"The difference between the right word and the almost right word is the difference between lightning and a lightning-bug." Mark Twain
During an on-line chat some home-town friends and I were discussing the origin of a neighborhood called Westerleigh, in the old Borough of Richmond, where I wuz borned, aka Staten Island, New York.
Westerleigh was established around a religious principle by Christian ministers who believed that Demon Rum was the work of the Devil, hence the name. Temperance people, they were called, and you didn't want to go to Westerleigh looking for a drink. The women's branch of the movement was called the Women's Christian Temperance Movement, aka the dreaded WCTU. It accounted for a lot of votes. The morality vote. Wets vs. Dries.
How powerful was it? They gave us Prohibition. In 1920.
This was in the days before Catholics and Jews counted very much, if at all. Blacks didn't count at all. There were no Puerto Ricans. Mexicans lived in Mexico, mainly. Chinese lived in China. Filipinos in the Philppines. Hindus, etc., in India. And so forth.
Who ran the country?
WASPS.
Old Yankee stock.
Southern Baptist stock.
WASPS ran Wall Street, Insurance, Advertising, the Ivy League, the State Department, the Army, the Navy, both Houses of Congress, the Supreme Court, and the White House.
We were a WASP country before we became the America we know today.
Today we emphasize what the WASPS saw as a weakness. Diversity.
When the WASPS ran the show, the fear was that the mongrel races, the mixed breeds, the great-unwashed, the darker-hued, the other-hued, Catholics, Jews, Socialists, and Communists, you'n'me, in short, would come in and mess up the country.
Which I suppose we did.
But, as Candide said, all's well that ends well, or close.
The odd thing about the great unwashed is that once you clean 'em up, they're pretty indistinguishable from the people who took the bath yesterday. In fact they're probably just that much cleaner.
So today we have diversity, and so many of those folks who were stuck behind their own country walls yesterday are Americans today.
We don't miss the WASPS. Truth to tell, they're still here, only they're not quite as in-your-face as they once tried to be. They may still own the country, but they're quieter about it, as in why give the mongrels a shot at us.
It was these WASPS, however, who brought us this country. They didn't bring us the ground, as that was here, occupied by Native Americans, earlier immigrants. The WASPS simply came in and took it over by wiping out the Indians in the name of a greater morality: WASP supremacy.
The reason they did so was because these WASPS were your basic pain-in-the-ass. They were Christians, which may or may not be a pain-in-the-ass, depending on how they behave at the moment, but WASPS were a special kind that even a good many Christians didn't much like. They brought their pain-in-the-assdom along with them. We've inherited it and this may be the origin of the hatred we engender in the world today.
According to the myth, our pain-in-the-ass forebears, called Puritans, were forced to leave the old country by their co-religionists, the Protestants, another lovely group.
Here's how it went in a nutshell. Martin Luther, a German Catholic monk in Germany cannot stand the corruption of the Roman Catholic priests, selling salvation for money, so he protests by nailing his tracts on the church door around 1528 or so. Four years later, he's excommunicated by his boss, acting on instructions from higher up, which goes all the way to Rome. Meanwhile, Luther has attracted a lot of attention because he did this just when the printing press was coming into its own and he made good copy.
Henry VIII, King of England, meanwhile, has dynastic problems. Unless he produces a son, his Tudor line ends. There's only one thing his father asked of him. Produce a son to keep the line going. There's only one thing Big Hank is missing. A son. He goes through six wives, beheading two, towards this goal. He divorces one.
There's a problem with this divorce, however. He has a Roman Catholic archbishop who refuses to go along with it. Thomas More. Beheaded. Sainted by the Catholics. Not the Protestants. Henry breaks with Rome. The Christians in England are no longer Roman Catholic. They're Protestants, later, in America, called White Anglo Saxon Protestants, or WASPS , for short. In England they're just called Church of England, Anglican, or, in America, Episcopal.
Henry eventually gets a son, Edward VI, but he's sickly and dies young. Henry leaves two daughters of note: Mary, Catholic, aka Bloody Mary, for her torture and beheadings of Protestants for plotting against her. Treason. She's Catholic.
Beheadings in those days meant that they hanged you until you were almost dead, cut you down, castrated you before the crowd, and then, before you completely died, drew you with horses into four quarters to spread about the kingdom. Your head went on a pike on London Bridge over the Thames River in London to serve as a warning to passersby.
