“Clearly In Peril”: Thomas Jefferson’s View Of Equality Under Siege
On the 236th anniversary of our nation’s birth — squalling to the world in our very first utterance that all men were created equal and endowed with unalienable rights — the essence of our politics remains who exactly are those men who are self-evidently equal and inherently vested with those rights. Over the subsequent two-plus centuries, we’ve invoked the spirit of our primal shout every time we’ve expanded our definition of equal men — when we moved to popular elections, abolished slavery, gave women the vote, enacted civil rights legislation and today, when gays and lesbians are winning the equal status and unalienable rights that heterosexual Americans take for granted.
But the author of our founding declaration was concerned with more than legal equality. Thomas Jefferson envisioned a nation of yeoman farmers (and, to be sure, slaveholders like himself) and wanted it to remain chiefly rural to avoid the concentration of wealth and power that would come if the nation urbanized and if finance grew into a dominant sector. His great rival Alexander Hamilton feared that the nation would remain a backwater absent cities, finance and manufacturing. As Treasury secretary, Hamilton used the powers of the nascent republic to foster industry and development. As the United States grew into the world’s dominant economy, the concerns that Jefferson voiced grew more acute. How could the United States retain its formal equality and civic virtue in the face of towering economic inequality that enabled the rich to dominate our political system?
In the first half of the 20th century, both Roosevelts and their allies devised reforms to restore some of Jefferson’s egalitarianism in what was, by then, Hamilton’s America. Progressive taxation, the establishment of wage and labor standards and the legalization of unions reduced economic inequality, while the prohibition of corporation donations to political campaigns diminished, somewhat, the wealthy’s sway over government.
But that, as they say, was then. The war that the American Right and corporate elites have waged against the Roosevelts’ Jefferson-Hamilton synthesis for the past 40 years has largely prevailed. Taxes have grown radically less progressive, the minimum wage has declined as a percentage of the median wage and unions’ legal protections to organize in the face of employer opposition have eroded. In consequence, wages are at their lowest level since the end of World War II as a share of the national income, and U.S. median household income is at roughly the same level it was 20 years ago. The nation is richer and more productive than it was 20 years ago, but all that added income and wealth has gone to the top 10 percent, and disproportionately to the richest 1 percent.
The growing concentration of wealth has led to a growing concentration of political power as well. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission struck down 100 years of legal restraints on corporations’ ability to fund campaigns and buy elected officials. The court permitted unions to dip into their treasuries to fund campaigns too, but, as I noted last week, its decision last month in Knox v. Service Employees International Union, Local 1000 — issued by the same five conservative justices who promulgated Citizens United — created a legal double standard between unions and corporations. By virtue of Knox, a union must ask its members’ permission to spend on political campaigns, but a corporation need not ask its shareholders.
So how is our foundational assertion of equality faring on this July Fourth? As to social parity, it has seldom looked more robust. As to economic equality and the political equality with which it is inextricably intertwined, the picture is bleak. The mega-banks that plunged us into deep recession have had the political power to forestall their breakup. A handful of billionaires continues to donate unprecedented sums to election campaigns. The share of national income and wealth that goes to the vast majority of Americans continues to decline. The Republican Party — and the five Republican appointees to the Supreme Court — are committed to doctrines that will make these disparities more glaring. The recent exception to this trend is the health-care-reform act, which partially extends the Declaration’s assertion of equal rights to the realm of medical access. That’s no small achievement, but, with that single exception, on this July Fourth, Jefferson’s vision of equality is clearly in peril.
By: Harold Meyerson, Opinion Writer, The Washington Post, July 3, 2012
“What If Congress Forced You To Buy A Gun?: George Washington’s Individual Mandates
Eric Spiegelman has an interesting post on how the legal establishment got the individual mandate so wrong. In it, he writes:
How far can the definition of Congress’ enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?
But Congress has forced Americans to buy guns. It’s in the Militia Acts of 1792. The relevant section is a bit lengthy, so I’ve bolded the key parts:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Now, you could argue that this was not done under the Commerce Clause. But as Yale’s Akhil Reid Amar says, “the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a ‘well-regulated’ militia with a mandate, why can’t Congress regulate interstate commerce the same way?”
Incidentally, that’s not the only time an early congress mandated that Americans purchase privately sold products:
In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[…]
Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
That’s from Einer Elhauge, a professor at Harvard Law, who continues, “not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional.”
