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“Dear Texas: What Are You Afraid Of Now?”: We Must Live With Our Mistakes. How Else Are We Going To Learn From Them?

Well, there you go again, Texas, making me wish we still had your Molly Ivins around to make sense of you.

As the late, great columnist once so wisely explained, “Many a time freedom has been rolled back — and always for the same reason: fear.”

I took that to heart while reading a boatload of coverage about your elected state school board’s latest effort to indoctrinate its students with the kind of misinformation that’s going to make them the butt of an awful lot of jokes.

This time, you want your children to graduate from high school thinking slavery had nothing to do with the Civil War.

Dear Texas: What are you afraid of now?

We know you’re scared of your women, because you keep trying to eliminate their constitutional right to an abortion. The U.S. Supreme Court put a stop to that stunt, at least for now.

We know you’re scared of progress, too, because you execute more people than any other state in the country. By the way, I’m wearing my favorite T-shirt right now, the one that reads: “I’ll Believe Corporations Are People When Texas Executes One.” Members of my late father’s union, Local 271 of the Utility Workers of America, gave me that T-shirt.

Holy sweet tea, there’s another thing you’re afraid of: unions. Can’t have workers negotiating for wages and benefits in Texas. They might make a living wage.

And now, it looks like you’re afraid of your own history. As The Washington Post‘s Emma Brown reported, this fall Texas students will have brand-new textbooks that cast slavery as a “side issue” of the Civil War. The books don’t even mention Jim Crow laws or the Ku Klux Klan.

Students will read Jefferson Davis’ inaugural address as president of the Confederate States of America, in which he didn’t mention slavery. But students won’t be required to read that famous speech by Davis’ vice-president, Alexander Stephens, “in which he explained that the South’s desire to preserve slavery was the cornerstone of its new government and ‘the immediate cause of the late rupture and present revolution.’”

You see what Stephens did there? Of course you do, which is why he is now Texas’ least popular politician of the Civil War. Next to Abraham Lincoln, I mean. He made the cut for the new book, right? Please say yes.

In 1949, historian Arthur M. Schlesinger Jr. rebutted claims of an earlier generation of revisionists in an essay titled, “The Causes of the Civil War: A Note on Historical Sentimentalism.” He included the essay in his 1963 book, The Politics of Hope, which I pulled off our bookshelf and discovered to be packed with observations about America that are as relevant today — jarringly so — as they were more than five decades ago.

Schlesinger took on the revisionist argument that slavery had little, if anything, to do with the Civil War. The revisionists’ claim is best summarized as follows: “See now, there you go, misunderstanding what was happening in the South. Why, we were this close to freeing the slaves before Lincoln showed up with his uppity self.”

Schlesinger’s response, in part:

“To reject the moral actuality of the Civil War is to foreclose the possibility of an adequate account of its causes. More than that, it is to misconceive and grotesquely to sentimentalize the nature of history. … Nothing exists in history to assure us that the great moral dilemmas can be resolved without pain; we cannot therefore be relieved from the duty of moral judgment on issues so appalling and inescapable as those involved in human slavery; nor can we be consoled by sentimental theories about the needlessness of the Civil War into regarding our own struggles against evil as equally needless.”

We must live with our mistakes. How else are we going to learn from them?

Texas, you go ahead and try to poison the minds of your children, but this version of history won’t fool the independent thinkers among them. As anyone who has raised or taught teenagers knows, they are a challenging age. Not only do they see through our hypocrisy; they call us out on it, too. So annoying, those wicked-smart youngsters.

You can always lure a few suckers when you pander to those who cherish the myths of history more than the truths of its legacy. But we’re talking five million students, and I know from my many visits to your state that you’re not nearly as monolithic as your right-wingers want us Northerners to believe.

Molly Ivins knew that, too — and long before the Internet made it so easy for kids to be kids, with their questioning ways.

“I believe all Southern liberals come from the same starting point — race,” she wrote. “Once you figure out they are lying to you about race, you start to question everything.”

Rip open the chips and pass the chile con queso. I don’t want to miss a minute of this showdown.

 

By: Connie Schultz, Pulitzer Prize-Winning Columnist and Essayist for Parade magazine; The National Memo, July 9, 2015

July 10, 2015 Posted by | American History, Confederacy, Texas | , , , , , , , | 1 Comment

“Hey, Liberals; SCOTUS Ain’t Your Friend”: Conservatives Literally Want To Roll Back The Judicial Clock To 1905

It would be understandable if liberals were feeling kind of relaxed, kind of “Supreme Court, what’s so bad?” over the weekend. John Roberts and Anthony Kennedy delivered for our team on Obamacare, and then Kennedy came through again on same-sex marriage. If this is a conservative court, is getting a liberal one—which will be one of the trump-card arguments for voting for Hillary Clinton next fall—really a matter of such pressing urgency?