Mary eventually dies, thankfully, and is succeeded by her sister, Elizabeth, played by Kate Blanchett. Elizabeth is Protestant. She takes care of a few Catholics in her time. Her problem is to keep the kingdom together between warring factions of Protestants and Catholics. The state religion of England switches three times in eleven years between 1547 and 1558. Sectarian strife between Catholics and Protestants rages on the Continent. They're killing each other over power in the name of religious doctrine. Think Belfast. France and Germany are torn. Spain becomes more repressively Catholic than ever. Catholic Habsburgs vs. Protestant other. Royal dynasties contend in wars of religion.
England tries to exert a balance of power by threatening marriage with Elizabeth first to one side than another on the Continent. Elizabeth plays a waiting game and resolves to restore herself to virginity to keep up appearances. Her virtuous, virginal PR game results in Sir Walter Raleigh, one of her many favorites, naming his new colony "Virginia."
Elizabeth keeps the kingdom intact against religious centripetal forces despite huge odds. Catholic Spain tries to invade Protestant England - the Spanish Armada - 1588 - but fails. England turns even more hugely Protestant in partial reaction.
The English sailing men-of-iron, the Sea-Dogs, Sir Frances Drake, Sir Walter Raleigh, and their like are all hugely Protestant. The Elizabethan Act of Succession requires that all future British monarchs be Protestant. Religious sectarian war rages on the Continent for 200 years, hot-spot after hot-spot, dynastic power struggles wrapped in an altar cloth paid for in blood.
Among the Protestants of England grew a strain that didn't think the Church of England people were quite reformed enough. The word "reformed" means having broken with Roman Catholicism. You had not only to reject the Pope, i.e, the Bishop of Rome (otherwise you were a "Papist," the religious equivalent to the old American pejorative, "N-lover," or later, "Commie, Pinko," or later still "liberal."), but all the trappings of Old Catholicism. No more stained glass windows, statues of Jesus on the cross, religious paintings, priests in robes saying the Mass, in Latin, with back to the congregation, and Eucharist for the congregants.
Icons were destroyed, vestments were gone, the minister faced the congregation and spoke in English. New bibles were printed in English (the King James version, after Elizabeth's successor), church buildings were simpler, and plain-ness was the order of the day. Simplicity. Purity. No more fancy, ornate, Catholic stuff. Shaker simplicity. 'Tis a gift to be simple. As in Plain, the Quakers.
The Protestants who objected to all the fancy Catholic stuff were called "Puritans" by all those Protestants who loved it. "Puritan" was not a nice name to be called.
So the Puritans fled, first to Holland, and when that didn't work out (the Dutch didn't much like them either, plus there was even less land to be had), they fled to America and became us. We are the next great pains-in-the-ass in history. Just ask the Europeans. Something to do with "that Cowboy in the White House." Any cowboy in the White House.
I've got news. There's always a cowboy in the White House, starting with Theodore Roosevelt.
Even when we don't seem to have cowboys, Wilson, Roosevelt (Franklin), and Carter come to mind, there's trouble and we go looking for one.
Those Puritans who came to America and settled in Massachusetts, carried with them a virus. A virus called Puritan morality.
It was immoral for the Mother Country to tax the colonies. Why? Because the colonies had no say in the matter. It was tyranny. Tyranny was immoral. The solution, after the Sugar Act, the Stamp Act, and the Boston Tea-Party? Rebellion. To get rid of the immorality of slavery. The Mother Country enslaving the Colonists, that is. We knew about slavery for WASPS before we outlawed it for blacks. At least that's what they thought. The founding fathers used the word slavery in reference to themselves repeatedly. They'd be slaves unless they broke from England. So they did.
The myth grew that the Puritans fled to America to establish religious freedom for one and all. They fled to America to establish religious freedom for themselves only. Anyone else had to fight for it, and still does.
After the Revolution, won by the Puritan-descendants against the Protestants-of-Old, we had real slavery. Race slavery. White supremacy. There was one thing you couldn't tell a WASP and that was that he was not supreme in everything. He could point to the American success story to show you otherwise. He ignored the blacks, toiling in the sun under the whip and the lash. Blacks didn't count. That didn't count. All people were created equal, but as the man said in 1984, some people are more equal than others.