Also of note: unlike the mandate to buy muskets, the maritime mandates were exercised under the Commerce Clause.
By: Ezra Klein, The Washington Post Wonkblog, June 26, 2012
“In Text And History”: Founding Fathers Would Approve Of National Healthcare Policy
Our Constitution’s text and history demonstrate that the national healthcare crisis—in which tens of millions of Americans lack access to quality, affordable care—is the sort of national problem that the framers of our founding charter wanted the federal government to have the power to solve.
Our Constitution was drafted in 1787 “in Order to form a more perfect Union”—both more perfect than the British tyranny against which the Founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence. George Washington and the other delegates to the Constitutional Convention shared a conviction that the Constitution must establish a national government of substantial power, in contrast to the extremely weak central government of the Articles, which was so dysfunctional that Washington thought it nearly cost us victory in the Revolutionary War. (George Washington was also apparently fine with government mandates—he signed into law the 1792 Militia Act, which required young men to outfit themselves with a musket, knapsack, and, in some cases, a serviceable horse.)
Under our enduring Constitution, Congress has the express constitutional authority to regulate interstate commerce—the healthcare industry comprises nearly 20 percent of our nation’s economy—and tax and spend for the general welfare, as well as the broad power to pass laws that help execute these specific grants of authority.
Given the Constitution’s grant of significant authority to the federal government to act in the interests of the country as a whole, it is no surprise that a majority of the lower court judges who have ruled on the healthcare law have upheld it, including prominent conservative judges. Reagan-appointee Judge Laurence Silberman on the D.C. federal appeals court explained that the attacks on the law have no support “in either the text of the Constitution or Supreme Court precedent.” Another conservative appeals court judge, Jeffrey S. Sutton—who clerked for Supreme Court Justice Antonin Scalia—explained that whether you think the law is good policy or not, it clearly passes constitutional muster.
If the Supreme Court Justices are faithful to the Constitution’s text and history, principles of federalism, and precedent—including decisions authored or joined by some of the current conservative Justices—the Court should conclude the healthcare law is constitutional.
By: Elizabeth Wydra, U. S. News and World Report, March 26, 2012
Rick Santorum’s “Liberty, Happiness And The Role Of Stuff”
Today’s Wall Street Journal features an op-ed in which Rick Santorum pledges that “…in my first 100 days as president, I’ll submit to Congress and work to pass a comprehensive pro-growth and pro-family Economic Freedom Agenda”. No one is more receptive than I to an “economic freedom agenda”, yet Mr Santorum’s has my bullshit detector howling like an air-raid siren.
In a recent speech at the First Redeemer Church in Cumming, Georgia, Mr Santorum said that economic policy focused on the accumulation of wealth is unhealthily concerned with “pursuing stuff”.
Property is just stuff. And America isn’t just about pursuing stuff. That’s one of the problems I have sometimes with our fellow conservatives, is that all we talk about — ‘Oh, Rick, presidential candidates just focus on stuff. Focus on taxing and spending, the economy. Don’t talk about anything else. Just focus on stuff. That’s what Americans really care about.’
Mr Santorum here is discussing rival interpretations of the idea of “liberty” and “the pursuit of happiness” in the Declaration of Independence. Though it is nonsense to think that there is any one thing that “Americans really care about”, Mr Santorum is surely right that Thomas Jefferson and his fellows in the founding 1% had more than just the accumulation of property in mind. But he is wrong that they were committed to the pre-modern Catholic interpretation of freedom and happiness Mr Santorum invoked in his speech:
America and our founders understood that if we were just a bunch of folks that cared about stuff, we have a very, very narrow view of freedom. We have a very, very narrow view of what God’s call is in our lives. Because that’s why He gave us these rights. To pursue happiness.
…..’Happiness’ actually had a different definition, ‘way back at the time of our founders. Like many words in our lexicon, they evolve and change over time. ‘Happiness’ was one of them. Go back and look it up. You’ll see one of the principal definitions of happiness is ‘to do the morally right thing.’ God gave us rights to life and to freedom to pursue His will. That’s what the moral foundation of our country is.
