What do Jefferson and Lincoln have in common? War. Republics have to fight so as to establish and maintain sovereignty. Lawyers like Jefferson and Lincoln might talk high falutin' tripe, but they know that if remedies are lacking, or incentive incompatible, rights are meaningless.
A lawyer writing for 3Quarks, Michael Liss, takes a different view-
A Constitutional Republic, If You Can Keep It
I suppose what he is saying is that if Trump returns, all Hell will break loose.
He begins with a quote from the windbag Lincoln
'The principles of Jefferson are the definition and axioms of free society….
So, every State has the right to secede.
All honor to Jefferson—
Grant Slave States the right to secede.
to the man who, in the concrete pressure of a struggle for national independence by a single people,
who were divided into 13 colonies with dual sovereignty and, in Jefferson's view, the indefeasible right to secede
had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth,
individually interpretable by every State such that it alone, by its own free determination, assert an inalienable right to secede
applicable to all men and all times,
Nope. States, which are governing bodies, not men, have absolute sovereignty over the decision to secede. Moreover, that State may be a slave state. A guy who lives in such a state has to either like it, lump it, or- like the Loyalists, after the Revolution- run the fuck away.
and so embalm it there,
because the thing is a corpse- a dead metaphor or figure of speech.
that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression. —( April 6, 1859 Letter to Henry L. Pierce and others)
Let us rebuke Trump. Rebuke him but good. That will cause him to stumble.
An extraordinary man. Two extraordinary men, whose lives were bound together by a common thread of devotion to an idea of self-government
Nope. These are guys who wanted to govern others even if they didn't want to be governed by them.
in which all men are created equal.
Women are created unequal- right?
It is true that they did not understand it in exactly the same way (you cannot ignore the stain of slavery).
Or of women- right?
Yet, the kind of people who rejected Jefferson’s core concept had—in his time, in Lincoln’s time, and now—a purpose: in Lincoln’s words, “supplanting the principles of free government, and restoring those of classification, caste and legitimacy.”
By military action. Lincoln and Jefferson weren't stupid. 'Supplanting' is something done by armed action of a type which asserts sovereignty. War and war alone decides the outcome.
We are less than two years away from the 250th anniversary of Jefferson’s defining words, and yet it seems we are less certain, less secure, perhaps even less committed to the idea of self-government.
So, let's have a Civil War. That will show we are just as committed as Jeff or Linc.
There is a stunning AP-NORC Center for Public Affairs Research poll that was just released, which reported the finding that “[o]nly 21% of adults feel U.S democracy is strong enough to prevail no matter who wins the election in November.”
Is this why markets are in turmoil? No. This suggests that either investors don't give a fuck about Democracy or else Democracy isn't actually in danger. People may say silly things but what they do with their money is more considered.
Just exactly what is the “U.S. Democracy” that may not prevail? Before we go further, we ought to get some nomenclature misunderstandings out of the way. Let’s introduce Democracy’s cousin, the “Constitutional Republic.”
They are not related. Canada is a Democracy. It is not a Republic. It could have chosen, like the UK or New Zealand, not to have a written constitution.
Yes, we live in a Constitutional Republic and not a Democracy.
No. America is a Democracy. It would be fair to say that this is required by its Constitution. It has been suggested- e.g. by Godel- that the Constitution might permit a Dictatorship. But that is mere speculation.
No, that’s not a concluding and conclusive argument any time someone wants to make government more representative, more answerable to the voters, or less beholden to privilege. Opponents of change who invoke the phrase “mob rule” just highlight the fact that what’s at stake isn’t high principle, but rather a desire to “supplant[] the principles of free government, and restor[e] those of classification, caste and legitimacy.”
So if you oppose the 'mob rule' unleashed by the rioters who invaded Capitol Hill, then you are Benedict fucking Arnold and are trying to restore the despotism of Mad King George.
There are no “pure democracies,”
In which case, they are like lesbian unicorns. We don't complain that our country is a heterosexual unicorn. Why should we complain if it is an impure democracy? How is the thing relevant?
even if we frame it that way out of convenience.
We need to work together to make it more convenient to frame our country as a lesbian unicorn in the interests of Diversity, Inclusivity and Equity.
