Since ObamaCare passed in 2010, Republicans have been searching desperately for a way to destroy the law through legal trickery (or as they call it, “judicial activism”), since they don’t have the means to kill it through legislation. In 2012, with the Supreme Court decision NFIB v. Sebelius, they got a partial victory, with the court badly wounding the law’s Medicaid expansion but leaving the rest unharmed.
In the case decided on Thursday, King v. Burwell, conservatives sought to cripple the insurance markets in states that had not set up their own health care exchanges. They did this by advancing a spurious reading of the Affordable Care Act (ACA) that would forbid insurance subsidies from flowing through the federal exchange website, thus devastating the private insurance markets in those states.
This time, conservatives lost outright. Chief Justice John Roberts, joined by Justice Anthony Kennedy and the four liberals on the bench, wrote the opinion — and it delivers a stark rebuke to the conservatives who have been fumbling around for an alternative to ObamaCare since 2010. “Repeal and replace” has been their mantra, but they never even got close to uniting around an actual replacement policy. Today, Roberts shows us why: It’s impossible.
King focused on a single phrase in the ACA, “established by the State,” which, taken out of all legal and policy context, could be construed to restrict subsidies to the state exchanges only. Because the Chevron doctrine requires that, in case of ambiguous wording, the implementing agencies get to decide how to interpret a law (in this case the IRS), it was necessary to construct an alternate history of the ACA. In this version, Congress meant to restrict subsidies to the state exchanges, to coerce states into creating one.
Liberals carefully explained that no, that was a completely insane version of ObamaCare’s history. Health care policy reporters, the staffers who drafted the law, and members of Congress who voted for it all swore up and down that this had never even been seriously discussed, let alone that it was their intention. State-level politicians, who are responsible for deciding whether to create their own exchanges, reported they had never heard of such a threat. Why would Congress create a mechanism to force states to do something, and then never mention it?
Roberts’ opinion delivers total victory to the liberal case. First, he examines the statute and finds that, in fact, it is not ambiguous — the government’s interpretation is correct. He writes that, considered in context, the plaintiff’s reading of “established by the State” would make great swathes of the rest of the law totally nonsensical. The ACA clearly states that all exchanges are to provide qualified plans to qualified people, which would be impossible for the federal exchange without subsidies. Moreover, why would the law provide for a creation of a federal exchange at all, if nobody can actually use it?
Second, and more fundamentally, Roberts finds that the plaintiff’s reading of ACA is poles apart from the obvious policy intention of the law. He accurately describes ObamaCare’s three-pronged approach: guaranteed issue and community rating, requiring insurance companies to offer policies to everyone at a reasonable price; an individual mandate, so that healthy people will participate in the risk pool; and subsidies for people who can’t afford the insurance.
All three are necessary for ObamaCare to work, but the plaintiffs’ reading would eliminate two of the three prongs in states without their own exchange. Subsidies would go, and so would the individual mandate, because it doesn’t apply if people are spending more than 8 percent of their income on a policy. Roberts notes that this would likely cause an insurance death spiral in those states, as healthier people flee an increasingly expensive market, turning the ACA into a health insurance doomsday device. Indeed, just such a death spiral happened in several states before ObamaCare passed — which is partly why it included all three prongs. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he concludes.
That brings me to the “replacement” rhetoric. Roberts’ clear account of ObamaCare’s policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years — in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster.
It’s an implicit concession that ObamaCare is the most conservative possible policy that could get even close to universal coverage — if five years of Republican policy failure weren’t enough evidence.
By: Ryan Cooper, The Week, June 25, 2015
June 28, 2015
Posted by raemd95 |
Affordable Care Act, Conservatives, King v Burwell | Chevron Doctrine, Health Exchanges, John Roberts, Medicaid Expansion, NFIB v Sebelius, ObamaCare, Republicans, SCOTUS |
2 Comments
In the intensifying national debate over the Confederate flag, important clues about the seditious symbol’s true meaning are staring us in the face. Dozens of those clues were posted by an angry, glaring Dylann Storm Roof on the “Last Rhodesian,” website, where the alleged Charleston killer pays homage to certain flags – notably those of apartheid-era South Africa and Rhodesia, as well as the old Confederacy – while he enthusiastically desecrates another.