As a matter of historical fact, the dominant conception of happiness at the time of the founding was the empiricist hedonism of John Locke. Locke had it that we are moved by our beliefs and desires, and that the master desire is to enjoy pleasure and avoid pain. As for happiness, Locke said, “Happiness then in its full extent is the utmost Pleasure we are capable of…” “Property” almost took the place of “the pursuit of happiness” in the Declaration precisely because the founders’ notion of happiness was so materialistic. Happiness is pleasure, and property or “stuff” is such an indispensable source of pleasure and bulwark against misery that the pursuit of property and the pursuit of happiness almost come to the same thing. For Christians such as Locke, and many of the founders, it was so important to heed God’s will not so much because divine commands are inherently authoritative, but because Heaven’s promise of infinite pleasure made Christian virtue a prudent bet.
Anyway, the likes of Jefferson would have agreed that to be happy is “to do the morally right thing” only to the extent that “to do the morally right thing” is already defined in terms of conduciveness to happiness. And the idea that the point of freedom is to do God’s will would have been affirmed only to the extent that it is due to God’s will that we are constituted to seek “the utmost Pleasure we are capable of…” The big political idea of the Enlightenment is that earthly happiness, not divine authority, is the only credible moral foundation of political authority. The long and short of it is that Mr Santorum is guilty of revisionist history. One only has to remember that John Jay, the first chief justice of the Supreme Court, tried to make it illegal for Catholics to run for office in New York to get a sense of just how unlikely it is that the founders would have signed on to anything resembling Mr Santorum’s interpretation of liberty, happiness, and the role of “stuff”.
It’s no surprise, then, that Mr Santorum’s ten-point plan makes only incidental contact with economic freedom as many free-market-minded folk understand it. It may or may not be a good idea to rig our regulatory structure to make it easier for giant petrochemical companies to frack or build giant pipelines, but it’s unclear what it has to do with economic freedom. Do pipelines and fracking have something to do with God’s will in Mr Santorum’s mind?
Mr Santorum promises to “triple the personal deduction for children and eliminate the marriage tax penalty”. What does any of this have to do with economic freedom? If paying people to have children makes them more free, why don’t the childless deserve equal freedom? Because freedom is the freedom to do God’s will and God wants us to have big families? The “pro-family” elements of Mr Santorum’s plan are transparent attempts at social engineering through fiscal policy.
Mr Santorum says he’ll “cut means-tested entitlement programs by 10% across the board, freeze them for four years, and block grant them to states—as I did as the author of welfare reform in 1996.” This is unintelligible. If subsidising families through the tax code somehow adds to their freedom, then reducing subsidies to the relatively poor—to those who qualify for means-tested benefits—must logically decrease theirs. This is simply upside down. There is a compelling case that individuals require a certain material minimum to ensure that their economic liberties have real worth. If Mr Santorum’s cuts would leave Americans below that threshold, they would amount to an assault on the economic freedom of the disadvantaged.
If “economic freedom” means “a system rigged to the advantage of petrochemical companies and large middle- and upper-class families”, Mr Santorum’s proposal might have a lot to be said for it. I could be wrong, but I suspect it doesn’t really mean that.
By: W. W., Democracy in America, The Economist, February 28, 2012
“Bad History And Undisciplined Demagoguery”: Rick Santorum Mangles The Founding Fathers
Each time presidential candidate Rick Santorum rears his righteous head, it is to exploit a social issue that is of no import in a national election. But he knows that the way to keep the cameras pointed at him one more day is to manufacture a new bit of hysteria.
Last Thursday, Joan Walsh reported on Santorum as he clamored to punish non-Catholics by limiting their access to contraceptives if their workplace was in the hands of the Catholic Church. She rightly pointed out that he “absolutely mangles” what the founders said about religion. Raising the specter of the atheistic French Revolution and its notorious use of the guillotine, the former Pennsylvania senator planted a seed in the minds of his hearers: A left-driven tyranny was where the anti-Christian Obama administration would be heading next.
The fear-monger tosses out familial metaphors with devilish glee. At once subverting patriarchy within the home and turning the federal government into Big Brother, the sitting president stands in moral opposition to all that is good. And only the moral policeman Rick can stop him.
“They are taking faith and crushing it,” Santorum howls at the political left. “When you marginalize faith in America, when you remove the pillar of God-given rights then what’s left is the French Revolution…. What’s left are no unalienable rights. What’s left is a government that will tell you who you are, what you’ll do and when you’ll do it. What’s left in France became the guillotine.”