To quote from a 2017 essay by Ryan McMaken, Executive Editor at the (very not liberal)
because it aint Marxist
Mises Institute:
'[I]f anyone wants to argue against majoritarianism, he should simply do so. There is no need to rely on a half-baked usage of the writings of ‘the Founding Fathers’ who clearly supported a political system in which majority votes play a big part in selecting elected officials, and which is obviously a democracy according to the modern usage of the term.'
I suppose Jason Brennan, who advocates epistocracy, is doing so. Some Democracies had literacy, property and other voting qualifications (e.g. not being a convicted felon). Moreover, there can be various nominated or otherwise unelected bodies which have some countervailing power. The old British House of Lords was a case in point.
In actuality, we have always had a constitutional republic, rather than a democracy.
But, that constitution was Democratic, not Monarchic or Aristocratic.
That we call it Democracy changes absolutely nothing. It’s the substance of the argument that ought to matter. The Founders did not first put an electric fence of privilege around the Constitution, and then bind for eternity all succeeding generations. Rather, they understood that Madison’s intricate document was imperfect, but it created a mechanism (through Amendment) to update it. It’s not easy to pass an Amendment, but it has been done many times, and in the service of expanding individual liberties and “Democracy.”
Or getting folk to stop drinking. That's what happened after women got the vote.
Are the barnacle-encrusted impediments to changing the Constitution sometimes too formidable to overcome potential injustice? Perhaps the Founders were unwise when they built in structural barriers to certain kinds of reform.
The Civil War showed there were no fucking 'structural barriers'. The return of Jim Crow showed amendments didn't necessarily mean shit.
Perhaps they were also a little bit selfish, preserving power where it might have mattered most.
What would have been selfish is preserving power for themselves by turning into a sort of 'Long Parliament'.
In any negotiation, you have to give to get, and the price for those who saw the Articles of Confederation as a high-minded suicide pact was a certain amount of unfairness
I suppose what the author means is 'the dictum 'the constitution is not a suicide pact' means the Executive is unfettered by law in taking any action whatsoever necessary for the preservation of the Republic. Does this mean there is a 'doctrine of necessity' or 'exigent circumstances'? Not necessarily. Due process can have a capacious, but not unlimited, doctrine of political question. Moreover, even if the action itself is approved, there may be penalties for the way it was done.
So, when Benjamin Franklin was asked, after the Constitutional Convention, what type of system of government they had created, his answer was: “A republic, if you can keep it.”
By fighting. But this is true of any form of government.
Left unmentioned in the quote, but clearly inferable from Franklin’s public and private statements was something more. A “republic” doesn’t merely spring from the people’s initial consent. It will die without their active participation.
In fighting. Otherwise, the Brits or the French or the Spanish might ally with the indigenous people who might start to push back against the occupation of their land and the ethnic cleansing which accompanied it.
There is a civic duty to inform yourself, to involve yourself, to
have a gun and go out and shoot Red Indians or rebel slaves
vote, to use and respect those enumerated rights, and to hold power accountable. Franklin would never have joined the “burn it all down” crowd
Franklin & Co burned down the whole structure of Monarchical rule.
—the words “if you can keep it” demand that citizens insist on their rights, and in a sustained fashion.
The First Nations and the African Americans weren't insisting on their rights in a sustained fashion. This is because they'd get distracted and go play in traffic- right?
What about Jefferson? So (deliberately) opaque at times, but at a peak of his talents in the Declaration of Independence. When Lincoln seeks inspiration at Gettysburg, it’s Jefferson, not Washington,
a General which Linky was not
or Adams, or Madison that he finds.
I suppose the author means that Madison was associated with a stronger center rather than something more 'democratic'.
Jefferson says,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Notice this does not say that those who compose the Government need to share these views. In other words, the legal basis of the American Revolution was similar to the Glorious Revolution. It was the monarch who had breached the Social Contract by some particular action or actions. But those were the very type of actions which had motivated England's own Revolutionary struggles.
Lincoln, whose poetry is the equal of Jefferson’s, looks past the ratification of the Constitution and the defeat of the British, all the way back to the “proposition” that Jefferson’s draft set forth: a conception of a different kind of nation, based in law, yes, but conceived in liberty and inspired and nourished by the idea of freedom.
No. These guys were lawyers. The fact that a particular set of people say that they will adhere to a certain contract does not change that contract into something divinely ordained or inherently superior to the will of the people who created it. True, this interpretation could be given but that any interpretation could be given to anything. So long as there was a Bench to decide matters of law in a buck-stopped, protocol bound, manner, it was up to concerned parties to make representations regarding the facts of the case or indeed to so change the facts that they prevailed willy nilly.