Pictures of Roof burning, stomping, and spitting on the Stars and Stripes are interspersed among the photos of him grasping and waving the Confederate battle flag, sometimes while holding a gun. “I hate the sight of the American flag,” he raged in a long screed on the site. “Modern American patriotism is an absolute joke.”
What this racial terrorist meant to express, in crude prose and pictures, is a lesson that the diehard defenders of the Confederate flag should no longer ignore: To uphold the banner of secession is to reject patriotism – and has never meant anything else.
For many years after the Civil War, the symbols of the Confederacy were not much seen outside local museums and burial grounds. The late general Robert E. Lee, a reluctant but justly revered war hero, rejected any post-war fetishizing of the Stars and Bars, which had actually originated as the battle flag of his Army of Northern Virginia. Lee believed it “wiser…not to keep open the sores of war, but to follow the examples of those nations who endeavored to obliterate the marks of civil strife and to commit to oblivion the feelings it engendered.”But such admonishments were cast aside by the exponents of white supremacy, whose own patriotism was certainly suspect. When the Ku Klux Klan and the Knights of the White Camelia were revived as racial terror organizations in the 1930s and 1940s, carrying out a spree of cowardly lynchings, their grand wizards found natural allies among the leaders of the German-American Bund — whose funding and fealty were eventually traced to Nazi headquarters in Berlin. Indeed, the Klansmen burned their towering crosses alongside swastika banners at rallies sponsored by the Bund to attack President Franklin D. Roosevelt.
In the years following the Second World War, the Dixiecrats led by South Carolina politician Strom Thurmond – and the “uptown Klan” known as the White Citizens Councils that supported Thurmond’s movement – appropriated the Confederate flag as their own standard. Among its greatest enthusiasts was a young radio reporter (and future U.S. senator) named Jesse Helms, whose fawning coverage of Thurmond’s 1948 third-party presidential bid marked him as a rising star of the segregationist right.
As for the White Citizens Councils, those local groups were ultimately reconstituted into chapters of the Council of Conservative Citizens – a notorious hate group that has embarrassed many Republican politicians caught fraternizing with its leaders, and that ultimately inspired Roof with its inflammatory propaganda about black crime and the endangered white race. Headquartered in St. Louis, MO, the CCC festoons itself and its works with the Dixie flag, as does the neo-Confederate League of the South, which still openly advocates secession.
Meanwhile, racist, anti-Semitic agitators such as David Duke and Don Black — both Southerners prominent in Klan and neo-Nazi organizations for decades — have never ceased to manifest their reverence for the Confederacy. Stormfront, the notorious neo-Nazi website founded by Black, continues to promote the mythology and symbolism of the Southern cause, declaring in a June 23 podcast that the Civil War had nothing to do with slavery — and that “the attack on southern symbols and heritage such as the Confederate Flag are actually part of an overall Jewish-led attack on European Americans.” Owing to Duke’s influence, in fact, the Confederate flag has served as a substitute for Nazi banners in demonstrations, often violent, by “white nationalists” in Europe — where the symbols of the Third Reich are widely outlawed.
Obviously, not every American who has displayed the Dixie flag endorses the treason and bigotry that it now represents to so many other Americans. There are sincere patriots, like former senator James Webb of Virginia, who still insist that it is only a remembrance of the valor of their ancestors. But over the decades, its appropriation by traitors and bigots has provoked little noticeable protest from the more innocent exponents of respect for Southern heritage. Today, the Charleston massacre has left it standing irrevocably for the most brutal and criminal aspects of that heritage – and it is more deeply irreconcilable with American patriotism than ever.