But those WASPS were nevertheless infected with this special virus that was hard either to delete or quarantine. It was their own special brand of morality, which insisted that in order to lead a Godly life, you had to examine it closely to see what might be wrong about it, or what it was causing, or what it drew from, where it was going, etc.
The original Abolitionists, those pains-in-the-ass about slavery in America, were descendants of these Puritans in Massachusetts and their daughter settlements, such as in Connecticut, and Connecticut's Western Reserve. When the Eastern Colonies joined the United States, they gave up their western land which extended beyond the left edge of the known map. Connecticut reserved a plot on Lake Erie, today's Ohio, called the Western Reserve. Home of Case Western Reserve, Oberlin College, and other hot-beds of abolitionism.
The fight over slavery before and during the Civil War got its moral underpinnings from that Puritan morality-virus. Slavery was wrong. Racism, it turned out, was wrong. No one, very few anyway, realized this at the time. Many still don't. But it's wrong, anyway. Plessy v. Ferguson (1896) was 100% right at the time, if you were WASP. Separate could be equal because, by God, there sure wasn't going to be integration. The term hadn't been invented. See Rudyard Kipling's "White Man's Burden," where the imperialist poet tells the United States to pick up the white man's burden and civilize the darker folk, in this case the Filipinos, as we had just picked up that string of island people from Spain in 1898. The Old Protestants were telling the by now Old Puritans to go to it.
When blacks began to attract public attention to their mistreatment by whites, the chord they struck was in activating that moral virus left there by those old Puritans. It's taken a long time, and the struggle continues, and will continue, but as long as that Old Puritan Morality Virus (OPMV) is there, it can be heated up, nurtured, and brought back.
OPMV is what distinguishes Americans from the bad guys.
Perhaps you thought it was something else.
Like what, f'rinstance?
* * *
What brought this on, as stated, was the origin of Westerleigh Park in StatNisland, by the temperance people. In discussing Prohibition, I mentioned the 18th Amendment (Prohibition) ratified in 1920, right after the Great War (for Democracy, to end all wars, per Pres. Woodrow Wilson), just when we needed a drink. But the experiment didn't work. Too many Al Capones and Joe Kennedys. In 1933 came the ratification of the Repeal Amendment, the 21st. There's a very nice restaurant brew-pub (bar) in San Francisco called the 21st Amendment on Second and Brannan. Con-Law really is all around us.
In order to satisfy the states sufficiently to have them agree to repeal, the 21st Amendment gives the states "concurrent" power, along with Congress, to control the manufacture and distribution of intoxicating beverages. What this means is anyone's guess.
Our Guesser-in-Chief happens to be the U.S. Supreme Court, and its best guess is law.
One of my correspondents wrote:
rs [that's me] said, "There are two cases before the Supreme Court now, having to do with interstate sale of wine and wine orders taken over the internet, that will help decide what that state power means. States don't want to give up the power to regulate, control, the distribution of wine, liquor, etc. In order for the 18th Amendment to pass, the proponents had to give the States a degree of "local option."
Regulate and control = tax and protect local distributors and retailers. Ain't no moral issues involved.
I lived for years a few miles from Washington DC where the liquor were much cheaper than in Maryland. Liquor stores in DC near the state line were watched by Maryland liquor police. If you had MD tags on your car, were seen stocking up on boose and then drove to MD you were sure to be stopped just across the state line. Same thing for smokes.
I came back with:
The Constitution is mostly about power, not morality...
LaDoo, who can't spel, countered with:
well if proabition waz ever brought back, i guess i be running moon shine.
btw the constutition is also about morality, not just power. morality in the constitution and the bill of rights have an equal place. the problem with some of our laws is they go to an extreme in one direction instead of towing the middle line.
cheers
rich
Harry came back with:
It is the interpertations that have swung to far left & right.
I capped it off (so far, at least) with:
LaDooo, for the first time in his life, is absolutely correct.
The Constitution is about morality.
The idea of equality among all people is a moral principle.
The idea that therefore all people are entitled equally to the protection of law, aka due process, is also a moral principle that derives from that.