Lincoln sees something that Jefferson did—the uncertainty of the proposition, the newness, the radical nature of demanding liberty unfettered by governmental fiat,
The thing wasn't new. English speaking lawyers had been babbling on about shite like this for centuries! Indeed, we'd have to go Ulrich Von Hutten, who died in 1523, and other such 'Humanists', to properly locate the well-springs from which this stream of English jurisprudence had begun to bubble. America
whether from a monarch or a government.
Back then Governments were small because tax revenue as a proportion of GDP had to be small. Thus, there could not be a lot of laws or regulations.
Lincoln seizes on Jefferson’s vision, builds on his platform of a government created by the consent of the governed, and then expands it: “that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people shall not perish from the earth.”
Which politician says he will try to make sure people are fucked over more thoroughly under his administration?
Lincoln’s “new birth of freedom” is a type of codicil meant to expand the number of beneficiaries of Jefferson’s bequest.
Lincoln was presiding over the War which was most costly of American lives in American history.
Lincoln is striving for something beyond what Jefferson did, but he can only reach it by standing on Jefferson’s shoulders.
No. He was repudiating Jefferson- a slave owner who thought States had an inherent right to secede.
Before Garry Wills wrote his unsurpassable Lincoln At Gettysburg, he authored Inventing America: Jefferson’s Declaration Of Independence. Inventing America is a very close examination of the text of Jefferson’s original draft and how it was altered (mangled, in Jefferson’s view) by Congress before its adoption.
Did Jeff proclaim the indefeasible right of African American homosexuals to get married and get elected POTUS?
What Wills does is far beyond the scope of this essay, but a couple of his many insights are particularly relevant here.
Jefferson’s original draft used the phrase “inherent and unalienable” rights, but Congress struck “inherent” and changed it to “certain unalienable rights.”
for which, however, the remedy had to be self-supplied.
There’s a lot packed in there. Both constructions veer off sharply from the classical and medieval thought that the individual was to be governed, and possessed few, if any, individual rights, either certain or inherent.
This cretin is a lawyer. He must know that Somerset v Stewart (1772) showed that in England there was an inherent and inalienable right not to be shipped off as slave to Jamaica or Georgetown. There was no such right for African Americans in Jeff's country.
In that time, one could gain rights derivatively through your sovereign or your nation, but none were either inherent or unalienable.
They became so for a slave who landed on English soil. This was not the case in America.
From the same sentence, Congress went along with another of Jefferson’s formulations, where he deviated from the Lockean “Life, Liberty, and Property” by substituting, for “Property,” “the pursuit of Happiness.”
Loyalists would lose their property and could go pursue Happiness somewhere else.
These may both be subtleties, and it may be torturing the text, but it seems they have an application that resonated.
Not with African Americans or the First Nations.
While “certain” instead of “inherent” appears to be limiting, Wills suggests that Congress had already agreed on a list of rights, and “certain” referred specifically to those.
When drafting a legal document, lawyers are supposed to be as specific as possible.
Given the essentialness, 13 years later, of the Bill of Rights to the ratification of the Constitution, this change looks farsighted.
Unless you were a Loyalist or an African American or belonged to the indigenous First Nations.
As to Locke, Wills points out that Jefferson’s deletion of “Property” might have had its roots in his rejection of old European rights like the entail, which bound property to family for many generations.
Virginia and some other states did get rid of entail after 1776 though other states had done so earlier- even in the seventeenth century. However entail continued to exist in some States, save where the inheritor conveyed a portion of the property by fee simple. Massachusetts and Maine had primogeniture even into the twentieth century.
A new nation, defining an expanded menu of rights, could move to free up property so it could be alienated, thus making more land available for the un-landed classes (presumably to seek happiness).
The reverse was the case. America wanted its younger sons to 'go West'. Thus- in most States- they would get a portion (if the father died intestate) which they could sell off and thus acquire the capital to strike out on their own. The big difference with Europe was that America was not seeking to create or maintain an Aristocracy. But this was because it wanted to expand rapidly. Still, the father was likely to give the younger sons or daughters a portion of his fungible wealth so they could move elsewhere and have a good start in life.