By: Joe Conason, Editor in Chief, Editors Blog, The National Memo, June 26, 2015
June 28, 2015
Posted by raemd95 |
Confederate Flag, Domestic Terrorism, Hate Crimes, Patriotism | Dixiecrats, Dylann Roof, Jim Webb, KKK, Knights of White Camelia, White Citizens Council, White Nationalists, White supremacy |
1 Comment
In a soaring eulogy to the Rev. Clementa Pinckney, President Barack Obama spoke of grace’s power to heal, the nation’s enduring racial divide, and how last week’s killings in Emanuel AME Church offered a chance for a grieving country “to find our best selves.”
The president’s 38-minute oratory Friday reached deep into history, probing the lingering wounds of slavery and desegregation while celebrating Pinckney’s long-standing devotion to his ministry and the poor.
Bringing the crowd to its feet time and again, Obama called for continued efforts to furl the Confederate battle flag.
He decried the nation’s blindness “to the unique mayhem that gun violence inflicts on us.”
And, in one of the eulogy’s most surprising moments, he paused for eight seconds, looked down somberly, and sang “Amazing Grace.”
After the services, Obama, his wife, Michelle, Vice President Joe Biden, and his wife, Jill, had private meetings with the victims’ families.
Malcolm Graham, a former North Carolina state senator and brother of victim Cynthia Hurd, said the tone was solemn. “It was yet another citizen voicing his concern for us,” Graham said. But, “In this case, it was the president of the United States. We felt real good about him doing that.” Chris Singleton, the son of Sharonda Coleman-Singleton, said the meeting was “breathtaking.”
It was the first time Obama has visited Charleston since his first presidential campaign in 2008. And it came just 10 days after a white gunman was accused of opening fire in a Bible study class at Emanuel AME Church, killing Pinckney and eight others. It also came amid an increasingly heated debate over gun violence and racially charged incidents involving police, including the fatal shooting in April of Walter Scott in North Charleston.
But the mood throughout the services and afterward was joyful, even as the throng left the arena and plunged into the withering June sun. “What I like about the speech is the president didn’t spare the bitter medicine,” said North Charleston minister Nelson Rivers III, a vice president with the National Action Network. “The president went there. He went to the issue of race.”
Packed ‘sanctuary’
Anticipation of the president’s visit was palpable throughout the week, and for many people, the services began hours before first light.
The Rev. Curtis Capers of Summerville was among those first to line up in Marion Square at 3:30 a.m. Three hours later, the line extended from Calhoun Street, up Meeting Street and about 100 yards around on Hutson Street. Capers, pastor of Honey Hill Baptist Church in Cottageville, said he came to pay his respects to Pinckney and other victims. “They were doing what God required them to do,” Capers said of their attendance in a Bible study class. “I believe they were ready to meet their Heavenly Father.”
Hundreds brought water, chairs, umbrellas and other supplies to help them through another hot summer morning until the TD Arena’s doors opened. By 10 a.m., lines outside the arena — steps away from Mother Emanuel — had broken down beyond the police barriers. “The gates of heaven won’t be like this,” a mourner said when he reached the arena gates. “They will be narrower, but there will be fewer.”
At 11 a.m., more than 5,900 people packed the arena, a record according to the College of Charleston, and hundreds of people were turned away. Inside, women in white dresses and men in black suits clapped their hands as a band played a joyful spiritual medley, and then “Amazing Grace.” Organizers handed out programs, which included two poems from Pinckney’s daughters, Eliana and Malana. The Rev. Norvel Goff, the interim pastor of Emanuel AME Church, drew standing ovations for his invocation: “This is no longer the TD Arena. We have transformed it into a sanctuary.”
The tributes began even as Air Force One was in the air and flying toward Charleston. Several dignitaries were introduced, including U.S. Rep. Jim Clyburn and former Secretary of State Hillary Clinton, both of whom received standing ovations. When a woman yelled “Hillary!” from the audience,” Goff, the presiding elder, reminded everyone that they were in a sanctuary.