And the word "liberty" in the 5th and 14th Amendments, needs filling in. We fill it in with what we think is morally correct: privacy, for example, the right to choose for yourself, instead of your neighbors, acting through government, choosing for you on such things as whom you may like or live with or make babies with. Your choice of faith, or no faith, life-style or gender, are all up to you under the new constitution (altho' not the former). These are all matters of what we consider to be moral (or immoral) choices.
The structure of government, our government, that is, is designed to vindicate those moral principles. By leaving it up to the people to have the final say, but under constraint because we know too much about the so-called 'tyranny of da majority.'
In getting there, we have a lot of turf battles between the three shamrock-leaves (legislature, executive, and judiciary) of the central government, and the 50 dandelions over there over which will be allowed to take over the garden. These are the power struggles. In a power struggle, morality becomes the hard-to-make-out backdrop.
Call it bad-lighting.
Hat's off to you, LaDooo, for getting something right for a change.
What were you drinking, exactly, at the time?
***
A student said that Constitutional Law was so hard to learn.
There were so many principles. How can you keep them all in your head?
There weren't that many, I replied.
Constitutional law principles are like the words in the language you speak.
Once you learn the language, you have the words at your command.
The problem is to think of just the right won to serve your purpose. That was a typographical error that I'm leaving in to make the point. Maybe 'typographical' is the wrong word. It wasn't a typo, actually. My finger didn't hit the wrong keys, typing. It was a mental error. Like writing 'you're' for 'your,' or 'their' for 'there,' the sort of stuff we (I) do with some frequency. They're mental errors, not typos. It feels better, however, to call 'em typos.
As Mark Twain said, the difference betweent the right word and the almost-right word is significant.
Same with Con-law.
You think you're talking about one thing and someone else comes along to tell you that you're really talking about something else.
Or you know what you want to talk about, but somehow you wind up talking about something you're more familiar with, thus missing the point entirely. Your stuck in the old idea swamp when you need to get to higher, firmer ground, where the tall hardwood trees grow.
Mark Twain struggled to come up with exactly the right word. In Huckleberry Finn, the climactic moment is when Huck, the Southern boy, decides not to turn in the escaped slave on the raft with him, Jim, his best friend, even though Jim has run away from a man who'd never done a thing wrong to Huck, an owner he didn't even know.
Huck balked at turning Jim in, knowing it was wrong not to turn him in.
All good Southern boys knew in their bones that you had to turn in runaway property. To do otherwise was like finding a wallet stuffed with cash and the owner's name in it, and keeping it. It was stealing.
"All right, I'll go to hell," said Huck.
Try saying that any other way.
You cannot do it and have it hit you like an axe.
Samuel Langorne Clemons, aka Mark Twain, picked exactly the right words out of his word-bank that time. He picked lightning. Not lightning-bug.
He dramatized a fundamental, deeper, attitude, which Huck held, and on which he chose to act, that was in conflict with other, shallower attitudes, that he'd been taught. Huck was in conflict with himself and was forced to choose. He chose Hell. He'd been a bad boy all his life. That's who Huck is. Your typical juvenile delinquent. Who could think. Who knew right from wrong, and usually chose to break the law. He broke the law here. That law was unconstitutional and it took a Civil War, and Huck, later, to dramatize the point.
Huckleberry Finn was written after the demise of Reconstruction with the Hayes-Tilden election of 1876. Twain had in the meantime had a conversation with a Negro cook in his household who had told him of her life, children torn from her, to be sold, and meeting up with a son, a soldier with Northern forces who liberated her, coincidentally and dramatically, prompting him to write what he knew, hence Huckleberry Finn. See the Ken Burns documentary on Mark Twain.
***
The problem with Con-law is not in remembering all the various doctrines, as the student thought. Those are conveniently listed under various headings in the document itself: Equal Protection, Due Process, Supreme Law of the Land, Commerce, Unreasonable Search or Seizure, Self-Incrimination, etc. After you've been through the material a few times, which is what law study is, you have in mind that you've run across these things in the past when you see them again. They start to look familiar. You can use them to express yourself. Or if you don't see them expressly stated, you are now able to think, "Isn't this a case of due process, or equal protection, or self-incrimination? Or some combination?
Con-law then becomes a problem like the one Mark Twain struggled to deal with: finding the right vocabulary to express your thought accurately, powerfully, and dramatically, in accordance with the underlying doctrine that you are asserting is so important that you devote your life to it.