Why do we care about all of this? To an extent because it relates to a central conflict in our own government: If American Democracy is a system of governance that is also a respecter and protector of rights, exactly what rights are to be respected and protected?
America provides remedies for rights' violations under a vinculum juris. But the remedy is costly. If you don't have the money to pay for enforcement, you are shit out of luck.
Theoretically, at least, those rights that are stated in the Constitution, inclusive of the Bill of Rights, and any rights-expanding Amendments (like the 13th, 14th,
which didn't actually give citizenship to most American Indians. That only happened in 1924
15th,
which was ineffective in some places till the Nineteen Sixties
17th, 19th, and 26th) that followed. We can add on any rights-expanding, but less secure, newer laws adopted by Congress and signed by the President. As we all know, those rights arising from legislation are subject to repeal or “cancellation” by a disapproving subsequent Congress or Supreme Court.
Indeed. The letter of the law matters less than its interpretation which in turn matters less than enforcement.
What is it that we want? Let’s divide up rights into three personal buckets. The first holds the rights we all possess and that also happen to be the ones we personally value.
The problem here is that some people are better able to enforce their rights than others.
The second holds the rights we all possess, but about which we are personally agnostic.
I am agnostic of my right to earn more than Beyonce by shaking my booty.
The third holds the rights we all possess, but about which we have strong negative feelings.
In which case we won't seek to enforce them. I may have the right to undergo gender reassignment surgery, but have strong negative feelings about having my dick chopped off.
A “true” principled small-D democrat respects them all, because that’s what the (amended) Constitution says, and we are a nation of laws, and “this is the deal” that we made, or that was made on our behalf by the Founders.
Why respect stuff you don't care about?
Our problem right now is a diminishing number of “respect them all” folks out there, particularly among politicians, special interest groups, and the social and traditional media.
Because respect doesn't really matter. I don't want to be mugged even if the mugger calls me Sir and says he respects the fuck out of me. Indeed, I feel the same way about taxes or Jury Service.
Our American Democracy survives because a critical mass of voters sees great value in it,
they see great value in getting money and living large
but voters don’t do politics 24/7. They have lives to lead, jobs, families.
This is also true of politicians and constitutional lawyers. If you get paid a little money, or gain reputationally, by saying your respect the fuck out of everybody you fuck over- do so by all means. But, otherwise, why bother?
Their exposure to politics is often limited to the outlets of the destructively ambitious and the greedy.
in other words, they vote for Trump.
Their faith in government cannot help but be eroded.
Because Trump is a BAD man.
We must fight against this.
By farting loudly.
Resist the politicians who find that the easy way out is lighting fires and then pouring gasoline over them.
Don't vote for Trump. He is a BAD man.
Reject the amorality that leads pols to do something clearly wrong for a chance at an open mic and a few bucks.
Biden has done plenty which was clearly wrong and comatose Kamala was cool with it. You still must vote for Kamala because Trump is a BAD man.
Support good people who wish to participate but fear being doxed or slimed or even being compelled to walk in the swamp. Emphasize to our elected leaders how important impartiality is in the courtroom. Clearly communicate that those of us who “consented to be governed” did so on the condition of receiving, in return, an honorable effort and a commitment to decency.
Trump is committed to indecency. Don't vote for him.
We are the heirs of Madison’s magnificent and magnificently flawed system.
Nope. Otherwise we could buy ourselves some nice slaves.
The heirs of Jefferson’s idealism
see above
and Lincoln’s dogged quest for justice.
which is why we should have a Civil War over abortion. Nuke the Red States!
We are the ones charged by Franklin to keep our Republic.
Abolish the two term rule for POTUS. Let Kamala pack the Bench and rule for the next sixty years.
What America needs right now, more than anything else, is a healthy dose of civic virtue.
up its ass- right?
If some insanely high number of voters think American Democracy may not be strong enough to prevail, then participating is the only answer.
Let us have a Revolution or a Civil War such that all the fucking Trump voters are killed or have to escape to some other country.
I’ll leave to Jefferson the last words:
Timid men prefer the calm of despotism to the tempestuous sea of liberty.
Which is why Jeff wanted to annex Canada to get rid of the Loyalists who had found refuge there. The Brits burned down Washington in revenge for the sacking of the Canadian town of York. Don't be so fucking timid. Invade Canada already.
No comments:
Post a Comment