The Court frequently breathed new life into obscure clauses of the Constitution in order to abolish the democratically enacted laws of the New Deal. Indeed, it was the Chief Justice at the time who made the statement affirming that our fundamental law is a law determined by a few. Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Evans could have said something similar about many of our laws.

It is fair to wonder whether the judges use neutral legal doctrines to alter our law or whether it is their politics or economic viewpoints (or what they ate for breakfast as one legal scholar has suggested). A study a few years after John Roberts became Chief Justice found that the Supreme Court under Chief Justice Earl Warren found in favor of businesses 28% of the time. That rate increased to 48% under the Burger Court; 54% under the Rehnquist Court; and 64% under the Roberts Court. (Justice Antonin Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time. William Rehnquist voted 8% of the time for criminal defendants in non-white-collar crimes, but 62% of the time for white-collar defendants.)

Despite the slogan that we are a nation of laws, it is clear that we do not really believe that. Confirmation battles over Supreme Court nominations demonstrate this. We believe that people who constitute the Court can determine the law. (The myth is that ideological contention over Supreme Court nominations began with Robert Bork, forgetting that the earlier nomination of Abe Fortas as Chief Justice was the first Court nomination to be defeated by a filibuster. As I have written, Bork was not “borked,” but myths continue to live on even when false. See AJsdad.blog of September 3, 2018, “Borked! Really?”)

We have tended to focus on the United States Supreme Court when considering how a few individuals determine our law, but increasingly there are battles over state supreme courts as well. Several decades ago “tort reform” became a political issue. The law of torts governs who should pay and how much when someone is injured. With the claim that recoveries for injuries were harming both the economy and healthcare, business, manufacturers, medical institutions, and insurance companies targeted the nominations and elections of state supreme court judges. Money poured into the selection processes. What had been a backwater of our political system now saw contentious advertising and campaigns because the powerful knew that our laws were not immutable.

Today the battles over state supreme court nominees focus on abortion and gerrymandering. Last spring Wisconsin had a costly election for its supreme court. The court was viewed as equally split between conservatives and liberals, and the newly-elected judge was expected to be the deciding vote on abortion and gerrymandering. Pennsylvania has a similar election coming up this fall.

Even though our history shows otherwise, the statement is still often repeated that America is a nation of laws, not of men. Perhaps the powerless have always known that this is a myth. Thus, a character in James McBride’s new novel The Heaven and Earth Grocery Store utters a truism that goes beyond race: “‘White folks’ laws,’ Nate said softly, ‘The minute you leave the room, the next white fella comes along the law is how he says it is. And the next one comes along and the law is how he says it is.’”

The moneyed and the powerful try to shape supreme courts so that the few can alter the law in ways that the rich and powerful want. And these days, they are often successful.

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No Public Defender Need Apply . . . (concluded)

          Republicans have attacked judicial nominees for having been public defenders, that is, for having defended poor people charged with crimes. These critics may be trying to raise a soft-on-crime banner, but they aren’t pledging fealty to the Constitution when they do so. These “conservatives” do not seem to know an important decision made by our Founders about defense counsel and our fundamental rights.

          You might take it for granted that those accused of crimes can have a lawyer to aid with their defense and assume that that right goes back to time immemorial, but when our country was formed, English law did not permit a defense counsel in criminal cases. It was not just that English law did not provide a lawyer for a person who could not hire one. Instead, those charged with felonies, even those facing execution, were forbidden from having an attorney.

          Our founders rejected those English restrictions. The Sixth Amendment to the Constitution, which followed state constitutions that had already granted the right, guaranteed the right to a defense lawyer in criminal cases: “In all criminal prosecutions,” it states, “the accused shall enjoy the right . . . to have the assistance of counsel for his defence.”

          This was not some abstract right for the founders for they acted as those lawyers to defend unpopular clients charged with crimes. For example, there was this one future president….

          On March 5, 1770, while British soldiers were occupying Boston, a dispute erupted at the Custom House. The soldiers, led by Captain Thomas Preston, opened fire. Three Bostonians were instantly killed, and two others died soon afterwards. The event became known as the Boston Massacre.