Here's an example from a very sophisticated Conlawprof, MT. A question arose about what material to include in a law school course on Constitutional Law where time constraints force a lot to be left out.
MT wrote:
On the relevance of Reynolds* and Smith** to the other First Amendment stuff: Isn't the question with respect to all "track two" regulations (what used to be called "time, place, and manner," and what we now call -- not insignificantly in this context -- facially neutral regulations [with disparate impact]), exactly whether, when, and to what extent the government has to accommodate its neutral regulations (in this instance, what I like to call the background law of property) to the circumstances of particular claimants? (The hostile audience problem has a similar analytic structure.)
***And, again not so incidentally, there's an analogue in equal protection law, with facially neutral regulations having a disparate adverse impact on racial minorities. So, in short, there are analytic connections that one can draw among these various areas. How to do so in the time allotted, which is where this thread began, is quite another question.
*Reynolds refers to Reynolds v. Sims (1964) 377 US 533 which holds it a violation of equal protection of law to gerrymander the legislative districts to deprive people of their voting power. Gerrymandering is where the politician picks the voters instead of the voters picking the politician.
Reynolds is the famous "One-Person, One Vote" case that sparked off the legislative redistricting battles that occur with every decennial census as the party in power seeks to reapportion the votes by redrawing the districts, as required by law to conform with the population as it changes. They use computers to tell them on which side of the street to draw the line that both includes and excludes voters according to how individual households registered in the last election.
See Vieth v. Jubelirer, (2004) 541 U.S. 267, in which the Court declines to prohibit political gerrymandering (as opposed to racial gerrymandering, which remains unconstitutional as a violation of Equal Protection) on the ground that the politics of a district shifts over time and circumstance, making ascertainable standards impossible for any court to select or enforce; thus political gerrymandering is not unconstitutional, nor are cases bringing such claims any longer justiciable, despite Reynolds v. Sims. Equal protection protects individuals, not groups or political parties.
Neutral seeming laws may deprive you of your vote, if you don't watch out, and these redistricting sessions are always held behind closed doors.
**Smith refers to Employment Division of Oregon vs. Smith (1988).
Do you see what is going on here?
In order to make sense out of the cases, as the Court struggles with new claims of violations of Constitutional Law, the thinkers about Constitutional Law, in this case a distinguished professor, MT, are forced to try to see, or drag in, the underlying principles. The problem isn't to think of the words, or the doctrines. We already know a great many of those. The problem, instead, is to think which body of doctrine (not just one isolated idea) better fits this problem. And not just this one problem, but others like it that may arise in other contexts down the road that we don't have in mind at the moment.
"Time, place, and manner" regulations have to be thought of, to make sense, in a new light: facially neutral regulations [with disparate impact]).
Why? Because those supposedly neutral regulations are falling more heavily on some people and not others.
When crack cocaine first appeared, new laws were passed against it. Prison sentences were longer for crack, because it was so much more rapidly addictive than ordinary powdered cocaine that had been around for a long time. But a lot more blacks than whites wound up going to prison? Why? Because crack was a crystallized form of cocaine that could be sold one or two tiny rocks at a time for smoking. Poor blacks in ghettoes could afford one or two rocks. Whites didn't need rocks. Whites bought larger bindles (envelopes, bundles) of powder.
Nothing wrong with outlawing cocaine, is there? It ruins lives. But blacks were getting twenty years when whites were getting five. A facially neutral law was having a disparate impact on a racial minority, even though the legislature that passed the new anti-cocaine law may not have been trying to accomplish such an effect directly or indirectly.
Here's another example. We have laws against drugs. All people, regardless of race, creed, or color, may not possess certain outlawed drugs: marijuana, heroin, cocaine, peyote, etc.
But peyote is used as a religious sacrament in a legitimate religion called the Native American Church (NAC). Many Native Americans, American Indian people, belong to this church, follow its precepts, and receive its sacraments, just as Catholics take the Eucharist which includes a wafer of bread and a sip of wine, which contains alcohol.
The laws against narcotic drugs, including peyote, are facially neutral, but, in the case of peyote, the criminal prohibition has a disparate impact on Native American Church members, just as Prohibition had as to Catholics, had not a statutory (state/local option, remember) exception been allowed. But there's no exception for peyote. The Native Americans didn't have the political clout that Catholics had.