Speakers and members of the clergy sat in a long row that stretched across the arena floor. On the far left was a sign: “Wrong Church, Wrong People, Wrong Day.” One by one, the speakers went to the lectern, adorned with a purple church banner. They spoke of the potential of the tragedy to create positive change.
“His sacrifice must lead to reconciliation,” said state Sen. Gerald Malloy, who represents counties in the Pee Dee. “Clementa Pinckney’s last act as a Christian and as a senator was to open his doors to someone he did not know.” The Rev. John R. Bryant, senior bishop of the AME Church, had people on their feet after he said, “Someone should have told that young man … he wanted to start a race war. But he came to the wrong place.”
They stood again when Bryant credited the governor for her bold move to remove the flag from the Statehouse grounds. “Joy comes in the morning,” Bryant said. “Touch the person next to you and say, ‘Good morning.’ ”
Anticipation grew as the speakers went over their allotted time and word spread that the president and vice president had arrived.
‘Things not seen’
Since he was elected the nation’s first African-American president, Obama has been called on frequently to serve as consoler-in-chief: Three months after Obama was sworn in, a man killed 13 people at an immigration center in Binghamton, New York; seven months later, an Army psychiatrist fatally shot 13 people at Fort Hood, Texas; a year later, a 22-year-old opened fire at a Tucson supermarket, killing six and wounding 11, including U.S. Rep. Gabrielle Giffords; six months later, a man shot and killed 12 people in an Aurora, Colo., movie theater; in 2012, a gunman shot 20 first-graders and six adults in Newtown, Conn.
When Obama took the podium Friday afternoon, he quickly introduced the eulogy’s central theme: Pinckney, the president said, was “a man who believed in things not seen, a man who believed there were better days ahead.”
Noting Pinckney’s smile and “reassuring baritone,” Obama described Pinckney’s remarkable career. “He was in the pulpit by 13, pastor by 18, public servant by 23,” and how as a state senator for Allendale, Beaufort, Charleston, Colleton, Hampton and Jasper counties, he “represented a sprawling swath of Lowcountry, a place that has long been one of the most neglected in America, a place still racked by poverty and inadequate schools, a place where children can still go hungry and the sick can go without treatment — a place that needed someone like Clem.”
Pinckney, he added, “embodied a politics that was neither mean nor small. He conducted himself quietly and kindly and diligently.”
Obama then shifted toward the killings and their surprising aftermath. “To the families of the fallen, the nation shares in your grief. Our pain cuts that much deeper because it happened in a church. The church is and always has been the center of the African-American life.”
The president touched on Charleston’s response, led by the families of the victims.
“The alleged killer could never have anticipated how the families would respond,” he said. “Amid unspeakable grief,” they spoke about forgiveness and love. The arena came to its feet, and an organ played a few notes. “Blinded by hatred, he failed to comprehend what Rev. Pinckney so well understood — the power of God’s grace.”
The crowd stood for another ovation as he spoke of Mother Emanuel — “a church built by blacks seeking liberty, burned to the ground because its founders sought to end slavery only to rise up again, a phoenix from these ashes.” Then, he took aim at the Confederate flag.
“For too long, we were blind to the pain that the Confederate flag stirred into many of our citizens,” he said, lauding Gov. Nikki Haley’s call to remove the flag from the Statehouse grounds. “As we all have to acknowledge, the flag has always represented more than ancestral pride. For many, black and white, that flag was a reminder of systematic oppression and racial subjugation. We see that now.”
He said putting the Confederate flag in its proper place was a first step toward healing the nation’s wounds, but “I don’t think God wants to stop there.” He spoke about how racial bias “can infect us even when we don’t realize it,” drawing one of the biggest cheers when he described the “subtle impulse to call Johnny back for a job interview but not Jamal.”