Well, yes. As we saw yesterday with the court’s death-penalty and EPA rulings, it’s still a long way from being a liberal court. But there’s more to it than that. People should remember that if a Republican is elected president next year and has the chance to replace Kennedy and/or Ruth Bader Ginsburg with another Samuel Alito, the Obamacare and same-sex marriage standings could easily be reversed. And don’t think there aren’t conservatives out there thinking about it, because there most certainly are, and they literally want to roll back the judicial clock to 1905.

An interesting and important debate opened up over the weekend in conservative legal circles that you should take time to educate yourself about. Many conservatives, of course, are furious with Roberts and Kennedy and are wondering, with conservatives like this, who needs liberals?

The ins and outs of the debate were deftly summarized yesterday by Ian Millhiser of Think Progress. I’m not going to take you as deep into the jurisprudential weeds as Millhiser does, but here’s the basic story. Since the 1980s, “judicial restraint” has been the guiding principle of conservative jurisprudence—the idea that judges shouldn’t make law from the bench but should rule more narrowly and modestly, deferring to the other branches. Roberts was invoking judicial restraint during his confirmation hearings with that famous line about judges just calling “balls and strikes.”

Judicial restraint was appealing to conservatives at the time because to a large extent, majorities of the public shared their views on pressing issues of the day. It was liberals back then who were trying to gain through the courts what they could not accomplish through legislatures and the political process.

But now that reality is to a considerable extent reversed. Public opinion is firmly against conservatives on same-sex marriage, and even on Obamacare, though the law (or the name of the law) remains unpopular, polling before last week’s decision showed that majorities didn’t want the Court to take away people’s health-care subsidies. And besides, Obamacare is after all a law, duly passed by the people’s representatives in Washington.

So now it’s the right trying to achieve through the courts outcomes that it could not through the political process. This is what Roberts in essence said in his majority opinion upholding the health-care law. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

All of this takes us back to Lochner v. New York, a 1905 decision that I’m not going to get into here (Millhiser does) but that in essence used the Fourteenth Amendment to extend rights not to individuals but to employers. The decision led to a series of decisions up through the New Deal that invalidated several key pieces of progressive legislation protecting workers and more. The Lochner majority relied on a view of the Fourteenth Amendment that is now discredited—except on the far right.

Which brings us to this past weekend. Conservative Georgetown law professor Randy Barnett wrote a column lambasting judicial restraint, arguing that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB [the first upholding of Obamacare back in 2012] and King.” He wants judges who embrace Lochner and who understand the “duty of judges to invalidate unconstitutional law without restraint or deference.”

Barnett specifically cited Clarence Thomas as an example of a judge who has this depth of understanding. And conservative law professor Jonathan Adler, one of the two, ah, creative minds who brought us the bogus King v. Burwell lawsuit in the first place, tweeted over the weekend that if a Republican wins the election next year, he ought to put Utah Senator Mike Lee on the court. As Millhiser notes, Lee is huge Lochner-ian, to the point that he thinks that Social Security, Medicare, and child labor laws are all unconstitutional.

Barnett wrote in his column that there would heretofore be a new standard that conservative legal scholars will demand of Republican presidential nominees. Now, dimwit candidates like Jeb Bush and Marco Rubio who yammer on about “judicial restraint” and “deference to the other branches” will be exposed as the traitors in waiting that they are, capable of upholding abominable notions like letting people who love each other get married or giving working-class and poor people a little financial help so they can take their kids to the doctor. Judicial restraint, apparently, breeds certain counter-revolutionary tendencies.

And this, finally, circles us back to the 2016 election and health care and marriage equality. Several legal challenges to Obamacare are still pending. Other inventive approaches no doubt await us. For example, a group of legislators in some red state could sue claiming that as the elected representatives of the people, they were denied by the court their proper deliberative role in the process of deciding how to bring health care to their state. If we get a Republican president and he puts a Barnett/Adler-approved justice on the court, poof, sayonara subsidies.

Same-sex marriage’s majority is even more precarious. For example: A gay plaintiff or plaintiffs could bring some kind of discrimination lawsuit (despite the marriage win, there still are other kinds of discrimination lawsuits on the books). A Lochner-loving majority of five could use that suit as the occasion to say, actually, discrimination here is legal, and while we’re at it, this marriage business…

And mind you, from a legal point of view, this would be legitimate. After all, think of it this way: If Kennedy had retired shortly after Citizens United and Barack Obama had put a liberal on the bench, liberals would have advanced at least one legal vehicle to try to get campaign-spending issues before the Court again hoping for reversal. All’s fair in campaign-finance, health care, love, and bigotry.