But if the other churches, Christians and Jews, line up to back the NAC, then there's clout. See the references on this site to the Smith case (Employment Division of Oregon v. Smith, (1986).
If the legislature wants to outlaw speeding on the freeway, and passes a law prohibiting all persons from speeding, must it make an exception for the Church of the Heavy Foot? Those folks who as a matter of divine belief hold that going very fast is a good thing and the way to salvation?
We seem to have a little problem here.
When does a facially neutral law become unconstitutional and when is it not? When the impact is disparate on racial or religious minorities? How shall we define that? This is when we need Mark Twain, to help us find just the right words for just the right ideas.
A good writer, like Twain, spends a great deal of time trying to come up with exactly the right word to express the idea he needs to get across, otherwise his life is hardly worth living or he's not a writer. The need to express himself properly and accurately is why he writes.
Architects speak of the vocabulary of architecture. Ask an architect to design you a bank in the form of a Greek temple and he knows what to do. You'll get columns and a pediment. What kind of capitols do you want on your columns? Ionic? Doric? Corinthian? You got 'em. That's the Greek vocabulary of architecture. Part of it, anyway.
You want lovely, graceful windows? How about Venetian. Venetians did great multi-arched windows, to look out at the canals and to view the churches in the distance. Gondolas, slowly poling along. The language of Venetian architecture. Your architect knows how to speak it.
You want a skyscraper? How about the International style? A Wheaties box with glass.
You want to replace the World Trade Center?
Two Wheaties boxes with glass.
Here we have a problem.
We want to remember this time and place and the 3,000 people who died in the attack on 9-11.
We don't want Greek, or Venetian, or International style skyscrapers.
We want new and different with a touch of old, familiar, and comfortable.
The architects are going nuts trying to figure out what to design.
The Committee that pays the architect keeps changing the order.
We don't have an agreed upon doctrine, much less a vocabulary with which to draw the plans upon which to build.
The architects, or the Committee, is having a constitutional crisis, trying to decide the doctrine on which they will formulate their plans.
And so we wait, while they fight it out.
That's Con-law.
We wait while the big boys argue.
We kibbitz.
Try this.
No, not that, it'll never work, here's why.
And so forth.
Thank you so much for making it to here.
I hope it helps you.
It helps me.
***
Kevin Phillips, in The Cousin's War (1999) maintains that out of the same group of people, call it a demographic, who rebelled against the British monarchy in the so-called Glorious Revolution of 1688, in which Parliament becomes sovereign over the King, came the Puritans who are run out after a brief period in power during the time of Shakespeare, when they and the plague shut the London theaters. Elizabeth liked the theater, however, as did her successor, James I. This is why the groups of players, including Shakespeare's invoked nobles as patrons, for protection.
The Puritans arrive in the New World and 150 years later, lead the American Revolution.
From the Puritan stock, argues Phillips, New England and later the North generally, first got rid of, locally, and later opposed, slavery, generaly. Those who weren't in the business of carrying slaves in their ships, that is, and the mill owners who bought Southern cotton to spin and weave into cloth for the world.
So the rebels of England become the revolutionaries of America who become the abolitionist North of Civil War fame.
Then comes the Civil Rights Revolution of the 1950s and 1960s, with Brown v. Board, the Civil Rights Act of 1964, the Voting Rights act of 1965, and cases such as Palmore v. Sidoti (1984) 466 US 429, which holds that government may not bow down to the prejudices of the majority when it comes to civil rights of individuals. See Lawrence v. Texas (2003).
We may not be there yet, but we do seem to be heading in the right direction, apart from the post 9-11 reaction.
Today I see that one senator, a Republican, interestingly, Richard Lugar of Indiana, has come out against a proposal reported in the (you'll need to fill in the registration form) Washington Post today (1/02/05) to detain for life suspected terrorists that the (Republican) Bush Administration doesn't wish either to allow a trial or to let go.
Say what?!!!
I was wondering just what kind of trouble these descendants of Puritans are going to stir up next, these OPMV-infected people, when I came across this Wa-Po article and Sen. Lugar's reaction.
Suddenly I think I know.