Near the end, he returned to the personal impact the shootings had on him. “An open heart. That’s what I felt this week. An open heart.” He spoke of grace, and of how “if we can find that grace, anything is possible.” His voice lowered then, and he paused and led the arena in “Amazing Grace.” The crowd erupted in song and cheers. And his voice rose over the cheers as he said,
“Clementa Pinckney found that grace …
“Cynthia Hurd found that grace …
“Susie Jackson found that grace …
“Ethel Lance found that grace …
“DePayne Middleton Doctor found that grace …
“Tywanza Sanders found that grace …
“Daniel L. Simmons Sr. found that grace …
“Sharonda Coleman-Singleton found that grace …
“Myra Thompson found that grace.”
Note: Robert Behre, Glenn Smith, Jennifer Berry Hawes, Hanna Raskin, Brenda Ringe, Christina Elmore and Melissa Boughton and Jeff Hartsell contributed to this report.
Obama speech excerpts
“I cannot claim to have the good fortune to know Reverend Pinckney well. But I did have the pleasure of knowing him and meeting him here in South Carolina, back when we were both a little bit younger. … The first thing I noticed was his graciousness, his smile, his reassuring baritone, his deceptive sense of humor — all qualities that helped him wear so effortlessly a heavy burden of expectation.”
“Cynthia Hurd. Susie Jackson. Ethel Lance. DePayne Middleton-Doctor. Tywanza Sanders. Daniel L. Simmons. Sharonda Coleman-Singleton. Myra Thompson. Good people. Decent people. God-fearing people. People so full of life and so full of kindness. People who ran the race, who persevered. People of great faith.”
“It’s true, a flag did not cause these murders. But as people from all walks of life, Republicans and Democrats, now acknowledge — including Governor Haley, whose recent eloquence on the subject is worthy of praise — as we all have to acknowledge, the flag has always represented more than just ancestral pride.”
“Over the course of centuries, black churches served as ‘hush harbors’ where slaves could worship in safety; praise houses where their free descendants could gather and shout hallelujah; rest stops for the weary along the Underground Railroad; bunkers for the foot soldiers of the Civil Rights Movement. They have been, and continue to be, community centers where we organize for jobs and justice; places of scholarship and network; places where children are loved and fed and kept out of harm’s way, and told that they are beautiful and smart and taught that they matter.”
“We do not know whether the killer of Reverend Pinckney and eight others knew all of this history. But he surely sensed the meaning of his violent act. … An act that he imagined would incite fear and recrimination; violence and suspicion. An act that he presumed would deepen divisions that trace back to our nation’s original sin. Oh, but God works in mysterious ways. God has different ideas.”
“For too long, we’ve been blind to the unique mayhem that gun violence inflicts upon this nation…. The vast majority of Americans — the majority of gun owners — want to do something about this. We see that now.”
“None of us should believe that a handful of gun safety measures will prevent every tragedy. It will not. People of goodwill will continue to debate the merits of various policies, as our democracy requires — this is a big, raucous place, America is. And there are good people on both sides of these debates. Whatever solutions we find will necessarily be incomplete. But it would be a betrayal of everything Reverend Pinckney stood for, I believe, if we allowed ourselves to slip into a comfortable silence again.”
“The alleged killer could not imagine how the city of Charleston, under the good and wise leadership of Mayor Riley — how the state of South Carolina, how the United States of America would respond — not merely with revulsion at his evil act, but with big-hearted generosity and, more importantly, with a thoughtful introspection and self-examination that we so rarely see in public life.”
“Clem understood … that history can’t be a sword to justify injustice, or a shield against progress, but must be a manual for how to avoid repeating the mistakes of the past — how to break the cycle.”
“What a good man. Sometimes I think that’s the best thing to hope for when you’re eulogized — after all the words and recitations and resumes are read, to just say someone was a good man.”