Imagine how that would feel—same-sex marriage overturned. Right now it’s hypothetical, but it is a long, long way from impossible. And if the Republican wins in 2016, and if Barnett’s arguments carry the day, we could end up with two or three more Alitos on the bench.

Still feeling relaxed?

 

By: Michael Tomasky, The Daily Beast, June 30, 2015

July 1, 2015 Posted by | Conservatives, Liberals, SCOTUS | , , , , , , , , , | Leave a comment

“Pro-Punishment”: Right-To-Lifers Are Hypocrites — And Here’s Why

A caveat: I don’t include nuns in this formulation, simply because “right-to-life” has come to mean the anti-abortion movement exclusively. Nuns have the ethical and spiritual integrity to be consistent in their belief that all life (as they define it) is sacred. In fact, that consistency is what illuminates the hypocrisy of the anti-choice movement.

Right-to-lifers (unlike many nuns) do not hold candlelight vigils outside prisons when a death row inmate is about to be executed. No buffer zone needs to be established, corrections officials don’t have to worry about their personal addresses being posted, or their facilities being bombed. Wardens are not shot by those who insist “Thou Shall Not Kill” is a commandment that must be respected no matter what the circumstances. In fact, these Biblicists are just as informed by the Hammurabi code: “an eye for an eye, a tooth for a tooth.” They adhere to the notion that the “right” to life can be revoked; it is conditional on one’s actions.

This tacit admission that life is not universally deserved is a crucial crack in their stance against abortion. They don’t decry our military engaging in “just” war, in the execution of murderers and terrorists. Ironically for the Tea Party libertarians among them, they don’t even object to the right of the state to determine whether some citizens should forfeit their lives for some crimes. But they object to the right of a woman to decide for herself whether her fetus, or even a fertilized egg not yet attached to the uterine wall, should be carried to term. In their thinking, fetuses have done nothing to “deserve” their fate.

You can’t, on the one hand, claim that all life is sacred, and then remain silent when men and women — some later determined to be innocent — are executed. That silence is a concession to the principle that the right to life is conditional. One can see this psychology of “deservedness” in the present humanitarian crisis on the border. The angry anti-immigrant placard-wavers are overwhelmingly rightwing, of the very same ilk that decries abortion. The right-to-lifers ringing abortion clinics have not abandoned their posts to run to the border in defense of real woman and children. For “they” do not “deserve” a chance at life in the United States, free from the violence and deprivation they are fleeing. They are “illegal.” They “bring disease” (an absurd charge that has become ubiquitous.) By extension, those yearning masses puff up the inner contention of the flag-waving nationalists that being born here is some sort of accomplishment instead of an accident of birth. As if learning English as a toddler was an extraordinary feat of patriotism: Congratulations, your racism comes without an accent!

If we concede that some life is deserved and some not — after all, very few liberals cried at the death of Osama Bin Laden — then we can confront the thorny question of whether some fetuses somehow deserve to live while others do not. I would reframe the issue as whether every child deserves to be wanted, to be welcomed without resentment, to have a mother who doesn’t consider her offspring a burden. How many millions have to grow up in poverty, fill our foster care systems, endure sexual, physical and emotional abuse, end up in prison or even on death row for the right-to-lifers to acknowledge that life without sufficient love or resources breeds despair without hope?

Let me state, for those who are prone to confuse “unwanted” with “unplanned,” that I fully support the decision of all women who may have conceived accidentally to bring the birth to term — whether she brings up the child herself or chooses to provide a loving family with an adoptive gift. Pro-choice does not mean pro-abortion. The irony, of course, is that those who support a woman’s right to choose are also the most fervently pro-access-to-contraception while the right-to-lifers are the most hostile to it, as evidenced in the recent Hobby Lobby decision. This has always made no sense. Those who oppose abortion should be the most passionate in making it as rare as possible.

The truth is that it is not the right of the fetus to life that really drives them. It is their belief that woman who have sex for pleasure should bear the “consequences” of their decision. The hostility is tangible — I have the hate-tweets to prove it. For men, not so much. Hobby Lobby had no objection to reimbursing Viagra and Cialis, made no stipulation that it be made available for married men only. The sole purpose of these two drugs is to facilitate sexual pleasure in the male. For those men who wish to procreate, an additional benefit is the ejaculation only an erection allows. I have heard of no right-to-life organization offering to pay for paternity suits to force men to bear the consequences of not using contraception. Practically speaking, a man who doesn’t want to take responsibility for a child he has sired rarely has to.