This is a combination of really bad history and undisciplined demagoguery. What we’d like to focus on is not the fractured logic of the demagogue so much as the perversion of history by the two-term senator. We consider it quite sad that a presidential candidate in 2012 should be resurrecting the same dirty campaign tactic that accompanied the charge that Thomas Jefferson, for five years U.S. minister to France, would, if elected president, shut down churches and burn bibles.
Start with the fact that in his superficial evocation of the 1790s, Santorum was referring not to the French so much as he was unconsciously reviving the propaganda used by New England Federalists against the “atheist” Thomas Jefferson, who championed freedom of conscience and refused to wear his religion on his sleeve. From 1793 on, conservative Yankees predicted that the social chaos of Paris would wash ashore in America. Indeed, conservative academics of our own time view the French Revolution as the first step toward the Russian Revolution and the rise of the Soviet Union–all of which fits neatly with the crack-brained Tea Party narrative in which President Obama is a sworn socialist and enemy of capitalism.
Mitt Romney is not beyond indulging in the same polemical game, associating Obama with European social programs. Yet Santorum does what the Mormon cannot, by playing the “Catholic card” in his effort to “other” the president. It is an especially bizarre move in historical relief, because the Federalist critics who most loudly warned of the French-tainted Jefferson were New England Calvinists who feared Catholics as much as they feared French anarchy.
Federalists termed the French Revolution a “contagion,” a violent, sickening, uncivilizing process. If Santorum sees the metaphorical blade of the guillotine hanging over the heads of the Catholic bishops, it is well worth noting that eighteenth-century conservatives were so carried away by their own outlandish predictions that their panicky congressional majority passed a series of repressive laws, the infamous Alien and Sedition Acts in 1798, which first targeted French émigrés and then U.S. citizens who needed to be silenced. The Sedition Act authorized the imprisonment of journalists and politicians who criticized the president. The main purpose of the legislation was, as James Madison observed, to shut down free and open political debate–to derail democracy. Cleverly drafted, the Sedition Act allowed the government to punish critics of the president, but not the vice president. Why the omission? Because in 1798, John Adams’s vice president was the unAmerican Thomas Jefferson.
It certainly seems that Rick Santorum reads the First Amendment just as the Federalist Congress of 1798 did. As we all know, though, the First Amendment was intended to uphold religious freedom, protect speech, and ensure liberty of conscience. Madison, who conceived the First Amendment, defended the last of these three principles as a deeply private, individual right shielding citizens from the coercive, invasive force of a church or state government.
It is Santorum, not President Obama, who is waging a war against religion. It is the fear-mongers who endanger religious freedom. Why should the Catholic Church impose its doctrines on employees who are not Catholic? Why should any who are not Catholic be deprived of access to a health insurance benefit solely because they are employed by a Catholic hospital or university? Why should the Church be permitted to impose its doctrines on an individual who not a member? The First Amendment does not grant any church the power to deprive individuals of rights.
Santorum is waging a war not only on religion but on all Americans who do not share his faith. The Catholic Church has every right to impart its doctrines; its members can accept or reject them. The majority of Catholic men and women have rejected the particular doctrine prohibiting the use of contraception. Employees possess the right to insurance and the right to adhere to their own religious beliefs.
As Madison argued in a 1788 letter to Jefferson, religious fanaticism was as serious a danger to religious liberty as excessive state authority. In his words, “rights of conscience” were undermined by “overbearing majorities” who were intent on advancing the interests of a particular “religious establishment.” In plain and simple terms, the founders meant to protect individuals against excessive encroachments by church as well as state.
We might all wish to heed Madison’s further warning: “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government has too much or too little power.” Religious liberty required the protection of state authority, in creating a barrier around the individual and guarding against intrusions from religious institutions.
The fact remains that President Obama is no more a French Revolutionary Jacobin than Jefferson or Madison. It appears, in fact, that the president has a very clear understanding of religious liberty, appreciating the boundaries between church and state just as Madison intended. His promptly conceived compromise solution, respecting religion without restricting rights, fits the balanced, reasonable approach our founders prescribed when they fought, state by state, to eliminate state funding and sanctioning (i.e., disestablishment) of privileged sects.
If the last three years tell us anything, 2012 will not usher in a new Age of Reason. Fanaticism will continue to seize the news cycle. Rick Santorum has learned (perhaps from Donald Trump and birther mania) that the best way to grab the headlines is to ramp up the epithets, bark the loudest, and fantasize a history that never was.
By: Andrew Burstein and Nancy Isenberg, Salon, February 14, 2012
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