The Violence of Bigots; the Devil’s Pox on the Skin of America

November 6, 2018

October ended painfully: an anti-semitic attack in a Pittsburgh temple killed eleven; a racist attack at a Kentucky grocery store killed elderly African-Americans. Though hundreds of miles from here, friends and colleagues had losses. Close friends were married at that Pittsburgh Temple.

We missed the Sunday interfaith memorial in Albany but joined the Monday gathering at Temple Gates of Heaven in Schenectady. Approaching it, I saw friends who’d been Peace Corps Volunteers. Our job had been to extend this country’s hand of friendship to peoples abroad. Now we shared the pain from prejudice at home.

Schenectady Clergy Against Hate organized the memorial for a standing room only crowd, to share our grief for the dead, the injured, their families, and our country. The Clergy Against Hate consists of many denominations of Christian, Jewish, Islamic and eastern faiths, all of whom mourned the losses and stood for a world of love and concern. Minister Jonathan Vanderbeck, of Trinity Reform Church, told us “We stand against hate and oppression,” adding “that really carries throughout all our religious traditions.”

Our country included people of multiple faiths, origins, and languages from its founding. America’s revolutionary armies included free and enslaved Blacks, as well as Jews who had first settled in the colonies under the Dutch.

The Founders described America as a beacon shining a path from wicked, murderous hate elsewhere to an enlightened place of brother- and sisterhood. A “hundred years war” had scourged Europe in the 14th and 15th centuries. Thirty years of religious war devastated it in the seventeenth century. A global seven years’ war reached us as the French and Indian War. America’s Founders struggled to protect us from the killing, unifying us into one enlightened country, where we could learn to live with and benefit from each other.

Even before the First Amendment prohibited any establishment of religion or interference with each other’s freedom of religion, the Constitution made three references to religion, reading “no religious test shall ever be required as a qualification to any office or public trust under the United States”[1] and providing for a secular affirmation as an alternative to each provision for an oath.[2]

The Founders welcomed and encouraged immigration in order to people the continent. Most understood freedom and human rights as universal. Prominent members of the Constitutional Convention led anti-slavery societies. Southern insistence on slavery postponed the extension of freedom to all until the Civil War, after which the opening words of the Fourteenth Amendment were “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Think about the importance to America of that commitment to universal human rights. By coming here, immigrants from all over the world not only shared the effort and ingenuity that built our country, they showed by their presence that others could see themselves in America. Feeling that bond, civilized countries repeatedly allied with us to protect their freedom and ours. America helped create the European Union in order to bury centuries of warfare among European countries, uniting historic adversaries lest they fight again, and pull us into yet another World War. America led in developing international institutions and alliances which project the power of American ideals to protect us and much of humanity.

Racists claiming to represent the real America, are instead ripping out the veins and arteries that power our country. They’re doing the devil’s work to destroy all that has been great about America.

So don’t forget to vote – we’ve got work to do.

— This commentary was broadcast on WAMC Northeast Report, November 6, 2018.

[1] Par. 3 of Article VI.

[2] Art. I, §3; Art. II, §1; Art. VI, §3; and the 4th Amendment.

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Iftar

June 28, 2016

This is Ramadan, the Muslim holy month of fasting. We were invited to Albany’s City Hall for an Iftar, the evening feast after the sun-up to sun-down fast. Meetings aren’t polls and people put their best feet forward at public events. But I also know these folks. We greeted friends: a physicist, President of a Mosque on Central Avenue; an engineer who escaped repression in Iran, and ran a radio program to celebrate and protect American freedoms. We greeted a doctor whose daughter was my student and valedictorian at Albany Law, now working for the NY Attorney General. There were scientists, programmers, medical professionals, Sunni and Shi’a, Muslim, Protestant and Catholic clerics and public officials.

One woman described her six year old daughter lying awake at night, terrified, crying and asking where they’ll go if they are kicked out of this country – mother and daughter were born in the U.S., raised in this area, and have no other homeland. Her mother spoke with the girl’s first grade teacher, and the two women shared their tears – this wasn’t schoolyard bullying; the girl had been terrified by what she was hearing over the air.

Speaker after speaker rose to describe how lucky they were to reach America, how grateful they felt for the welcome they received and the chance to rebuild their lives. They celebrated America’s protection for people of all faiths, from all parts of the world, and their own determination to protect that freedom for everyone. Muslim clerics speaking to fellow Muslims, rejoiced in what America offered and encouraged them to do what they could to protect those values for all. Others spoke about the need to remember the blessings of America in times which are quite worrisome for Muslim men, women and children, and to do their best to protect America and its liberties.

Some had made the greatest sacrifice. The Muslim woman I described a moment ago explained that an older brother, also Muslim, had enlisted in the U.S. Army right after 9/11 to defend this country – serving our country which was also his, her brother was killed in action in Afghanistan. To her and to all of us he was one of the heroes of this conflict. Stereotypes must not obscure the contributions of real and good people. It was important to her, and should be important to us, to recognize the sacrifice that her brother and other Muslims have made to protect American freedoms.

Sitting there I realized I was watching the way the best of American values are renewed, revived and passed on as they have been for centuries. Sometimes we Americans show surprisingly little confidence in the strength of our ideals to flower in the hearts of immigrants. That, after all, is why they came.

Mayor Sheehan delivered a warm welcome and later pointed out to some of us that Muslims had been part of Albany since the city’s Dutch beginnings. In fact many of America’s founders made it clear that Muslims, along with Jews, deists, Protestants and Catholics were all included in the Constitution’s protections, and some took steps to make sure that Muslims and immigrants from all continents would feel welcome to come to America.