Many of course, do the “right” thing. And therein, I suspect, lies the true source of the hostility toward woman who wish to have sex without risking having a baby. Shotgun weddings are practically an institution in the states where the fever against reproductive rights runs hottest. How many unhappy marriages have resulted from a hormonal impulse between teenagers? How many unions of obligation have turned into nightmares of incompatibility, ending in divorce, custody battles or worse? How many husbands and wives caught for life in unplanned parenthood would do it all again if they could relieve the moment they chose passion over purity?

They aren’t pro-life, they are pro-punishment. Murderers must be executed, the undocumented must be deported, and women who dare to control their destiny as they themselves did not cannot be allowed to get away with it.

 

By: Mark Olmsted, The Huffington Post Blog, July 11, 2014

July 12, 2014 Posted by | Reproductive Rights, Right To Life | , , , , , , , | Leave a comment

“So Much For Checks And Balances”: Welcome To Tennessee, Where Lawmakers Are Trying To Kneecap Judges

In state houses around the country, January often brings the emergence of many of the year’s most dubious legislative proposals. January is the month of patently unconstitutional bans on “sharia law.” It is the month of promoting the unlawful practice of jury nullification. But mostly it’s the month for legislators to attack the independence of the judiciary.

Again this year, all over the country, state lawmakers have introduced bills to curb their cousins in the judicial branch. In Oklahoma, lawmakers want to remove from the Code of Judicial Conduct references to judicial independence. In Kansas and New York, state lawmakers want to force trial judges to render their decisions within a certain time or be forced out of office. But perhaps the most egregious of this year’s crop of ill-advised measures comes from Tennessee, where lawmakers have introduced a bill that combines many of these bad measures from other states into one big ball of scorn for the state’s judiciary.

SB 2322, as the Tennessee bill is known, seeks to replace the administrative office of the state courts with the treasurer’s office, which is part of the executive branch of state government. The state Supreme Court would no longer be able to “direct” the work of the court administrator but rather “urge” executive branch officials to take certain action. The bill would shut down the state’s judicial disciplinary board, now under the auspices of the judicial branch, and replace it with a new review board that would answer, again, to the state treasurer. That board would be made up of political appointees from the executive and legislative branches of government. Judges would be prohibited from serving on a board evaluating the work of the judiciary.

If that were all SB 2322 did, it would be bad enough. Each of the above components of the pending legislation violates separation of powers principles and constitutes impermissible encroachment upon basic judicial functions. It is axiomatic that judges should have the power and authority to administer their own affairs, as they do in every other jurisdiction in the nation, and should not be precluded from evaluating the disciplinary issues that arise within their profession. You don’t need to be a political scientist to understand the pressure the executive branch would be able to wield over Tennessee’s judiciary if the legislature were to enact this bill.

But there is more. SB 2322 seeks to dramatically alter the nature of death penalty procedures in a way that undermines core judicial functions. Judges would not be able to extend filing deadlines in capital cases — even if such extensions were justified and necessary to ensure the constitutional rights of defendants. And judges also would be forced to meet their own deadlines for resolving capital cases, even if they were not ready to do so. Meanwhile, lawyers representing indigent capital defendants would be required to reimburse the state if they were later found to have rendered “ineffective assistance of counsel,” a requirement that would make it materially harder for indigent defendants in the state to get a court-appointed lawyer willing to take the case.

These proposed measures, too, are patently unconstitutional incursions into the judiciary’s work. But they also happen to be bad ideas beyond their constitutional dimensions. Forcing judges to rush their decisions won’t make those decisions more accurate or justifiable — and that won’t ultimately save Tennessee taxpayers from the costs of appellate work. And precluding capital defendants from seeking more time to file their court papers — so they can better evaluate evidence, for example — won’t help root out instances of false confessions, or flawed eyewitness testimony, or prosecutorial misconduct.

Experts who study these sorts of bills are, quite naturally, both alarmed and disappointed. “There’s a reason no other state in the country has such a system, Bert Brandenburg, the executive director of Justice at Stake, told me Monday. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”

Tennessee’s judicial branch is not perfect. No branch of government anywhere is perfect. But it is reckless to think that the best solution to perceived problems within this state’s judiciary is to turn control of it over to the executive branch. There is a reason that our systems of government have three branches that are asked to provide checks and balances upon each other. What SB 2322 would do is upset that balance, and preclude those checks, in a way that surely would end up harming the people of Tennessee.