“Removing the flag from this state’s capitol would not be an act of political correctness; it would not be an insult to the valor of Confederate soldiers. It would simply be an acknowledgment that the cause for which they fought — the cause of slavery — was wrong, the imposition of Jim Crow after the Civil War, the resistance to civil rights for all people was wrong. It would be one step in an honest accounting of America’s history.”
“By taking down that flag, we express God’s grace. But I don’t think God wants us to stop there. For too long, we’ve been blind to the way past injustices continue to shape the present. Perhaps we see that now. Perhaps this tragedy causes us to ask some tough questions about how we can permit so many of our children to languish in poverty, or attend dilapidated schools, or grow up without prospects for a job or for a career.”
“If we can find that grace, anything is possible. If we can tap that grace, everything can change.”
“As a nation, out of this terrible tragedy, God has visited grace upon us, for he has allowed us to see where we’ve been blind. He has given us the chance, where we’ve been lost, to find our best selves.”
“Through the example of their lives, they’ve now passed it on to us. May we find ourselves worthy of that precious and extraordinary gift, as long as our lives endure. May grace now lead them home. May God continue to shed His grace on the United States of America.”
— Compiled by Robert Behre.
By: Schuyler Kropf and Tony Bartelme, The Post and Courier, Charleston, South Carolina,Winner of the Pulitzer Prize, June 26, 2015
June 28, 2015
Posted by raemd95 |
Clementa Pinckney, Confederate Flag, President Obama, Racial Injustice | Amazing Grace, Black Churches, Emanuel AME Church, Gun Violence, Jim Clyburn, Mass Shootings, Nikki Haley, South Carolina 9 |
2 Comments
Marriage equality has won at the Supreme Court, but the fight over gay marriage is far from over. Now we enter the Republican temper tantrum phase.
Even before the Supreme Court’s ruling, several prominent Republicans had pledged to disobey any high court ruling in favor of marriage equality—and had called on their fellow Republican leaders to do the same.
For instance, Republican presidential candidates Rick Santorum and Mike Huckabee have both signed a pledge that reads, “We will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”
Huckabee also challenged the authority of our nation’s highest court when he said, “The Supreme Court can’t overrule God.”
Republican Senator Ted Cruz and Representative Steve King also called for Congress and any future Republican president to flagrantly ignore such a Supreme Court ruling.
Let’s be clear: These are current and former officeholders, who have taken an oath to uphold the laws of our nation, literally pledging to violate those laws as interpreted by the Supreme Court.
In any reasonable political environment, this should be a disqualifier for elected office. Certainly, measures should be considered to charge those of them who hold office with violating their oath.
Republicans in Congress recently filed suit against President Obama for using his lawful executive authority to de-prioritize certain deportations of immigrants. Said Republicans were outraged! Now here we have Republicans treading far beyond the legal gray area, actually pledging to violate their duties and break the law.
I’d love to say such behavior is unimaginable. But unfortunately, it’s becoming predictable within the GOP.
“If the court tries to do this it will be rampant judicial activism,” Cruz said before the ruling. “It will be lawlessness.”
No, actually, saying that as a senator or as president you will disobey the ruling of the Supreme Court of the United States of America—that is the very definition of lawlessness.
Of course this attitude comes from the same party that after 60 failed votes to repeal Obamacare and two now failed legal challenges rising all the way up to the very same Supreme Court, still pledges to keep trying to undo the law. The modern Republican Party is operating less like a responsible partner in governance and more and more like an underground crime network—continually abusing and threatening the otherwise democratic process if it doesn’t get its way.
So far, in the aftermath of the decision, Republican candidates have offered statements affirming their opposition to the ruling and leaning on the new, more modest GOP chestnut that “religious freedom” must be protected.
Governor Huckabee took to Twitter after the ruling, saying that the Supreme Court could no more overrule “God’s nature” than overrule gravity. But alas, just as it has in fights for justice and equality throughout history, the Supreme Court has done its job—interpreting the Constitution of our nation and applying it equally to all Americans.