Every community has bad apples. But the bad apples in non-Muslim communities have been responsible for the vast majority of murder, arson and domestic terrorism in America. Stereotyping hasn’t protected us. Reaching out and welcoming these new Americans is much healthier.

Like many of us, immigrants and their children try to preserve the good parts of their heritage. But they came from war zones. Many risked their lives to escape. They have the strongest reasons to love and celebrate America, because they know what was in store for them or their parents in the lands of their ancestors. They’re trying hard to be helpful and constructive. It’s important that the rest of us recognize that.

— This commentary was broadcast on WAMC Northeast Report, June 28, 2016.


Let’s take the Constitution back – from the deniers

January 22, 2016

Republicans repeat over and over that they want to take back the Constitution. That’s nonsense. Actually they are trying to destroy it. It’s important to understand where it comes from. After the Civil War, generations of Southern writers tried to win the peace after losing the War. They succeeded. There is no chance that you were not brought up familiar with elements of it.

In history, that’s called the Dunning thesis.[1] It refers to the claim that, after the Civil War, radical Republicans acted out of spite and revenge rather than out of deeply seated conviction. Historians discredited that thesis a century ago but it kept coming up in the textbooks as if no one bothered reading the historians who discredited it. In fact the Republican leadership who wrote the Fourteenth Amendment were totally committed to the ideal of equality. Thaddeus Stevens, a Republican leader in Congress, told the House he dreamed of the day when “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” The Republican leadership knew and respected African-Americans and former slaves, employed them in responsible positions, welcomed them as friends and in some cases lived with them.

I have to deal with the fallout in law all the time. From the beginning of our country, Southern slaveholders tried to convince Congress and the people that the Constitution had granted Congress little or no power over the states and the country.[2] The courts repeated that formula endlessly, citing the writings of various Founders to prove their point. They are cherry-picking the data. The Convention that wrote the Constitution was dominated by nationalists; the states-righters stayed home. They wrote a powerful document. In the debates over ratification, however, both sides confused the issue. Proponents of the Constitution tried to reassure the public by saying how little the Constitution would do. Opponents tried to scare the public by saying how much it would do.

Regardless of any ambiguities in the original 1787 document, the Civil War Amendments made much of Congress’ power clear, but not to the Roberts Court. President Andrew Johnson sent Gen. Carl Schurz south to report on conditions in the former Confederate states.[3] His Report revealed the ways that former slaves were being re-enslaved by new rules, tracked, beaten or killed for trying to leave, work for themselves, or what we would call walking while Black. Most clearly Congress did give itself the power to deal with those abuses, public and private in the Reconstruction Amendments, the Thirteenth, Fourteenth and Fifteenth Amendments.

You may have heard present day self-styled conservatives who have now taken over the modern Republican Party, trying to take back what the original radical Republicans tried to do, calling African-Americans and others “Fourteenth Amendment citizens.”[4]

Americans of the Civil War generation believed that citizenship gave people a number of rights and they were determined to make sure that the freedmen had those rights. The draft of the first section of the Fourteenth Amendment, as it was brought to the floor, included the right to the privileges and immunities of citizenship, due process and equal protection – each of which overruled the notorious Dred Scott decision just a few years before the Civil War. But on the floor a motion was made to make the point indisputable: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[5]

Those are elegant words America can be very proud of. We don’t always live up to those ideals. But those ideals justify a great deal of pride. Hold onto them and don’t believe anyone who denies them. They are nothing more than apologists or dupes of the old Confederacy and modern racists.

— This commentary was broadcast on WAMC Northeast Report, January 19. 2016.

[1] See The Dunning School: Historians, Race, and the Meaning of Reconstruction, 36-39 (Univ. Press of Ky., eds. John David Smith, J. Vincent Lowery, 2013), https://books.google.com/books?id=OcJKAQAAQBAJ&pg=PA22&lpg=PA22&dq=the+Dunning+thesis&source=bl&ots=885Fs23eFw&sig=3AN6KTp5IG5gE7DF6AfL5t-5COA&hl=en&sa=X&ved=0ahUKEwiKxdeskLHKAhXHwj4KHb11BEEQ6AEIUTAI#v=onepage&q=the%20Dunning%20thesis&f=false

[2] Prior to the Civil War, counsel argued that the southernmost states would not have joined the union if they had reason to believe that Congress would have had any power over slavery. See Groves v. Slaughter, 40 U.S. 449 at app. lvii-lviii, lxv (1841); Prigg v. Pennsylvania, 41 U.S. 536, 611 (1842); Dred Scott v. Sandford, 60 U.S. 393, 411 (1856) (Taney); and see R. Cover, Justice Accused, 234, 240-41 (1975).  Thus they argued that the commerce clause had to have a narrow meaning. The Court struggled with the meaning of the commerce clause in a group of cases involving regulation of passengers. See Mayor of the City of New York v. Miln, 36 U.S. 102, 136 (1837) and The Passenger Cases, 48 U.S. 283, 474 (1849) (Taney, C. J., dissenting).  To have treated people as subject to commerce clause jurisdiction would have enlarged the possibility of power over slavery.

[3] Carl Schurz, Report on the Condition of the South, 39th Cong., 1st Sess., SENATE, Ex. Doc. No. 2 (December 19, 1865).

[4] Garrett Epps, Trump’s Birther Libel and American History, Atlantic Online, April 12, 2011, accessed on Lexis/Nexis, Jan. 17, 2016, and see online literature of the “Freedom School,” http://freedom-school.com/citizenship/fourteenth-amendment-citizenship.html.

[5] The seminal study of the history of the Fourteenth Amendment is Horace Edgar Flack, The Adoption of the Fourteenth Amendment (Classic Reprint, 2015) (1908). For a brilliant recent discussion, see Richard Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation, 39 Akron L. Rev. 289, 309-21 (2006).


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