          The soldiers were tried for murder in two separate trials. Captain Preston was prosecuted first, and the rest of the soldiers jointly tried later. With the defendants claiming self-defense as justification, Preston and five of the other soldiers were acquitted by juries, while two others were convicted only of manslaughter. 

          The lead counsel for the reviled defendants was John Adams—yes, that same John Adams who was our first vice-president and our second president. His defense did not stand in the way of these later political successes even if today some Republican senators would try to use his  advocacy to prevent him from serving in the federal government. Adams, however, was proud of his action. Three years after the trials, as the drums of the Revolution beat ever louder, Adams wrote that a “Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.” The right to defense counsel that existed in Massachusetts had helped prevent that blot.

          John Adams was not the only lawyer of the founding generation to act as a defense counsel for the unpopular. Gulielma Sands lived in a New York City boarding house run by her cousin and her cousin’s husband, Catherine and Elias Ring. On December 22, 1799, Sands left that house never to return. On January 2, 1800, her body was fished out of the Manhattan Well. Newspapers flooded the town with rumors suggesting that fellow boarder, Levi Weeks, had killed her.

          Public titillation ran high and only a fraction of those seeking to attend the subsequent trial of Weeks got into the crowded courtroom. The case seemed simple but damning for Weeks. The prosecution maintained that he and Sands had become intimate. He had promised to marry her. People in the boardinghouse thought that the two had left the house together on December 22 for their marriage. Weeks returned later that evening, however, and claimed not to have been with her. A few days later, a boy found Sands’s muff in the Manhattan Well, and on January 2 her body was recovered. Doctors said that she had been strangled before being thrown into the well, and Weeks had intimated that her body was there before that fact was publicly known.

          The defense attorneys brilliantly shredded every part of the prosecution case, and Weeks was acquitted by a jury after five minutes of deliberations despite the publicity against him. The acquittal, however, did not return his standing in New York. He remained despised as a seducer and murderer and soon left for Mississippi.

          While the accused did not recover his reputation, the defense of this unpopular person did not tarnish his lawyers. People may have had many negative thoughts today and back then about Aaron Burr, soon to be vice-president, and Alexander Hamilton, but none stem from their defense of Levi Weeks. (Although they were political enemies, Burr and Hamilton appeared in the same courtroom, sometimes on the same side as in the Weeks trial and sometimes as opponents, during nearly every important legal case in New York City after the Revolution.) A third lawyer, Brockholst Livingston, joined them at the defense table. His participation did not stop Thomas Jefferson from nominating him to the Supreme Court, where he served for seventeen years. (Don’t take all your history from musicals. Hamilton refers to the Weeks trial, but has it set at an incorrect time.)

          The founders guaranteed a right to counsel. The founders acted as defense counsel. Today they would be attacked for this.

          Conservatives, however, attack public defenders for another reason. Those defenders do not just represent those accused of crimes. They represent the poor, the outcast, the powerless, and that also makes the defenders dangerous to Republican senators who apparently think that only those who have served the rich and powerful should be in the government, and that is especially true for the Supreme Court.

Posted on by rjonakait

The Shortsighted Electoral College (concluded)

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty. . . .” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572. South Carolina had a free white population of 139,000 but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South if there had been a direct election of the President. Even if the franchise had been equally distributed in South Carolina and New Jersey, New Jersey with its larger white population no doubt would have had more power in picking the president; if the turnout was equal, New Jersey would have about 20% more votes than South Carolina. But as Madison had to know, New Jersey then allowed women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though 40% of Virginia’s population could not vote, Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead the electoral college as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, and Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

Unlike what some people now claim, the demigods of 1787 did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be a laughable protection. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted and were evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. A tie, which was not foreseen by the Framers but was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.** At least when it came to the Electoral College, the Framers did not see very far at all.

Remember this whenever someone suggests that the Framers were infallible or that the Constitution is a God-given document. And remember that the original Constitution gave the major slave-holding states the dominant power in picking the President.

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*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. (Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes.) Under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might have been more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in a number of states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.