Meanwhile, Wisconsin Governor Scott Walker issued one of the more curious formulations. “I call on the president and all governors to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs,” he said in a press release. “No one wants to live in a country where the government coerces people to act in opposition to their conscience.”
Apparently, Walker is afraid people will be forced to get gay married. Don’t worry, America, that’s Phase 143 of the gay agenda. It’s still early. Right now, we’re preoccupied trying to uphold the basic values and laws of America—which elected officials of both parties should be doing, too. But frankly, when it comes to some Republicans, it’s indeed more likely that gravity will be overruled and pigs will fly.
By: Sally Kohn, The Daily Beast, June 26, 2015
June 27, 2015
Posted by raemd95 |
Marriage Equality, Republicans, SCOTUS | Congress, GOP, Mike Huckabee, Religious Freedom, Rick Santorum, Scott Walker, Steve King, Ted Cruz |
1 Comment
During a break on my reporting trip to Ferguson, Missouri this spring, I visited the museum inside the Old Courthouse, a magnificent, green-domed federal-style building that sits in the shadow of the St. Louis Arch. It houses artifacts and displays relating to the Dred Scott case, tried there in 1847; ten years later, in 1857, the United States Supreme Court would hand Scott—an enslaved man suing for freedom for himself and his family—his final judicial defeat. In arguably the worst decision ever handed down by any American court, in words that are displayed today inside that museum in large, bold, white letters, Chief Justice Roger Taney wrote that African Americans were “beings of an inferior order,” so much so that they had “no rights which the white man was bound to respect.”
Taney’s statement is anathema to the very idea of equality. But he asserted that the Founding Fathers, as indicated in the Constitution itself, would have thought the same of people who looked like Scott, or me. In historical terms, Taney wasn’t far off. The Constitution needed correcting, and it wasn’t until the Fourteenth Amendment, ratified in 1868, eleven years after the Scott decision, that this got cleared up.
But I wondered again this morning, as marriage equality became the law of the land, what Constitution Clarence Thomas is reading, and in what America he lives. On Friday, Thomas—a black man who grew up in the Jim Crow South, a man who should know precisely the meaning of equal protection under the law—issued one of four individual written dissents in the case, Obergefell v. Hodges. It begins in the strict constitutionalist vein that Thomas is known for, but broadens to cover not only the Constitution but also the nation as a whole. For Thomas, the decision isn’t so much about laws as it is about principle:
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.
Let’s consider this passage literally, and let’s consider the kind of liberty that the “Framers” recognized. The Constitution was ratified in 1787, in a new nation in which the enslavement of kidnapped Africans and their descendants—to say nothing of the abuse, murder, and rape they suffered—was already a national institution. Their notion of liberty didn’t include folks who looked like Dred Scott, me, or Thomas himself; Thomas’s “liberty” wasn’t open to gay or lesbian Americans in that day and age, either.
In a paper written in time for the nation’s bicentennial 39 years ago, Louis Crompton noted that homosexuality was punishable by the death when this country began. Its abolition plodded through the states over the next few decades. (In 1792, Thomas Jefferson, Crompton notes, called for the castration of those found guilty of sodomy in a Virginia bill.) Penalties were reduced to imprisonment in most cases; South Carolina, perennially the last state to act in the name of its most vulnerable citizens, was slowest to change, repealing their death penalty only eight years after the Civil War. To use Thomas’s words, I’d argue, strongly, that all of this constitutes the government stripping away the dignity of those suffering legal punishments for being who they are.
Thomas, however, appears to define dignity more strictly, as the quality of being worthy of respect. That’s strange to hear coming from a man who, while the head of the Equal Employment Opportunity Commission, sexually harassed Anita Hill and likened criticism of his reprehensible behavior to a “high-tech lynching.” But I’ll allow that the idea of preserving dignity and therefore proving oneself as worthy of respect is an idea Thomas, a high-achieving student who nonetheless chose to study English literature in college to help him shed the burden of his Gullah dialect, is quite familiar with.