 

By: Andrew Cohen, The Week, January 29, 2014

January 31, 2014 Posted by | Judges, State Legislatures | , , , , | Leave a comment

A Look Back: Newt Gingrich’s Most Outlandish Policy Positions

Newt Gingrich is up 31 points in Florida, according to one poll, and he is openly predicting that he will be the Republican nominee for president.

We’ll see.

In the meantime, it’s worth revisiting some of the lesser-known areas in Gingrich’s record. In his three-plus decades in public life, the former House speaker has racked up an impressive record not only of  flip-flops, but also of policy positions that are profoundly unorthodox, some would say outlandish.

This is by no means a comprehensive list – if I’m missing any Gingrichian gems, email me or leave a comment.

1981: Gingrich co-sponsors a measure in the House “to provide for the therapeutic use of marijuana in situations involving life-threatening or sense-threatening illnesses and to provide adequate supplies of marijuana for such use.”

A year later, he writes a letter to the Journal of the American Medical Association reiterating his view: “We believe licensed physicians are competent to employ marijuana, and patients have a right to obtain marijuana legally, under medical supervision, from a regulated source.” He later disavows the stance.

1994: As part of his push for welfare reform, Gingrich proposes that states end aid to poor single mothers and their children be sent to orphanages that would be built with the saved money. Responding to criticism of the plan by then-first lady Hillary Clinton, Gingrich cites a 1938 Hollywood film.

“I’d ask her to go to Blockbuster and rent the Mickey Rooney movie about ‘Boys Town,’” he says.

1995: Gingrich proposes the death penalty for those involved in the drug trade, drawing a parallel to the draconian policies of Singapore and Malaysia.

“We want to stop all drug traffic. If you bring in a commercial quantity of illegal drugs, we will execute you,” he says during a book tour (via the San Diego Union-Tribune on Nexis).

But Gingrich’s Drug Importer Death Penalty Act of 1996 ultimately goes nowhere. Asked by Yahoo News in November if he stands by this position, Gingrich responded, “I think if you are, for example, the leader of a cartel, sure.”

2005: Gingrich calls for “universal but confidential DNA testing” as part of healthcare reform, according to an account in a South Carolina newspaper. (Via National Review)

2005: During the Ward Churchill affair, Gingrich suggests tenure should be abolished at state universities.

“We ought to say to campuses, it’s over … We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct,” he says. “Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you’re anti-American is grounds for dismissal.”

2006: Gingrich suggests the U.S. should pursue a counter-terrorism strategy that would curtail terrorists’ free speech rights, predicting “a serious debate about the First Amendment.”

“My prediction to you is that either before we lose a city, or if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up their capacity to use the internet, to break up their capacity to use free speech, and to go after people who want to kill us,” he says. (Via NR)

2009: In a speech to the American Israel Public Affairs Committee (AIPAC) police conference, Gingrich declares an electromagnetic pulse (EMP) attack to be one of the gravest threats to U.S. national security. He cites a fictional thriller to bolster his case:

“What I’m about to say to you is from my heart, and from everything I’ve learned in almost fifty-one years, we are on the edge of catastrophic problems. If you get a chance, read my friend Bill Forstchen’s novel, One Second After, which describes the fate of a small town, after an electromagnetic pulse attack.”

2010: Gingrich argues that the United States should not allow construction of the “ground zero mosque” because Saudi Arabia does not allow construction of churches or synagogues – effectively endorsing Saudi-style religious discrimination.

“There should be no mosque near Ground Zero in New York so long as there are no churches or synagogues in Saudi Arabia,” he says. “The time for double standards that allow Islamists to behave aggressively toward us while they demand our weakness and submission is over.”

2011: Angered by the liberal 9th Circuit Court of Appeals, Gingrich says he’d like to empower the president to fire judges.

“I would do no more than eliminate Judge Berry in San Antonio and the Ninth circuit. That’s the most I would go for,” he says. “But let me say this because I think this has to be part of our national debate. That’s not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the Constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States.”

2011: In an appearance at Harvard, Gingrich challenges child labor laws, floating the idea of replacing pricey unionized janitors with kids:

“Most of these schools ought to get rid of the unionized janitors, have one master janitor and pay local students to take care of the school,” he says. “The kids would actually do work, they would have cash, they would have pride in the schools, they’d begin the process of rising.”

 

By: Justin Elliott, Salon, December 2, 2011

December 5, 2011 Posted by | Election 2012 | , , , , , | Leave a comment

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