What I can’t stomach, however, is Thomas’s tendency to ignore the systemic effects of prejudice, and in the process serve as an agent to foster them. By not recognizing what plagues so many, he allows hatred and ignorance to swell. Thomas clearly wants marginalized people to pull themselves up by the bootstraps, all while he’s committed to taking those same bootstraps away. This is his legacy, a disgraceful sequel to the term of the man he succeeded, Thurgood Marshall. Granted, Thomas sometimes interprets symbols—such as burning crosses or Confederate flags—as offensive. But the actual, institutional bias those symbols promote escapes him. Thomas frequently infuses respectability politics into his rulings, which demonstrates his continued obliviousness to reality: It is not the responsibility of a vulnerable people to convince the powerful they are worth protecting. It is not the duty of the marginalized to prove they have dignity and therefore become worthy of being treated as equals; that task lies squarely across the shoulders of the rulers. And, in this regard, Thomas’s blindness shows. This is a person who, during the demonization of black people in the Reagan era, thought we were the main problem.
He returns to the notion of dignity later in the dissent in a passage that is even more shocking and incorrect. Citing the Declaration of Independence’s “all men are created equal”—a phrase that in an increasingly gender-aware nation, should already raise alarms about a lack of inclusion—he writes:
…human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
We live in a nation whose industries, cities, and towns grew out of fertile soil wet with the blood and sweat of slaves. The United States has long been full of unmarked geysers of prejudice, blasting their ignorance on continuously marginalized people—including the LGBTQI Americans who in many ways continue to live, despite this ruling, as second-class citizens. Marriage equality does not close the housing, employment, and healthcare disparities that exist between us cisgender straight folks and those who are not. It is only the beginning of another long march.
We live in a nation where a young white man with a racist manifesto can study the Bible with a group of African Americans and then murder them, and in the aftermath the chattering class will engage in debates about whether a racist act has occurred. We live in a place where Matthew Shepard can be slain for being gay in 1998, and Wyoming, the state where he died, can remain one of five without a hate-crime law nearly two decades later. This is a place where, since its founding, the government has had a strong say over just how much dignity a person is allowed. The right of same-sex couples to marry was one that many straight men were not bound to respect, depending upon their state. There are still many of these men, but they cannot remove the dignity the government has today bestowed.
Dignity may be innate, but that doesn’t mean it can’t be taken away from you. It can become a two-way street. You can consider yourself worthy of honor or respect, as Oxford defines it, all you wish. But if institutional discrimination deprives you of such basic human rights as health care, education, and the right to marry whomever you love, honor and respect is not afforded you. Sometimes, in the course of history, states and people need to be bound by law to respect you. Relying upon human nature, or the Founders’ supposed intentions is ridiculous when you consider yesteryear.
Thomas, having lost the argument over marriage equality, chose to offer a pernicious, unsympathetic dissent that gives short shrift to the forces of discrimination and subjugation legalized by government while further emboldening his self mythology, this legendary story he keeps feeding us. Thomas would have you believe that because he himself could survive the indignities forced upon him by Jim Crow—a system of legal discrimination that eventually came to be made illegal, after a variety of Supreme Court decisions very much like today’s ruling—and that somehow, others should be able to endure something similar without the benefit of the very legal recourse that he can deliver from his perch. Using himself as the basis for a legal argument is asinine. Doing so in the service of discrimination is inexcusable.
By: Jamil Smith, Sr Editor, The New Republic, June 26, 2015
June 27, 2015
Posted by raemd95 |
Clarence Thomas, Marriage Equality, U. S. Constitution | 14th Amendment, African Americans, Liberty, Matthew Shepard, Obergefell v Hodges, Racial Inequality, Slavery, Thurgood Marshall |
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